The Origin of Property in Land: With an introductory chapter on the English manor by W. J. AshleyFustel de Coulanges
History
The Origin of Property in Land: With an introductory chapter on the English manor by W. J. Ashley
Fustel de Coulanges
Land tenure -- Law and legislation -- History; Manors -- Great Britain; Real property -- History
Maurer pays no attention to all these facts; he suppresses them,
and in their stead conjures up a picture of mark associates.
His theory once set up, he wrests the meaning of documents so that
they shall agree with it. Seeing, for instance, in the laws of the
Burgundians that the King Gondebaut commands “all his subjects” to
observe a law, _universitatem convenit observare_, he believes that
the word _universitas_ here relates to a village community;[173] and
it does not occur to him that this is the usual formula by which the
king addresses the whole body of his people. If he sees in the laws
of the Visigoths that when any one wishes to change or restore the
boundaries of a property, he must do it publicly, in the presence of
neighbours, this natural custom becomes in his eyes a right of joint
ownership possessed by the neighbours over the land in question.[174]
Because some forests are common to several owners, he concludes that
all forests are common to all. He maintains that the right of chase
belonged to all; and when you examine the authorities from which he
draws this conclusion, you discover that he quotes only two, and
that these, on the contrary, severely punish the man who has stolen
game.[175] Wherever he turns, he sees the mark. If the King Childebert
speaks of the _centena_, the _centena_ must be the _mark_.[176] The
duty of furnishing the king’s agents with a lodging when they are
travelling falls on the _mark_.[177] If later on you see a church in
every village, it is because, in times even earlier than Christianity,
“the association of the mark was united by religious bonds;” and in
proof of this he quotes a document of the year 1270 after Christ![178]
The “associates of the mark,” he says again, “are bound to support one
another” (page 161), and the only reference he gives is to the laws of
the Alamanni; you turn to the place indicated, and all you see there is
that two men have a quarrel, that one of them kills the other, and that
the friends of the victim pursue the murderer.[179] What connection
has this with an association of the mark? The village, according to
him, formed a free self-governing body, under its own head; and he
then instances the _comes loci_ of the laws of the Burgundians,[180]
though it is certain that the _comes_, far from being a village chief,
was the royal agent who administered a _civitas_. He does not fail to
seize upon the _tunginus_ as a chief elected by the villagers; which,
again, is pure imagination. He even discovers in a formula of Marculf
a _senior communiæ_, “a head of the rural community;” but the passage
in Marculf has a totally different meaning. The document in question
is a letter written in the name of a certain city begging the king
to appoint a bishop, and the expression _seniori communi_ is in the
heading, amongst the titles given to the king himself. It is a strange
mistake to suppose it referred to the principal man of a village
Public-domain text, read in full here on John Shaqi.
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