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 ofcoloniand 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 theweakest of their slaves.”[152]Later on we see in the laws of the Burgundians that proprietors of land havecolonito 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 bycoloniwho 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 ofcoloniand slaves make their appearance. Amongst the Thuringians, Frisians and Saxons, there are slaves andliti; 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 adeed of 863, Ansfrid makes a grant of an estate and sixty-four slaves.[163]In 786, Warinus presents the Abbey of Fulde with amarca, which contains thirtyhubæand three hundred and thirty slaves.[164]Some one else, in 787, gives the lands that he owns in themarcaof Wangheim, and, at the same time, the sixty-two slaves who cultivate them.[165]Walafrid, in anothermarca, gives twenty-eight slaves.[166]In 815, we find a man of middle rank possessing sevenmansiand five-and-twenty slaves.[167]From all this the conclusion is inevitable that themarcaorvillais 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 ofTraditionesa 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 thepagus, and the rural unit thevilla, sometimes called themarca. The customaryform is:res sitas in pago N, in villa quæ dicitur N. The wordvillais the same word as we find used in Gaul to designate an estate; the wordmarcawhich 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, adominicumand severalmansi. Thedominicumorcurtis dominicataormansus dominicatusis the portion that the owner has reserved for his own use; the othermansiorhubæ, are the tenant-holdings which he has put into the hands of hiscolonior his serfs. To take an example. Ansfrid in 863 was owner of the villa of Geizefurt, which comprised adominicumof three mansi together with nineteen servilemansi.[168]In 868 themarcaof Gozbotsheim had adominicumof threemansi, seventeen servilemansi, 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 4hubæ dominicales, 8hubæ serviles, 5mansi, vineyards, meadowland, woodland and a mill, to all which are attached thirty slaves.[170]Thedominicumis described in the same way in many other documents.[171]Maurersupposes (p.137) that this expression refers to all that part of the ancient common mark which has become private property. This is a mistake. Thedominicumis the land that the proprietor has not entrusted to tenants.[172]Wherever we find thedominicum, it is an unmistakable sign of a large private estate. Adominicumnecessarily implies a lord and his serfs orcoloni. 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 twomansi, or perhaps only one. Many of the peasants may also have become free men. But thedominicumis still there and bears witness that in an earlier age thevillaormarcahad 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 worduniversitashere 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, hesees the mark. If the King Childebert speaks of thecentena, thecentenamust be themark.[176]The duty of furnishing the king’s agents with a lodging when they are travelling falls on themark.[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 thecomes lociof the laws of the Burgundians,[180]thoughit is certain that thecomes, far from being a village chief, was the royal agent who administered acivitas. He does not fail to seize upon thetunginusas a chief elected by the villagers; which, again, is pure imagination. He even discovers in a formula of Marculf asenior 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 expressionseniori communiis 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 ofthe proprietor or his representative, hisjudex. To tell the truth, thecommunitasin 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. Anythinglike 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,” theMarkgenossenschaft. “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 hedoes 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 themarcain Ripuarian law, but he neglects to say that thismarcais 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 wordmarcawas 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 termmark, and of all other liketerms, from the Franconian laws, does not trouble our author. He discovers there the wordvicini. To every one else this word signifiesneighbours; 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 ofDr.Lamprecht, however,vicinistands forassociates; 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. Theviciniof the Salic law are neighbours in the ordinary sense of the word. ButDr.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 neighbouringvillae, 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 neighbouringvillae) 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 toDr.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 wordvicini, 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]ThisDr.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 ofChilperic 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 thevicinihad 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 wordviciniagain 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 landwhich 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 existinglaw 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 threesolidi.”[194]This, then, is a forest which is someone’s private property, a forest whereinnone besides the owner has any rights. ButDr.Lamprecht is not troubled by this. According to him, the wordssilva alienamean a common forest. But what should lead him to attribute this unusual meaning to the words? “Because,” says he, “in the Salic law the wordsilvais always used in the sense of common forest” (p.48). But the wordsilvaoccurs nowhere else except in this section. He then translatesalienaas 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 ofmessis aliena,sepem alienam,hortum alienum,vinea aliena,servus alienus,litum alienum,caballus alienus,sponsa aliena,uxor aliena. The word is always synonymous withalterius, which is often found taking its place; and these very wordssilva alienaare replaced in several manuscripts by the wordssilva 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 forestas 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 thatsilva alienameans 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 whoploughs 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 wordfacultasoccurs 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 themark. “Themarkis 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, 3edit., 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 saysager publicusand notagerby 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 writtenager publicus, he afterwards writesagerwithout the adjective, is natural enough. If he speaks in one place oftriumvirum agro dandoorde agris dividendis plebi, he has no need to add the adjective which is obviously understood. In chapter xxxv. of book vi. he speaks of thelex 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 theager publicus; but this is very doubtful. Varro,de re rustica1, 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 interpretsde modo agrorum, as if it werede modo agri publici. We must translate literally, and not change the sense.
