chapter xxvi. follows chapter xxv., where Tacitus has said that the

soil is cultivated by slaves, each paying certain dues to his master. After a sort of parenthesis on the freedmen, he returns to these _cultores_. He shows how they farm, and he blames their method. The chapter ought to be closely scanned and translated word for word with the meaning each word had in the time of Tacitus, and not hastily rendered to suit some preconceived idea.

[66] _In sortem alterius fuerit ingressus._ In the documents from the 4th to the 8th century the word _sors_ meant a private property: _sors patrimonium significat_, says the grammarian Festus. The contribution of corn is proportional, says the Theodosian code, to the extent of the properties, _pro modo sortium_, xi. 1,15. Cassiodorus, _Letters_, viii. 26: _sortes propriæ_. Laws of the Visigoths, viii. 8, 5: _sortem suam claudere_, x. 1, 7: _terra in qua sortem non habet_. Salic law, Behrend, p. 112: _Si quis in mansionem aut sortem_. Law of the Burgundians, xlvii. 3: _Filii sortem parentum vel facultatem vindicabunt_; lxxviii.: _Si pater cum filiis sortem suam diviserit_. In all these examples _sors_ signifies property or inheritance.

[67] _Lex Alamannorum_, xlv. and xlvi. edit. Pertz, p. 61; edit. Lehmann, pp. 105-106.

[68] _Lex Baiuwariorum_, xiii, 9, Pertz, p. 316.

[69] _Ibidem_, xii, 8, Pertz, p. 312.

[70] _Ibidem_: “Hucusque antecessores mei tenuerunt et in alodem mihi reliquerunt.” The word _alodis_ in the language of this period has no other meaning but inheritance. [On the meaning of _alod_ see chap. iv. in the author’s work _L’Alleu et le Domaine Rural_, which has appeared since his death.]

[71] Maurer, _Einleitung_, pp. 87, 88 and 145.

[72] “Si quis tam burgundio quam romanus in silva communi exartum fecerit, aliud tantum spatii de silva hospiti suo consignet, et exartum quod fecit, remota hospitis communione, possideat.”

[73] “Quicumque in communi campo vineam plantaverit, similem campum illi restituat _in cujus campo_ vineam posuit.”

[74] “Si vero post interdictum in campo alterius vineam plantare præsumpserit, laborem suum perdat, et vineam _cujus est campus_ accipiat.”

[75] See the note in the edition of Pertz, p. 607; see also Binding, in the _Fontes rerum Bernensium_, I. p. 142.

[76] “Silvarum, montium, et pascui unicuique pro rata possessionis suppetit esse commune.” The same rule is to be found in another form in the law of the Burgundians, tit. 67: “Quicumque agrum vel colonicas tenent, secundum terrarum modum vel possessionis suæ ratam, sic silvam inter se noverint dividendam.” Neither in the one passage nor in the other is there any reference to a forest common to all.

[77] _Lex romana Burgund._, ed. Pertz, p. 607, Binding p. 142; “Agri communis, nullis terminis limitati, exequationem inter consortes nullo tempore denegandam.” As to the synonymous use of _consortes_ and of _cohœredes_, see Cicero, _in Verrem_, III., 23; Paul, in the _Digest_, xxvii, I., 31; Sidonius, _Letters_ iv., 24; and many other examples.

[78] Compare the sections _De familia herciscunda_ in the _Digest_, x. 2, and in the _Code_ of Justinian, iii. 36; see also in the _Code_ of Justinian, the section iii. 37, _de communi dividundo_, and especially the law No. 5.

[79] _Lex Burgundionum_, xxvii. and xxviii., 1-2.

[80] _Ibidem_, xxxviii. 4; cf. xlix. 3; “dominus extra fines suos.”

[81] _Ibidem_, lv.; “ex ejus agri finibus quem barbarus cum mancipiis publica largitione percepit.” _Publica largitione_, by the gift of the king. This is the meaning of the word _publicus_ in the language of the time.

[82] _Lex Wisigothorum_, viii. 3, 15; viii. 5, 1; viii. 4, 27; “silvæ dominus; is cujus pascua sunt.”

[83] _Lex Langobardorum_, Rotharis, 240.

[84] _Ibidem_, Liutprand, 116; Rotharis, 173.

[85] _Lex salica_, 59; “Si quis mortuus fuerit et filios non dimiserit.” These words, with which the chapter begins, manifestly imply that the inheritance goes first to the son; sect. 5; “De terra nulla in muliere hereditas; ad virilem sexum tota terra pertineat.”

[86] _Ibidem_, ix. 4; Wolfenbüttel MS., ix. 9; cf. xvi. 5; xxxiv. 1.

[87] _Ibidem_, xxvii. 18.

[88] _Lex Ripuaria_, 43, 56, 60, 82.

[89] _Lex Alamannorum_ 1; proprietas in perpetuo permaneat.

[90] _Ibidem_, 2; si ipse qui dedit vel aliquis de heredibus suis.... Cf. _ibid._, 57.

[91] _Ibidem_, 80 (83), edit. Lehmann, pp. 144, 145.

[92] _Lex Alamannorum_, art. 81 (84), edit. Lehmann, pp. 145, 146. Pertz, 113 and 163.

[93] _Lex Baiuwariorum_, xii, 4.

[94] _Ibidem_, xii, 4, Pertz, p. 311.

[95] _Ibidem_, xvi., 2. Pertz, p. 321; cf. _ibid._ 15, and xxii. p. 332.

[96] M. Viollet copies Maurer, but forces the meaning still further: “King Chilperic,” says he, “was obliged to declare that the neighbours should not succeed and that the sons should” (_Bibl. de l’École des Chartes_, 1872, p. 492). Such an interpretation is the very opposite of the original.

[97] Neugart, i. p. 153.

[98] The words _terræ areales_ or _ariales_ are to be found especially in the _Codex Fuldensis_ of Dronke, Nos. 16, 78, 155, etc., and in the _Traditiones possessionesque Wissemburgenses_ of Zeuss, Nos. 9, 35, 52, etc.

[99] Victor Vitensis, i. 4; “Exercitui provinciam Zeugitanam funicuo hereditates divisit.”

[100] Procopius, _Gothic War_, i. 1.

[101] The chief of these collections are the _Codex Diplomaticus_ and the _Syllogi_ of Guden, 1728, 1743; the _Codex traditionum Corbeiensium_ of Falke, 1752; the _Monumenta Boica_, beginning in 1763; the _Codex Laureshamensis abbatiæ diplomaticus_, 1768; the _Subsidia_ and the _Nova Subsidia diplomatica_ of Wurdtwein, 1772-1781; the _Codex diplomaticus Alemanniæ_ of Neugart, 1791; the _Urkundenbuch_ for the history of the Lower Rhine district by Lacomblet, 1840; the _Traditiones Wissemburgenses_ of Zeuss, 1842; the _Traditiones Fuldenses_ of Dronke, 1844; and by the same editor, the _Codex diplomaticus Fuldensis_, 1850. Add to these certain works wherein a great number of similar documents have been printed: Meichelbeck, _Historia Frisingensis_, 1724; Hontheim, _Historia Trevirensis diplomatica_, 1750; Schœpflin, _Alsatia diplomatica_, 1772; Wigand, _Archiv für Geschichte Westphalens_, 1825; Bodmann, _Rheingauische Alterthümer_, 1819; Mone, _Zeitschrift für die Geschichte des Oberrheins_, 1850. Since Maurer wrote, several other collections have been printed, especially those of Beyer, _Urkundenbuch ..., mittelrheinischen Territorien_, 1860; Binding, _Fontes rerum Bernensium_, 1883; and the _Urkundenbuch der Abtei S. Gallen_, 1863.

[102] _Codex Laureshamensis_ No. 11, p. 25-26: “Ego Wigbertus dono ad Sanctum Nazarium, ... in mansis, terris, campis, pratis, ... quantumcunque in his locis proprium habere videor ... dono trado atque transfundo perpetualiter ad possidendum, jure et potestate habendi, tenendi, donandi, commutandi, vel quidquid exinde facere volueritis liberam ac firmissimam habeatis potestatem.”

[103] _Codex Laureshamensis_, No. 12: “Dono ad Sanctum Nazarium ... de propria alode nostra in locis nuncupatis ... ubicunque moderno tempore mea videtur esse possessio vel dominatio, de jure meo in jus ac dominationem S. Nazarii dono trado atque transfundo.”

[104] Neugart, p. 401, anno 879: “Donamus ... ut perpetualiter teneant atque possideant.” Meichelbeck, pp. 48 and 53 of the _Instrumenta_: “Donamus ... rem propriam nostram;” p. 67: “propriam alodem;” p. 36: “rem propriam ... in possessionem perpetuam.”

[105] Lacomblet, No. 4.

[106] Meichelbeck, _Instrumenta_, p. 27: “Ego Chunipertus propriam hereditatem quam genitor meus mihi in hereditatem reliquit.” Lacomblet, No. 8, anno 796: “Omne quod mihi jure hereditario legibus obvenit in villa Bidnengheim.” Neugart, No. 305, anno 843: “Quidquid proprietatis in Alemannia visus sum habere, sive ex paterna hereditate seu ex acquisito, sive divisum habeam cum meis coheredibus seu indivisum ... id est domibus, edificiis, mancipiis, campis, pomiferis, pratis, pascuis, silvis, viis, aquis, cultis et incultis.”

[107] Meichelbeck, p. 27, document of the 8th century: “Tradidi territorium, prata, pascua, aquarum decursibus, silvis, virgultis, omne cultum aut non cultum, in possessionem perpetuam.” Lacomblet, No. 4, anno 794: “Terram proprii juris mei ... cum silvis, pratis, pascuis, perviis, aquis.”

[108] Not unduly to prolong this discussion we will leave on one side the documents of the 14th and 15th century. It will be enough to examine those of an earlier date.

[109] _Codex Laureshamensis_, No. 6, vol. i. p. 15.

[110] _Diplomata_, edit. Pardessus, No. 341.

[111] See especially the charters of the Abbey of St. Gall, Nos. 185, 186, 187, etc.

[112] Maurer, _Einleitung_, pp. 41, 42, 45.

[113] _Codex Laureshamensis_, No. 34, i., pp. 70, 71.

[114] Sometimes a great _marca_ contains several hamlets (dörfer); as in Gaul the _villa_ sometimes contains several _vici_. This will not surprise anyone who has examined the nature and extent of rural estates in the 6th century. In a document in the _Codex Laureshamensis_, vol. iii. p. 237, a _marca_ includes several _villæ_. This case is rare, and does not change the nature of the mark.

[115] _Marii Aventici chronicon_, ed. Arndt, p. 15. _Lex Alamannorum_, xlvii. _Lex Baiuwariorum_, xiii., 9, Pertz, p. 316. _Capitulary_ of 799, art. 19; of 808; of 811; edit. Borétius, pp. 51, 139, 167.

[116] Maurer seems to me to have made another mistake in identifying _mark_ with _gau_ (p. 59). No document gives the two terms as synonymous: on the contrary, there are hundreds of documents which tell us that such and such a _mark_ is situated in such and such a _pagus_, which shows clearly enough that _marca_ and _pagus_ are not the same thing.

[117] _Diplomata_, ed. Pardessus, ii. p. 434.

[118] _Ibidem_, ii. 440.

[119] Schœpflin, _Alsat. diplom._, i. p. 13, a charter of the year 730, wherein Theodo sells all that he possesses in the _marca_ Hameristad, “quantum in ipso fine est, ea ratione ut ab hac die habeatis ipsas terras et silvas ... et quidquid exinde facere volueritis liberam habeatis potestatem.”

[120] _Codex Laureshamensis_, No. 15, v. i. p. 34.

[121] _Tradit. Wissemburgenses_, No. 127.

[122] See for example a charter of the 8th century, where we read: “Ego Oda dono in Pingumarca quidquid proprietatis habeo, id est, terris, vineis, pratis, silvis, totum et integrum.” (_Codex Fuldensis_, No. xv. p. 11.)--Neugart, i. p. 301, an exchange of 858: “Dedit 105 juchos de terra arabili et de silva 140 juchos, et accepit a Willelmo in eadem marcha quidquid ex paterno jure habebat, id est 105 juchos de terra arabili cum omnibus appenditiis, silvis, viis, alpibus, aquis.”

[123] Maurer, _Einleitung_, pages 73, and 80.

