PRIMITIVE PROPERTY

Chapter 1

The Gradual and Universally Similar Evolution of Property in Land

Until quite recently dolmens and druidic stones were regarded as peculiar to Celtic tribes. But the discovery of these monuments of the most remote ages in Holland, and in Germany, in Asia, America, and even in the Asiatic Archipelagoes, together with flint weapons and implements characteristic of the Stone age, has established the opinion that the human race has everywhere passed through a state of civilization, or rather perhaps of barbarism, an image of which is presented to us, even now, in the life of the natives of New Zealand and Australia. In a work of the greatest interest M.L. Königswarter has shewn that certain customs which were thought to be peculiar to the Germans, such as the composition for crimes, ordeals and trial by battle, were really to be met with among all nations, at the same stage of civilization.⁽¹⁾

Village communities, such as exist in Russia, were again thought to be exclusively characteristic of the Slavs, who were said to have communistic instincts. Slavophils boast of these institutions as peculiar to their race, and assert that they must secure its supremacy, by preserving it from the social struggles, which are destined to prove fatal to all Western States. Now however, it can he proved, -- and we shall here endeavour to prove, -- that these communities have existed among nations most distinct from one another, -- in Germany and ancient Italy, in Peru and China, in Mexico and India, among the Scandinavians and the Arabs -- with precisely similar characteristics. When this institution is found among all nations, in all climates, we can see in it a necessary phase of social development and a kind of universal law presiding over the evolution of forms of landed property.⁽²⁾ Primitive nations everywhere used the same clumsy implements formed of flint, and regulated the ownership of the soil in the same fashion, under the existence of similar conditions.

Sir Henry Maine, who has held high judicial office in India, was struck by finding at the feet of the Himalayas or on the banks of the Ganges, institutions similar to those of ancient Germany, and he has published these curious coincidences in a book entitled Village Communities in the East and West. He there brings into strong light the importance of the facts described. It seems, as he says very truly, that from all sides new light is being shed to illustrate the most obscure pages of the history of law and of society. Those who were of opinion that individual ownership was evolved, by gradual transformations, from primitive community, found evidence of the fact in the ancient villages of German and Scandinavian nations. They were more struck when England, always supposed to have been from the days of the Conquest subject to the feudal regime, was recently shewn to contain as many traces of collective ownership and common cultivation as the northern countries. They were further confirmed in their convictions, on learning that these primitive forms of ownership and cultivation of the soil are to be found in India, and direct the progress of the administration of that vast colony. Hence these juridical antiquities, which seemed as if they could only be of interest to a limited number of savants, are of real, practical interest. Not only do they throw new light on fundamental institutions and on the mode of life of primitive races; but, as Mill remarked, they raise us above the narrow ideas, which make us regard that which is carried on around us, as the only scheme of social existence.

The history of property has still to be written. Roman law and modern law grew up in a period, when every recollection had perished of the collective forms of landed property-forms which, for so long, were the only ones adopted. Hence we have great difficulty in conceiving of property otherwise than as it is constituted in the Institutes or in the Civil Code. When jurists want to account for the origin of such a right, they fly to what they call the State of Nature, and from it derive directly absolute, individual ownership -- or quiritary dominium. They thus ignore the law of gradual development, which is found throughout history, and contradict facts now well known and well established.

It is only after a series of progressive evolutions and at a comparatively recent period that individual ownership, as applied to land, is constituted.⁽³⁾

So long as primitive man lived by the chase, by fishing or gathering wild fruits, he never thought of appropriating the soil; and considered nothing as his own but what he had taken or contrived with his own hands. Under the pastoral system, the notion of property in the soil begins to spring up. It is however always limited to the portion of land, which the herds of each tribe are accustomed to graze on, and frequent quarrels break out with regard to the limits of these pastures. The idea that a single individual could claim a part of the soil as exclusively his own never yet occurs to any one; the conditions of the pastoral life are in direct opposition to it.

Gradually, a portion of the soil was put temporarily under cultivation, and the agricultural system was established; but the territory, which the clan or tribe occupies, remains its undivided property. The arable, the pasturage and the forest are farmed in common. Subsequently, the cultivated land is divided into parcels which are distributed by lot among the several families, a mere temporary right of occupation being thus allowed to the individual. The soil still remains the collective property of the clan, to whom it returns from time to time, that a new partition may be effected. This is the system still in force in the Russian commune; and was, in the time of Tacitus, that of the German tribe.

By a new step of individualization, the parcels remain in the hands of groups of patriarchal families dwelling in the same house and working together for the benefit of the association, as in Italy or France in the middle ages, and in Servia at the present time.

