I shall not dwell at length on the second portion of M. Viollet’s work, in which he gives a hasty and superficial glance at the Middle Ages. Here I have not been more fortunate than before in verifying his evidence. For example: he dwells at length upon the prior right of purchase which belonged to neighbours. Everyone knows of this custom, the meaning and reason of which are obvious enough. But in M. Viollet’s eyes this right of the neighbours is a vestige of community in land. He does not notice that the preference given in case of sale to a neighbouring proprietor over a distant one has nothing to do with community. Under a system of common ownership this prior claim of the neighbour would not be found. The two things are incompatible. The right of the neighbour is a custom belonging essentially to private property; it is a grave error to convert it into a communistic practice.
Further on, M. Viollet speaks of the Franks; he represents them as “dwelling in small groups called villæ or genealogiæ.” One must never have seen in the charters what a villa is, to imagine it a group of men; and it is something more than rashness to identify the villa with the genealogia. M. Viollet says again that amongst the Franks “the tie of neighbourhood was so strong as to hold in check the rights of blood in matters of succession;” and he does not notice that this is absolutely opposed to the explicit statement of the Salic law. He maintains that the Frank villa was a village community, and quotes section xlv. of the Salic law, which not only does not say one single word about a community, but, on the contrary, one is surprised to find, has nothing whatever to do with one. He maintains that the Ripuarian law requires “the consent of the community” to a sale of land, and quotes a section of the law which merely says that the sale ought to take place in the presence of witnesses and in a public place. It is his own addition that these witnesses are “a community,” and that they have to give their “consent.” Elsewhere he maintains that the Thuringians were unacquainted with the sale of land, and his only proof is the section of the law which authorises such a sale. He says again that according to the Ripuarian law real property could only be sold by virtue of a royal writ; and he supports this statement by a reference to the section of the law which enacts that the purchaser of an estate shall demand a written document from the seller.
M. Viollet’s quotations are always exact in this respect, that the line he quotes is to be found at the place mentioned; their inexactness merely consists in this, that the same line taken with its context means precisely the opposite of what M. Viollet says. In the same way he once quoted a passage from a document of 890 in which he found the word communes; surely this meant community in land, collective ownership. Unluckily it turned out that the document did not contain any reference to community, or even to a village, or to cultivators of the soil; it concerned a dispute between two landowners, an abbot and a count. The adjective communes related not to lands, but to certain “customary rights in a royal forest.” The abbot declared that “these common rights were his,” free of charge, while the count maintained that the abbot had always paid a rent, sub conductione. All this is evidently the very opposite of community; but M. Viollet had seen the word communes, and that was enough.[223] I have gone through his whole work in a similar manner and tried to find a reference that was to the point; and I have not found one.
[198] P. Viollet, Du caractère collectif des premières propriétés immobilières, in the Bibliothèque de l’École des Chartes, 1872, pages 455-504.
[199] “Nec signare quidem aut partiri limite campum Fas erat; in medium quærebant.” M. Viollet makes a mistake, however, as to in medium, which he translates as if it was in commune.
[200] We have italicised the words that are inexact. Diodorus does not say that these men were divided into two “classes;” he does not say that they “declared” the land “common property.” κοίνας ποιήσαντες means that the islands were made common for a moment, it is the statement of a fact, not the announcement of a perpetual institution. In place of “they threw together all their possessions,” the Greek tells us that they clubbed together their resources. However, the chief mistakes are in the last words of the translation.
[201] Viollet, pp. 467-468.
[202] The passage is in Diodorus v. 9, bipontine edit., iii. p. 267.
[203] Thucydides explains this very well: “They lived on the island of Lipara, and went from thence to cultivate the other islands,” iii. 88.
[204] Τὰς νησοὺς εὶς εἴκοσι ἔτη διελόμενοι, πάλιν κληρουχοῖσιν ὄταν ὁ χρόνος οὗτος διέλθη. The word πάλιν means a second time and not periodically. There is no expression such as νῦν ἔτι which the historian would have used if he had meant to imply that it was still practised in his own time. The conjunction ὄταν indicates a single action; the historian has not written όσάκις. It is true he uses κληρουχοῦσι in the present tense; whether copying an old document, or employing the “narrative present” so usual with historians. It is necessary, moreover, to notice the intrinsic meaning of the word κληρουχεῖν; the term is usual enough in Greek for its meaning to be perfectly well ascertained. It is always used of a definitive division, a partition made for all time. We cannot suppose that Diodorus would have used κληρουχεῖν for a temporary and periodical division.