[124] Read the whole passage. _Translatio S. Alexandri_, in Pertz, vol. ii. p. 675, “Eo tempore quo Theodoricus rex Francorum, contra Irmenfredum, ducem Thuringorum, dimicans ... conduxit Saxones in adjutorium, promissis pro victoria habitandi sedibus.... Terram juxta pollicitationem suam iis delegavit. Qui eam sorte dividentes, partem illius colonis tradiderunt, singuli pro sorte sua sub tributo exercendam; cetera vero loca ipsi possederunt.” Do not forget that the word _sors_ is the usual term in the language of the period for property. The narrative shows clearly that it is a division made for ever that is here described.

[125] Helmold, _chr. Slav._ i. c. 91: “Adduxit multitudinem populorum de Westphalia, ut incolerent terram Polaborum, et divisit eis terram in funiculo distributionis.”

[126] Charter of 1247 in the _Monumenta Boica_, vol. xi. p. 33. The estate in question is the _villa_ Yserhofen. Its owner is the Abbot of Niederalteich: “Cum ad hoc devenisset quod agros et prata, quia diu sine colonis exstiterant, nullus sciret ... rustici ecclesiæ pro quantitate et limitibus contenderent. Ego Hermannus abbas ... compromissum fuit ut maximus campus per funiculos mensuraretur et cuilibet hubæ 12 jugera deputarentur ... in totidem partes secundus campus et tertius divideretur.... Inchoata est ista divisio per Alwinum monachum scribentem et fratrem Bertholdum prepositum et Rudolfum officialem cum funiculis mensurantes.”

[127] [M. Fustel uses the term “les trois catégories;” but the _maximus campus_, _secundus_, and _tertius_, would point rather to the “three-field system.”]

[128] _Codex Laureshamensis_, No. 106, p. 164.

[129] Wigand, _Archiv_, i. 2, p. 86.

[130] _Codex Lauresh._, No. 69, p. 74: “Quidquid de rebus propriis habere videbatur in villa Brunnon et tres partes de illa marca silvatica, portione videlicet sua.” I will explain elsewhere the meaning of _portio_. All I need say at present is that this word, which occurs more than three hundred times in our authorities, always means a part belonging to an owner. A _portio_ is spoken of as _sold_, _bequeathed_, and _given_.

[131] Lacomblet, No. 7: “Hovam integram et scara in silva juxta formam hovæ plenæ ... jure hereditario.”

[132] To be found in Mone, _Zeitschrift für Geschichte des Oberrheins_, vol. i. pp. 405-406.

[133] [As late as the 13th century in England “the typical struggle as to common rights was not a struggle between lords and commoners, but a struggle between the men or the lords of two different townships.” Maitland, _Bracton’s Note-Book_, I., 136.]

[134] This is to be found even in Roman law. See Scævola, in the _Digest_, viii. 5, 20: “Plures ex municipibus, qui diversa prædia possidebant, saltum communem, ut jus compascendi haberent, mercati sunt, idque etiam a successoribus eorum observatum est.”

[135] Deed of exchange of the year 871 in Neugart, No. 461, vol. i. p. 377: “Dedimus illi in proprietatem jugera 105 et de communi silva quantum ad portionem nostram pertinet.... Et de silva juxta estimationem nostræ portionis in communi silva.”

[136] Lacomblet, No. 22, document of 801: “Tradidi particulam hereditatis meæ in villa Englandi ... et duodecimam partem in silva Braclog.”

[137] Kindlinger, _Münsterische Beiträge_, ii. 3: “Est ibi silva communis.... Silva domini quæ singularis est.”

[138] Maurer, _Einleitung_, p. 115, following Bodmann, _Rheingauische Alterthümer_, i. 453: “In hac silva nullus nostrum privatum habebat quidquid, sed communiter pertinebat ad omnes villæ nostræ incolas.”

[139] Deed of exchange of the year 905, Neugart, No. 653, vol. i. p. 539: “Curtile unum ... cum tali usu silvatico ut qui illic sedent, sterilia et jacentia ligna licenter colligant.” Cf. _Lex Burgundionum_, xxviii. 1.

[140] Neugart, No. 624, vol. i. p. 511, acte de 896: “Curtilia quæ sunt sex et inter arvam terram et prata juchos 378, cum omnibus usibus ad ipsa curtilia in eadem marcha (Johannisvillare) pertinentibus.”

[141] Alamannic formula, Rozière, No. 401: “In silva lignorum materiarumque cæsuram pastumque vel saginam animalium.” Lacomblet, No. 20: “Cum pastu plenissimo juxta modulum curtilis ipsius.” Neugart, No. 462: “Tradidi quinque hobas et quidquid ad illas pertinet et ad unamquamque hobam decem porcos saginandos in proprietate mea in silva Lotstetin quando ibi glandes inveniri possunt.” Mone, _Zeitschrift_, i. 395: “Eodem jure quo licitum est villanis ... possunt oves suas vel alia animalia pascere in communibus pascuis dictæ villae.” Schœpflin, _Alsatia dipl._, ii. 49: “Jus utendi lignis in silva Heingereite.” _Codex Laureshamensis_, No. 105, i. p. 164, anno 815: “Tradidit Alfger terram ad modia 10 sementis, et prata, et in illam silvam porcos duos, et in Rosmalla mansum plenum cum pratis et in silvam porcos sex.” Guden, _Codex dipl._, i. 920: “Universitas rusticorum habet jus (in ea villa) secandi ligna pro suis usibus et edificiis.”

[142] _Codex Laureshamensis_, No. 34, vol. i. p. 68: “Ego Ansfridus ... trado res proprietatis meæ in Odeheimero marca, in villa Geizefurt, hoc est, mansum indominicatum habentem hobas 3, et hubas serviles 19, et silvam in quam mittere possumus mille porcos saginari, et quidquid in eadem marca villave habeo proprietatis, exceptis tribus hobis quam habet Wolfbrat et in eamdem silvam debet mittere porcos 10, alteram habet Thudolf, tertiam Sigebure et debent mittere in silvam uterque porcos 10, et nullam aliam utilitatem sive ad extirpandum sive in cesura ligni. Unusquisque autem de servis de sua huba debet mittere in silvam porcos 5.... Hæc omnia de jure meo in jus et dominium S. Nazarii perpetualiter possidendum.”

[143] Example in Lacomblet, vol. ii., p. 42.

[144] _Ibidem_: “Homines ... ex communione silvæ ... persolvunt censum 32 denariorum. Homines in hac silva communionem habentes persolvunt tres modios avenæ. Homines de communi silva quam vocant Holzmarca persolvunt curti adjacenti duos modios avenæ.”

[145] Lacomblet, _Urk. für die Gesch. des Niederrheins_, No. 3, anno 793. Zeuss, _Tradit. Wissemburgenses_, No. 200. Beyer, _Urkundenbuch zur Gesch. der Mittelrheinischen Territorien_, No. 10, anno 868.

[146] _Formulæ_, ed. Rozière, No. 172, ed. Zeumer, p. 276: “Dulcissimis nepotibus meis ... dono rem meam, id est, mansos tantos cum ædificiis, una cum terris, silvis, campis, pratis, pascuis, communiis, mancipiis ibidem commanentibus, et quidquid in ipso loco mea est possessio vel dominatio.” The word _dominatio_, which is found more than 500 times in charters, has never any other sense than private property, _dominium_.

[147] In Wurdtwein, _Nova subsidia diplomatica_, vol. xii., p. 88: “Tradidimus fundum Uterinæ vallis ... quem habemus a progenitoribus.” This _fundus_ has well-marked bounds, and the charter mentions them all. “His terminis fundus tenetur inclusus, certis indiciis designatur.”

[148] “Silvæ quoque adjacentis eidem fundo, quæ vulgari lingua almenda nominatur, quam rustici frequentant, quæ juris nostri sicut et illorum esse dinoscitur communione ad omnem utilitatem....”

[149] “Jura etiam civilia eidem fundo competentia, a progenitoribus nostris tradita, huic cartæ dignum duximus inserenda, ne forte succedente tempore excidant a memoria.”

[150] The same position of affairs is found in a document of 1279, in Wurdtwein, _ibidem_, p. 218, which Maurer cites, without mentioning that it refers to an arrangement between an abbot and his _villani_.

[151] Tacitus, _Germania_, 25: “Servis ... frumenti modum dominus aut pecoris aut vestis, ut colono, injungit; et servus hactenus paret.”

[152] Tacitus, _Germania_, 15: “Delegata domus et penatium et agrorum cura feminis senibusque et infirmissimo cuique ex familia. Ipsi hebent.” In Latin _familia_ means the whole body of slaves belonging to one man.

[153] _Lex Burgund._, 68: “Quicumque agrum aut colonicas tenent.”

[154] _Ibidem_, 38, 10: “De Burgundionum colonis et servis.”

[155] _Ibidem_, 50, 5: “Si privati hominis actorem occiderit.” 38, 9: “Si in villa conductor....”

[156] _Ibidem_, 55: “Quicumque agrum cum mancipiis largitione nostra percepit.”

[157] _Lex Alamann._, _pactus_, 8, 19, 20, 21; _lex_, 22-23.

[158] _Ibid._, 79: edit. Lehmann, pp. 138-139. “Si pastor porcorum.... Si pastor ovium qui 80 capita in grege habet domini sui.... Si seniscalcus qui servus est et dominus ejus 12 vassos infra domum habet.... Si mariscalcus qui super 12 caballos est.”

[159] _Lex. Alam._, 81, edit. Lehmann, 77, p. 141: “Si servi domum incenderit ... scuriam vel graneam servi si incenderit.”

[160] _Ibidem_, art. 4 (6): “Si spicariam servi incenderit, 3 solidis; et si domini, sex solidis.”

[161] See, for example, a document of 797 in Lacomblet, No. 9: “Dono ... unam hovam quam proserviunt liti mei; No. 4: terram quam Landulfus litus meus incolebat et proserviebat.” [As to the _liti_, see also Fustel de Coulanges, _L’Alleu_, p. 342, and Schmid, _Gesetze der Angelsachsen_, pp. 5 (Aethelbirht, 26), 409 (Formula).]

[162] The usual formula runs: “Dono curtem cum domibus accolabus, mancipiis, vineis, campis, silvis, etc.” Lacomblet, No. 1 _et seq._; Meichelbeck, pp. 27, 34, 36, 49, 51, etc.; Neugart, passim. _Laureshamensis_, No. 1: “Villam nostram cum omni integritate sua, terris, domibus, litis, libertis, conlibertis, mancipiis.” _Monumenta Boica_, viii. 365: “Colonos seu tributales;” xi. pp. 14 et 15: “Dedit mansos 26 et vineas cum cultoribus suis.” Zeuss, No. 21: “villam ... cum hominibus commanentibus.” Zeuss, 36: “Ipsi servi qui ipsas hobas tenent.”

[163] _Codex Laureshamensis_, No. 33.

[164] Dronke, _Codex Fuldensis_, No. 84.

[165] _Ibidem_, No. 88.

[166] _Ibidem_, No. 163.

[167] _Codex Laureshamensis_, No. 105. Cf. Zeuss, No. 26, where an owner sells an estate with twenty-two slaves, whose names he gives.

[168] _Codex Laureshamensis_, No. 33.

[169] _Ibidem_, No. 37.

[170] _Ibidem_, No. 83.

[171] Thus in the villa Frankenheim there is a _curtile dominicatum_, Zeuss, _Traditiones Wissemb._, No. 127; in the villa Cazfeldes a _terra indominicata_, _ibid._, No. 3; in the villa Oterefheim a _curtile indominicatum_, _ibid._, No. 19; in the villa or marca Bruningsdorf, a _curtis indominicata_, comprising houses, stables and barns, and having attached to it about 100 acres in meadows, fields, vineyards, and woods, _ibidem_, No. 25.

[172] The _dominicum_ is mentioned in the laws of the Alamanni, 22: “servi faciant tres dies sibi et tres in dominico;” and in the law of the Bavarians, 1, 14: “servus tres dies in hebdomada in dominico operetur, tres vero sibi faciat.” It is generally known that it was the almost universal practice for the _dominicum_ to be tilled and reaped by the tenants.

[173] Maurer, _Einleitung_, p. 138. _Lex Burgundionum_, xlix. 3: “Quod prius statutum est, universitatem convenit observare.” Cf. the frequent phrase: “noverit universitas fidelium nostrorum.”

[174] _Lex Wisigothorum_, x. 3, 2.

[175] Salic law, 33; Ripuarian law, 42. Cf. the anecdote told by Gregory of Tours, _Hist._, x. 10, which is the opposite of what Maurer here maintains.

[176] Maurer, _Einleitung_, p. 164.

