PRIMITIVE PROPERTY,
Translated from the French of
Emile De Laveleye,
Member of the Royal Academies of Belgium, Madrid and Lisbon,
Corresponding member of the Institute of France, of the Institute of Geneva,
Of the Academy Del Lincei, Of Rome, etc.
by G.R.L. Marriott, B.A., LL.B.
With an Introduction by
T.E. Cliffe Leslie, LL.B.,
of Lincoln's Inn, Barrister-at-Law
London
Macmillan and Co.
1878.
Cambridge:
Printed by C.J. Clay, M.A.,
At the University Press.
PREFACE TO THE PRESENT EDITION.
I am indebted for the translation of the present edition to Mr Marriott of Trinity College, Cambridge, who spontaneously undertook the task. At my request Mr Cliffe Leslie has written an Introduction to the work. In making this request I was aware that Mr Leslie's views with reference to some practical aspects of the subject were not identical with my own, but I felt sure that his attainments as a Professor of both Jurisprudence and Political Economy, and his extensive knowledge of legal and economic history, would enable him to introduce the historical development of property instructively to the reader, and to throw some fresh light upon it. I have only to add that the additions and alterations in the present edition make it in several respects almost a new work.
EMILE DE LAVELEYE
Liege, November, 1877.
INTRODUCTION.
By T.E. Cliffe Leslie.
M. De Laveleye's present work has two distinct aspects, historical and practical. On the one hand, it investigates the early forms of landed property in a number of societies, European, Asiatic, African, and American. On the other hand, it raises a practical problem, the importance of which will be admitted by readers who may dissent from M. de Laveleye's views with respect to its solution. A study of the course followed by the development of property from the infancy of society has led to two opposite lines of inference and thought -- represented respectively by Sir Henry Maine and M. de Laveleye -- with regard to its present forms in most civilized countries; but the historical researches of both these eminent writers coincide in establishing that the separate ownership of land is of modern growth, and that originally the soil belonged in common to communities of kinsmen.
The property of which M. de Laveleye treats in this volume is property in land; of all kinds of property that which has most deeply affected both the economic condition and the political career of human societies. In one sense indeed land was not primitive property; it was not man's earliest possession or wealth. The first forms of property are lost in the mist that surrounds the first infant stops of the human race. Wild herbs, fruit, berries, and roots were probably the earliest acquisitions, but the food thus obtained was doubtless devoured at once. When at length providence was developed so far as to lead to the laying by of some sustenance for the future, the inference to which the earliest developments of movable wealth, of which we get glimpses, unmistakably point, is that the store which individuals might thus accumulate would not have been regarded as their own absolute property, but as part of the common fund of the community, larger or smaller according to circumstances, of which they were members. Before land had been definitely appropriated by tribes or smaller groups, movables of many sorts had been successively added to the stock of human possessions -- new descriptions of food, implements and weapons, ornaments, the rudiments of clothing, fuel, captured and domesticated animals, human slaves, vehicles, boats, tents, and other movable dwellings. The importance of some of these early kinds of property to the progress of mankind is illustrated by the probability that the domestication of animals, and the acquisition thereby of a constant supply of animal food, contributed more than any other agency to the cessation of cannibalism. And a mass of evidence converges to the conclusion that the chief of these various chattels were possessed in co-ownership by families or larger communities, held together by blood or affinity. The bearing of this proposition on the nature of the ownership of land in early society is obvious, and it has also a relation to the practical aspects of the subject which M. de Laveleye discusses. Some evidence in support of it may therefore be appropriately adduced in the present Introduction; the more so that an opinion seems to prevail, even among scholars familiar with the true beginnings of property in land, that movable property in primitive society belonged from the first to individuals.
In the ancient laws of Ireland the whole tribe has "live chattels" and "dead chattels," as well as common lands. Among the Eskimos of Greenland, according to Dr Rink's account of their ancient usages, a house was the joint property of several families; a tent, a boat, and a stock of household utensils and articles for barter were owned in common by one or more families; the flesh and blubber of captured seals belonged to a whole hamlet, while larger animals such as whales were shared among the inhabitants of neighbouring hamlets; and custom strictly limited the quantity of clothes, weapons, tools, and other articles of personal use, that a single individual could keep to himself. "If a man had anything to spare it was ranked among the goods possessed in common with others." Among the Nootkas of North America, we are told by Mr Bancroft, though food is not regarded as common property, "any man may help himself to his neighbour's store when needy." Sir Henry Maine and M. de Laveleye have shewn that a joint table, with meals partaken in common by several families, is an archaic usage once prevalent throughout Europe and not extinct at this day among the Southern Slavs; and M. de Laveleye, with great probability, traces to it the common repasts in ancient Greece which historians have been accustomed to ascribe to the policy of legislators. Again, down at least to the fourteenth century, groups of English peasants, sometimes a whole village, had chattels such as horses, oxen, ploughs, boats, in common; a joint proprietorship which to the modern eye may look at first like a species of co-operation for convenience, but which it is more in conformity with the ideas and practices of early society to regard as a survival of the co-ownership of movables by kinsmen settled together, as we know the inhabitants of English villages in many cases originally were. Another fact pointing in the same direction is that in ancient Germany the compensation in cattle for a homicide or outrage went to the kindred, and the eric-fine of Irish law went partly to the whole sept, and partly to the chief as its head. Much evidence collected by recent inquiries into the usages of uncivilized communities at the present day, seems to lead us back to a stage of human development at which women not only were considered as chattels, but were themselves owned as such in common by clans, septs, or smaller groups of kinsmen; and the ancient Irish laws contain indications to the same effect. The honour price of an abducted woman was paid according to the Book of Aicill, in part to her chief and her relatives; and her children belonged to her family, who might sell them or not as they pleased. The infrequency of exchanges, the absence of coin and other divisible currency for small individual purchases, the use of cattle and slaves in the earlier stages of society, as a medium of payment, point in like manner to the absence of individual property in chattels. Commercial transactions took place between groups, or at least whole families, not between individuals. We may find here, I venture to suggest, the true explanation, though Mommsen gives a different one, referred to by M. de Laveleye, of the distinction, so long maintained in Roman law, between Res Mancipi, requiring a solemn ceremonial for their transfer, and those later or less important kinds of property called Res nec Mancipi, which were transferable by simple delivery. Res Mancipi included slaves, horses, asses, mules, oxen, lands in Italy, but not coin, jewels, lands beyond Italy, and many other possessions, either entirely unknown to the primitive Romans, or not deemed of such importance as to require the forms of Mancipatio for their transfer. The original distinction, I apprehend, lay between things that were common property, and things that were allowed to belong to individuals.
