CHAPTER XVII.

THE ORIGIN OF INEQUALITY IN LANDED PROPERTY.

Primitive societies, at the moment of passing from the pastoral system to the agricultural system, are composed, as has just been shewn, of groups of men united by the bonds of a common descent. All are proprietors of an equal undivided share in the common territory; all are equal and free; they are their own administrators, their own judges, and the electors of their own chiefs. The different groups, speaking the same dialect and having a common origin, lend one another assistance against an enemy, and deliberate from time to time on the common interests of attack and defence. No authority is exercised, except by delegation; no decision taken, except after discussion by a majority of votes. No functionary has any peculiar power by virtue of birth or divine right. There is nothing resembling supreme power imposing its wishes on its subjects. The State, as developed in the West or at Rome, exists neither in fact nor name. The individual is sovereign, subject only to the sovereignty of juridical customs and religious ideas. The nation is thus composed of a large number of small autonomic republics united by a federal bond. Such was the organization of Germany, in the time of Tacitus, and such is that of the United States in our own days. It has hardly been modified in its course; individual ownership has simply replaced agrarian community. In America, as also in Germany, the elementary molecule of the social body is the commune, or township. The very name is preservedtown is the zaun, the tun, the inclosure or village. In the township also the citizens assemble to elect functionaries, to vote taxes, to determine the necessary labours, and to frame regulations. There is no hierarchy of functionaries imposing administrative decisions. The townships enjoy complete autonomy, under the empire of general laws, to which the judges insure respect; their federation forms States, and the federation of States the Union. In the American democracy we find all the characteristics of primitive democracies:individual independence, equality of conditions, elective powers, direct government by the assembly of inhabitants, and trial by jury.

Montesquieu was not mistaken in saying that the English constitution came from the forests of Germany. At their starting point, patriarchal democracies have universally the same characteristics, whether in India, Greece, Italy, Asia, or the New World; but almost universally also the primitive equality has disappeared; an aristocracy springs up, feudalism is created, and then the royal power gains strength and subjects everything to its absolute empire. The mark, in primitive times, formed the political and economic unit; it was the origin of the independent and autonomic commune, Feudalism, and royalty later on, could not suffer its independence, and succeeded almost everywhere in taking away its ancient privileges. Only a few isolated countries, such, for example, as Servia, Frisia, Switzerland, the district of Ditmarsch, and the valley of Andorre, have preserved the ancient free institutions.

How, then, was an aristocracy, and, subsequently, despotism introduced into societies, in which the maintenance of equality was guaranteed by a measure so radical as the periodic partition of lands; in other words, how were primitive democracies feudalised? In many countries, such as England, France, India, or the Italian peninsula, inequality and an aristocracy were the result of conquest: but how were they developed in such countries as Germany, which know nothing of conquerors coming to create a privileged caste above a vanquished and enslaved population? Originally we see in Germany associations of equal and independent peasants, like the inhabitants of Uri, Schwitz and Unterwalden at the present day. At the close of the middle age we find in the same country a feudal aristocracy resting more heavily on the soil and a rustic population more completely enslaved than in England, Italy or France. In consequence of what changes in agrarian organization was this surprising transformation effected? This problem in social history deserves close attention.

Community of lands affords a very firm basis to primitive societies; it maintains equality, and establishes close union among all the members of the clan. It ensures them perfect independence by making them all proprietors. This is what is necessary with a warlike people. The Greek legislators, whose opinions Aristotle mentions, invariably held in view the maintenance of equality among the citizens; but they thought to attain this end in Greece either by limiting the extent of property which a single individual might hold, by regulating the portions given to young women, or by establishing common meals. The customs of village communities attained this result with far greater certainty. But individual property and inequality nevertheless invaded the equality of these associations in this way.

