''\ï >J^ f \ •^v-» S v^ '^^•^^tv'j 4 ' < K .■-: ^^ A- 3 1822 01367 2654 ^-' ■■^ "MÏ^- • ♦^•■r/. a* if V • i: ifc ■ •: Je'.-,:- rAt-'.^-'"" ^ NIVERGIfY OF CALIFORNIA m DiEQO PRIMITIVE PROPERTY. d ,'0 . PKIMITIVE PEOPERTY, TRANSLATED FROM THE FRENCH OF EMILE DE LAVELEYE, . MEMBER OF THE ROYAL ACADEMIES OF BELGIUM, MADRID, AND LISBON, CORRESPONDING MEMBER OF THE INSTITUTE OP PRANCE, OF THE INSTITUTE OF GENEVA, OF THE ACADEMY DEI UHCEI, OP 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. MACMILLAN AND CO. 1878 \_All EUjhts reserved.'] 4 CTambriligc: PKINTED BY C. J. CLAY, M.A., AT THE UNIVERSITY PRESS. PREFACE TO THE PBESENT 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 re- quest 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 PoHtical Economy, and his extensive knowledge of legal and economic history, would enable him to introduce the historical develop- ment of property instructively to the reader, and to throw some fresh light upon it. I have only to add that the additions and altera- tions in the present edition make it in several respects almost a new work. EMILE DE LAYELEYE. 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 prac- tical problem, the importance of which will be ad- mitted 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 respec- tively 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 modem 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 pro- perty 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 INTRODUCTION. VU pro23erty; it was not man's earliest possession or wealth. The first forms of property are lost in the mist that surrounds the first infant steps of the human race. Wild herbs, fruit, berries, and roots were pro- bably 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 glim^^ses, unmistakably point, is that the store which individuals might thus accu- mulate 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 circum- stances, 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 descrip- tions 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 anhnals, 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 viii INTRODUCTION. 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 indi- viduals. In the ancient laws of Ireland the whole tribe has '' hve chattels " and " dead chattels," as well as com- mon lands. Among the Eskimos of Greenland, accord- ing 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 famihes ; the flesh and blubber of captured seals belonged to a whole hamlet, while larger animals such as whales were shared among the inhabitants of neigh- bouring 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 famihes, is an archaic usage once prevalent throughout Europe and not extinct at this day among the Southern Slavs ; INÏRODUCTIOxV. IX and M. de Laveleye^ with great probability, traces to it the common repasts in ancient Greece which his- torians have been accustomed to ascribe to the poHcy of legislators. Aofain, 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 s^jecies 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-owner- ship 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 accord- ing to the Book of Aicill, in part to her cliief 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 stao-es of X INTRODUCTION. 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 ex- j)lanation, though Mommsen gives a different one, referred to by M. de Laveleye, of the distinction, so long maintained in Roman law, between Res Man- cipi, requiring a solemn ceremonial for their transfer, and those later or less important kinds of property called Res nee 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 theh- transfer. The original distinction, I apprehend, lay between things that were common property, and things that were allowed to belong to individuals. A hmited 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 ex- position of the solemnities accompanying the commercial transactions of prhnitive associations. " As the con- tracts and conveyances known to ancient law are contracts and conveyances to which not suigle in- INTRODUCTION. XI dividuals, but organized companies of men are parties, they are in the highest degree ceremonious ; they require a variety of symboHcal acts and words in- tended 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^." 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 undis- turbed 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. ^ Ancient Law, p. 271. Xll INTRODUCTION. 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 groupe." 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 ad- vance in civilization had been made, that one com- munity recognized any right whatever, collective or individual, on the part of the members of another community of difierent blood or origin, to their do- main or other possessions, or even to life or Hberty. Property in the infancy of social jDrogress consisted, one may say, simply in a feeling of unity and conse- quent 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 great 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, ^ Ancient Laic, p. 270. INTRODUCTION. 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 by M. de Laveleye in the present work, which afPords 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 rej)eated in his Ancient Laiv, that "pro- perty once belonged not to individuals, nor even to isolated families, but to larger societies^." But proof of this proposition in detail exceeded the powers and opportunities for research of any single inquirer, and needed a numiber 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 Chris- tian Olufsen, who discovered from ancient legal re- cords, the original co-ownership and common cultiva- tion of the soil of Denmark and Holstein by village communities. Their investigations were followed by the celebrated researches of Haxthausen, Hanssen and Georg L. von Maurer, in Germany. Professor Nasse of Bonn is entitled to the renown of haviiifv 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 1 Ancient Law, p. 268. XIV INTRODUCTION. from the primitive communal usages of the Teutonic race, Domesday had been so imperfectly studied before Mr Freeman's day, and other English docu- mentary records had preserved so few traces of the primitive co-ownership and common use of land by village communities, that historians had been accus- tomed 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 men 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'. 