A limited stock of certain things for personal use was early permitted, and accordingly weapons, food, and other articles for his journey to another world, were placed in the warrior's grave, though it is a curious inquiry whether similar provision was made for a woman on her departure. This explanation of the formalities accompanying the transfer of Res Mancipi is quite in harmony with Sir H. Maine's exposition of the solemnities accompanying the commercial transactions of primitive associations. "As the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organized companies of men are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it, and they demand the presence of an inordinate number of witnesses."(1)
No mere psychological explanation of the origin of property is, I venture to affirm, admissible, though writers of great authority have attempted to discover its germs by that process in the lower animals. A dog, it has been said, shews an elementary proprietary sentiment when he hides a bone, or keeps watch over his master's goods. But property has not its root in the love of possession. All living beings like and desire certain things, and if nature has armed them with any weapons are prone to use them in order to get and keep what they want. What requires explanation is not the want or desire of certain things on the part of individuals, but the fact that other individuals, with similar wants and desires, should leave them in undisturbed possession, or allot to them a share, of such things. It is the conduct of the community, not the inclination of individuals, that needs investigation. The mere desire for particular articles, so far from accounting for settled and peaceful ownership, tends in the opposite direction, namely, to conflict and the right of the strongest. No small amount of error in several departments of social philosophy, and especially in political economy, has arisen from reasoning from the desires of the individual, instead of from the history of the community.
A more promising line of inquiry might at first sight appear to be one to which Sir Henry Maine has alluded in Ancient Law. Observing that the question proposed by many theorists respecting the origin of property is -- what were the motives which first induced men to respect each other's possessions? -- he adds that "the question may still be put, without much hope of finding an answer, in the form of an inquiry into the reasons that led one composite group to keep aloof from the domain of another composite group."(2) Within each composite group men originally, it may be affirmed, did not "keep aloof from each other's domain," for there was, in fact, no such separate domain. The idea, so far as any definite idea on the subject was dimly conceived, could only be that the group was an indivisible corporation, one in blood, property and customs. Nor was it until a great advance in civilization had been made, that one community recognized any right whatever, collective or individual, on the part of the members of another community of different blood or origin, to their domain or other possessions, or even to life or liberty. Property in the infancy of social progress consisted, one may say, simply in a feeling of unity and consequent co-ownership on the part of the men of a tribe, horde, clan, sept, or family; the size of the group being conditioned in a coat measure by the means of subsistence and other environing circumstances. So long as such a community led a wandering life, the co-ownership would be felt only in movables. But as its boundaries became circumscribed by its own growth, or by the neighbourhood of other communities, and its place of habitation in some degree fixed by the needs of incipient agriculture, landed property began to develop itself in the primitive forms set before us the present work, which affords by M. de Laveleye in one of the most brilliant examples in literature of the application of the comparative method to historical investigation.
Sir Henry Maine in his lectures at the Middle Temple was, I believe, the first to lay down with respect to landed property the general proposition, afterwards repeated in his Ancient Law, that "property once belonged not to individuals, nor even to isolated families, but to larger societies."(3) But proof of this proposition in detail exceeded the powers and opportunities for research of any single inquirer, and needed a number of original investigations in different parts of the world. One link in the chain, unknown to Sir Henry Maine, had already been forged by some profound Danish scholars, especially Oluf Christian Olufsen, who discovered from ancient legal records, the original co-ownership and common cultivation of the soil of Denmark and Holstein by village communities. Their investigations were followed by the celebrated researches of Haxthausen, Hansson and Georg L. von Maurer, in Germany. Professor Nasse of Bonn is entitled to the renown of having been the first to prove that in England, as in the German fatherland, groups of husbandmen cultivated the ground and fed their herds and flocks on a co-operative system which bears all the marks of descent from the primitive communal usages of the Teutonic race. Domesday had been so imperfectly studied before Mr Freeman's day, and other English documentary records had preserved so few traces of the primitive co-ownership and common use of land by village communities, that historians had been accustomed to follow the assumption of lawyers, that the rights of common surviving to modern times, grew up by sufferance on the part of the lords of Manors. Mr Freeman has cited an instance from Domesday, of the mon of a village community or township holding common land at Goldington in Bedfordshire; adding that such cases must have been far more usual than the entries in that great survey would lead us to think.(4) Professor Nasse has reproduced the rural economy and system of common husbandry that grew in some cases out of such common proprietorship, in other cases out of the common tenure of lands granted to individual owners in chief, but settled and cultivated on the same plan as those which belonged at first to the members of whole townships in common. Meanwhile, Sir Henry Maine's residence for several years in India, had enabled him to collect fresh evidence from existing forms of Hindoo property and social organization, in support of his original doctrine, that the collective ownership of the soil by communities larger than families, but held together by ties of blood or adoption, was in eastern as well as in western countries the primitive form of the ownership of the soil. Sir H. Maine's conception of ancient society and its institutions, it may be observed -- and the observation applies also to the theory which M. de Laveleye illustrates by so many striking examples in this work -- is nowise invalidated by proof on the part of other investigators like Bachofen, Herbert Spencer, Sir John Lubbock, Mr Tylor, Mr McLennan, M. Giraud Teulon and Mr Lewis Morgan, of antecedent states of human association, before the earliest stage of inchoate civilization had been reached, or the family , as we understand the term, had been formed. The institutions that Sir H. Maine and M. de Laveleye call primitive, are so in the sense at least of being the earliest usages of society emerged from savagery, and in some degree settled. And M. de Laveleye's work affords a magnificent example of the immense range of investigation for which there was room in respect of one of the chief of those institutions. However widely some of his readers may dissent from his views with respect to the modern distribution of landed property, there will be but one opinion respecting the breadth of research and learning with which he has frustrated its primitive forms. To the evidence previously collected by Sir H. Maine and the Danish and German scholars already referred to, he has added proofs gathered from almost every part of the globe. Ancient Greece and Rome, Medieval France, Switzerland, the Netherlands, Russia, the southern Slav countries, Java, China, part of Africa, central America, and Peru, are among the regions laid under contribution. Slavs, says M. de Laveleye, "boast of the communal institutions of the village community as peculiar to their race, and destined to secure its supremacy, by preserving it from the social struggles impending over the States of Western Europe; but when it is proved, that similar institutions are to be found in all ages, in all climates, and among the most distinct nations and races, we must see in their prevalence a necessary phase of social development and a universal law, as it were, presiding over the evolutions of the forms of landed property." It should not, however, be overlooked that the stage of development in which such institutions are natural, is a primitive one, and that their retention may be a mark not of superiority, but of backwardness, like the retention of those first implements to which M. de Laveleye alludes, and which in the age of stone were universal.