[177] _Ibid._, pp. 165-166.

[178] _Ibid._, p. 167.

[179] _Lex Alamann._, xlv. Pertz, p. 60; edit. Lehmann, pp. 104-105. It is the word _pares_ which deceives him. He believes he sees in this word the “markgenossen”; but _pares_ means the companions, the friends, those who have adopted the cause of one or other of the adversaries. Similarly article 93 of the same law punishes the man who, while with the army, deserts _parem suum_, _i.e._, his comrade in the battle.

[180] Maurer, p. 140.--Cf. _Lex Burgund._, xlix, 1: “locorum comites atque præpositi.”

[181] Maurer, p. 140. Marculf, i, 7: “Consensus civium pro episcopatu. Piissimo ac precellentissimo domno illo rege (regi) vel, (remember that _vel_ meant _and_) seniori commune illo.” _Commune_ is for _communi_; and the meaning of the whole is, “To our most pious and excellent king, chief of all the land.” The words which follow show clearly that the letter is addressed to the king. “Principalis vestræ clementia novit ... etc., suppliciter postulamus ut instituere dignetis inlustrem virum illum cathedræ illius successorem.”

[182] Documents of 1279 and 1290 in Wurdtwein, _Novia subsidia_, xii. 218 and 261: “pratum spectans ad Almeindam nostræ communitatis.” Document of 1231 in Guden, _Codex dipl._, iii. p. 1102: “contulerunt pascua communitatis quæ vulgariter Almeina vocantur.”

[183] Karl Lamprecht, _Deutsches Wirthschaftsleben im Mittelalter_, Leipzig, 1886. [Summary in _Zeitsch. f.d. gesamte Staatswissenschaft_, XLVI., 527 seq.]

[184] _Lex Ripuaria_, lx. 5; cf. lxxv.

[185] _Edictum Chilperici_, 8.

[186] K. Lamprecht, _Wirthschaft und Recht der Franken zur Zeit der Volksrechte_, in the _Historisches Taschenbuch_, 1883, p. 57.

[187] _Edictum Chilperici_, art. 3: “Filii terram habeant sicut et lex salica habet; si filii defuncti fuerint, filia accipiat terras.... Et si moritur, frater terras accipiat, non vicini. Et si frater moriens non derelinquerit superstitem, tunc soror ad ipsa terra accedat possidenda.”

[188] This is expressed by the words _super alterum_, which mean, “on another man’s land.” It is also expressed by the heading in more than half the MSS., _de eo qui villam alterius occupaverit_.

[189] It is puerile to maintain that _si unus vel aliqui qui in villa consistunt_ means a village community. Where, then, is the word which does mean community?

[190] Pertz, i. 226; Behrend, p. 115, art. 9.

[191] “De eo qui villam alterius occupaverit.”

[192] “Si infra 12 menses nullus testatus fuerit, securus sicut et alii vicini maneat.”

[193] “De hoc capitulo judicaverunt ut nullus villam aut res alterius migrandi gratia per annos tenere possit, sed in quacumque die invasor illarum rerum interpellatus fuerit, aut easdem res quærenti reddat aut eas si potest juxta legem se defendendo sibi vindicet.”

[194] _Lex Salica_, xxvii. 18, ed. Behrend: _Si quis ligna aliena in silva aliena furaverit, solidos 3 culpabilis judicetur_. This is the reading of the Paris MS. 4404. MS. 9653 runs: _Si quis ligna in silva aliena furaverit, solidos 45 culpabilis judicetur_. MS. 4627 runs: _in silva alterius_.

[195] _In silva alterius_, MSS. Paris 4627, Montpellier 136, Saint-Gall 731, Paris 4626, etc.

[196] _Lex salica_, xxii. The Munich MS. has _in mulino alieno_. Further on, _molinarius_ is replaced in the Wolfenbüttel MS. by _is cui molinus est_.

[197] See the _Formulæ of Marculfus_ I. 35; II. 8; _Andegavenses_, 36 (37); Rozière, No. 252; _Turonenses_, 17.

II.

_M. Viollet’s theory as to community of land amongst the Greeks._

M. Viollet is a disciple of Maurer who copies and exaggerates his master. The system that Maurer was able with some show of probability to build up in relation to the Germanic peoples, M. Viollet supposes he can extend to all nations ancient or modern. What is quite fresh in his writings and exclusively his own, is, that he attributes to the ancient Greeks a system of community in land which the most profound students of Greek history had, up to this time, failed to discover. We must not suppose that in laying down such a proposition, he is speaking of some primitive age when the Greeks may be supposed to have been ignorant of agriculture, and consequently of landed property. He is speaking of the times when the Greeks were agriculturists, when they lived in organised societies; he is speaking of Greek cities; and he declares that the soil was for a long time cultivated by the city in common, without its occurring to the family or the individual to appropriate it. All the land, according to him, for a long time belonged not to the individual, not to the family, but to the city.[198]

He states that “his theory is supported by authorities of considerable weight” (p. 463); and he refers to eleven passages taken from Plato, Virgil, Justin, Tibullus, Diodorus on the Lipari Isles, Diogenes Laertius on Pythagoras, Aristotle on the town of Tarentum, Athenæus on Spartan meals, Diodorus on the “klêrouchia,” and lastly, Theophrastus on the sale of real property. Let us look at the originals. Let us see at any rate whether M. Viollet’s references are altogether exact.

1. The first author quoted is Plato, “who still saw here and there the vestiges of primitive community,” and M. Viollet tells us that he finds this in the Laws of Plato (Book III.). I turn to the passage mentioned, and this is what I find: “In very early times men lived in a pastoral state, supporting themselves by their herds of cattle and by hunting. At that time they had no laws. As to government, they knew no other than the δυναστεία, the authority, that is, of the master over his family and slaves. Like the Cyclops of Homer, they had neither public assemblies nor justice; they lived in caverns; and each ruled over his wife and children without troubling himself about his neighbours.” This is what Plato says, describing from imagination a primitive savage state. It must be some strange illusion which makes M. Viollet suppose that this passage describes men as cultivating the land in common. Plato says that they did not cultivate it at all. Where does he see that the land belonged to the people? Plato says that at this time there did not even exist a people. Where does he see that men were associated for purposes of cultivation? Plato says that each family lived apart, “without troubling itself about its neighbours.” M. Viollet then has taken this passage in precisely the opposite sense to the right one. Go through all the writings of the philosopher and you will find that he has nowhere said “that in his time he still saw the ruins of a primitive community.” Plato has, it is true, endowed his ideal city with a particular system of community in land; but he never says that it was practised in any actually existing city. Our first authority, then, is proved to have been misrepresented.

2. M. Viollet next refers to Virgil, who, in the Georgics (i. 125), describes a time “when the soil was neither divided nor marked out by boundaries, and when everything was common.” This at first sight seems convincing. The poet’s verse is correctly quoted.[199] But observe the context. The whole passage is an imaginary description of a time when men did not cultivate the soil: _Ante Jovem nulli subigebant arva coloni.... Ipsa tellus omnia liberius, nullo poscente, ferebat_. So long as men did not cultivate the ground, there could be no question of dividing it among them as private property. Virgil goes on to say that afterwards man learnt to till the ground, _ut sulcis frumenti quæreret herbam_; but he no longer says that everything was in common. It appears, then, that if M. Viollet had given it a little more attention, he would have dispensed with the use of this passage; for it describes savage life and has no connection at all with community of land in the agricultural state. What can the golden age, whether it existed or not, prove concerning the social life of Greek cities?

3. Next comes a quotation from Justin out of Trogus Pompeius. This Gaul, trying to describe the remotest ages of Italy, says that there was a time “when slavery and private property were unknown, and everything was undivided.” The quotation is correct; but what is the time referred to? The age before Jupiter, _ante Jovem_. This is as much as to say, the golden age, or, if you prefer it, the savage state.

4. It is the same with the quotation from Tibullus; it applies “to the time of King Saturn,” that is, to the præ-agricultural age, the golden age of the imagination. If M. Viollet wished to prove that in the golden age private property did not exist, he has succeeded pretty well. But what has this to do with the Greek cities? M. Viollet supposes that legends of this kind represent traditions of an earlier state. This is exceedingly doubtful; and in any case they would be traditions of a time when agriculture was unknown, and when there were neither organised nations nor cities. If there were long ages when mankind did not know how to till the ground, what does that prove in relation to the time when they did cultivate it? We must not lose sight of the proposition our author wishes to establish; it is that men, even after they had entered into city life, cultivated the soil in common instead of appropriating it individually. There is a certain want of caution in thinking that you can prove a system of common cultivation from legends which show the absence of all cultivation.

5. M. Viollet at last comes down to historical times and quotes a passage from Diodorus Siculus. Let us first give his translation as if it were scrupulously exact: “Certain Cnidians and Rhodians colonised the Lipari Isles. As they had much to endure at the hands of Tyrrhenian pirates, they armed some barks wherewith to defend themselves, and divided themselves into two separate _classes_; one was intrusted with the cultivation of the islands, which they _declared common property_; to the other was committed the care of the defence. _Having thus thrown together all their possessions_, and eating together at public meals, they lived in common during several years; but after a time they divided amongst themselves the land of Lipara on which was their town; as to the other islands they continued for some time to be cultivated in common. At last they divided all the islands for a period of twenty years; and at the expiration of this term, they drew lots for them anew.”

Much might be said about this translation, but we wish to be brief.[200] M. Viollet ought, in the first place, to have mentioned the date of this event, since Diodorus gives it: it happened in the fiftieth Olympiad, that is about the year 575. Now, long before this, Cnidus and Rhodes had had a system of private property, and had no trace of common ownership. So these Cnidians and Rhodians may, very likely, have made an experiment of this kind; but it is impossible that their action should illustrate a survival of primitive community as M. Viollet maintains.[201]

The account of the Greek historian also plainly shows the motive which determined these men to leave the land for some time undivided: it was because the Tyrrhenian pirates ravaged the islands to such an extent that the Greeks were obliged to separate into two divisions, the one fighting, the other tilling the ground.[202] But Diodorus goes on to say that this manner of life only lasted a few years. So soon as they had freed themselves from the pirates, the Greeks made a regular settlement in the island of Lipara, that is in the largest and most important island of the little group. They built a town there; and at the same time “they made a partition of the soil.” Now, this partition was never made over again; it was a distribution of shares to be held in perpetuity, that is, as private property. M. Viollet passes over this too hastily; it is of the utmost importance, for it shows us that private property was established directly the Greeks were in anything like a settled condition. The fact that the other islets, more difficult to cultivate and less securely held, remained for some time longer undivided, does not imply that these people lived in a state of agrarian communism. Each of them was a landed proprietor in the main island, and enjoyed certain rights over one of the islets.[203] But even this arrangement did not last long, and the small islands were parcelled out in their turn. There was, it is true, a provisional partition at first, to last for twenty years; there are several very likely explanations for this precautionary measure. Whatever the reason may have been, at the end of twenty years the partition was made over again, and this time it was permanent; for Diodorus never says that a division took place periodically down to his own time.[204]

The whole account of the Greek historian points to the fact that the Greek emigrants established what was customary throughout Greece, a system of private ownership. In order to thoroughly understand it, we must compare this with similar passages in which the same historian shows us Greek colonists dividing the soil amongst themselves from the very first day of their settlement.[205] The settlement of these Cnidians and Rhodians differs from other instances only in this, that it was necessary, for reasons which Diodorus indicates, to postpone the partition for some years. This is what the historian wished to tell us; he never says that these people thought of establishing common ownership: they had no more disposition for it than other Greeks. Whatever communism they may have practised was not an institution, but a temporary condition of things, lasting for a brief period, with no past and no future. Private property was with them, as with all other Greeks, the normal state of things. The account of Diodorus is, we see, the reverse of M. Viollet’s statement; and it is startling to find M. Viollet writing, that “as late as _the time of the Emperor Augustus_, private property was not yet established amongst these Greeks, at the very gates of Rome” (p. 468).