We have seen that in Java the inhabitant of the dessa, who reclaims a portion of the wood or waste, retains the enjoyment of it during his life; and that, in certain provinces, he can even transmit it to his heirs as private property. The right of the first occupant is also recognized in Russia. "If a Russian peasant," says M. Haxthausen, "asks authority of the village to establish himself in the forest, he almost always obtains it; and he acquires over the land so reclaimed, in his capacity of first occupant, a right of possession transmissible by succession and always recognized as valid by the commune. The same right existed in the German mark. Whoever inclosed waste land or a portion of the common forest to cultivate it, became hereditary proprietor of the same. Lands so reclaimed were not subject to partition; for this reason they were called exsortes in Latin, or bifang in the German, from .the verb bifâhan, which means to seize, to surround or inclose. The word porprisa, in French pourpris, pourprinse, has precisely the same sense. Many titles of the earliest times of the Middle Ages give as the origin for the property, to which they relate, occupation in the desert or on unoccupied land, in eremo. In France, charters of the first two dynasties make frequent mention of it. The Customs speak of it as an ordinary mode of acquiring property. M. Dareste de la Chavanne quotes the custom of Mount Jura, which assigns to the first occupant the free and independent ownership of all reclaimed lands⁽¹⁾ but it was strictly forbidden to inclose any portion of the common land or to set up any boundaries, except in presence of the other persons entitled, consortes, and with their consent.⁽²⁾

Even in the time of Tacitus equality within the gens was not absolute; some families had more power, wealth, or slaves, and even obtained a larger share in the partition. It was only such families that could create an isolated domain in the forest by the labour of their dependents. This domain was free from communal authority and from the compulsory cultivation, or Flurzwang; it was already a kind of separate sovereignty. On this limited and enclosed space, temporary annual and nomadic cultivation was impossible. It was therefore necessary to have recourse to a more intensive method of agriculture. It was probably on such land that the triennial rotation of crops was first introduced. The Frankish kings possessed many of these domains in different parts of the country. Several of Charlemagne's villas had this origin. By this title he was the proprietor of a domain (curtis) in the diocese of Salzburg, of great extent, comprising fifteen farms, vineyards, meadows, and woods. In this manner there arose in all parts, side by side with and in addition to the common territory, which was subject to partition, private, independent properties, seigniories, or curtes nobilium. The enclosed land was called ager exsors, as being free from the assignment by lot. In Denmark these independent domains were called ornum: they were surrounded by a ditch and marked out by boundary-stones. They were regarded as privileged lands, being exempt from all communal payments, and escaping re-partition "by the cord." All the charges imposed on the commune were borne by the lands of the collective domain. The proprietor of the omium, having no right to the enjoyment of the pasturage and forests of the community, was naturally exempted from taking part in the payments in labour or in kind which the members of the commune had to perform. This immunity gave to independent domains a certain superiority, which, strengthened by time, grew into a kind of supremacy or suzerainty.

In the conquered Roman provinces, the Germans appropriated one-third or one-half of the lands; and as they were small in numbers, the share of each was frequently very large, and was composed of portions situated in different localities.

Another circumstance tended to undermine the ancient agrarian institution and to destroy the primitive equality. We know that a member of the commune could only dispose of his share with the consent of his associates, who had a right of resumption: but this right could not be exercised against the Church. Accordingly, in these days of religious fervour, .the faithful frequently left to the Church all that they possessed, not only their house and its enclosure, but the undivided share in the mark, attached to it. Thus the abbeys and bishoprics became co-proprietors in the communal property. This condition being in complete discord with primitive agrarian organization, the Church withdrew from the community the portions belonging to it; enclosed them, endeavoured to extend them, and had them cultivated by tenants or serfs. Already, by the end of the ninth century, one-third of the whole soil of Gaul belonged to the clergy.⁽³⁾

When the population increased, the large primitive marks were subdivided; and the subdivisions, having less and less importance and power in proportion as they became smaller, had no longer sufficient strength to withstand the encroachments and usurpations of feudalism and royalty. Almost everywhere, a large portion of the common territory became the domain of the Sovereigns. Switzerland, Alsace, and the Palatinate, are the countries where documents give us the best opportunity of following the successive subdivisions of the mark.

From the moment when agricultural labour was executed by settlers and serfs, the cultivation of the soil was regarded as a servile occupation. The rich and powerful families stood completely aloof from it; and the free cultivators gradually lost in dignity and consideration, even in their own eyes. In consequence of the introduction of Christianity and the establishment of monarchies, about the fourth and fifth centuries, the mode of life of free men was completely changed. The wars of tribe with tribe, incessant in former times, became more rare: a certain order was established in society. The inhabitants of the villages no longer lived with arms constantly in their hands; and the German warrior was insensibly transformed into the German peasant. Those who had lands cultivated by tenants could live without working. They continued to practise the use of arms; and lived by war and the chase like the ancient German. They thus acquired the preeminence given by strength. Although Germany was never conquered, they attained to the same supremacy over their fellow-countrymen as the conquerors of Gaul obtained over the Gallo-Romans. It is not yet known precisely how the free cultivator of the second century became the serf of the thirteenth: but when one part continued the use of arms, which those who were exclusively devoted to agricultural labour had discontinued, the former succeeded in gradually enslaving the latter. Nevertheless, this profound change was not accomplished everywhere at the same time nor in the same manner: there are some districts, where the ancient organization and liberty have been maintained to our own times.