Finally individual hereditary property appears. It is, however, still tied down by the thousand fetters of seignorial rights, fideicommissa, retraits-lignagers, hereditary leases, Flurzwang or compulsory system of rotation, etc. It is not till after a last evolution, sometimes very long in taking effect, that it is definitely constituted and becomes the absolute, sovereign, personal right, which is defined by the Civil Code, and which alone is familiar to us in the present day.

The method of cultivation is modified in proportion as property is evolved from community. From being extensive, cultivation becomes intensive, that is to say capital contributes to the production of what was formerly derived from the extent of the territory.

At first, the cultivation is temporary and intermittent. The natural vegetation is burned on the surface, and grain is sown in the ashes; after this the soil rests for eighteen or twenty years. In this way, the Tartars cultivate buckwheat, and the inhabitants of the Ardennes rye, on the high-lying heaths, to which they apply the system of "essartage." This mode of cultivation is not incompatible with the pastoral system and a nomadic life. Later on, a small portion of the land is successively put into cultivation, according to the triennial rotation, the greater part remaining common pasturage for the herds of the village. This is the system of Russia and Ancient Germany. Afterwards the cattle are better tended, the manure is collected, and the fields are enclosed. Roads and ditches are marked out, and the land is permanently improved by labour.

Then the fallow is curtailed, powerful manures are purchased in the towns or devised by industry; capital is sunk in the soil and increases its productiveness. This is the modern agriculture, the system of Italy and Flanders since the middle ages; never coming into action until the individual ownership of the land is completely established. This concurrent progress of property and of agriculture is the important fact which the most recent researches place in strong relief. Nevertheless, the facts established as regards Peru formerly, or in the Allmends of Switzerland or Germany at the present time, shew that the collective ownership of the soil is not antagonistic to intensive cultivation, so long as the right of individual occupation is secured for a sufficiently long term.

The marvellous discoveries recently made in Comparative Philology and Mythology are due to the employment of the historic method. Sir Henry Maine believes that the same method, if applied to the origin of Law, would throw entirely new light on the primitive phases of the development of civilization. We should see clearly that laws are not the arbitrary product of human wishes, but the result of certain economic necessities on the one hand, and of certain ideas of justice on the other, derived from the moral and religious sentiment. These necessities, these ideas, these sentiments, have been very similar and have acted in the same manner in all societies, at a certain period in their development, directing the establishment of institutions everywhere the same. All races have not, however, advanced at the same pace. While some had already passed out of the primitive community at the commencement of their historical existence, others still continue to practise, in our day, a system which dates from the very beginning of civilization.

From the earliest times in their history, the Greeks and Romans recognized private property as applied to the soil, and the traces of the ancient tribe community were already so indistinct as not to be discoverable without a careful study. The Slavs; on the other hand, have not yet abandoned the collective system. geology shews us that certain continents preserve a Flora and Fauna, which have elsewhere been extinct for ages. Thus in Australia plants and animals are found, belonging to an earlier period of the geological development of our planet. It is in cases such as these that the comparative method can render great service. If certain institutions of primitive times have been perpetuated till our own time among any nations, we must turn here to the living forms, that we may better comprehend a state of civilization, which elsewhere is lost in the night of time.

We shall first endeavour to describe the system of village communities, as still existing in Russia and Java. We will then shew that this was the system in force in ancient Germany and among most of the nations known to us. Lastly we will examine the family communities, which were so widely spread in Europe in the middle ages, and a type of which can still be seen among the Southern Slavs of Austria and Turkey.

NOTES:

1. . See Etudes historiques sur le développement de la Société humaine: -- "We have often been struck by the fact that a particular custom or institution is constantly being represented as peculiar to a particular race or people, whereas the custom or institution is to be found among many other nations and forms one of the general customs, or necessary phases, under which the human race carries out its work of development and civilization."

2. Two publications have recently directed attention to this hitherto little known subject, in which many enquiries still remain to be pursued notwithstanding the admirable works of von Maurer. The one, Ueber die mittelalterliche Feldgemeinschaft in England, is due to Professor Nasse of the University of Bonn, who has lately established the fact, which very few Englishmen suspected, that village communities were originally the general system of property in England, and that numerous traces of this order of things survived till after the middle ages.

The author of the second publication, Village Communities, Sir Henry Maine, so well known for his work on Ancient Law, a masterly treatise on the philosophical history of law and its connection with early civilization, says (Lectures on the Early History of Institutions, p. 1). "The collective ownership of the soil by groups of men... is now entitled to take rank as an ascertained primitive phenomenon;" and he bears witness to the great value of the materials collected by the author to support this position.

3. The evolution of property has been well described in its general features by Dr Valentin Mayer, Das Eigenthum nach den verschiedenen Weltanischauungen, Freiburg i, B., 1871.