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.