The success, therefore, of Maurer’s theory is not to be attributed to the strength of his evidence. He has not furnished us with a single proof, a single quotation, in support of the community or association of the mark that he pictures to himself as existing when history first begins. Go over the innumerable quotations at the bottom of the pages of his book: more than two-thirds relate to private property; of the rest some hundreds are concerned with minor points unconnected with the subject; not a single one touches the main question; or if there are any which at first sight appear to do so, the slightest examination shows that they have been misunderstood and misinterpreted. The book, nevertheless, has had an enormous influence. It has won many by its neat consistency, others by its apparent learning. Anything like verification of its arguments was gladly dispensed with; especially as this is not an easy thing to do unless you happen to possess the originals. And so, year after year, for forty years, the same story has been repeated, the same arguments brought forward, the same authorities quoted.
I shall not pursue this theory of Maurer’s through the works of all his disciples; but I ought at least to notice in passing the latest of them. Dr. K. Lamprecht has published recently a ponderous and learned work upon the economic life of Germany in the Middle Ages.[183] His first volume is a description of the rural economy of the basin of the Moselle, and his principal object of study is Frank life in this district. Unfortunately, under the influence of the ideas which have been dominant in history since the time of Maurer, he takes as his starting point “the association of the mark,” the Markgenossenschaft. “The Frank people,” he says, “grew out of the mark-association; and that institution has had an influence on the Frank constitution that cannot be overlooked” (p. 51, cf. p. 42). Yet he brings forward absolutely no proof, no indication of this primitive community of the mark, and gives us nothing but the bare assertion.
He says (p. 46) that the mark appears in Frank law as an area of land held in common; but he does not give a single quotation in which the mark means an area of common land, and it is certain he could not produce one. He tells us that he has seen the marca in Ripuarian law, but he neglects to say that this marca is the boundary of a private estate, and therefore exactly the opposite of common land.[184] He also mentions that the word occurs again in an edict of Chilperic, and he omits to add that the word marca was only introduced into this edict by a conjecture of Professor Sohm’s, and that in any case it is impossible to give it in this place the meaning of common land.[185]
“The Frank village,” he says, “was a portion of the mark, and the mark was the common property of all its inhabitants; everything was in common—arable land, meadows, forests.”[186] You look at the foot of the page for the authorities on which this statement is based, and you find a reference to a document of 786; you turn to this; it is in Beyer, (Urkundenbuch zur Geschichte des Mittelrheins, vol. i. p. 19), and you see that it has nothing whatever to do with the mark, that not even the word is to be found in it, and that the document merely relates to a “villa Sentiacus.”
The absence of the term mark, and of all other like terms, from the Franconian laws, does not trouble our author. He discovers there the word vicini. To every one else this word signifies neighbours; and it is easy to see that every system of law must pay some slight attention to the mutual relations of persons who live near together. In the eyes of Dr. Lamprecht, however, vicini stands for associates; neighbourhood and common mark are with him one and the same thing. You have neighbours; therefore you form with them part of an association; therefore the land is common to you and to them: such is his process of reasoning. It would greatly surprise one of our peasants of to-day; they are by no means accustomed to identify neighbourhood and corporate union. But a scholar with a theory does not stoop to such small considerations as this. Perhaps, however, some document has come down to us from the Frank period, which would suggest that the men of that time saw a connection between the two things? Not at all; not a single clause in a law, not a charter, not a document of any kind suggests that the idea of association was connected with that of neighbourhood. The vicini of the Salic law are neighbours in the ordinary sense of the word. But Dr. Lamprecht has a peculiar method of interpreting authorities. There is a certain Merovingian capitulary which runs as follows: “If a man has been killed between two neighbouring villae, without its being known who is the murderer, the count must proceed to the place, call together the neighbours (that is to say, the inhabitants of the two neighbouring villae) to the sound of the trumpet, and summon them to appear before his tribunal on an appointed day, for the purpose of declaring on oath that they are innocent of the murder.” The passage is quite clear, and the method of procedure very natural. But to Dr. Lamprecht it means that the men were “associates of the mark” (p. 13, n. 3), and that they lived in a condition of community. On this he builds up a complete theory of “neighbourhood,” Nachbarschaft, and he maintains “that this ‘neighbourhood’ is one of the principal factors of the Frank organisation” (p. 19).
He comes upon this word vicini, again, in an edict of Chilperic. The fact is that this edict declares, 1st, that land shall continue to pass from father to son in accordance with the old rule; 2nd, that in default of a son the daughter shall inherit; 3rd, that in default of son and daughter, the collateral relations shall take the land and the neighbours shall not take it.[187] This Dr. Lamprecht interprets as if it said that in case of the failure of the direct line the neighbours formerly had the right of taking the land; but the edict of Chilperic does not say this, and the opposite is positively proved by the section on succession (tit. xli.) in the Salic law. Then, starting with this misinterpretation, he goes on to maintain that the vicini had a common right to the land, and were, so to speak, the joint-owners of it; a state of things of which there is not the slightest trace in the documents.