The term "natural" has been indeed a source of so much confusion and error in both the philosophy of law and political economy, that it might be well to expel it altogether from the terminology of both; but it could not be more legitimately applied than in the proposition that there is a natural movement, as society advances, from common to separate property in land as in chattels. This movement is perceptible among the Slav nations themselves, and it is closely connected with the movement from status to contract which Sir H. Maine has shewn to be one of the principal phases of civilization. Since the emancipation of the Russian peasantry, as M. de Laveleye observes, "the old patriarchal family has tended to fall asunder. The sentiment of individual independence is weakening and destroying it. The married son longs to have his own dwelling. He can claim a share of the land, and as the Russian peasant soon builds himself a house of wood, each couple sets up a separate establishment for itself. The dissolution of the patriarchal family will perhaps bring about that of the village community, of the domestic hearth that because it is in the union the habits of fraternity, the indifference to individual interest, and the communist sentiments which preserve the collective property of the mir, are developed." And in like manner M. de Laveleye ends a highly interesting description of the structure and life of the family communities among the Southern Slavs as follows: "The flourishing appearance of Bulgaria shows decisively that the system is not antagonistic to good cultivation. And yet this organization, in spite of its many advantages, is falling to ruin, and disappearing wherever it comes in contact with modern ideas. The reason is that these institutions are suited to the stationary condition of a primitive age; but cannot easily withstand the conditions of a state of society in which men are striving to improve their own lot as well as the political and social organization under which they live. I know not whether the nations who have lived tranquilly under the shelter of these patriarchal institutions, will ever arrive at a happier or more brilliant destiny; but this much appears inevitable, that they will desire, like Adam in Paradise Lost, to enter on a new career, and to taste the charm of independent life, despite its perils and responsibilities." Familiar as Englishmen are with Switzerland in its physical aspects, and with those features of its social life that meet the eye of the visitor, the very name of the Swiss Allmend, originally signifying the property of all, is probably known only to those who have studied M. de Laveleye's works. A large part of the land of each Swiss commune is preserved as a common domain, called the Allmend, respecting which the reader will easily obtain from M. de Laveleye's pages information which is not to be got elsewhere. M. de Laveleye points to it as an example of the possibility of reconciling the primitive system of common property and equality of wealth, with the modern system of individual ownership and great inequality of fortune. The chapters in the volume on this subject will repay careful study, but there are two points that ought not escape observation. One is that there are indications of a tendency even in Switzerland -- which stands alone in the world as a land that has maintained both the free political institutions and the communal system and property of the times before feudalism -- towards a disintegration of the Allmend. Thus in the canton of Glaris "at the present day, the commonable alps are let by auction for a number of years: and in complete opposition to ancient principles, strangers may obtain them as well as citizens." The other point is one which the last words of the passage just cited suggest. Some of M. de Laveleye's expressions might convey the idea that an original instinct of justice, and a respect for "natural rights" and equality, are discoverable in the primitive usages of society relating to property. Yet such language needs some interpretation to make it appropriate. The only rights which men in early society recognized were those of the community to which they belonged. These rights ran in the blood, as it were, and were confined to fellow-tribesmen or kinsmen. The stranger had no share in the common territory, no natural right as a fellow-man to property of any kind or even to liberty. And within the community, equality was confined to one sex, even after the family, as we know it, had been founded, and apartition of arable land had been made. "Everywhere," in M. de Laveleye's words, "the daughters are excluded from the succession. The reason of this exclusion is manifest. If females inherited, as by marriage they pass into another family, they would effect a dismemberment of the joint domain, and the consequent destruction of the family corporation."
Modern communism finds no precedent in the institutions of early society, its conceptions and aims are of purely modern origin; and it neither can justify them on the ground of conformity with original sentiments of justice, nor, on the other hand, can be charged with going back to barbarism for its theory of rights. The original ownership of movables by communities shews that the early usages of mankind are not models for our imitation. If separate property in land is contrary to primitive ideas and institutions, so is the separate ownership of chattels and personalty of every description. If indeed we ought to revert to common property in land because it is primitive, why not also to communism in women, if that too can be shewn to have been the primitive system? The truth is that the early forms of property were natural only in the sense of being the natural products of an early state of the human mind. The forms natural in the present state of society are those in conformity with the development of human reason and with modern civilization. Some phrases in the present work might seem to indicate a desire on M. de Laveleye's part to return to the primitive co-ownership of the soil, but this he expressly disclaims. The real ground on which he builds his practical doctrines is the modern one of policy and expediency. He sympathizes with the equality of fortunes maintained in early society, but his counsels to modern society are based on the dangers that threaten it from enormous inequality of property in an age in which all men are becoming equal in political power, and sovereignty is passing into the hands of those who possess least, because they are the most numerous. Nor can it be denied that the unequal distribution of landed property in the British Islands especially, has been the result, in no small degree, not of social development or natural evolution in that sense, but of violence and usurpation in past times, and the maintenance down to our own time of a system of law derived from them.