6. M. Viollet now passes on to Pythagoras. On the evidence of a biography of the philosopher written eight hundred years after his death, he relates that Pythagoras got together as many as two thousand disciples, and induced them to live in common. This may be true; but does the fact that a philosopher succeeded in founding a phalanstery, which did not outlast himself, prove that it was habitual at that time for people to live together in common? It seems to me that it proves exactly the opposite. If the disciples of Pythagoras were forced to leave their towns in order to found a communistic settlement, it was because the life in the towns was not communistic. It is certain that this institution of Pythagoras was something exceptional, which left no trace behind it. The story itself, when we look at it, has no connection with a primitive community in land. But notice M. Viollet’s method of proceeding. Just because he comes across these two thousand (others say six hundred) disciples of Pythagoras, he concludes that “we have here the origin of many of the towns in Greater Greece; this shows that these towns were founded and settled under a system of undivided property.” Nothing of the kind. They were all founded before Pythagoras, and outlived him; and neither before nor after his time did they recognise a system of undivided property.[206]

7. We now come to an instance which would appear to be more historical. “The citizens of Tarentum,” says M. Viollet, “seem to have preserved something of their old community in land down to the time of Aristotle.” And he refers to the _Politics_ vi. 3, 5. You turn to the passage quoted and you read as follows: “It is the duty of an intelligent aristocracy to watch over the poor and to furnish them with employment. We should do well to imitate the men of Tarentum; they have portions of land whereof they leave to the poor the common enjoyment (literally, which they make common to the poor for their enjoyment[207]), and in this way they secure the attachment of the lower people.” We see how far removed the original is from M. Viollet’s interpretation of it. Aristotle says nothing whatever of a communistic system. He places Tarentum amongst aristocratic States, and shows that there were poor people, ἄποροι, in it; only he points out that the rich took care to set apart certain land _for the use_ of these poor, in order to win their attachment.[208] M. Viollet has mistaken a charitable institution for a communistic one, though it is perfectly clear that what Aristotle describes was merely a concession made by the rich to the poor; that is to say, it was precisely the opposite of communism.

8. M. Viollet tells us that there are “other survivals which enable us to travel back in thought to primitive common-ownership: there are the common meals;” and he devotes fully three pages to the common meals of the Greeks. He begins with the meal which the Spartans called _Copis_; describes it in detail from Athenæus, and concludes (p. 471): “All this is primitive, and we have here the common meal in all its early simplicity.” Now, it unluckily happens that the meal called _copis_ was in no way a common meal. Ancient writers tell us that the Spartans had some private meals;[209] the _copis_ was one of them. Read the page from Athenæus which M. Viollet has translated; read it in the original;[210] and not only will you not find a word which suggests that the copis was a public meal, but you will find clear evidence to the contrary. “Whoever likes gives the copis, κοπιζει ὁ βουλόμενος,” and he who gives it invites to it whomsoever he pleases, “whether Spartan or stranger.” Such are not the characteristics of public meals ordered and arranged by the State. Let us add that the Greek writer lays stress upon the religious character of this meal; it ought to be celebrated before the god παρὰ τὸν θεὸν, _i.e._, in front of a temple and in presence of the image of the divinity. Ancient rites are observed; a tent must first be built with branches of trees, and the ground strewn with boughs for the company to recline upon; the only meat which may be used is goats’ flesh; and each guest must be presented with a particular kind of loaf, made according to a fixed rule both as to its ingredients and shape. These rites will not surprise anyone who is familiar with early Greek life. Every Spartan could give this repast when he pleased; but the usual custom in the town was to give it “at the festival called Tithenidia, celebrated to secure the health of children;” and the nurses used to bring the little boys to it. The description of Athenæus is perfectly clear. M. Viollet has committed the error of mistaking a private and religious meal for a common meal, and of supposing that he sees in it a sign of community in land.

There still remain the true common meals, which took place daily or almost daily at Sparta, and which were called συσσίτια. M. Viollet says at once that they are evidence of community. It seems reasonable to argue: “If men eat the fruits of the earth in common, it is because in primitive times the earth itself was common;” but we think that M. Viollet ought to have distrusted this apparently logical process of reasoning. If he had studied this institution of common meals at Sparta in the original writers, he could not have failed to notice four circumstances: 1. It does not date from the earliest period of the city; and far from being connected with a time when land may have been common, it is later than the institution at Sparta of private property.[211] 2. These common meals did not constitute a common life; for in the first place the men alone partook of them, not the women nor the children;[212] and in the second place, the men did not take all the meals of the day together, but only one, that of the evening. 3. The expenses of the meal were not defrayed by the community, by the State, but each man had to bring his contribution, which was fixed at a _medimnus_ of flour a month, eight _congii_ of wine, some fruit, and a sum of money for the purchase of meat.[213] This is something very different from citizens being fed in common by the State; they had to eat in common, but each ate at his own expense, because each was the owner of property. 4. The common meals were so far from representing community in goods, that poor Spartans were not admitted to them; a fact which is distinctly mentioned by Aristotle, who goes on to say that these meals were the least democratic things in the world.[214]

It is the greatest mistake to imagine all the Spartans eating of the same dishes at the same table. The so-called common meals were taken in small groups of fifteen members each, in separate houses. Every one was free to choose the group which he wished to join; but he was not admitted except by the unanimous vote of the members composing it.[215] We also know that the meals were somewhat luxurious, and that the famous black broth, μελάς ζῶμος, was merely the prelude to them.[216] It is, then, very evident that these common repasts, whose meaning or object we need not here try to discover, have not the slightest connection with a common life and certainly not with community in land.[217]

M. Viollet also refers to the feasts which the fifty Athenian _prytanes_ used to celebrate near the sacred hearth; reminds us that when the young Athenian was received into the _phratria_, the _phratria_ performed a sacrifice which was followed by a feast; and refers to the feasts which the Roman _curiae_ celebrated before an altar on certain festivals. But one must indeed be dominated by a fixed idea to suppose that these three different kinds of feasts are a proof of community in land. It is exceedingly ingenious to say that “these meals are the lingering evidence of a primitive nomad life and of community in the soil;”[218] but the fact is that they were simply religious ceremonies. They were celebrated around an altar, according to prescribed rites. The custom of a common meal in the presence of the divinity is found in many religions.

9. For his ninth proof, M. Viollet sets before us “a widespread tradition which represents the inhabitants of a country as dividing its soil amongst themselves;” and in support of this he gives a few references to Diodorus. He might have given many more, and to other writers also.[219] What he takes for a vague tradition is an historical fact perfectly well known and authenticated. We know that every Greek city preserved the memory of its foundation, which was the occasion of a yearly festival. This tradition was handed down either by means of religious songs repeated from year to year without any change, or on bronze inscriptions kept in a temple. It is from these sacred records that we obtain such exact evidence as to the founding and founder of each city. Now these records lay stress on two circumstances; the founding of the town on a given day by the performance of a religious ceremony; and the division of the land amongst the citizens,--a division which was effected by a drawing of lots, called κληρουχία or κληροδοσία. These two operations took place at the same time; we might almost say on the same day. Where M. Viollet makes the mistake is in saying that “this division presupposes primitive community, and puts an end to an era of non-division” (p. 473). It is precisely the contrary; for whenever we see Greek emigrants making settlements on territory either previously unoccupied or else conquered by them, we find them _immediately_ founding a town and _immediately_ dividing the soil.[220] The soil may have been conquered in common, but not for one single year is it cultivated in common. They do not divide it “in order to get out of a system of non-division”; but they make haste to divide the country that they have just found unoccupied or have just conquered, so that it shall not remain for one moment undivided.

In those cities, indeed, which date from very early times, there was no occasion for a division. We do not find it in Athens. Why? Because we know that Attica was at first occupied by some hundreds of independent families, γένη; and that these families afterwards were grouped into phratries, and finally into a city. There is no partition here, for each family keeps the land which has belonged to it for centuries. But when it is a case of a colony, a body of people who emigrate and take possession of fresh territory, a division is quite needful. Only this division does not, as M. Viollet would suppose, come at the end of a period of non-division; it is the first step in the establishment of the colony. The practice is one of the most re-markable, and one of the best authenticated of those early times. It proves that the Greek city never cultivated its land in common; that it had no wish for a common ownership of the soil; that the very idea of such a system was unknown to it. If M. Viollet had studied the κληρουχία in all the authorities which refer to it, he would not have supposed for a moment that it could be a proof of community in land, and he would have taken care not to bring it forward in support of a theory of which it is in reality the refutation.

10. I shall not dwell long upon another argument of M. Viollet’s (p. 481). I have elsewhere pointed out that in the most ancient Greek law, as well as in early Hindoo law and with many other peoples, the land originally attached to a family was so closely bound up with it that it could neither be sold, nor transferred to another family, either by bequest or as dower.[221] This rule is clearly explained in many Greek writings; it is the result of the conception of property not as an individual right, but as a family right. A father was compelled to leave it to his sons. Even if there were no son, he could not bequeath or sell it; it must pass to the nearest relation. M. Viollet imagines that there is another explanation. The prohibition of sale and bequest results, according to him, from the circumstance that land was originally common to all. I do not follow the argument. If the soil was originally the common property of the people, and the people maintained a kind of eminent domain over it (which is M. Viollet’s theory), one cannot see why the law should have forbidden the sale of land to another member of the same people; one cannot see why the law should have prohibited any family from parting with it, even in favour of the people itself. The old rule, or rather the ancient custom which forbids a family to separate itself from its land, cannot be a proof of community in land. It only proves the ownership of property by the family. As Plato says, in a passage where he expresses not his own private utopias but the ideas of the men of his time: “You cannot leave your property to whomsoever you please, because your property belongs to your family, that is, to your ancestors and your descendants.”[222] The hypothesis that M. Viollet sets against this is purely fanciful. He appears to believe that the restriction as to sale and bequest weakened the rights of property; he does not observe that it renders inheritance more absolute, and secures the rights of the family. One may search through the whole of Greek law and the whole of Greek literature without finding either the “eminent domain” of the State, or a restoration of the land to a supposed ownership common.

11. M. Viollet’s last argument is taken from a passage of Theophrastus. When Greek law at last authorised the sale of land--property being from that time onwards looked upon as an individual right,--it required that the sale should take place under certain conditions of publicity. “Many legislators,” says Theophrastus, “require that sales should be made by a public crier, and that they should be announced several days beforehand; others prefer that they should take place in the presence of a magistrate; while some lay down that notice of sale must be posted up for sixty days. There are two motives for all this: in the first place that claims may be presented against the seller, and secondly, that all may know who is the new owner.” This sentence is perfectly clear; it tells us that a sale ought to be made publicly, so that it may be surrounded by all possible guarantees; but M. Viollet sees in it something different from this. “If the public are present,” he says, “it is because the land belongs to the people” (pp. 484-485). This is drawing a conclusion of which Theophrastus never dreamt. When he described the various kinds of publicity which were enjoined in the matter of sale, and when he explained in such a natural manner the reasons for this publicity, he did not suppose that his meaning would be so far distorted as to lead to the conclusion that the land had once been common. But M. Viollet has a fixed idea and follows it. If he reads that neighbours act as witnesses to a sale, he adds that their consent had doubtless to be asked, since the land properly belonged to all. If he reads in another passage that it was the custom in a certain town for the purchaser to present three of the neighbours with a small piece of money, so that they might afterwards remember the act and be able to vouch for it, he at once adds that “this piece of money is the price which the purchaser pays to the three neighbours for their original rights over the land.” All this is pure imagination. The Greeks certainly did not connect any idea of community in land with these simple customs.

Such, then, are the eleven authorities by whose help M. Viollet tries to prove that the early Greek cities held their land in common during a period more or less protracted. M. Viollet does not give a single other reference. Now the first taken from Plato, the fifth from Diodorus, and the seventh about Tarentum are absolutely incorrect; the second, third and fourth from Virgil, Trogus Pompeius and Tibullus are beside the subject, since they apply to the tradition of a savage state which does not here concern us; the sixth, the one about Pythagoras, points to an exceptional episode, only lasting for a brief period, and clearly not in harmony with Greek habits; the eighth, about public meals, has been misunderstood; the ninth about the κλερουχίαι, and the tenth concerning the primitive inalienability of land belonging to the family, are absolutely opposed to M. Viollet’s theory; the eleventh points to publicity of sale, not community in land. And so out of eleven quotations or arguments there is not a single one which on examination stands firm.