He finds the word vicini again in section xlv. of the Salic law, and at once believes that he has discovered a community, and a community of such a kind that it has the right of excluding every new-comer; so that a man who has obtained a field by purchase or bequest has not the right to occupy it without the leave of all the inhabitants. But read this section xlv. and you will see at once that it does not apply to a man who has got a field by lawful means.[188] You will notice, moreover, if you read the entire section—people are always careful not to quote more than a fragment—that there is no mention of any community. Not a single word throughout these twenty-two lines means or suggests the idea of a community or an association.[189] You do not see a body of inhabitants meeting, deliberating, deciding. What you do see is a man, who, in his own name, enters a complaint before the royal functionary, the count, against a certain person who has taken possession of a piece of land, without any right to it; and the count expels the intruder, not in virtue of the rights of the community—not a word of that—but simply in virtue of the rights of private property, and because the intruder cannot justify his possession by any legitimate title. Where do you find in all this the action of a village community, of an association of the mark? If you think you see it, it is assuredly not because it is in the original, but because your preconceptions have put it there. We have here one of the most striking examples of the result of the subjective method. Your theory requires that a village community should be mentioned in some early document, and you introduce the community into a document where there is nothing about it. And still the mistake might easily have been avoided; for we possess upon this very section xlv. a commentary which was written in 819, and written not by some chance person, but by the counsellors of Louis the Pious.[190] Now these men, who were most of them judges, who consequently were in the habit of administering this law and ought to have known its meaning, saw in it simply this: that if a stranger came and settled himself without a title on land which did not belong to him,[191] it needed only that a single inhabitant should inform the count, and he would put an end to the usurpation. But as there was a final clause to the effect that this work of giving information ought to be performed within twelve months, and that, at the expiration of that term, the intruder could remain on the land and enjoy it in security,[192] the men of 819 demanded that this last clause should be abrogated.[193] Nothing could be plainer than the whole affair in the eyes of every one not under the influence of a preconceived idea. But Professor Lamprecht chooses to suppose that “the men of 819 did not understand this document” (p. 47). This is an easy way out of the difficulty; to understand a document otherwise than Professor Lamprecht understands it, is to misunderstand it. It is not possible, however, to overlook the fact that these counsellors of Louis the Pious were learned men, who spent half their lives in deciding cases of law. It must also be remembered that article xlv. occurs in the law as amended by Charles the Great; and that whatever was its original source, it was still a part of the existing law and actually in force. Copied, as it had been, by the counsellors of Charles, how can it be supposed that it was not intelligible to his son’s counsellors? I confess that, for my own part, I would rather understand it as it was understood by the men of 819 than as it is understood by Professor Lamprecht. I would rather translate it literally in all its simplicity than put a village community into it, which is not otherwise to be found there.
Professor Lamprecht cannot deny that the Salic law mentions enclosures round corn-fields, meadows, and vineyards, and that this is an indication of private property. According to him, it was the kings who altered the old condition of things and introduced these novelties. But this is mere hypothesis. He maintains that the forest and meadowland at any rate continued to be common, and refers to article 27 of the Salic law. You turn to the passage quoted, believing you will there find a mention of a common forest, a forest where all are free to take wood. You find exactly the contrary: “If any one has taken wood from the forest of another, he shall pay a fine of three solidi.”[194] This, then, is a forest which is someone’s private property, a forest wherein none besides the owner has any rights. But Dr. Lamprecht is not troubled by this. According to him, the words silva aliena mean a common forest. But what should lead him to attribute this unusual meaning to the words? “Because,” says he, “in the Salic law the word silva is always used in the sense of common forest” (p. 48). But the word silva occurs nowhere else except in this section. He then translates aliena as if it signified “foreign.” Here we have, indeed, to do with a word which recurs as often as thirty-one times in Salic law; but in each of these thirty-one cases its meaning is unmistakably “belonging to another.” The law, for instance, speaks of messis aliena, sepem alienam, hortum alienum, vinea aliena, servus alienus, litum alienum, caballus alienus, sponsa aliena, uxor aliena. The word is always synonymous with alterius, which is often found taking its place; and these very words silva aliena are replaced in several manuscripts by the words silva alterius.[195] We must also notice that the whole of this section 27 concerns theft committed “in the field of another,” “in the garden of another,” “in the vineyard of another,” and, finally, “in the forest of another.” Doubt is impossible. In every case it is a matter of private property; and the law uses precisely the same expressions about a forest as about a vineyard or garden. Professor Lamprecht’s reading of the passage is opposed to all the evidence. But it was necessary for his argument that the forests should be common; he was only able to find a single section of the law which bore upon forests, and, although this section related to a forest belonging to a single owner, he could not refrain from making use of it; and so he maintains that silva aliena means exactly the opposite of what it does mean.
Again, Professor Lamprecht says (p. 48), that “the meadows were common;” although nothing of the kind is mentioned in the Salic law or in any other document. More than that, if it is a fact that the meadows were common according to the Salic law, how is it that only once in the Salic law is any reference made to meadows, and then only to punish with the enormously heavy fine of 1500 denarii the person who takes a cartload of hay from another man’s field (tit. xxvii., sections 10 and 11)? Professor Lamprecht also maintains that mills were common, although the law only mentions mills belonging to private owners.[196] He fastens on authorities which are absolutely opposed to his theory, and then interprets them according to his liking. If, for instance, he sees that the Salic law punishes severely “anyone who ploughs or sows the field of another without the permission of the owner, extra consilium domini,” he maintains that this regulation is in his eyes an indication of community in land. If he sees in another place that a man who is unable to pay a fine must swear “that he possesses nothing upon the earth or under the earth;” this is so much proof that land is not an object of private ownership. The word facultas occurs frequently in documents of this period, and it always signifies a man’s entire property, real and personal without distinction;[197] but, as the theory requires that real property should not be too prominent in Salic law, Professor Lamprecht supposes that the word applies only to personal property.
Such is the character of the method he follows. By the aid of such so-called scholarship everything is to be traced back to a primitive community. Although the Frank documents of the Merovingian and Carlovingian periods make no mention of such a community, although they show exactly the opposite; the whole rural organisation, the entire social life must be the outgrowth of this community of the mark. “The mark is the foundation, substratum, of everything” (p. 282). An infallible rule is supposed to have been found; and the whole history of the Middle Ages, willy nilly, must be made to fit into it.