The clergy and the nobles, being owners of several domains, did not have them cultivated on their own account: they granted them on lease to free cultivators or families of serfs. Properties tilled by the former were called mansi ingenuiles: those tilled by the latter mansi serviles. The lease was frequently hereditary; the peasants paid the proprietor rent in kind or in labour; and free men also had in addition to render military service.

There is another question also which has not been decided very clearly. How did the feudal system, with its hierarchy of class subordinated to class, come to replace in Germany a system in which equality was guaranteed by the periodic partition of the soil? The characteristic of the feudal system is the fief, the feod or beneficium, that is to say, land granted to a usufructuary as recompense for certain services to be rendered. The suzerain granted the life-possession of a domain, on condition that he whom he invested with it should follow him to the war or administer a portion of territory. Originally, of course, there was no question of administration or granting benefices, for the villages governed themselves in an independent manner, and the sovereign was merely a military chief elected by his warriors. Sir H. Maine, however, agreeing in this point with M. Laferrière, thinks that the origin of the feudal system was already disclosing itself in the juridical customs of the last days of the Roman Empire.

In the feudal system, there are two distinct sorts of tenure; military tenure, and censive tenure. Military tenure was that of the noble carrying arms: he had to follow his suzerain m war, assist him in his pleas, administer justice in his name, and, in fact, perform acts of government and administration. "Censive" tenure was that of the cultivator, who owed his superior payments in kind or in labour. It was an economic relation of the civil order.

These two forms of tenure existed in the Roman empire. The proprietors of latifundia understood that, instead of having their lands cultivated by slaves working badly under the supervision of a steward always inclined to rob his master, it was more to their advantage to grant the farm to coloni, enjoying the produce of their labour, in consideration of a share in the harvest

It was to the interest of these coloni to cultivate well; the total produce was greater, and, consequently, while their condition was improved, the income of the proprietor was increased. In this way was created the class of coloni medietarii, or metayers, which has lasted till our own times. The condition of the serfs in Germany, as depicted by Tacitus, was similar to that of the Roman coloni. Each had his dwelling, the master merely exacting a certain rent in corn, cattle, or garments, as he would have done from a colonus. The Roman precarium and the benefice of the first period of the middle ages had the same characteristic, namely, a grant of enjoyment for life made by the proprietor, either gratuitously or in consideration of a rent. Grants of precaria were frequent even under the Empire. Grants of benefices became even more so in the middle ages, because, in default of slave labour, they afforded a means of turning to account land which the proprietor could not cultivate himself. Long leases became also a very general mode of tenure. The proprietor granted the cultivator a hereditary right of occupation of the land, reserving the payment of a "canon," or annual rent, and of a fine in case of alienation. In the emphyteusis, as also in the case of the colonus or metayer, the double property, characteristic of "censive" tenure, is recognized, the suzerain reserving the eminent domain with the rents to which it entitles him, the cultivator having a hereditary right of occupation.

The Military tenure, or the feod, was also known to the Romans. On the confines of the Empire, along the whole length of the Rhine and the Danube, the State had granted lands, agri limitrophi, to veterans, who undertook to perform military service in case of need. This is precisely the system of frontier regiments organized by Austria on the Turkish frontier.⁽⁴⁾ The State reserved the eminent domain; the veterans had possession on condition of carrying arms. Such also was the condition of the vassal with regard to his suzerain. The monarchs of German origin, under whom feudalism was established, had merely to imitate the system which they saw before them. The majority of these veterans moreover were themselves Germans, enrolled in the imperial armies and established on Roman territory for its defence. The other obligations of the feudal beneficiary, such as assisting the suzerain to portion his daughter and to equip his son, to protect them during minority, and to pay his ransom if he were made prisoner, were derived in some cases from the condition of the client, in others from that of the German leude.