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 culti- vated 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 communi- ties 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 ^ History of the Norman Conquest, v. 463. INTRODUCTION. XV the observation applies also to the theory which M. de Laveleye illustrates by so many striking ex- amples 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 institu- tions. However widely some of his readers may dis- sent from his views with respect to the modern dis- tribution of landed property, there will be but one opinion respecting the breadth of research and learning with which he has illustrated 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 XVI INTRODUCTION. struggles impending over the States of Western Europe ; but when it is proved, that similar institu- tions 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 de- velopment 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 prin- cipal 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 weaken- ing 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 INTRODUCTION. XVU 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, because it is in the union of the domestic hearth that the habits of fraternity, the indifference to individual interest, and the communist senthnents which pre- serve 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 fol- lows : " The flourishing appearance of Bulgaria shews 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 hve. I know not whether the nations who have lived tranquilly under the shelter of these patri- archal 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 inde- pendent life, despite its perils and responsibihties." Famihar 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 M. h XVlll INTRODUCTION. studied M. de Laveleye's works. A large part of tlie land of each Swiss commune is preserved as a common domain, called the Alhnend, 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 equahty of wealth, with the modern system of individual ownership and great inequahty of fortune. The chapters in the volume on this subject will repay careful study, but there are two points that ought not to escape observation. One is that there are indica- tions of a tendency even in Switzerland — which stands alone in the world as a land that has maintained both the free pohtical 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 discover- able in the primitive usages of society relating to property. Yet such language needs some interpreta- tion to make it appropriate. The only rights which men in early society recognized were those of the com- munity to which they belonged. These rights ran in the blood, as it were, and were confined to fellow-tribes- men or kinsmen. The stranger had no share in the INTRODUCTION. XI X 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 a partition of arable land had been made. "Everywhere," in M. de Laveleye's words, "the daughters are excluded from the succession. The rea- son 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 corpora- tion." Modern communism finds no precedent in the insti- tutions 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 descrip- tion. If indeed we ought to revert to common pro- perty 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 de- velopment of human reason and with modern civiliza- 12 XX INTRODUCTION. tion. 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 agricul- ture, commerce, and invention, of the development alike of human wants and aspirations, and of hvunan 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 espe- cially, 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 INTRODUCTION, XXi Sir H. Maine sees progress and civilization, M. de Laveleye sees formidable dangers to society. The owners of proj^erty are on the eve of becoming a power- less 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. Eeaders 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 rela- tion to two opposite types of society, represented on a great scale within the limits of the British empire ; namely, ancient communities hke 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 know- ledge 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 XXll INTRODUCTION. Pearson', tKat a few score of the first comers into an immense territory ought not to be suffered to engross to themselves and their descendants 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 prevaihng opinion is that a child has an indefeasible right to a share of the property of his parents. Both conceptions are of his- torical 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 sys- tem of the nobles has become in all essential particulars the system of the people^." 