And this is not all. Supposing that there could be found in the whole of Greek literature two or three, or even eleven, quotations, which seemed to imply community in land, it would still be the duty of every serious historian to look at the evidence on the other side; to search, that is, for other passages or other facts which point to an opposite conclusion. It did not occur to M. Viollet to do this. If he should ever think of undertaking the task, I venture to point out to him four classes of authorities or of facts: 1st, Those to be found in Homer, Hesiod and the most ancient documents, which show us the land held as private property, with no mention or trace of community. 2nd, Those vestiges of the oldest Greek law which have come down to us, which do not contain the slightest trace of a state of things in which the land belonged to the people, and which do contain, on the contrary, precise rules as to family property. 3rd, The rites of ancient religions, which show the worship of land and of consecrated bounds; and this side by side with the worship of the dead. 4th, and finally, the records of all the κληρουχίαι; that is, the division of the soil into hereditary portions, a division which was made on the very day of the founding of each city, and almost implies an actual inaptitude for common ownership. Here will be found, not eleven imaginary pieces of evidence, but a whole body of evidence and of facts; and this mass of evidence proves precisely the opposite of a system of community. History would be too easy a science if it were enough to pick out here and there isolated lines and interpret them as one liked. _Every_ authority ought to be consulted, the _whole_ of Greek literature ought to be studied, in treating of such a problem as M. Viollet’s. One cannot judge of the whole Greek world from a chance occurrence in the Lipari isles. Eleven quotations, which, even if they were exact, would be insignificant in comparison with the rest of Greek literature, are not enough to build a system upon. What is especially surprising is that the author of such a theory should not have thought of studying either the law, or the beliefs, or the permanent institutions of the Greeks. He has solved the question without so much as setting himself to investigate it.

May I add that I am sorry to find myself taken to task by M. Viollet? “M. Fustel,” he says (p. 464), “was unable to recognise this great historical fact (_i.e._, the supposed community in land), because he saw that every family had its own hearth, its own worship, its own ancestors.” This is true. I willingly grant that the facts which I saw, and which I have completely proved, prevented me from seeing the imaginary facts that M. Viollet thought he descried in his eleven quotations. He further adds (p. 465), that since I admitted the existence of property common to the family, it was an easy thing to go a little further and recognise, as he did, the common-ownership of the people. Here M. Viollet throws a little too much light upon his own method of proceeding. According to him, an historian who recognises one fact or institution ought to guess at another fact or institution, merely because there is an apparent analogy between them; in this way logic takes the place of evidence, and the imagination can construct all the systems it chooses. I am not bold enough for this; I do not find in history what I wish to find, but only what is there. I am careful not to insert anything I do not find. I saw in ancient law and ancient religion the co-proprietorship of the family, and I said so. I did not see the common ownership of the whole people, and I did not say I did. History is not a science of speculation; it is a science of observation.

No one, moreover, but M. Viollet, considers that the co-proprietorship of the family and the common ownership of the whole people “are two things which resemble one another.” It is clear to every careful observer that they are essentially different, both in character and in results. The co-proprietorship of the family is an ownership which is complete, absolute, hereditary, independent even of the State. If it is undivided, it is because the family at this time is itself still undivided. It is, besides, legally in the hands of the head of the family, the real owner, who is absolute master of it, and does what he likes with it; but who can neither transfer it or bequeath it “because he owes it to his descendants such as he has received it from his ancestors.” What resemblance is there between such a system and one under which the land would be common to all, and belong to a whole nation?

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.

[205] Diodorus, v. 53; v. 59; v. 81; v. 83 and 84; xii. 11; xv. 23.

[206] See Strabo vi. 1.

[207] Κοινὰ ποιοῦντες τὰ κτήματα τοῖς ἀπόροις ἐπὶ τὴν χρῆσιν.

[208] Εὔνουν παρασκευάζουσι τὸ πλῆθος.

[209] Xenophon, _Commentarii_, i. 2, 61, tells us that the Lacedæmonian Lichas was celebrated for the generosity with which he entertained his guests at dinner; Herodotus, vi. 57, represents individuals as inviting a king to dinner in their own houses; Plutarch, _Lycurgus_, 12, says that every Spartan who made a sacrifice was excused from the public meals, _i.e._, he could eat at his own home the animal he had sacrificed. It is, therefore, a great mistake to say that the Spartans always ate in common.

[210] Athenæus, iv. 16.

[211] Herodotus, who knew Sparta very well, says that the public meals were not established till two centuries after the foundation of the city; i. 65. The same will be found in Xenophon, _Republ. Laced._, v. and in Plutarch, _Lycurgus_, 10, who says distinctly that before this period the Spartans ate their meals at home. Private property, on the other hand, was established from the very beginning of the city.

[212] Plato, _Laws_, vi. p. 781; Aristotle, _Politics_, ii. 7; Alcman, in Strabo, x. 4, 18.

[213] Aristotle, _Politics_, ii. 7; Plutarch, _Lycurgus_, 12.

[214] Aristotle, _Politics_, ii. 6, 21.

[215] Plutarch, _Lycurgus_, 12.

[216] Cicero, _Tusculan. Disput._ v. 34; Plutarch, _Lycurgus_, 21; Xenophon, _Republ. Laced._, v; and, above all, the authors cited by Athenæus, iv, 20.

[217] We have elsewhere pointed to the evidence for private property in Sparta, and the rules concerning it. (_Comptes rendus des séances de l’Académie des sciences morales_, 1879-1880.) See, on the same subject, the excellent work of M. Claudio Jannet.

[218] Viollet, p. 472.

[219] Diodorus, v. 53; v. 59; v. 81; v. 83; v. 84; xii. 11; xv. 23; Odyssy, vi. 11; Herodotus, v. 77; Plato, _Laws_, iii. pp. 684-685; Pausanias, _passim_.

[220] We do not doubt that there were some exceptions. What Diodorus tells us of the Lipari Islands is one of them. It might occasionally sometimes happen, for some reason or other, that the partition was put off for a few years.

[221] Heraclides of Pontus, edit. Didot, vol. ii. p. 211; Aristotle, _Politics_, ii. 4, 4; vii. 2, 5; Plutarch, _Instituta laconica_, 22; _Life of Agis_, 5; _Life of Solon_, 21. Cf. _Laws of Manou_, ix. 105-107, 126.

[222] Plato, _Laws_, xi.

[223] The statement of M. Viollet is in the _Revue critique_, 1886, vol. ii., p. 109. The document of 890 ought not to be interpreted from the extract he gives from it; it is necessary to read the whole of it, as it is to be found in the _Urkundenbuch der Abtei S. Gallen_, nᵒ 662, vol. ii., p. 265.

III.

_Mommsen’s theory as to community of land amongst the Romans._

One never for a moment expected to find agrarian communism amongst the Romans; in the first place because Rome was one of the youngest of the cities of the ancient world, and, at the date of its birth, private property had long held sway in Italy; and, in the second place, because it is well known that the Romans had a very precise and very firm conception of the right of private property, and did as much as any other ancient people to define and protect it. And yet Professor Mommsen states that with the Romans “land was originally held in common;” that “community in land is closely bound up with the constitution of the city;” that “it was only in later times that the land was divided amongst the citizens as private property.”[224] In support of this assertion, the learned and able historian gives three references--to Cicero, Dionysius of Halicarnassus, and Plutarch. But on examining these three references it seems to me that none of them says exactly what Professor Mommsen makes them say.

The first is from Cicero in the _De Republica_, II., 14. _Numa agros quos bello Romulus ceperat divisit viritim civibus._ The meaning of this passage is that the lands which had been conquered by Romulus in his wars with the neighbouring cities had not been divided by him amongst the citizens. But it does not prove, as we shall presently see, that the small Roman territory occupied prior to these conquests was not divided when the city was founded. The quotation from Cicero applies to a certain area of land; it does not apply to all land. It does not imply that no division had taken place before this time; and Cicero does not say a single word which can refer to a period of community.

The second reference is to Dionysius of Halicarnassus, II., 74; and the following is a literal translation: “Numa enacted laws concerning the boundaries of estates; he laid down that each man should surround his land with a boundary and set up landmarks of stone; he dedicated these landmarks to the god Terminus, and ordained that sacrifices should be offered up to him every year; he appointed the festival of the Terminalia.” That the second king of Rome drew up regulations for the worship of boundaries cannot be regarded as distinctly proving that before his time there were no boundaries; and certainly it is not clear evidence that till then private property did not exist. The historian does not say that in the preceding generation the Romans lived under a system of common ownership of land. On the contrary, he says a little earlier that the founder of the city did divide the territory as other founders were wont to do. In so doing he had paid attention to the social divisions already existing; and as the people were divided into thirty curiæ, he apportioned the territory into thirty lots in such a manner that the members of each curia might remain together. Dionysius adds that the founder, when dividing the land, reserved a part to form the _ager publicus_, _i.e._, the property of the State. This piece of information proves beyond doubt that in the mind of the historian the whole territory was not _ager publicus_, as M. Mommsen thinks. Dionysius of Halicarnassus indicates distinctly that the distinction between _ager publicus_ and _ager privatus_ dates from the earliest days of the Roman city.

The third authority quoted is Plutarch, _Life of Numa_, 16: “The Roman city had in the beginning only a small territory; Romulus gained for it by conquest an additional territory larger than its old one; and the whole of this was divided by Numa amongst the poor citizens.” This passage, like the one from Cicero, states that a division was effected by the second king; but at the same time it draws a distinction between the two territories; and it is not possible to draw from it the conclusion that the district first occupied had not been already divided.

Thus not one of three passages quoted by M. Mommsen seems to me to have the meaning he attributes to it. Not one of the three implies that the Romans held their land in common even for a single generation. Other authorities also, which must not be passed over, expressly tell us of this earlier partition, the recollection of which was preserved, as was that of everything else connected with the founding of the city. Besides Dionysius of Halicarnassus whom we have already referred to (II. 7), Varro, who was as learned as a man could well be at that time, declares that Romulus divided the territory into hereditary portions, each consisting of but two _jugera_[225] (about an acre and a quarter). The elder Pliny, Nonius and Festus give us the same information.[226] But this first partition, which is contemporaneous with the very foundation of the city, did not follow upon a period of non-division. No Roman historian makes any such statement as that the land remained for a period undivided.

M. Mommsen tries to dispose of these statements, and argues as follows: Two _jugera_ are too little to support a family; therefore we cannot consider that this was a real partition of the territory; and it necessarily follows that the families must have lived under some kind of communistic system, with a common use of the public lands. An ingenious process of reasoning, but nothing more; mere guess-work. The question is not as M. Mommsen thinks, whether two _jugera_ are enough for the support of a family; but rather whether the founder, who had only a very small extent of territory at his disposal, with a population already numerous, could grant more. The lots were too small, as it would appear, because the territory also was too small; but we cannot deduce from this, as M. Mommsen does, that the Romans followed some system of communism. The insufficiency of the land, besides, gives a reason for the conquests which were soon afterwards effected under Romulus.

In conclusion, it appears to me exceedingly rash to maintain that the Romans had at first a system of common ownership of land. Such a statement is not supported by any ancient authority. On the contrary, the early writers describe a partition of land which takes place at the very time when the city is founded; and the land thus divided becomes complete and hereditary property. Some years later the city conquers fresh territory; and again, with but little delay, it is divided into private property. This is all that we are told.

We are, however, able to gather that these two successive partitions were not in every respect alike. The first related only to the _ager Romanus_, _i.e._, to that part of the territory which was in primitive times attached to the _Urbs_; the second related to conquered territory. In the first, the ground was distributed amongst the _curiæ_, each curia then distributing it amongst its _gentes_, whence it came about that these lots for a long time retained the name of the several Roman _gentes_; in the second partition, which followed the first but did not annul it, the land was divided according to heads, _viritim_. This innovation will be seen to be of deep importance by any one who is acquainted with the ideas of the ancients and with ancient law. At the time of the first division, property still belonged to the family; at the second, it belonged to the individual. Thus, then, the two kinds of proprietary right that the ancient world successively recognised are seen, one after the other, with an interval of but forty years between. The Roman nation was one of the first to substitute individual for family property. They made use of bequest and sale from an early date. Roman law did indeed retain some traces of the early rights of the family; but what really characterises it is that it brought about the triumph of the system of individual ownership.

[224] Mommsen, _Roman History_, Engl. trans., vol. i., p. 194. This theory has been copied and reproduced word for word, without verification, by M. Viollet and M. de Laveleye.

[225] Varro, _De re rustica_, I. 10: “Bina jugera, quod a Romulo primum divisa viritim, quæ heredem sequerentur.”

[226] Pliny, XVIII. 2, 7: “Romulus in primis instituit.... Bina tunc jugera populo Romano satis erant nullique majorem modum attribuit.” Nonius, edit. Quicherat, p. 61. Festus, v. centuriatus ager.

IV.