We can also find germs of the feudal system in an ancient custom of the village communities. Among the lots of arable land, some, as we have seen, were destined to serve as an honorarium for certain offices and certain crafts. These lands, so given as salary, evidently amounted to fiefs. The same custom existed in the Hindoo or Javanese village. The office or the craft, and consequently the lot of earth attached to it, was often transmitted from father to son. Hence there resulted a tendency to establish hereditary succession, which also displayed itself in feudal benefices, and eventually, as we know, triumphed under the last Carlovingians. But in a part of India, hereditary title to land was established in favour of the Zemindars and Taluqdárs by the English, and a single clause of law thus effected instantly a transformation in social order, which was only accomplished in Europe by a slow evolution of several centuries.

As the German sovereigns took no taxes, their only means of rewarding services was by granting benefices, or feods. The families, on the one hand, who had formed large domains for themselves by clearing land and by the creation of manses or farms, and the beneficiary lords, on the other, constituted a superior class of landed proprietors, whose power and riches increased with the advance of civilization.. Below them, nevertheless, among the cultivators, whose condition was constantly growing worse, the ancient institutions of the mark long prevailed. Private property, it is true, was gradually introduced for the arable land, except in certain remote districts, as in Switzerland and the banks of the Sarre, where periodic partition survives to our own day; but the pasturage and forest remained common property, and allowed of the preservation of the administrative institutions of the mark.

At an early period the collective domain of the village was exposed to the usurpation s of the sovereign and the feudal lords. The great wars, which followed the invasions of the sixth century, and the long duration of military expeditions, depressed the class of freemen. Many of them, to escape the demands and exactions of the counts and lords, who often despoiled them by open force,⁽⁵⁾ sold their property, or surrendered it, either to the sovereign or the Church, and received it back under the title of censive land, that is to say, subject to the payment of a rent. The class of small free proprietors thus insensibly decreased. From as early as the time of Charlemagne, inequality and the accumulation of property in a few hands were very great; the dependent peasants were no longer in a position to defend the domain of the mark with any success against the invasion of their powerful neighbours, who compelled the peasants to allow that the eminent domain of the waste and forest belonged to them. The law of the Ripuarians, Tit. 76, already speaks of the common forest as belonging to the sovereign: in silva communi seu regis. In a Merovingian charter of 724, Childebert III. disposes of the communal lands of Saverne. The lords had the forests enclosed; or else declared them bannforsten, that is, forbade the cultivators the use of them. Their principal object was to preserve them for hunting. These usurpations commenced under the Frankish dynasties, but were especially common in the twelfth and thirteenth centuries. The law of 1861, abolishing serfage in Russia, also takes away from the peasants, with a stroke of the pen, the hereditary right of use of the forest, transferring the exclusive property to the lord. At first the sovereigns did not dispose of such property without the consent of the people, but later on they dealt with it on their own personal authority.

Originally, all the inhabitants of the village assembled to try debts and suits between the members, under the presidency of a chief elected by them, the dorfgraf (count of the village, also called judex or major loci, centenarius, tunginus). The lord, however, in almost every case, gradually usurped the right of nominating the judge or mayor of the village, the dorfrichter or schuttheiss. As Von Maurer says, wherever seignorial rights were established, the ancient organization of the mark and its liberties disappeared. Seignorial justice took the place of judgment given by the assembly of villagers. At first, the lord's representative continued to summon the inhabitants round him to pass judgment; later on, he pronounced it by himself. The mark, which was originally a small independent republic, was thus reduced, by the successive usurpations of the feudal lords and the sovereigns, to nothing more than the collective enjoyment of communal forest and pasture, in cases where they had been respected.