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 ^ The reference is to Mr C. H. Pearson, the historian, who is now resident in Australia, and has written powerfully on the subject. ' Early History of Irtstitutiona, 2nd Ed., p. 124. INTRODUCTION. Xxiu lead 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. de Laveleye's treatise "De la pro- priété 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 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 good- ness of the human race, they thought to secure its hberty and happiness, by correcting, or rather by anni- hilating, the institutions of the past, which had pro- duced 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." Intoxi- cated 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 every- where proclaimed ; the suffrage is bestowed on all ; and XXVI PREFACE TO ORIGINAL EDITION. still there is a cry for equality of conditions. We thought we had but the diflSculties of the poHtical 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 princes or dy- nastic 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, dis- order, 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 Hberty with the maintenance of estabHslied 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 formid- able problem which modern societies must solve under pain of perishing Hke 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 estabHsh a more equitable division of pro- perty and produce, or the fatal end of democracy will be despotism and decadence, after a series of social PREFACE TO ORIGINAL EDITION. XXVU struggles of which the horrors committed in Paris m 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 reite- rate 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, nee manducet"? The destiny of modern democracies is already writ- ten in the history of ancient democracies. It was the struggle between the rich and the poor which de- stroyed 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 legis- lators 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 XXVlll PREFACE TO ORIGINAL EDITION. cojpis SO often mentioned in ancient writers. But all these precautions were insufficient to check the pro- gress 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 [Repuh. TV.): " 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 estabhsh 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 natui^ally 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 Pelo- ponnesian war to the conquest of Greece by the Ro- mans." Bœckh, in his work on the Political Economy of the Athenians, expresses himself in nearly the same terms ^. 1 Staatsh. dcr Athen. i. p. 201. No writer has understood better than Aristotle the problem which the constitution of a democratic state involves. PREFACE TO ORIGINAL EDITION. XXIX Inequality, therefore, was the cause of the downfall of democracy in Greece. Rome presents the same picture. From the begin- ning 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 estabhshed, the inequality of conditions became extreme. Licinius Stole, the Gracchi, and other tribunes of the people endeavoured, by means of agra- rian laws, to re-estabhsh equality, and proposed the dis- tribution of the ager puhlicus. To no purpose how- ever; for on one hand extended the great domains. His splendid work The Politics exhibits the question with a startling clear- ness. " Inequality," he says, " is the source of all revolutions, for no com- pensation 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 revolutions it is therefore necessary, ac- cording to Aristotle, to maintain a certain equality. " Make even the poor owner of a small inheritance," he says. In the same chapter he commends 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 preventing 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 approach- ing 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 bo small, as at Rome." Esprit des Lois, v. 5. XXX PREFACE TO ORIGINAL EDITION. 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 Boman 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, des- potism. 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 gou- vernement, 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. 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 1 We must not however forget the slave insurrections, which on several occasions endangered the state. See Karl Biicher's excellent study, Die Aufstdnde der unfreien Arheiter, 1874. PREFACE TO ORIGINAL EDITION. XXXI 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 be 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 equahty 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 pro- perty. The social difficulty was thus wonderfully sim- plified. But we have not the same resource. With us the equality 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 reli- gious 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 la- bourer 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 u^ XX XU PREFACE TO ORIGINAL EDITION. 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 be- neath 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, Hodib mihi, eras tihi, 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 fohage, 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 Katlieder-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 PEEFACE TO ORIGINAL EDITION. XXXIU 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 enmi- ties 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 equa- lity must be established, or free institutions will disap- pear. 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 oyie 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 Komans, men of conquest and masters of slaves, have bequeathed to us, is not sufficiently flexi])le, 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 M. c XXXIV PREFACE TO ORIGINAL EDITION. than the Roman law with the requirements of demo- cracies, 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 owner- ship. As the organization of society has undergone such profound modifications in the course of centuries, we should not be forbidden to search for social ar- rangements 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 {Sys- tem der JSthik), and Don Francesco de Cardenas in his excellent History of Property in Spain {Ensayo sohre la historia de la Pi^opietad territorial en Espana), analysis discovers two elements in the right of pro- perty, 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 primi- PREFACE TO ORIGINAL EDITION. XXXV tive times the social element prevails in landed pro- perty. 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 su- preme power. At Rome, quiritary dominium, that is to say, the absolute right exercised over the soil ap- pears for the first time. In the Middle Ages under the feudal system, property is a remuneration for cer- tain 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 hierarchical relations of classes, and therefore the whole organiza- tion 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 origi- nally, it is no longer collective. It is a privilege sub- ject 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 shaken the foundations of society; c2 XXXVl PREFACE TO ORIGINAL EDITION. 