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.