[59]See theLex dicta Thoria, in theCorpus 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 theDigest, 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 expressionager 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 theager publicuswith theallmend.
[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, seeibidem, iii. 2. Similarly Columella, 1, 2 and 1, 4,pp.27 and 33 of the bipontine edition.
[62]Paul, in theDigest, xviii. 1, 40.
[63]Digest, L., 16, 211.
[64]Ulpian, in theDigest, 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 wordsagri,occupantur,cultores,arva,mutant,superest ager. On the special meaning ofoccupare 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, andCodeof Justinian, ix. 49, 7:quot mancipia in prædiis occupatis teneantur. As to the meaning ofcultores, we must remember thecoloniof whom Tacitus has spoken in the previous chapter. For the meaning ofarva, see Varro,De re rustica, i. 29:arvum est quod aratum est;ibid., i. 13:boves ex arvo reducti; i. 19: adjugera ducenta arvi, boum jugo duo; cf. Cicero,De republ.,v.2, and especially Digest, L., 15, 4.Mutaredoes not mean to exchange among themselves; to express that meaninginter sewould have been needed:mutareby itself is the frequentative ofmovere, 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 thesecultores. 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 wordsorsmeant 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 examplessorssignifies 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 wordalodisin the language of this period has no other meaning but inheritance. [On the meaning ofalodsee chap. iv. in the author’s workL’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 restituatin cujus campovineam posuit.”
[74]“Si vero post interdictum in campo alterius vineam plantare præsumpserit, laborem suum perdat, et vineamcujus est campusaccipiat.”
[75]See the note in the edition of Pertz,p.607; see also Binding, in theFontes 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, Bindingp.142; “Agri communis, nullis terminis limitati, exequationem inter consortes nullo tempore denegandam.” As to the synonymous use ofconsortesand ofcohœredes, see Cicero,in Verrem, III., 23; Paul, in theDigest, xxvii, I., 31; Sidonius,Lettersiv., 24; and many other examples.
[78]Compare the sectionsDe familia herciscundain theDigest, x. 2, and in theCodeof Justinian, iii. 36; see also in theCodeof Justinian, the section iii. 37,de communi dividundo, and especially the lawNo.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 wordpublicusin 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 Alamannorum1;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 wordsterræ arealesorarialesare to be found especially in theCodex Fuldensisof Dronke,Nos.16, 78, 155, etc., and in theTraditiones possessionesque Wissemburgensesof 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 theCodex Diplomaticusand theSyllogiof Guden, 1728, 1743; theCodex traditionum Corbeiensiumof Falke, 1752; theMonumenta Boica, beginning in 1763; theCodex Laureshamensis abbatiæ diplomaticus, 1768; theSubsidiaand theNova Subsidia diplomaticaof Wurdtwein, 1772-1781; theCodex diplomaticus Alemanniæof Neugart, 1791; theUrkundenbuchfor the history of the Lower Rhine district by Lacomblet, 1840; theTraditiones Wissemburgensesof Zeuss, 1842; theTraditiones Fuldensesof Dronke, 1844; and by the same editor, theCodex 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 GeschichteWestphalens, 1825; Bodmann,RheingauischeAlterthümer, 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 theUrkundenbuch der Abtei S. Gallen, 1863.
[102]Codex LaureshamensisNo.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 theInstrumenta: “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 ofSt.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 greatmarcacontains several hamlets (dörfer); as in Gaul thevillasometimes contains severalvici. This will not surprise anyone who has examined the nature and extent of rural estates in the 6th century. In a document in theCodex Laureshamensis,vol.iii.p.237, amarcaincludes severalvillæ. 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.Capitularyof 799, art. 19; of 808; of 811;edit.Borétius,pp.51, 139, 167.
[116]Maurer seems to me to have made another mistake in identifyingmarkwithgau(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 amarkis situated in such and such apagus, which shows clearly enough thatmarcaandpagusare 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 themarcaHameristad, “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 wordsorsis 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 theMonumenta Boica,vol.xi.p.33. The estate in question is thevillaYserhofen. 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 themaximus campus,secundus, andtertius, 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 ofportio. 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. Aportiois spoken of assold,bequeathed, andgiven.
[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 theDigest, 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.