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.