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 pro- perty. 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 who- ever 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 estabhsh principles of equahty and evangelic justice on earth, in the midst of existing societies. But before better laws are esta- blished a higher sentiment of right and equity must pervade men's minds. We are beginning to see signs PREFACE TO ORIGINAL EDITION. XXXVU 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 institu- tions. This point is set forth with much clearness in Francois Huet's book, Le Christianisme social, — a work too little known. There are certain countries in which the most radi- cal 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 admi- nister 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 sub- sequent despotism. The primitive form of property has been respected, which is alone conformable to na- tural justice, and which alone permits of the perma- nence of true democracy, without hurrying society into disorder. In all primitive societies, whether in EuroiDe, 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 peri- odical distribution among all the families, so that all XXXVm PREFACE TO ORIGINAL EDITION. 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 pro- perty 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 ser- vitude of the labourer. In Switzerland, however, side by side with individual properties, there is in each commune a large portion of the territory still pre- served 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 m the inherit- ance. 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 witli 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 hu- PREFACE TO OIlIGINAL EDITION. XXXIX man nature. As Sir Henry Maine remarks, " theories, plausible and comprehensive, but absolutely unveri- fied, 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 ob- scure 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^." Thus, in order to defend the quiritary property be- queathed to us by the Komans, writers have asserted that it has existed at all times and in all places, uhique et semper; — whereas a closer knowledge of history shews us that the original and universal form of pro- perty was the mode of possession practised by the Sla- vonic and Germanic tribes, and exercised at Rome itself over the ager puhlicus. The jurists, under the influence of the Digest and the Institutes, base the right of property on the occu- pation of a res niUlius ; 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 agri- cultural tribes the cultivated land, were always re- garded 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 de- tention. The formalities of sale among the Romans, ' Maine, Ancient Laic, p. 3. xl PREFACE TO ORIGINAL EDITION. shew that it waa only applied by a comparatively recent extension to the alienation of an immov- able. In deriving the right of property solely from la- bour, 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 v\diich shew that, in order to be equitable, it must be organ- ized in the same way as among primitive nations, that is, so as to guarantee to every one a natural, inalien- able 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 aU the right to property. If man is born a proprietor, it is PREFACE TO ORIGINAL EDITION. xli incumbent on the law to put him in a position to exer- cise the right recognized in him. " Man," says Bastiat again, " lives and develops by appropriating certain objects. Appropriation is a na- tural, 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 Em- pire, in a pamphlet. La propriété d'après le Code civil, published in 1848, in refutation of the false doctrines of the Sociahsts, expresses himself in these terms (p. 1 2) : " 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 so- vereign 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 en- joyment of property, which may guarantee his inde- pendence. Most modem authors declare property to be a natu- ral right. But what is a natural right, unless it be a Xlii PREFACE TO ORIGINAL EDITION. 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, with- out deducing any new theory as to the right. I do not beheve that history can disclose the right to us. Be- cause 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, however, con- clude 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 econo- mists in favour of quiritary property, rather condemn it and justify primitive property, as conceived and prac- tised 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 sen- timents of equality and charity which Christianity be- gets 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 im- mense 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 PREFACE TO ORIGINAL EDITION. xliii of social struggles, in which liberty may succumb : but the younger societies, still in process of formation in another hemisphere, may escape these fearful trials, if they seek inspiration in the lessons of history and adopt institutions which in certain countries have al- lowed 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 socie- ties 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 mo- narchy, 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 pre- serve 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 akeady near the surface. Such is xliv PEEFACE TO ORIGINAL EDITION. the lesson whicli Greece teaclies us by the mouth of Aristotle, and of which history and our actual situation alike give us proof. To preserve liberty in a demo- cratic state, its institutions must maintain equality. States, in which democracy and inequality are de- veloped side by side, are therefore especially threat- ened ; 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 pro- perty as jproclaimed by philosophers, as well as to shew 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. TABLE OF CONTENTS. CHAPTER I. PAGE The gradual and universally similar evolution of Property in Land .......... 