_On the application of the comparative method to this problem._

It is impossible to deny that the comparative method is not only of use but also absolutely indispensable in dealing with a subject of this kind. In order to discover the origin of property in land among mankind it is plain that every nation must be studied; at any rate every nation that has left any trace behind it. Some part of this work of comparison had already been attempted by Maurer; but he had limited himself to the Slavonic and Scandinavian countries. A great and powerful writer, Sir Henry Maine, has applied the comparative method to India. But the first to attempt what I may call “universal comparison,” is, if I mistake not, M. Emile de Laveleye, in his work, “On Property and its Primitive Forms,” published in 1874. His theory is that the agricultural groups of the whole world, from India to Scotland, for a long time cultivated the soil in common, and that “the history of all lands reveals to us a primitive condition of collectivity.” M. de Laveleye is an economist; but it is by historical evidence that he endeavours to support his thesis, and it is this evidence that I shall now proceed to test. His reputation either as economist or moralist can receive no injury from a purely historical discussion.

He passes in review one after the other (I am following the order of his chapters) the Slavs of Russia, the island of Java, ancient India, the German Mark, the Arabs of Algeria, the ancient Moors of Spain, the Yoloffs of the coast of Guinea, the Afghans, the ancient Greeks, the ancient Romans, England, the Southern Slavs, Switzerland and the Netherlands. Here we have peoples of every race, every degree of latitude, and every age; yet this list does not include all nations. To mention only some of the ancient world, we do not find here the ancient Egyptians, the ancient Jews, or the ancient Assyrians, peoples which, nevertheless, are much better known than the Yoloffs, the Javanese, or the ancient Germans. Why are they not here? Can it be because all the documents concerning them, however far back we may go, bear witness to the custom of private ownership, and do not show a trace of community in land? It is certain that the history of Egypt shows the existence of property from the remotest times. It is certain that contracts for the sale of land have been discovered upon Babylonian bricks. It is certain, also, that the sacred books of the Jews refer to property and the sale of land as far back as the time of Abraham (Genesis XXIII.). Was it for this reason that they were omitted in the universal comparison of all nations? But as our author was seeking a general rule for the whole human race, and says that he has found it, he ought not to pass over a single people of whom we know anything. When one seeks to construct a general system, the facts which contradict it must be presented as well as those in its favour. This is the first rule of the comparative method.

Having insisted on this omission, of which every one will see the importance, I shall consider one by one the nations spoken of by our author, and verify his assertions.

1. Among the Slavs of Russia M. de Laveleye observes the _mir_, _i.e._, a village dividing its soil annually or every few years among its members. In this _mir_ he recognises an association with common ownership of the soil. “The _mir_ alone,” he says, “owns the land, and individuals have nothing more than the enjoyment of it, turn and turn about.” On this I have two observations to make. In the first place, the Russian _mir_ is only a village and a small village, the population rarely exceeding two hundred souls; it always cultivates the same land; so that if this be a communistic group it is at any rate one which is confined to a narrow radius. The _mir_ by no means represents a “tribal community,” still less a “national community.” One cannot conclude from the _mir_ that the Russian nation follows a system of agrarian communism, or that the soil is the property of the whole nation, or that the soil is common to everyone; so that the example departs widely from the thesis that is sought to be maintained.

In the second place, if we examine the _mir_ as it was before the reforms of the last Czar but one, we discover that the _mir_ is not owner of the soil, but is itself owned by some one else. In the _mir_, lands and men alike belong to a lord; and lord and landowner are one. M. de Laveleye does not deny this fact; he even recognises “that the _mir_ pays the rent to the lord collectively.” This single fact makes the whole theory fall to the ground. Since the soil belongs not to the _mir_, but to some one else, the _mir_ does not represent agrarian communism. It is a village, like all our villages of the Middle Ages, which is the private property of a single individual; the peasants are only tenants or serfs; the only peculiarity about it is, that these peasants who pay rent for the land collectively also cultivate it collectively.

It is true that there are certain theorists who say: “It is probable that there was a time when the landlord did not exist, and when the land was possessed in common by the peasants.” This is precisely what would have to be proved. They ought first to prove that the landowner or lord at one time did not exist, and next that the peasants then possessed the land in common. Now these are two propositions in support of which no one has ever been able to bring forward proof or even an appearance of proof. On the contrary, according to M. Tchitchérin and other writers who have studied the subject, it has been proved that the association of the _mir_ has only been in existence for three hundred years; that it was created in the year 1592; and that far from being the result of a spontaneous and ancient growth, it was instituted by the act of a despotic Government, by an ukase of the Czar Fédor Ivanovitch. Before this epoch land in Russia was an object of private property; so one is led to believe by the documents of donation and bequest quoted by M. Tchitchérin. I am aware that the question is still warmly discussed and remains obscure; but so long as documents proving the existence of the _mir_ before the 16th century are not produced, we must continue to doubt whether the _mir_ is an ancient institution at all. So far as we know at present, it only came into existence with the feudal period; it forms one of the wheels of the feudal organisation in Russia--a group of serfs, which the Government requires to cultivate its land in common, so as to be more sure of the payment of the rent. Far from being collective ownership, the _mir_ is collective serfdom. That, at any rate, is what appears from the material in our possession. Theorists are at perfect liberty to hope that new documents will come to light which will show the contrary. Till then, it is impossible to bring forward the _mir_ as a proof that the human race once practised agrarian communism.

2. M. de Laveleye passes on to the island of Java, and describes the condition of things there in a chapter full of interest; in some places the soil is cultivated in common, it is in others annually divided. But I cannot help noticing that throughout he is speaking of the present time. He describes the condition of things as they are now. He makes use of the regulations of the Dutch Government, of laws of 1853, of parliamentary reports of 1869. The furthest date to which he goes back is to certain regulations of 1806. And yet, since he is dealing with the problem of the origin of property, what one wants to hear about is the ancient state of things. I am aware that some people will at once say “such a system must be old;” but a student who has any critical instinct will rather say that the present existence of such a system proves nothing at all in relation to earlier times. And, indeed, we read in one of the reports on which M. de Laveleye relies, that “this system began with the cultivation of indigo, sugar and coffee for the benefit of the Dutch Government.”[227] The sort of communism we are now considering would in this case be but a recent institution, a creation of the European conquerors. It is true that others make it commence earlier, with the cultivation of rice.[228] This is easily explained: “Rice growing in water requires a system of irrigation, which would be impossible without association; and this necessity gives rise to the practice of common cultivation.” It has been ascertained how these villages arose. “Several families agree to establish a system of irrigation in common. As the water has been brought by the co-operation of all, the result is that the land irrigated by it is cultivated by all.”[229] But it is apparent that the soil does not belong to the nation or the tribe; it belongs to a group, an association. An association of proprietors is not communism; it is one of the forms of property.

We must also observe that private property does exist in Java. In six out of the twenty provinces of the island that alone is to be found, and association is unknown; in eight the two methods are practised side by side; in six association is only practised on the rice fields and irrigated lands, and the rest of the land is held entirely as private property. From these facts I cannot draw the conclusion that community in land was a primitive and natural institution in the island of Java. We meet with it only under modern circumstances, and even here we must recognise that it is less a community than an association.

3. Our author next devotes a few words to ancient India, and here I shall imitate his brevity. He gives but one reference; a sentence from Nearchus, the officer of Alexander the Great. I shall give it first as translated by M. de Laveleye, and then as it really is. “Nearchus informs us that in certain districts of India the land was cultivated in common _by tribes_, which, at the close of the year, divided the crop among them.” Now the Greek signifies: “In other parts the work of agriculture is carried on _by each family_ in common, κατὰ σνγγένειαν κοινῇ; and when the crops have been gathered each person takes his share for his support during the year.”[230] We see that M. de Laveleye had overlooked the words κατὰ σνγγένειαν. He has mistaken a community of the family for a community of the tribe. I know that many people only too readily identify the two things; but a little attention will show that they are essentially different. When a family, even though it may form a large group of persons, cultivates its land in common, this is not agrarian communism; it is merely an undivided family and undivided family property.

4. M. de Laveleye next speaks of the Germanic mark. Here he does not do more than reproduce Maurer’s theory, on which he relies without apparently having verified a single one of his references.

5. Then follows a chapter on agrarian communities amongst the Arabs of Algeria, the Moors of Spain, the Yoloffs of the coast of Guinea, the Mexicans, the Caribeans, the Afghans and the Tchérémisses. A story or sentence from some traveller is quoted about each of these nations. As to this I have one remark to make: there is nothing rarer or more difficult than an accurate observation. This truth, which is recognised in all other sciences, ought also to be recognised by every one who is dealing with history; for history is precisely that one of all the sciences in which observation is most difficult and demands the greatest attention. A traveller makes the general statement that amongst the Caribeans or the Yoloffs he has seen a partition of land, or has been told that such a thing was customary. But has he observed between whom the partition took place? Was it amongst the members of the same family, or amongst all the inhabitants of the same village, or between the villages and all the various parts of the tribe or nation? These are shades of differences that a hasty traveller cannot notice, and that an historian equally hasty refrains from inquiring into. And yet, the character and consequences of the partition depend altogether upon the answer to this question. The study of a social system is a serious undertaking, and one not often to be met with in travellers’ tales.

And then we must ask whether, side by side with certain facts reported by travellers, there are not others which contradict them. You see common land among certain Arab tribes; but it must also be noticed that the Koran recognises private property, and that it has existed among the Arabs from time immemorial.[231] There are other nations where you may meet with examples of land held in common, but where, nevertheless, it must be acknowledged that private property greatly preponderates. In Spain, for instance, we are told that “in certain villages the land is divided anew each year amongst the inhabitants.”[232] In how many villages? Two ardent inquirers, whose only desire was to find proofs of this community in land, M. Oliveira Martins and M. de Azcarate, found it in only four villages in the whole Iberian peninsula.[233] Perhaps you will think that these are vestiges of an earlier state of things that may once have been general. Not at all. It has been proved that in these four villages the system of common ownership did not appear until the twelfth or thirteenth century, A.D.; and the particular causes which led to its appearance are well known. This kind of community was, therefore, neither general nor ancient. M. de Laveleye also mentions a village community in Italy; but it is one which was only created in 1263. A certain estate of about 5000 acres had till that date belonged to a private owner; that is, it had been precisely the opposite of common property. In 1263 the owner, who happened to be a bishop, gave it to the tenants, on condition that they held it in common. Can a few isolated facts like this prove that mankind used to hold land in common in primitive times?

6. M. de Laveleye’s theory would be incomplete and insecure if he did not manage to bring in the Greeks and Romans. He does little more than repeat the authorities used by M. de Viollet. Like him, he believes that the legend of a golden age--of an age, that is, when man did not till the soil (for this is the distinctive and essential point in all these legends),--is a proof that nations held land in common at a period when they did till the soil; he even adds that “he is _forced_ to arrive at the conclusion that the ancient poets depicted in the golden age a state of civilisation (sic) of which the recollection had been handed down to later times.”[234] Like M. Viollet, he quotes the passages from Virgil, Tibullus and Trogus Pompeius without looking to see whether these passages describe a condition of civilisation or one of barbarism. He tells us what Porphyrus says about the 2000 disciples gathered together by Pythagoras in his phalanstery. He quotes the sentence from Diodorus about the Lipari isles; without seeing that it distinctly describes the institution of private property. Trusting in M. Viollet, he borrows his pages on the _copis_ and the Spartan συσσίτια; for, like him, he believes that these common meals, from which Aristotle tells us that the poorer Spartans were excluded, were “a communistic institution.”[235]

M. de Laveleye also believes that the division of land at the founding of each city implies an earlier stage in which the city cultivated the land in common. He does not notice that this division, taking place at the very moment when the city is founded, is not the result of an earlier state of communism. It is the earliest fact to which we can go back. So soon as a band of emigrants have made themselves masters of a territory, they parcel it out in lots with complete and hereditary ownership. With very rare exceptions, a Greek city did not hold or cultivate land in common for a single year.

These lots were called κλῆρος in Greek, _sortes_ in Latin, because they were originally drawn by lot. M. de Laveleye, noticing these two words, at once concludes that the drawing by lot took place every year (p. 85). This is a mistake. Out of all the cases where you find mention of a partition, you will not find one in which it was annual or periodical. In every case the division referred to takes place once and for all, in perpetuity.[236] Each portion is henceforward hereditary in the family to which it has fallen by lot; and this is the reason why κλῆρος had the meaning of inheritance and _sors_ signified patrimony.

