The Origin of Property in Land / With an introductory chapter on the English manor by W. J. Ashley

by Fustel de Coulanges

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.