1 CHAPTER II. Villaçre Communities in Russia CHAPTER III. Economic results of the Russian Mir . . . . . 26 CHAPTER IV. Village Communities in Java and India .... 44 CHAPTER V. The Allmends of Switzerland . . . . . . 62 CHAPTER VI. Juristic Features and Advantages of the Allmend . . . 87 CHAPTER VII, The Germanic Mark 100 CHAPTER VIII. The Agrarian system of the Irish Colts . . . .122 xlvi CONTENTS. CHAPTER IX. PAGE Aarrarian Communities among the Arabs and other nations 128 CHAPTER X. The Golden Age and Collective Property in Antiquity . . 137 CHAPTER XL Property in Greece . . . . . . . .158 CHAPTER XII. Property at Rome . . . . . • • .163 CHAPTER XIII. Family Communities succeed to Tillage Communities . . 175 CHAPTER XIY. Family Comniiinities among the Southern Slavs . . .180 CHAPTER XY. FamUy Communities in the ^Middle Ages . . . . 196 CHAPTER XYI. Family Commiuiities in Italy . . . . . .215 CHAPTER XYII. Origin of Inequality in Landed Property .... 221 CHAPTER XYIIL History of Landed Property in England and China . . 2i'2 CHAPTER XIX, Cooperative Agricultural Undertakings .... 266 CONTENTS. xlvii CHAPTER XX. PAOB Hereditary Leases . . . . . . . .271 CHAPTER XXI. The Mark in Holland 282 CHAPTER XXII. Common Lands in France ....... 290 CHAPTER XXIII. Common Lands in Belgium . . . . . .301 CHAPTER XXIY. The State as Landowner, and Property in India . . . 310 CHAPTER XXV. Landed Property in Egypt and Turkey .... 327 CHAPTER XXVL The Right of Property and Hereditary Patrimony . . 333 CHAPTER XXVIL The Theory of Property 337 PEIMITIVE PEOPEKTY. CHAPTER I. THE GRADUAL AND UNIVERSALLY SIMILAR EVOLUTION OF PROPERTY IN LAND. Until quite recently dolmens and druidic stones •were re- garded 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 Archi- pelagoes, together with flint weapons and implements charac- teristic of the Stone age, has established the opinion that the human race has everywhere passed through a state of civiliza- tion, 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. Konigswarter has shewn that certain customs which were thought to be peculiar to the Germans, such as the com- position for crimes, ordeals and trial by battle, were really to be met with among all nations, at the same stage of civilization*. 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 ^ See Etudes historiques stir 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, where- as 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." M. * 1 2 PKIMITÎVE PROPERTY. 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 be 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 Scandina- vians 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\ 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 transforma- tions, 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 ^ Two piiblications have recently directed attention to tliis hitherto little known subject, in which many euqniries still remain to be pursued notwith- standing the admirable works of von Maurer. The one, Ueber die mittelulter- liche Feld^emeinschaft in Enfiland, is due to Professor Nasse of the University of Bonn, who has lately established the fact, which very few EngUshmeu 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 Laic, a masterly treatise on the philosophical history of law and its connection with early civilization, says (Lectures on the Early Uistorij of Institntio7is, p. 1), " The collective ownership of the soil by groujDS of men is now entitled to take rank as an ascertained primitive phenomenon;" and he bears witness to the gi'eat value of the materials collected by the author in support of this position. EVOLUTION OF TROPERTY IN LAND. 3 régime, was recently shewn to contain as many traces of col- lective 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 \ 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 1 The evolution of property has been well described in its general features by Dr Valentin Mayer, Das Eitjciithum nach den vergchicdcncn Wcltanschmi- tingen, Freiburg i. B., 1871. 1—2 4 PRIMITIVE PROPERTY. 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 asso- ciation, 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, Flur- ziuang 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 buck- wheat, and the inhabitants of the Ardennes rye, on the high- lying heaths, to which they apply the system of "essartage." EVOLUTION OF PROPERTY IN LAND. 5 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 pur- chased 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 civili- zation. 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, how- ever, 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 6 . PRIMITIVE PROPERTY. our day, a system which dates from the very beginning of civi- lization. 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 indis- tinct 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 compre- hend 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. CHAPTEH II. VILLAGE COMMUNITIES IN RUSSIA. In order to form a clear idea of the collective ownership of the soil, which is vested in the Russian village even at the present day, we must picture to ourselves the social organization of the tribe among the Nomads, from whence the Russian system is obviously derived. The following is the description given of this organization by an accurate and thoughtful economist, M. Le Play, who has made a careful study of the system of property among various pastoral nations, and especially among the tribes on the Asiatic side of the Urals. Among these Nomads, the members of the same group or community join together their agricultural im- plements, and collectively cultivate their land, and manage the capital — that is the cattle — destined to make it productive. There the