The prohibition against selling the land, _i.e._, against separating it from the family in order to transfer it to another family or even to bestow it on the State, appears to M. de Laveleye a proof that the land belonged to the State (p. 166). It is merely a proof that according to the ideas of the ancients it ought always to belong to the same family. M. de Laveleye reproaches me with having, in the _Cité Antique_, attributed this prohibition of sale “to the influence of ancient religion.” The phrase gives an incorrect idea of my meaning. What I showed was that family property was closely bound up with family religion. Sale outside the family was not permitted because ancient law and ancient belief connected the land with the family. The land belonged to the family, not to the individual. It was the same, in my opinion, amongst the ancient Germans and the Slavs; and hence it was that amongst all these nations ancient law did not permit the sale of land.

For the same reason bequest was prohibited among the Greeks, Italians, Germans, and Slavs in the early period of their law. The land must pass to the son or the nearest relations. For the same reason, again, the daughter did not inherit; because by her marriage she would have carried the land out of the family. All these facts, which it is now impossible not to admit, are unmistakable signs of a condition in which property belonged to the family. They are all directly contrary to a condition of communism.

M. de Laveleye also lays great stress upon Sparta; only he omits to mention that private property was established there from the first beginning of the city, and that every κλῆρος remained attached to the same family down to the revolution of Cleomenes, _i.e._, for eight centuries.[237] To make up for that, he tells us of certain imaginary brotherhoods, “which must have played an important part in the social body;” a statement for which there is no authority. He adds that Sparta “had a wide extent of common land;” for which also there is no evidence: and that “this common land was used to provide for the public meals;” which is directly opposed to the definite evidence we do possess.

He accumulates quotations, but they are inexact. He refers to Aristotle (_Polit._ vii., 10); but all Aristotle says is that men began by being hunters and shepherds; does that imply that when they became agriculturists they held the soil in common? He quotes Virgil, who in the Æneid (xi. 315) says that “the Aurunci tilled the land in common;” turn to the passage; the expression “in common” is not there; M. de Laveleye has unconsciously added it himself. Every writer does this who is under the influence of a fixed idea.[238] Speaking of Rome, he declares “that he sees a proof of primitive community in the common meals of the _curiæ_;” and he does not notice that these repasts of the _curia_ only took place on certain festivals, and that they were sacred feasts, as we are expressly told by Dionysius of Halicarnassus, who witnessed them. “The _curiæ_,” he says, “with their priests, perform sacrifices and eat together on feast days.” This is not an agrarian community; it is a religious communion. Suppose that a stranger, seeing a number of good Christians communicating in our churches, declared that he saw in this a proof that the French held their land in common! A little farther we read: “The law of the Twelve Tables preserves a trace of common ownership; for in default of the _proximus agnatus_ the _gens_ is preferred to the other agnates.” There is nothing resembling this in what we have of the law of the Twelve Tables; the gens was never preferred to the agnates. Our author quotes, it is true, the following sentence, which he attributes to Gaius: _in legitimis hereditatibus successio non est: gentiles familiam habento_, which is said to be in Gaius iii., 12; but look in Gaius for this extraordinary sentence, and you certainly will not find it. Thus, alike for Greece and for Rome, M. de Laveleye has got together a number of authorities; but there is not a single quotation that is exact, or that has the meaning he attributes to it.

7. We now come to the Southern Slavs, _i.e._, the Bosnians, Servians, and Bulgarians, who, in their turn, have to furnish arguments in support of the theory.[239] This chapter of M. de Laveleye’s is the most interesting in the book, the most curious, and, in my opinion, the most exact. Only I do not see how it bears upon the problem with which we are occupied. It is very true that the Servian or Bosnian village often cultivates its land in common. But this village is composed of a small group of from twenty to sixty persons, who dwell in four or five houses built within a single enclosure; and the land belonging to it seldom exceeds sixty acres. Look at it closely, and you will see that this little village is nothing more than a family. M. de Laveleye recognises this (p. 204). The brothers as a rule keeping together and the family continuing to form one undivided body, the property remains united like the family. The land is cultivated in common and the produce is consumed in common, under the direction of the head of the family. This is described by M. de Laveleye with zest and ability; but it is not community in land; it is the common ownership of the family. We have seen it amongst the ancient Greeks; in the most ancient Roman law; amongst the Germans; and now we find it amongst the Servians. The family forms a small village; it keeps to itself on its own land; and this land is a common possession which has belonged to it from time immemorial. It must be added that all the characteristics which accompany family ownership amongst the Greeks and Germans are to be found here. The custom of bequest does not exist, nor does that of gift or sale. All the members of a family are common owners of the soil, and consequently they alone are the heirs. Anyone leaving the family loses his rights over the land; anyone entering it by adoption has the same rights as those who were born into it. Except that the chief is no longer the eldest member or the son of the eldest, but the one whom the rest elect--a change which naturally came about in the course of time--this family resembles in every other respect the ancient Greek family. But that the soil belongs to the nation or the tribe there is not the slightest evidence.

8. M. de Laveleye now comes to the _allmenden_ of Switzerland. He tells us “that never was there a more radical democracy than that which was to be found in primitive Switzerland,” and he describes the _landgemeinde_, “which goes back to the earliest times” (pages 270 _et seq_). “The _Allmend_,” he says again, “presents the ancient type of true justice, which ought to serve as the basis for the society of the future” (p. 282).

I should like to learn, however, whether these _allmenden_ really do come down from remote times. Our author tells us so, but without bringing forward any kind of proof. He declares “that they go back to the patriarchal period” (p. 291), “that they have lasted for thousands of years” (p. 281). It is easy to say this; but on what evidence does it rest? Private property exists in Switzerland, and our author cannot point to any epoch in which it did not exist. If we examine the law of the Burgundians and of the Alamanni, by which the country was first governed, it is private property we find, not common ownership. If we examine the charters down to the 12th century, we still find private property. The _allmenden_ of to-day certainly date back some six or seven centuries. Can they be traced farther back than that?

And what exactly are these _allmenden_? Do we see in them a system of non-division of land, a system, that is, under which the land, being considered the common property of the whole people, is not supposed to belong to anyone individually? By no means. Private property is in full force in Switzerland, side by side with the _allmenden_. The _allmenden_ are only a part of the land of each village and indeed the smallest part, a tenth, or, at most, a fifth. They are usually forests, mountain pastures, or marshes, and include very little land capable of cultivation. Private property is accordingly the dominant fact; common ownership only concerns accessories.

The _allmenden_ are just what is to be found in every country; they are the village commons. It would be interesting and instructive if we could discover their origin, just as it is interesting to inquire into the origin of the commons in France. But village commons do not in any way prove a general system of common ownership; and no one has yet been able to prove that they are the outcome of such a system. We know that when the Romans founded a colony, they instituted private property from the very first; but at the same time they reserved a portion of the soil, which was to be the common possession of the new city. And to go farther back, we know that Rome herself, from the time she first appears in history, had an _ager publicus_ at the same time as _agri privati_, and that the Greek cities also had a γῆ δημοσία. This public land was in no way an indication that the people lived a single day without individual estates. The _allmenden_ of Switzerland are commons of the same character as we find everywhere else. Each village has its own; and they are the property of the village, which sometimes sells them, lets them to the highest bidder, or sells the wood upon them, to defray the expenses of its school or church. Frequently the commons are left for the inhabitants to use as they like; and they get wood from them, graze their cattle there, or cultivate small portions. But it is important to notice that only those who own land in the village have any rights of enjoyment over the _allmend_. I refer chiefly to the condition of things before the last forty years; for only quite recently have such rights been extended to mere residents and the inhabitants generally. In essential characteristics the _allmend_ is not common property; it does not belong to all; it is held in common by people who are already owners of land. It is an appendage of private property.

M. de Laveleye has written some beautiful passages on the usefulness of these commons, on the mistake which has been made in France in their general alienation, and on the happy results produced by them in Switzerland, both in almost entirely preventing the growth of absolute destitution and in attaching the poorest peasant to his native soil. These considerations are just, profound, and inspired by generous feeling, although but little applicable to modern society. But we are now considering them in relation to the supposed common ownership of land; with that the _allmenden_ have nothing to do, and they prove nothing as to its earlier existence.

9. M. de Laveleye finally refers to the Scotch townships as a proof of primitive community.[240] In the more distant parts of Scotland, especially in certain islands lying to the north-west, we find groups of people who hold the land of a village in common and divide it amongst themselves in separate lots every year. Is this a system of land communism, or, as it is called, collective ownership? At the first glance one would think so. But if you are not satisfied with a first glance and look further, you will observe that the village belongs to a single person, the landlord. The peasants are nothing more than the cultivators. M. de Laveleye cannot help recognising this: “The land of the village,” he says, “is let to them by the owner.” Again: “The land does not belong to them; it is the property of a landlord to whom they pay rent for it.” The cultivators act together as an association “with the consent of the landlord;” and there are villages in which the landlord does not allow this collective system of occupation. “They have a head who is generally appointed by the landlord.” The rent is paid collectively. We have a description of the _township_ in a work published recently. The house of the lord, the _domus dominica_ of our charters, stands in the centre of the village, by the side of the church.[241] It is built of stone; and around it, at a little distance, stand the dwellings of the “villeins,” built of mud and thatched with straw. The villeins owe their lord rent and certain personal services.

We see from this that the Scotch or English township is not a community which owns its own land; it is the property of an individual owner, and the only thing about it which is collective is the cultivation. The township is really a private estate; and the group of peasants who till it in common are the tenants. Ownership and tenancy are two distinct things, which must not be confused. To be owners in common is very different from being tenants in common under a landlord. We find in France also, throughout the Middle Ages, instances of tenancies in common; and I know that there are writers who are quick to identify them with ownership in common.[242] But this is a mistake which no one can make who has any accuracy of thought; for it is quite evident that whilst the land was cultivated by a common group of peasants, it belonged to a lord who stood above them. The Scotch township has no connection whatever with an ancient system of community in land.

M. de Laveleye puts forward an hypothesis; he supposes that there was an earlier period in which the township belonged to the peasants themselves, and the lord, whom we find in later times, did not exist. But this is a mere hypothesis unsupported by a single document or a single fact. He goes further and maintains that this system of village communities was in force throughout the whole of England in the Saxon period. But there is no evidence for this in the Anglo-Saxon laws; they give not the slightest indication of it. The _tuncipesmot_ is not community in land; nor is the _folcland_. We must never lose sight of the fact that history is based upon documents, and not upon hypotheses or flights of the imagination. When M. de Laveleye says that “the English manor has destroyed the old village community,” he makes an entirely hypothetical generalisation. To imagine the manorial lord of the Middle Ages as a warrior who has forcibly set himself over a community of free men, is to show that one knows nothing of the documents from the fifth to the tenth centuries, and that one has an altogether childish idea of the origin of feudalism.

To come back to the comparative method. I believe that it is infinitely fruitful; but only on condition that the facts which are compared have a real resemblance to one another, and that things which are widely different are not confused. When you bring together the Scotch township which is nothing more than an association of tenants, the Russian _mir_ which seems to have long been only an association of serfs, the Servian village which, on the other hand, is a household community, and the _allmend_ or commons which are a consequence and accompaniment of private property, you confuse things which are absolutely different, and which, moreover, are very far removed from the system of community in land that you are anxious to prove.

It is needful to come to an understanding as to what the “comparative method” really is. I have observed that, during the last fifteen years or so, there has been a strange misapprehension on this point. Some writers maintain that to compare any facts, no matter what, is to apply the comparative method. They search all over the world for peculiar usages; they cite the legend of the golden age amongst the ancients as if it were an historical fact; they seize upon a trifling circumstance which occurred in the Lipari Isles as if it related to the entire Greek world; they seize upon some custom, such as public repasts or the festivals of the curia; thence they pass to the Russian _mir_ and talk of it as if they knew all about it; then they describe a township or an _allmend_; and, in short, whenever they find an instance of anything that is done in common, at once they suppose that they have discovered community in land. They pretend they have discovered the most widespread institutions of the human race by the help of some few instances that they have sought for far and wide, and that they do not take the trouble to observe accurately. And, what is a more serious matter, they omit and leave out of their consideration facts which are constant, normal, well-authenticated, which are engraven in the laws of all peoples, and which have made up their historical life. They give us a few isolated facts and turn our thoughts away from permanent institutions. This is not the comparative method.