The Irish Brehon Laws enable us, better than any other ancient documents, to see how inequality of property and the predominance of the large over the simple cultivators were established among men of the same race, in spite of the original equality of all and the institutions designed to maintain it. These profound changes were accomplished in the same way in Ireland as in Germany and the rest of Europe. Originally, the chief of the clan was merely the first among a number of free and equal proprietors, by whom frequently he was elected. When the work of feudalization was complete, this chief was converted into the lord of the manor, the proprietor, in fact or in theory, of all the land formerly divided among the members of the tribe; and the cultivators were mere rustics or serfs, bound to render payments in labour or kind, for the enjoyment of the land of which they had previously been independent owners. This transformation, which gave birth to a landed aristocracy and to political royalty, was accomplished slowly and imperceptibly, by a series of insensible changes, which varied in detail in different countries, but everywhere followed the same general lines. In the Brehon Laws Tracts,⁽⁶⁾ which contain information concerning institutions separated by several centuries, we can trace the development of the power and privileges of the chief. There is no doubt that, in primitive societies, the soil was regarded as the collective property of the tribe. The chief exercised certain administrative functions; he led his men to battle, and received as reward the enjoyment of a domain near to his dwelling-house, and some vaguely determined rights over the communal land or waste. The free men of the tribe were all proprietors on the same title as himself, and were completely independent of any authority in him. Often, however, we find the territory of the clan taking the name of the chief's family; thus, there is frequent mention of the district of the O'Briens or Macleods. Next we see the authority of the chief increasing; the free cultivators, his equals, seek his protection, and become his liege-men; a certain dependence is established, similar to that which is created elsewhere by the commendatio; and in this dependence there are various degrees. The chief increases the number of his followers, in proportion as he grows rich. Thus the power at his disposal grows with his riches, and he employs his power, in turn, to increase his demands, and consequently his revenues. He takes advantage of the rights he has acquired over the waste lands of the tribe to establish a new class of tenants in them, who are entirely dependent upon him, and whose origin we shall see presently. Finally, he extends his suzerainty by a means which deserves all our attention, and has not hitherto been described.

As we have seen, the sources attributed to feudal institutions are two, the beneficium and the commendatio. When the proprietor granted land, reserving certain payments and services, to a tenant, who thus became his vassal, a beneficium was constituted. When, on the other hand, an impoverished proprietor, threatened or continually harassed, surrendered his land to some powerful man capable of protecting him, reserving, however, for himself the hereditary enjoyment of the property for certain rents and services, there was a commendatio. M. Fustel de Coulange has explained all these facts,⁽⁷⁾ with the dearness and profound knowledge of ancient texts, that render his treatises so instructive. Sir H. Maine has discovered in the ancient Irish legislation a third source of the feudal relation of lord and vassal, which dates back to a state of civilization long anterior to that in which the other two were produced. In fact, the beneficium and commendatio are based on the granting of land, and consequently assume private property as already very definitely established, whereas the feudal bond existing among the ancient Irish Celts sprung from the grant of cattle at a time when the soil had, one may say, no value. The fact pointed out by Sir H. Maine seems of great importance; but, in order to understand it, we must take into account the economic condition of primitive ages. Institutions, custom and law, all regulate material interests or are connected with them; we can therefore only arrive at a true understanding of them, when we know the economic conditions of the social state in which this law and these customs meet.

When the population is very thin, the soil has little value, because there is a portion for all. Even now, in some highly civilized countries, such as the United States or Canada, excellent registered lands can be obtained, with a good and complete title, for a dollar an acre, or about 12 francs the hectare. In primitive times, therefore, the chief capital is of necessity cattle. Tribes of hunters live entirely on the beasts they kill. Pastoral tribes derive their sustenance from the produce of the herds which they feed, and continue to do so even when agriculture has been introduced. Thus the Germans, Caesar tells us, lived chiefly on flesh and milk. As Sir H. Maine observes, the word capitale, that is head (caput) of cattle, has given birth to two of the words most frequently employed in political economy and law, capital and catel,⁽⁸⁾ cheptel, or chattels. To shew the importance of cattle in primitive times, Adam Smith reminds us of the Tartars, who continually asked Plano Carpino, the ambassador to a son of Gengis-Khan, whether there were many sheep and oxen in France, these constituting every sort of wealth in their eyes. Formerly, cattle served as money, as etymology, poetic tradition, and the observation of historians alike shew. The words peculium, pecunia, come from pecus. At the commencement of agriculture, the value of oxen, so far from diminishing, was increased, for it was their labour that won the corn, the precious food newly acquired. At this point, the ox becomes a sacred animal, inspiring a sort of religious respect.⁽⁹⁾ In India, the ancient Sanscrit literature shews that its flesh served at one time as an article of food. It is only later, at what period we know not, when they wished to preserve the ox for purposes of cultivation, that this was forbidden. In Egypt, the cow Apis was an object of adoration. At Rome, the ox, like the slave and the soil, was raised to the dignity of a res mancipi, the most solemn form of property applicable only to the soil, and that which is used for its cultivation. Those things, whose alienation demanded the public formalities of mancipatio, corresponded to the sacred soil of India, and the sacred ox of Siva. Among the Irish Celts, as among the Germans, tribute, penalties and compositions for crimes were originally paid in cattle.