system of common property is a direct consequence of the pastoral life and the family organization. "A gi'oup of tents is always the characteristic of a society of slicpherds, whether the flocks belong to a great proprietor, or are joint property. Every iudividiial forming part of this gi'oiip lias always an interest in the profits of husbandry : he is entitled, in all cases, to a share of the produce, the maximum of which is fixed by the nature of his wants. "Among the Nomads, the direct descendants of one father general- ly remain grouped together : they live under the absolute authority of the head of the family, in a system of community. We may say that nothing is the sulyect of separate ownership except their clothing and weapons. When the increase of a family no longer admits of all its members remaining united, the head of the f;imily directs an amicable separation ; and determines the poi-tion of the common possessions that should be given to the branch which is separating 8 PRIMITIVE PROPERTY. from tlie stem. On the other hand, the community often holds together after the death of the head of the family. In this case, the collateral relations, even though connected only in distant de- grees of relationship, remain united under the dii-ection of the mem- ber who can exercise the patriarchal authority with most influence. " The principle of community is equally adapted to the organiza- tion of tribes with settled abode Among the semi-nomadic tribes subject to Russia... the arable land, although genei-ally cultivated by each family on an independent title, is mainly owned in a species of indivisibility. "Among the Bachkii'S, nothing of the nature of individual pro- perty is seen, except as applied to the dwelling-houses and their im- mediate dependences'." The agrarian organization of the Russian village is exactly similar to that of the Tartar tribe, except that the land is improved by agriculture instead of being merely worked under the pastoral system. In all Russia, that is to say in the immense territory which extends to beyond the Dnieper and contains a population of from thirty to thirty-five millions ; the land, which does not belong to the Crown or to the lords, is the collective, undivided property of the commune. The law of February 19, 1861, defines collective property in the following terms. "Enjoyment in common {ohshtshinnve j^olzovanie) is the mode of enjoyment regulated by custom, by virtue of which the soil is divided or allotted from time to time among the peasants, either by head, by tiaglo, or otherwise, joint responsibility being imposed upon all for the fulfilment of the obligations attached to the occu- pancy." The commune is the constitutional atom of the Russian nation. It forms a civil person, a juridical corporation, endowed with a vitality very powerful and active, even very despotic. It alone is proprietor of the soil, of which individual members have but the usufruct or temporary enjoyment. It is jointly responsible to the lord for his rent, and to the state for taxes and recruits, in proportion to its population. It governs itself far more independently than the commune of France or Ger- many. For all purposes of administration it enjoys as complete a self-government as the American township. The ukase of 1 Le Play, Les Ouvriers Européens. VILLAGE COMMUNITIES IN RUSSIA. 'J February 19, 1861, lias conferred on it a real, and it is said even an excessive, autonomy. The heads of families, assembled in council under the pre- sidency of the starosta or mayor, whom they have electcdj discuss and regulate all the affairs of the commune, just as the vestrymen do in England, or the laiidesgemeinde in the primi- tive cantons of Switzerland. The starosta is the chief of police ; he also has jurisdiction over lesser offences. He can pronounce sentence to the amount of one rouble fine and two days' hard labour. The union of several villages forms the volost, a sort of large commune or district, resembling the totunship of the United States, or the concelho of Portugal. The volost has from three hundred to two thousand inhabitants. The administrative chief of the volost is the starshina, who is assisted by a council, com- posed of the starostas of the villages in his district. In concert with them, he regulates all that relates to taxes, recruits, roads or the corvée. For important affairs, he summons the great council of, delegates from the villages, each of whom is named by a group of ten families. This council elects from four to ten judges or jurymen, who meet in succession, three at a time, to hear civil cases up to the amount of one hundred roubles, and to punish misdemeanours. The aggregation of inhabitants of a village possessing in common the land attached to it, is called the wiV\ This word, ^ Precise details concerning the Eussian commune, especially of a juridical nature, are difficult to collect. The best sources accessible for those who do not understand Euss, are the large work of the Baron de Haxthausen, Etudcx sur la Russie, and his more recent work, Die Uindliche Verfassung Russlaiids, Leipzig, 1866; — a curious treatise of M. Wolowski in the Revue des Deux ]\Io)ides of August 1, 1858, and a study by M. Cailliatte in the number for April 15, 1871 ; — Free Russia, by Mr Hepworth Dixon ;— the complete report of Mr Michell on the emancipation of the serfs, in a Blue Book of 1870 (Reiwrts conceriiinij the Tenure of Land in the several Countries of Europe) ; l'Avenir de la Russie, by Schedo-Terroti ; — a study by M. Tchitchcrine in the Staatsivorterbuch of Blunt- schli (Leibeigenschaft in Russland); — Kawelin, Einiges iiber die russiche Dorf- gemeinde, Tilb. Zeiischrift filr Staatswiss. xx. 1, — and the appendix by Prof. Helferich on the same subject ; — Von Bistram, Rechtiiche J^atur der Stadt- und Landgemeinde ; — Adolph Wagner, Die Abxchaffung des privaten Eigenthums ; Julius Eckardt, Baltische und russische Culturstudien (1869) and his Russlands Uindliche Zustiinde (1870);— a paper of M. JuUus Faucher, member of the