The fact that Sir H. Maine and M. de Laveleye look with different eyes on the primitive usages of society is easily intelligible. The tendency of agriculture, commerce, and invention, of the development alike of human wants and aspirations, and of human faculties, is not only towards individual property, but towards inequality of property; and for my own part I see no greater injustice in unequal riches than in unequal strength or intellectual power. But the actual inequalities of fortune, and of landed property especially, have sprung also from other very different causes which M. de Laveleye describes. The result of the combined operation of both sets of causes is that where Sir H. Maine sees progress and civilization, M. de Laveleye sees formidable dangers to society. The owners of property are on the eve of becoming a powerless minority, and the many, to whom the whole power of the State is of necessity gravitating, see all the means of subsistence and enjoyment afforded by Nature in the possession of the few.
Readers who incline more to Sir H. Maine's point of view may therefore find much to concur with in some of M. de Laveleye's practical conclusions. The course of English legislation with respect to commons, for example, would, one may safely assert, have been materially different had M. de Laveleye's book been published two generations ago; and even now it may not be without influence on the side of those who resist further usurpation under the cloak of improvement; the pretext urged from the days of Henry III when the statute of Merton was passed, to those of Victoria. The subject, again, has a practical importance in relation to two opposite typos of society, represented on a great scale within the limits of the British empire; namely, ancient communities like those inhabiting India, and new communities at the beginning of their career, like those of Australia and New Zealand. As regards the first, it cannot be doubted that a knowledge of the early forms of land ownership would have preserved English administration from some of the worst blunders ever committed in the history of the government of dependencies. In the case of young colonies, on the other hand, it is no invasion of the principles on which individual property properly rests, to concede to writers like M. de Laveleye and Mr Pearson,(5) that a few score of the first comers into an immense territory ought not to be suffered to engross to themselves and their defendants the greater part of the land.
Great changes in English ideas with respect to the devolution and distribution of landed property will doubtless follow sooner or later a great change in the distribution of political power. The history of political ideas is the history of change; and the ideas of the dominant classes become the dominant ideas in politics. No right is now held more sacred in England than the right of unrestricted bequest; and the same sentiment supports the right of settlement and entail; both are regarded here as natural rights, although at the other side of the English Channel the prevailing opinion is that a child has an indefeasible right to a share of the property of his parents. Both conceptions are of historical origin; the first is the one that we find in the early code of the Twelve Tables, the second has come down from the code of Justinian. "In France," says Sir Henry Maine, "the change which took place at the first Revolution was this: the land law of the people superseded the land law of the nobles. In England the converse process has been gone through; the system of the nobles has become in all essential particulars the system of the people."(6) When the people shall have the dominion in England, what shall become of the system of the nobles?
There is no path of historical research that does not load to some practical conclusions, but some of its paths end as it were in cross roads, going different ways, between which the choice may be difficult. It is however one great advantage of the historical method that it has attractions and instruction apart from the practical inferences of particular authors. The historical part of Auguste Comte's Positive Philosophy, for example, may be studied with profound admiration by readers who wholly repudiate his system of polity. In like manner M. de Laveleye's work on primitive property cannot be read without interest and benefit even by those who most firmly refuse to accept some of the doctrines that it upholds.
T.E.C LESLIE
November 30, 1877.
TRANSLATOR'S PREFACE
The present work professes to be nothing but a mere translation of M. do Laveleye's treatise "De la propriété et de ses formes primitives," and I have therefore confined myself strictly to a simple reproduction of the author's text, without comment or alteration. These pages will, however, be found to differ considerably from the original French edition of 1874, both in arrangement and contents; as by the courtesy of the author I am able to present the work to the English public in the form in which it is about to appear in the new French edition.
G.R.L. MARRIOTT.
Cambridge,
December, 1877.
PREFACE TO THE ORIGINAL EDITION
There is a marked contrast between the positions of men's minds at the end of this century and at the end of the last. Then, men of all classes were eager for reform, and full of hope. Confident of the native goodness of the human race, they thought to secure its liberty and happiness, by correcting, or rather by annihilating, the institutions of the past, which had produced the slavery and distress of the people. "Man was born free," cried Rousseau, "yet everywhere he is in fetters." The eighteenth century and the French revolution replied: "We will break their fetters, and over the fragments shall reign universal liberty. The nations are brothers; tyrants alone arm them against each other. We will overthrow the oppressors, and the fraternity of nations shall be established." Intoxicated with these flattering illusions, men looked for a new era of justice and prosperity for an emancipated and restored human race. Now, also, we speak of reforms; but it is with a gloomy heart, for we have but a feeble trust in the final efficacy of our endeavours. Caste and its privileges are abolished; the principle of the equality of all in the eye of the law is everywhere proclaimed; the suffrage is bestowed on all; and still there is a cry for equality of conditions. We thought we had but the difficulties of the political order to solve, and now the social question rises with its gloomy abysses. Tyrants are banished; thrones are overturned, or the kings who sit on them are bound down by constitutions, which for the most part they respect; but instead of the quarrels of prices or dynastic rivalries, we now have a far more formidable source of war, -- the enmity of races, which arms whole nations for the struggle. If no new breath of Christian charity and social justice come to calm all these hatreds, Europe, amid the struggles of class with class and race with race, is threatened with universal chaos.
