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diff --git a/old/67558-0.txt b/old/67558-0.txt deleted file mode 100644 index 29fbe49..0000000 --- a/old/67558-0.txt +++ /dev/null @@ -1,5431 +0,0 @@ -The Project Gutenberg eBook of The Origin of Property in Land, by -Fustel de Coulanges - -This eBook is for the use of anyone anywhere in the United States and -most other parts of the world at no cost and with almost no restrictions -whatsoever. You may copy it, give it away or re-use it under the terms -of the Project Gutenberg License included with this eBook or online at -www.gutenberg.org. If you are not located in the United States, you -will have to check the laws of the country where you are located before -using this eBook. - -Title: The Origin of Property in Land - with an introductory chapter on the English manor by W. J. Ashley - -Author: Fustel de Coulanges - -Translator: Margaret Ashley - -Contributor: W. J. Ashley - -Release Date: March 4, 2022 [eBook #67558] - -Language: English - -Produced by: Turgut Dincer and the Online Distributed Proofreading Team - at https://www.pgdp.net (This file was produced from images - generously made available by The Internet Archive) - -*** START OF THE PROJECT GUTENBERG EBOOK THE ORIGIN OF PROPERTY IN -LAND *** - - - - - - 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” - -*** END OF THE PROJECT GUTENBERG EBOOK THE ORIGIN OF PROPERTY IN -LAND *** - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the -United States without permission and without paying copyright -royalties. 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