German parliament, in the Cobden Club Essays ; — an article of M. Wyroubotf in La Philosophie positive ;— J. Ewers, Das alteste Recht der Russen in seiner ge- schichtlichen Eiitu-ickclung ; — Von Eeutz, Versuch iiber die geschichtliche Ausbil- dung der rusaisdicn Staats- und Rechtsverfassung ; — the results of the great agricultural enciuiry of 1873, in five volumes (Euss); — and finally the excellent 10 PRIMITIVE PROPERTY. which appears to belong to all Slavonic dialects, and is found in Tzectic and Silesian documents of the thirteenth century, answers to the idea rendered in the names commune, gemeinde, cammunitas ; but, in its primitive sense, it denotes something venerable and holy, for it also signifies the universe, like the Greek word /côo-yctoç. The Baron de Haxthausen quotes a great number of Russian proverbs, shewing the profound respect which the mir inspired in the people : " God alone is judge of the mir ; — All that the mir has decided, ought to be done; — A breath of the mir shivers the rock ; — The mir is the bulwark of the country," It is, in fact, the primordial institution of the nation, " The original phenomenon" of the genius of the Slav nations, as the " old Russians " say. Each male inhabitant of full age is entitled to an equal share of the land of which the mir is proprietor. In primitive times, there was no partition of the soil. The land was culti- vated in common, and the produce divided among all, in pro- portion to the number of labourers in each family. At the present time, in the midst of the forest districts, among the Roskolniks, some communes, bearing the name of skit, are found, where, this system is still in force. It is also said to be met with in certain isolated districts of Bosnia ; but the fact is disputed. At a later period, a partition of the soil was effected every year, or every three years, after each triennial rotation ; and in some parts this ancient custom is still maintained. The period of partition varies at the present day in the different districts. In certain localities partition takes place every six years ; in others, every twelve or fifteen years : every nine years is the most usual period. At every public census, a new division is regarded as obligatory. These general re-divisions have not been made at regular intervals. Since 1719, there have been ten of them, the last of which occurred in 1857. The peasants, though faithful to the principle of community, do not readily assent to this operation of partition, because the parcels which they have occupied return to the common mass, work of J. von Eeussler, Ztir GescMchte und Kritik der hnuerUclien Gememdehe- sitzes — J. Denbner, Riga, 1876. This work comprises an analysis and criticism of all tlie writings which have appeared on the question, whether in the form of hooks, newspapers, articles, reviews or ofBcial reports. VILLAGE COMMUNITIES IN RUSSIA. 11 and the new allotment frequently assigns others to them. Ac- cording to the report of M. dc Haxthausen, they call the general re-division " the black partition," tschernoi feredell. In many communes, the hay meadows are divided afresh every year. Everything that concerns the period and manner of par- tition, the regulation of the number of couples who are entitled to a share, the disposition of lots falling vacant, and the grant- ing of land to new households, is decided by the peasants them- selves, assembled under the presidency of the starosta. At this assembly, at least half their number must be present. Two- thirds of their votes are necessary to pronounce the dissolution of the community, and to divide the soil into permanent, individual property ; to effect a new partition and to expel or hand over to the government " vicious and incorrigible " persons. The dwelling-house, izha, with the land on which it stands, and the garden attached to it, form a private, hereditary pro- perty. The owner, however, may not sell it to a person who is a stranger to the mir, without the consent of the inhabitants of the village, who have always a right of pre-emption. When a family dies out this private property returns to the common stock : and a family, on leaving the village, has for six months a right of removing the house, or rather the materials, which being only wood are easily carried away. In the village communities of all countries, especially in the German mark, a similar custom exists. It admits of easy explanation. The commune is not merely an administrative unit : it is rather a patriarchal association, an extension of the family, in which the ties are so close, and the joint responsi- bility so strict, that a stranger cannot be admitted without the consent of the majority. Even at the present day in Switzer- land, the freedom of a commune is not obtained by mere residence ; it can only be acquired by purchase or grant Avith the consent of the body of freemen. In the middle ages it was the same everywhere. In the Russian commune there is, then, no landed property completely absolute : that which exists is still subject to the trammels of the eminent domain residing in the community. The Russian village is composed of a number of houses con- 12 PRIMITIVE PROPERTY. structed of beams laid one on another, like the American log- house or Swiss chalet. The gable facing the street is ornamented with a balcony; and the roof, which projects, is decorated with ornaments in carved wood. The dwellings never stand alone in the middle of the fields belonging to them, as in Flanders, England, Holland, and in all the countries where the soil has for centuries been divided into hereditary patrimonies. The name of the Russian village, derevnia, has the same root as the German dorf, the Scandinavian trup, the Anglo-Saxon thorp, and the French troupe, troupeau. It signifies, as M. Julius Faucher remarks, union, aggregation, with a view to mutual protections Men, in primitive ages, have to group together for common resistance against the attacks of enemies and beasts of prey, as well as to cultivate the soil by the