If you wished to employ the comparative method it would first of all be needful to study each nation in itself, to study it throughout its history, and above all in its law. Should you wish to know if the ancient Greek cities held their land in common, you must study Greek law. For the Romans, you must go over the whole history of Rome; for the Germans, you must take German law. M. Viollet and M. de Laveleye make frequent references to ancient India; why do they not mention that in all the ancient Hindoo law that has come down to us the rights of private property are sanctioned, although, of course, the holding of property in common by co-heirs is also recognised? Why has no one quoted the old maxim: “The land belongs to the man who first clears it, as the deer belongs to the man who first wounds it”? They prefer to quote certain customs, whose importance they enormously exaggerate, rather than present to us the rules which were constant and normal. The comparative method does not consist in discovering amongst fifteen different nations fifteen little facts, which, if interpreted in a certain manner, unite in the construction of a system; it consists in studying a number of nations in regard to their law, their ideas, all the circumstances of their social life, and in discovering what they have in common and wherein they differ. I greatly fear that this comparative method, when it shall be seriously applied, will give very different results than those that MM. Viollet and de Laveleye believe they have obtained from the comparative method as they understand it.

[227] M. de Laveleye, _De la propriété collective du sol_, in the _Revue de Belgique_, 1886, p. 50 of the reprint.

[228] _Ibidem_, p. 49.

[229] _Ibidem_, p. 65.

[230] Strabo, xv., 1., 66, edit. Didot, p. 610: παρ’ ἄλλοις δὲ κατὰ συγγένειαν κοινῇ τοὺς καρποὺς ὲργασαμένονς, ἐπὰν συγκομίσωσιν, αἴρεσθαι ἔκαστον εἰς διατροφὴν τοῦ ἔτους. If one reads the whole chapter, one sees that Nearchus, who distinguishes between general and exceptional institutions, νόμους, τούς μὲν κοινοὺς, τούς δὲ ἰδίους, includes this among the exceptional.

[231] See the work of M. Eug. Robe, _Origines de la propriété immobilière en Algérie_, 1883--a volume which is full of facts.

[232] Em. de Laveleye, _De la propriété_, p. 105.

[233] _Id._, _La propriété collective_, in the _Revue de Belgique_, 1886, pp. 2-24 of the reprint.

[234] Em. de Laveleye, _De la propriété_, p. 152.

[235] _Ibidem_, p. 161.

[236] Save in the exceptional case described by Diodorus in the Lipari islands.

[237] This is shewn by Heraclides of Pontus in the _Fragmenta hist. græc._, of Didot, vol. II., p. 211; and by Plutarch, _Life of Agis_, 5. To this can be added the other texts cited in my _Étude sur la propriété à Sparte_, 1880. See also the work of M. Claudio Jannet.

[238] In the same way he cites Ælian, V. 9, as saying that the inhabitants of Locri and Rhegium cultivated the land in common. What Ælian says is that “the cities of Locri and Rhegium have made a treaty which permits the inhabitants of the one town to settle on the territory of the other.” Of common cultivation there is not a word. These authorities are given in the article by M. de Laveleye, in _Revue de Belgique_, 1886, pp. 9 _et seq._ of the reprint.

[239] _De la propriété et de ses formes primitives_, p. 201.

[240] _La propriété collective du sol_, in the _Revue de Belgique_, 1886. He repeats the argument in the _Revue socialiste_, 1888, p. 452, and in the _Revue d’économie politique_, July, 1888.

[241] Isaac Taylor, in the _Contemporary Review_, Dec., 1886, referred to by M. de Laveleye.

[242] _E.g._, M. P. Viollet in all the latter part of the article already referred to.

V.

_On community of land amongst the Gauls._

It would be indeed surprising had the supporters of this theory not applied it to the ancient Gauls. So little is known about them, that it is very tempting and not very difficult to introduce community in land into their history.

One single fact, however, ought to stand in the way; it is that Cæsar, whose book is the only authority which has historical value, nowhere tells us that land was common amongst the Gauls. His silence on this point is not a thing which can be passed over. It is, indeed, in the eyes of every one accustomed to historical research, a very significant fact. It is true that Cæsar does not expressly state that private property was the custom amongst the Gauls. For a writer who is only speaking in passing of Gallic institutions, to omit to call attention to a law of property which was in conformity with what he was accustomed to, is not the same thing as to omit to mention a communism which would be the opposite of what he was accustomed to, and which would strike him by its very strangeness. It must be noticed that Cæsar is not describing the entire social condition of the Gauls; he contents himself with mentioning those customs which have struck him as being very different from those he saw in Italy. We have only to read the ten paragraphs which he devotes to this subject, to recognise this. After describing in three paragraphs what was peculiar in their political organisation, and in three more what was peculiar in their religion, he passes on to what was peculiar in their private life, and he begins as follows--“As to the institutions of private life, the following are those wherein they differ from other nations.” By “other nations” Cæsar clearly means the nations that he knew that is, primarily, the Italians and Greeks. This opening sentence makes it plain that Cæsar intended only to tell us of characteristics which were peculiar to the Gauls. He is going to mention differences, not resemblances. If private property is the custom there as it is in Rome, it will not be necessary to say so; but if it is not the custom, he will say so. His absolute silence on this point is a proof that the Gauls did not sensibly differ from the Italians in the matter; his silence implies that they were not ignorant of private property. We must remember that the entire absence of private property would have appeared so strange to a Roman that it could not have escaped Cæsar’s notice. He observed it in Germany where he passed only eighteen days; he would certainly have discovered it in Gaul where he passed eight summers. If he does not mention community in land, it is obviously because it did not exist.

But we have evidence even more convincing. Going on to speak of the Germans, he remarks that he will explain “in what they differ from the Gauls, _quo differant hae nationes inter sese_” (vi., 11); and further on: “The Germans differ much from this manner of life of the Gauls, _Germani multum ab hac consuetudine differunt_.” He then draws the following contrast between the two nations: 1, the Germans have no Druids; 2, the Germans have not the same gods as the Gauls; 3, and lastly, the Germans have not private property. Is not this remark as to the difference between the two nations almost the same thing as if Cæsar had said that the Gauls recognised private property and held their land in individual ownership?

This is not all. Cæsar uses an expression in which he indirectly and almost unconsciously bears witness to the existence of property in land amongst the Gauls. In Book VI., Chapter 13, he says that the Druids act as judges in almost all suits, criminal as well as civil.[243] He then gives a list of the disputes brought before them, and amongst criminal offences he instances murder; amongst civil suits he mentions “those concerning inheritance or boundaries,” _si de hereditate, si de finibus controversia est_. If there were in Gaul suits concerning inheritance or boundaries, it must have meant that the Gauls had a system of inheritance and made use of boundaries; _i.e._, that land was private and hereditary property. Cæsar says elsewhere that the Germans have no _fines_; he says here that the Gauls have them.

We cannot say whether the institution of private property in Gaul was exactly similar to that of private property in Rome; whether it had the same legal guarantees; whether its boundaries had the same inviolable character. We do not even know if property still belonged to the family or was already in the hands of individual owners. Cæsar only tells us one thing, and that is, that it existed; for “inheritance and boundaries” are unmistakable signs of private ownership, and as clearly disprove a system of corporate land-holding.[244]

This is the conclusion to which we are brought by a simple and unbiased perusal of Cæsar’s account. But preconceptions have great force; and if a writer starts with the idea that community in land was once universal, the result will be that, in the face of all evidence, and yet in perfect good faith, he will think he finds it amongst the Gauls. One of the first scholars of the day, M. d’Arbois de Jubainville, whose works on the Middle Ages and on Irish literature have been so highly appreciated, thinks that the Gauls of the time of Cæsar were not far enough advanced in civilisation to hold private property; and setting out with this idea, the offspring of imagination, he supposes that he can see evidence of undivided tenure. The fact that Cæsar never mentions this troubles him very little. That Cæsar does mention, as a point of difference between the Germans and Gauls, that the former do not hold private property, he omits to notice. And lastly, when Cæsar refers in so many words to inheritance and boundaries amongst the Gauls, he disposes of this somewhat embarrassing statement by interpreting it in a most unexpected fashion.

In his opinion, when Cæsar mentions suits concerning inheritance, _de hereditate_, it is impossible that the inheritances of private persons should be in question, as the custom of inheritance did not exist. Then what was the inheritance referred to by Cæsar? According to M. de Jubainville, he was speaking of succession to the crown. Sovereignty existed; the sons of kings wished to succeed their fathers; and if a dispute arose, the Druids acted as judges. M. de Jubainville has omitted to notice that Cæsar gives at least ten instances of sons who wished to be kings like their fathers; and that in not one of these instances was the dispute carried before the Druids. It is a grave error to suppose that the Druids were accustomed to meddle in affairs of State; we have not a single example of their doing so. And yet M. de Jubainville maintains that in Cæsar _de hereditate_ means the succession to the throne; and for this he gives the following reason,--that in another book, speaking of the Egyptians, Cæsar uses the expression _hereditas regni_.[245] The argument is a strange one. I reply that if Cæsar elsewhere wrote _hereditas regni_, it was because the word _hereditas_ could not, when used alone, bear the meaning of the inheritance of sovereignty. It is quite certain that if Cæsar had meant to say that the Gauls brought before the Druids their disputes as to succession to the crown, he would have said _de hereditate regnum_.

With regard to the expression, _de finibus_, M. de Jubainville will have it mean “frontiers between nations.” In this he is doubly wrong, both historically and philologically. To begin with the historical error, Cæsar tells us of numerous quarrels amongst Gallic tribes; and these quarrels are never carried before the Druids. Are we to think that Cæsar said that the Druids settled disputes about frontiers, when he knew perfectly well that Druids did not decide them? It is absolutely incorrect to say that the Druids had the right of judging between tribes.[246] Moreover, when Cæsar enumerates the principal matters which had to be tried, he mentions murder as well as inheritance and boundaries; and it is impossible to doubt that he is thinking of the murder of a single person, the inheritance of a single owner, the boundaries of a single estate.

Philologically, M. de Jubainville maintains that the word _fines_ may be used for the boundaries of a nation as well as for those of an estate. No doubt. The word is even used in a philosophical sense, and Cicero wrote a treatise, _De finibus bonorum et malorum_. In every language there are words of wide application; but the student is not misled by this. In philosophy he understands _fines_ in a philosophical sense. If a general at the head of an army is crossing the territory of several nations, he understands _fines_ in the sense of frontiers. If it is a question of private law, he will not doubt that _fines_ is connected with individual rights; that it means the boundaries of an estate or a field. Now the passage in which Cæsar speaks of “suits concerning inheritance and boundaries” is one which deals entirely with law and justice.

M. de Jubainville has taken the trouble to count the number of times that _fines_ occurs in the _De Bello Gallico_ as applied to national or tribal frontiers, and finds they are seventy-seven. This is one of those arguments based on statistics which impress most people by an appearance of matter-of-fact appropriateness. But look at it more closely. Is the _De Bello Gallico_ a book of private law? It is a history of military campaigns, and of negotiations between nations; and it is very natural that the author should frequently speak of the frontiers or the territory of these nations. If he had written a work on law, of which he was quite capable, he would have spoken throughout of the boundaries of private estates. Ought one to be surprised at this? Read Thiers’ thirty volumes; make the same calculation that M. de Jubainville did for the _De Bello Gallico_; and, if you follow the same method of reasoning, you will come to the conclusion that the French are unacquainted with boundaries to private property.

What is more important to remark is, that in the whole work, in the midst of the history of wars, there occur only seven paragraphs on the customs of the Gauls and their institutions in times of peace (VI., 11, 13, 15, 18, 19, 21, 22). Now, in these seven chapters you will find the word _fines_ used three times in the unmistakable sense of boundaries of fields.[247] And so we see that, when Cæsar is speaking of wars, he uses _fines_ in the sense of the frontiers of a country, and, when he is speaking of law, he uses it in the sense of the boundaries of private property. And, if we are partial to figures, we may notice that while M. de Jubainville has counted up seventy-seven _fines_ in three hundred and forty chapters, I have counted three in seven chapters. The proportion is well kept.

But instead of making this calculation it would have been better to have noticed something which is of far more importance; in every instance where the word signifies a frontier, its meaning is unmistakably indicated by the addition of the name of the people in question. Thus Cæsar says, _fines Helvetiorum_, _fines Sequanorum_, _fines Santonum_, _fines Æduorum_, _fines Lingonum_, _fines Ambianorum_, and so on without exception.[248] Take the seventy-seven examples collected by M. de Jubainville, and you will see that the word _fines_, when it means frontiers, is always followed by the word “people,” or by the name of a people. If Cæsar had wished to speak of trials about national boundaries, he would have said _controversiæ de finibus populorum_. If he did not so express himself, it was because he was speaking of boundaries in the most restricted sense of the word.

M. de Jubainville might have found this very same phrase, which he has twisted so strangely, _si de finibus controversia est_, in Cicero. We have it there word for word; _si de finibus controversia est_ in