Tocqueville has shewn, and every day there are fresh facts to confirm his predictions, that all nations are irresistibly impelled towards democracy, and yet democracy seems to produce nothing but strife, disorder, and anarchy. Democratic institutions thrust themselves upon us, and yet we cannot firmly establish them. Thus the same thing seems at once inevitable and unattainable. How to reconcile absolute liberty with the maintenance of established order in society, and how to enable the inequality of conditions, which is declared to be necessary, to exist side by side with the political equality which is conferred, is the formidable problem which modern societies must solve under pain of perishing like those of ancient times.
Democracy leads us to the verge of a precipice, is the cry of conservatives; -- and they are right. Either you must establish a more equitable division of property and produce, or the fatal end of democracy will be despotism and decadence, after a series of social struggles of which the horrors committed in Paris in 1871 may serve as a foretaste.
Under the influence of Christianity, all men are with blind improvidence proclaimed equal before the law, and the suffrage is actually granted to all, which enables the masses to name their legislators, and so to frame their laws. At the same time, economists reiterate that all property is the result of labour; and yet as before, under the empire of existing institutions, those who labour have no property and with difficulty gain the bare means of existence, while those who do not labour live in opulence and own the soil. As the former class compose the great majority, how can they be prevented from using some day the preponderance at their disposal in an endeavour to alter the laws which regulate the distribution of wealth so as to carry into practice the maxim of St Paul: "qui non laborat, nec manducet"?
The destiny of modern democracies is already written in the history of ancient democracies. It was the struggle between the rich and the poor which destroyed them, just as it will destroy modern societies, unless they guard against it. In Greece, equal rights were granted to all the citizens. But ancient legislators did not fail to recognize the fundamental truth, so constantly repeated by Aristotle, that liberty and democracy cannot exist without equality of conditions. To maintain this equality they had recourse to all kinds of expedients; inalienability of patrimonies, limitations on the right of succession, maintenance of collective ownership as applied to forests and pasturage, public banquets in which all took part, -- the sussitia and copis so often mentioned in ancient writers. But all these precautions were insufficient to check the progress of inequality; and then the social struggle began, pitting against each other the two classes almost as far separate in their interests as two rival nations, just as we see it in England and Germany at the present day. Note the ominous words of Plato (Repub. IV.): "Each of the Greek states is not really a single state, but comprises at least two; one composed of the rich, the other of the poor."
As the poor enjoyed political rights, they sought to turn them to account to establish equality: at one time they imposed all the taxes on the rich, at another they confiscated the goods of the latter, and condemned the owners to death or exile; often they abolished debts, and sometimes they went so far as to carry out an equal division of all property. The wealthy classes naturally took every means to defend themselves, even having recourse to arms. Hence there were constant social wars. Polybius sums up this lamentable history in a sentence: "In every civil war, the object was to displace fortunes." "The Greek cities," says M. Fustel de Coulanges in his excellent work, La Cité Antique, "were always fluctuating between two revolutions, the one to despoil the rich, the other to reinstate them in possession of their fortune. This lasted from the Peloponnesian war to the conquest of Greece by the Romans." Boeckh, in his work on the Political Economy of the Athenians, expresses himself in nearly the same terms.(7)
Inequality, therefore, was the cause of the downfall of democracy in Greece.
Rome presents the same picture. From the beginning of the republic the two classes, the plebs and the aristocracy, were at issue. The plebs from time to time acquired political rights, but were gradually deprived of property; and thus, at the same time as equality of rights was established, the inequality of conditions became extreme. Licinius Stolo, the Gracchi, and other tribunes of the people endeavoured, by means of agrarian laws, to re-establish equality, and proposed the distribution of the ager publicus. To no purpose however; for on one hand extended the great domains, and on the other slavery. A disinherited proletariate replaces the class of small citizen-proprietors, who were the very marrow of the republic. There was no longer a Roman nation: there remained but the rich and the poor attacking and execrating each other. Finally, out of the enmity of classes rose, as is always the case, despotism. Pliny presents the whole drama to us in one sentence, which explains all ancient history: Latifundia perdidere Italiam. At Rome, as in Greece, inequality, after stifling liberty, destroyed the State itself.
M. H. Passy published a work, Des formes de gouvernement, to shew that republics may be transformed into monarchies, but that a monarchy cannot develop into a durable republic, because class enmities prevent the regular establishment of democratic institutions. Events in Spain and France seem to bear him out.
At the present moment modern societies are met by the problem, which antiquity failed to solve; and we scarcely seem to comprehend its gravity, in spite of the sinister events occurring around us.(8) The situation, however, is far more critical now-a-days than ever it was in Greece or Rome. There are two causes which aggravate it immensely, -- one economic, the other moral. Formerly, as labour was executed by slaves, who, generally speaking: took no part in the social struggles, dissensions between the rich and the poor were no hindrance to the production of wealth. While the struggle went on in the Agora, slave labour was continued without check to support the two parties engaged in the strife. But, now-a-days, the labourers themselves come down into the arena, and the battle is fought out on the field of labour. Social struggles could not therefore he prolonged without entailing the impoverishment and disorganization of society.
Then, again, a higher ideal of justice aggravates the danger. The ancients, not admitting the natural equality of all men, did not recognize in them all the same rights. The slave who guided the plough and drove the shuttle, was in their eyes a beast of burden; he had therefore no claim, either to suffrage or property. The social difficulty was thus wonderfully simplified. But we have not the same resource. With us the quality of all men is an established dogma, and we grant the same rights to whites and negroes. Christianity is an equalizing religion. The Gospel is the good tidings brought to the poor, and Christ is not the friend of the rich. His doctrine verges on communism; and his immediate disciples and the religious orders who sought to follow his teaching strictly, lived in community. If Christianity were taught and understood conformably to the spirit of its founder, the existing social organization could not last a day.
