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.