Now the slave has become a citizen, and the labourer free. He is recognized as the equal of the wealthiest. He votes, he may enter Parliament. He claims, or will claim, property: and how shall we resist him, with a philosophy and a religion which justify his claim? The ancients, whose religion and philosophical notions absolutely condemned such pretensions, and even prevented their coming to life, did not succeed in establishing democratic institutions side by side with inequality of conditions, although the problem had only to deal with free citizens, living by the labour of others. How should we succeed better, when we have to consider a whole nation without any exception? In France, the question is already prominent. She has reached the point, common in history, where the higher classes, menaced by the demands of those beneath them, and terrified by the horrors of social strife, seek safety in a dictator. If, at this moment, 1877, the so-called conservative party opposes the establishment of the Republic, it is not from any exclusive attachment to monarchical forms; but simply because it is afraid triumphant democracy would soon lead to claims of an equalitarian nature. We should not regard the gloomy situation of France with disdainful pity; her lot will one day be ours, Hodié mihi, cras tibi, as the funeral inscription runs. Everywhere socialism makes rapid progress. "As yet," as Mr Disraeli has said, "it is only a light breeze which hardly stirs the foliage, but soon it will be the unchained hurricane, overturning everything in its path." In Germany, socialism is an organized party, which has its journals, carries on a struggle in all the large towns, and sends to the Reichstag an increasing number of representatives. In Austria, Spain, and England, the masses of working men are penetrated with its ideas; and, what is more serious, even professors of political economy become Katheder-Socialisten. If the crisis seems more intense in France, it is not because the danger is greater. On the contrary, social order there rests on the solid rock of a soil divided among five millions of proprietors. But the communicative spirit, the natural eloquence and quick logic of the French, reduce every problem to a more concise form, and so the struggle breaks out sooner. The vivid imagination of this brilliant people exaggerates dangers, and so urges the two parties to extreme measures. But, sooner or later, the economic situation being almost everywhere the same, class enmities will everywhere endanger liberty; and the more property is concentrated and the contrast accentuated between the rich and the poor, the more will society be threatened with profound revolutions. Either equality must be established, or free institutions will disappear. Tocqueville failed to see that here was the real rock ahead for democracy. But Macaulay demonstrated it with terrible eloquence, in his letter on American Institutions (Times, 6 April, 1860), in which he shews the future reserved for the United States.
In the author's opinion, modern democracies will only escape the destiny of ancient democracies by adopting laws such as shall secure the distribution of property among a large number of holders, and shall establish a very general equality of conditions. The lofty maxim of justice, To every one according to his work, must be realised, so that property may actually be the result of labour, and that the well-being of each may be proportional to the co-operation which he gives to production.
To attain this result, quiritary ownership, such as the Romans, men of conquest and masters of slaves, have bequeathed to us, is not sufficiently flexible, or human. Without returning to institutions of primitive times, I believe we might borrow from the Germanic and Slavonic system of possession, principles more consonant than the Roman law with the requirements of democracies, because they recognize in every one the natural, individual right of property. Generally, in speaking of property, we assume that it can only exist in a single form, namely, that which is in force around us. This is a profound and mischievous mistake, which prevents our rising to a higher conception of law. The exclusive, personal, and hereditary dominium, as applied to land, is a fact of relatively recent origin; and for centuries men knew and practised nothing but collective ownership. As the organization of society has undergone such profound modifications in the course of centuries, we should not be forbidden to search for social arrangements more perfect than those with which we are acquainted. We are in fact compelled to do so, under pain of coming to a deadlock, in which civilization must perish.
As Fichte remarked in his treatise on morals (System der Ethik), and Don Francesco de Cardenas in his excellent History of Property in Spain (Ensayo sobre la historia de la Propietad territorial en Espana), analysis discovers two elements in the right of property, a social element and an individual element. It is not instituted solely in the interest of the individual and to guarantee him the enjoyment of the fruits of his toil; it is also instituted in the interests of society, to secure its stability and useful action. These two sides of property correspond to the double aspect under which we may consider man, whether as the isolated individual, pursuing his own object independently, or as a citizen and member of society, bound to his fellows by many relations and various obligations. In primitive times the social element prevails in landed property. The soil is a collective domain belonging to the tribe; individuals have only a temporary enjoyment of it. In Greece, a large portion of the territory belonged to the State, and the rest remained subject to its supreme power. At Rome, quiritary dominium, that is to say, the absolute right exercised over the soil appears for the first time. In the Middle Ages under the feudal system, property is a remuneration for certain services rendered. The fief is the salary attached to certain duties. In theory it is not hereditary; but is conferred for life by the sovereign, and the holder is bound in return to carry arms, to maintain order, and assist in the administration of justice. The indivisible property of the majorat preserves a very distinct social character. The individual in possession has only a life-interest; he may not dispose of it because it is destined to maintain the family, which, with its traditions, its greatness, and its hereditary duties, is regarded as the constituent element of the nation. The hierarchial relations of class, and therefore the whole organization of the State, are based on the possession of the soil. At the present day property has been deprived of all social character: contrary to what it was originally, it is no longer collective. It is a privilege subject to no fetters, no reservation, and no obligation, which seems to have no other end than the well-being of the individual. Such is the general conception and definition of it. With increased facility of alienation, it passes from hand to hand, like the fruits it bears or the beasts it nourishes. By advancing too far in this direction we have shake the foundations of society; and we may expect that in the future more scope will be allowed to the collective element. "We shall come," says Immanuel Fichte, "to a social organization of property. It will lose its exclusively private character to become a public institution. Hitherto the only duty of the State has been to guarantee to every one the quiet enjoyment of his property. Henceforth the duty of the State will be to put every one in possession of the property to which his wants and his capacities entitle him."
According to this eminent German writer, such a transformation will be effected by the influence of Christianity. "Christianity," he says, "yet carries in its breast a renovating power of which we have no conception. Hitherto it has only acted on individuals, and through them on the State indirectly. But whoever can appreciate its power, whether he be a mere believer or an independent thinker, will confess that it is destined some day to become the inner, organizing power of the State; and then it will reveal itself to the world in all the depth of its ideas, and the full richness of its blessing."
Christianity has, in fact, introduced an ideal of justice, which positive institutions, in spite of many improvements, completely fail to realize. This ideal was "the kingdom of God," which the early Christians thought to be at hand. Now we no longer expect the millennium, but should seek to establish principles of equality and evangelic justice on earth, in the midst of existing societies. But before better laws are established a higher sentiment of right and equity must pervade men's minds. We are beginning to see signs from time to time, as well among the upper as the labouring classes, that the equalitarian ideas of the Gospel will one day leaven our laws and our institutions. This point is set forth with much clearness in François Huet's book, Le Christianisme social, -- a work too little known.
There are certain countries in which the most radical democracy has been maintained for centuries, where feudalism and royalty have never penetrated, and where the most perfect liberty has reigned, without any danger of class struggles and social strife. These are the forest cantons of Switzerland, whose curious institutions have been so well described by Mr Freeman. There we may find the direct government dreamed of by Rousseau. The whole people come together to pass its laws, to nominate its magistrates, and to administer its affairs, just as was formerly the case in the Greek republics.
Here the object, which ancient lawgivers pursued in vain, has been attained. Equality of conditions has been preserved, as Aristotle desired; and thus political equality has not led to anarchy and subsequent despotism. The primitive form of property has been respected, which is alone conformable to natural justice, and which alone permits of the permanence of true democracy, without hurrying society into disorder.
In all primitive societies, whether in Europe, Asia and Africa, alike among Indians, Slavs and Germans, as even in modern Russia and Java, the soil was the joint property of the tribe, and was subject to periodical distribution among all the families, so that all might live by their labour, as nature has ordained. The comfort of each was proportional to his energy and intelligence: no one, at any rate, was entirely destitute of the means of subsistence; and inequality increasing from generation to generation was provided against. In most countries this primitive form of property has given place to quiritary property and the inequality of conditions has led to the domination of the higher classes, and the more or less complete servitude of the labourer. In Switzerland, however, side by side with individual properties, there is in each commune a large portion of the territory still preserved as collective domain: this is the allmend. Its name indicates its nature as being "the property of all."
The old German law had an admirable word to designate the inhabitants of a village: it styled them geerften, "inheritors." All the children of the large communal family were entitled to a share in the inheritance. None was ever without a portion from which his labour might win sufficient for his support.
The Slav and Germanic custom, securing to every one the enjoyment of land from which to derive his means of subsistence, is the only one conformable to the rational theory of property. The generally accepted theory of property requires total reconstruction, for it rests on premises in direct antagonism with historic facts and with the very conclusions at which it seeks to arrive.
In enquiries as to the origin of property, sufficient attention has not been given to ancient historic facts, which may be called natural as everywhere springing from an instinct of justice, which seems innate in human nature. As Sir Henry Maine remarks, "theories, plausible and comprehensive, but absolutely unverified, such as the Law of Nature or the Social Compact, enjoy a universal preference over sober research into the primitive history of society and law; and they obscure the truth not only by diverting attention from the only quarter in which it can be found, but by that most real and most important influence which, when once entertained and believed in, they are enabled to exercise on the later stages of jurisprudence."(9)
Thus, in order to defend the quiritary property bequeathed to us by the Romans, writers have asserted that it has existed at all times and in all places, ubique et semper; -- whereas a closer knowledge of history shews us that the original and universal form of property was the mode of possession practised by the Slavonic and Germanic tribes, and exercised at Rome itself over the ager publicus.
The jurists, under the influence of the Digest and the Institutes, base the right of property on the occupation of a res nullius; but we know of no period in which the soil has been a res nullius. Among hunting tribes their hunting-ground, among pastoral tribes their pasture lands, and finally among the earliest agricultural tribes the cultivated land, were always regarded as the joint property of the tribe, and no one ever conceived the idea that an individual could have any exclusive, hereditary right therein. Occupation could only create a right of property over movable objects, which were actually subject to seizure and detention. The formalities of sale among the Romans, shew that it was only applied by a comparatively recent extension to the alienation of an immovable.
In deriving the right of property solely from labour, economists are in direct opposition to the jurists and the legislations of all countries, and even to the existing organization of society, which their theories, if once admitted, would completely overthrow.
Writers, who endeavour to prove the necessity of the right of property, make use of arguments which shew that, in order to be equitable, it must be organized in the same way as among primitive nations, that is, so as to guarantee to every one a natural, inalienable right. The eminent legislator, Portalis, adducing the arguments in support of the title in the Code civil which treats of property, shews it to be necessary and legitimate by the following reasoning: -- Man can only live by his labour; in order to labour he must be able to appropriate a portion of the soil to dispose of it as he pleases; hence the right of property is necessary. Nothing can be more true; but, if property is necessary for a man to labour and live, it follows that every one should have some property. Bastiat adopts the same premises as Portalis, with no clearer perception of their consequences. "In the full force of the word," he says, "man is born a proprietor, because he is born with wants the satisfaction of which is essential to life, and with organs and faculties, the exercise of which is essential to the satisfaction of his wants." From these words of Bastiat it follows that, unless we condemn certain persons to death, we must recognize in all the right to property. If man is born a proprietor, it is incumbent on the law to put him in a position to exercise the right recognized in him.
"Man," says Bastiat again, "lives and develops by appropriating certain objects. Appropriation is a natural, providential phenomenon, essential to life, and property is only appropriation converted into a right by labour." If appropriation is essential to life, all should be able to appropriate a portion of matter by their labour. This natural right is recognized in the allmend system, and in the ancient Germanic law, but is entirely overlooked in all legislation derived from the Roman law. "Property is not a natural, innate right," says Dalloz, a well-known jurist, "But it springs from an innate right, which right is liberty." If property is indispensable to liberty , does it not follow that all men having the right to be free, all are equally entitled to be proprietors? In fact, without property they would be dependent on those from whom they received their wage. Troplong, the great jurist of the Second Empire, in a pamphlet, La propriété d'après le Code civil, published in 1848, in refutation of the false doctrines of the Socialists, expresses himself in these terms (p. 12): "If liberty is the basis of property, equality makes it sacred. All men being equal, and therefore equally free, every one ought to recognize in another the sovereign independence of the right." Now either this high-sounding phrase has no meaning at all, or else it signifies that we ought to secure to every one the enjoyment of property, which may guarantee his independence.
Most modern authors declare property to be a natural right. But what is a natural right, unless it be a right so inherent in human nature that no man should be able to be robbed of it, unless he has forfeited it by his conduct?
In this volume I have simply endeavoured to draw a historical sketch of primitive forms of property, without deducing any new theory as to the right. I do not believe that history can disclose the right to us. Because an institution has existed, even through all time, it does not follow that it is just, or that it should be preserved or reconstructed. We may, how over, conclude from the fact of its long duration, that it has answered to men's sentiments and men's requirements during the centuries for which it has been maintained. But, if all the arguments adduced by jurists and economists in favour of quiritary property, rather condemn it and justify primitive property; as conceived and practised by ancient societies, under the sway of a universal sentiment of natural justice, there is occasion, one would think, for reflection on this striking agreement; and all the more so as property thus regarded as a natural right belonging to all, is alone conformable to the sentiments of equality and charity which Christianity begets in the soul, and to the reforms in civil laws which the development of the industrial organization seems to command.
The knowledge of primitive forms of property may be of direct interest to new colonies, which have immense territories at their disposal, such as Australia and the United States, for it might be introduced there in preference to quiritary property.
Our older societies can only arrive at an order more in harmony with justice and Christianity, after a series of social struggles, in which liberty may succumb: but the younger societies, still in process of formation in another hemisphere, may escape those fearful trials, if they seek inspiration in the lessons of history and adopt institutions which in certain countries have allowed democracy to survive without compromising order and liberty. In every commune a portion of territory should be reserved and divided in temporary enjoyment among all the families, as is done in the forest cantons of Switzerland.
I trust the citizens of America and Australia will not adopt the strict and severe right of property which we have borrowed from Rome, and which is leading us to social strife. They should rather return to the traditions of their ancestors. If Western societies had preserved equality by consecrating the natural right of property, their normal development would have been similar to that of Switzerland. They would have escaped the feudal aristocracy, the absolute monarchy, and the demagogic democracy with which we are threatened. The communes, inhabited by free men, property-holders and equals, would have been allied by a federal bond to form the State, and the States in their turn would have been able to form a federal union such as the United States. We should not forget this important lesson taught us by the history of political and social institutions: Democracies, which fail to preserve equality of conditions, and in which two hostile classes, the rich and the poor, find themselves face to face, are doomed to anarchy and subsequent despotism. The recent strikes in the United States shew that the danger there is already near the surface. Such is the lesson which Greece teaches us by the mouth of Aristotle, and of which history and our actual situation alike give us proof. To preserve liberty in a democratic state, its institutions must maintain equality.
States, in which democracy and inequality are developed side by side, are therefore especially threatened; and it has to be seen whether they contain the wisdom, the energy, and the skill, necessary to change their institutions. Younger societies, however, which are springing up on a virgin soil, may escape the danger, by adopting laws and customs, which, from time immemorial, have secured liberty and property to the small Swiss cantons, under the most radically democratic government that we can conceive.
Need I add, that the object of this book is not to advocate a return to the primitive agrarian community; but to establish historically the natural right of property as proclaimed by philosophers, as well as to show that ownership has assumed very various forms, and is consequently susceptible of progressive reform. Mr Mill regarded this point as of the greatest importance, and counselled the author, in a letter reproduced at the end of the volume, to develope it at full length. The present work was compiled in accordance with this advice.
December, 1877
NOTES:
1. Ancient Law, p. 271.
2. Ancient Law, p. 270.
3. Ancient Law, p. 268.
4. History of the Norman Conquest, v. 463.
5. The reference is to Mr C.H. Pearson, the historian, who is now resident in Australia, and has written powerfully on the subject.
6. Early History of Institutions, 2nd Ed., p. 124.
7. Staatsh. der Athen. I. p. 201. No writer has understood better than Aristotle the problem which the constitution of a democratic state involves. His splendid work The Politics exhibits the question with a startling clearness. "Inequality," he says, "is the source of all revolutions, for no compensation can make amends for inequality." (Lib. v. c. 1.) "Men, when equal in one respect, have wished to be equal in all. Equal in liberty, they have desired absolute equality. They imagine they are injured in the exercise of their rights, and rise in rebellion."
To prevent insurrections and resolutions it is therefore necessary, according to Aristotle, to maintain a certain equality. "Make even the poor owner of a small inheritance," he says. In the same chapter he comments the legislator Phaleas of Chalcedon for having taken measures to establish equality of fortune among the citizens. "The equalization of fortunes is the only method of presenting discord."
He reproaches the constitution of Sparta for "imperfect legislation on the distribution of property." "Some own immense lands, while others have hardly any property at all, so that almost the whole country is the patrimony of a few individuals. This disorder is the fault of their laws."
"A state, as nature intends it, should be composed of elements approaching as nearly as possible to equality." He goes on to shew that in a state composed of a rich class and a poor class, struggles are inevitable. "The conqueror regards government as the prize of victory," and turns it to account to oppress the vanquished.
The politicians of the eighteenth century, Montesquieu particularly, reiterate again and again the assertion that equality of property is the only basis of democracy. "It is not sufficient," says Montesquieu, "in a good democracy, that the portions of the soil should be equal: they must also be small, as at Rome." Esprit des Lois, v. 5.
8. We must not however forget the slave insurrections, which on several occasions endangered the state. See Karl Bücher's excellent study, Die Aufstände der unfreien Arbeiter, 1874.
9. Maine, Ancient Law, p. 3.