association of hands and the cooperation of individual forces. To effect the partition, surveyors, appointed by the com- mune, proceed to the measurement and estimation of the various parcels of land, and to the formation of lots. According to the account of M. de Haxthausen, in certain localities they make use of consecrated rods or wands, of unequal length ; the shorter ones being reserved for the lands of better quality, so that the lot may be smaller in proportion to its fertility. All the arable land of the commune is divided into three concentric zones, which extend round the village ; and these three zones are again divided into three fields according to the triennial arrangement of crops. More regard is paid to prox- imity than to fertility, as this varies very little in the same district in Russia. The zones nearest the village are alone manured, every three, six, or nine years, in the sandy region; while in the region of the black soil the use of manure is unknown. Each zone is divided into narrow strips, from 5 to 10 mètres broad, and from 200 to 800 mètres long. Several parcels are combined, care being taken that there should be at least one in each zone and in each division of the rotation. Portions are thus formed, w^hich are distributed by lot among the co-partners. 1 See The Russian Agrarian Législation of 1861, by Julius Faucher of the Prussiiiu Landtaf^, iu the Sijsteiiu of Land Tenure in various Countries, pub- lished by the Cobdeu Club. VILLAGE COMMUNITIES IN RUSSIA. 13 All the inhabitants, including women and children, assist at the drawing of lots, on which depends the determination of the parcel of ground, which each has to cultivate until the next period of partition. The drawing gives rise to but few complaints, because the shares, being composed of several small parcels, the values of which compensate one another, are for the most part equal. If v any one can shew he is injured, he receives an additional portion, taken from the land remaining unappropriated. Formerly the peasants held the forest and pasture in common, certain services being reserved for the lord. The meadows were divided into lots every year and each family mowed its own parcel, or else the whole was mown in common and the hay divided. The act of emancipation of 18G1 assigTied exclusive ownership of the meadow and forest to the lord, contrary to the ancient law, as originally they belonged to the mir. It is an injustice, and an error in an economic point of view. If the ancient communities are preserved, everything essential to their commodious existence should be granted them. They should seek their model in Switzerland, in the villages where the system of Allmends procures for the usufruc- tuaries "pasturage, forest, and field," — Weide, Wald und Feld. The- forest being assigned to the lord, the peasants are made dependent on him, and the results of emancipation are, in a measure, nullified. The system of collective property can only bear its full fruit, when it is applied in its integrity and the cultivators are free citizens coriipletely independent. On the lands of the Crown, where there is no Avant of space, the mir generally holds in reserve a portion of the land, that it may always have some for the new households that are formed; meanwhile these unallotted parcels are let for rent. By this means the necessity of a new partition is rendered less frequent. On the Crown domains, the division is carried out according to the number of souls. A certain number of dessiatines^ is fixed on for each member, douclia, and every father of a family obtains as many of these parts as he has individuals subject to him. On the lands recently dependent on the lords, the division 1 The dessiatine is about 2-7 acres. 14 PRIMITIVE PROPERTY. is effected by tiaglos. The meaning attached to this word tiaglo, which represents the unit of labour, varies. Formerly it denoted a group of two or three labourers in each family ; at the present time, the word is used to denote each married couple, so that if several couples live in the same house and labour in common, each of them is entitled to a share. Under the system of serfage the unit for the corvee to be performed or for the payments to be made to the lord was the tiaglo. This word, coming from the Eussian verb tianut, to draw, is from the same root as the German Ziehen, and signifies "a person who draws," that is, who drives the plough or cultivates. It was to the lord's advantage to multiply the tiaglos, as each of them owed him a certain number of days' labour per week. The patriarchal families, which united several couples under the same roof, represented several tiaglos, according to the number of working hands at their disposal. The corvée due to the lord being assessed according to tiaglos, it was natural that the land should be divided in the same proportion. Under the first system, the allotment was by the number of heads ; under the second, by the number of married couples or of adult labourers. As the various parcels assigned to each household were intermixed, it followed that all had to be cultivated at the same time and devoted to the same crop. This is what the Germans call Flurziuang, or "compulsory cultivation." One- third part of the arable land is sown with winter grain, wheat or rye ; one-third with oats ; and the remaining third lies fallow. Each family tills the ground, sows and reaps separately and on its own account ; but there is nothing to mark the boundary of the parcels. The whole section occupied by one of the divisions of the triennial rotation seems only to form a single field. The several agricultural operations must be performed at the same time by all; because, there being no roads or ways of approach, no one can get to his parcel of ground without passing over those of his neighbours. The assembly of inhabitants of the commune determines the time of sowing and harvest, just as we see them do in the south, in Switzerland, in Italy, and in France itself, for the time of vintage. It is another of the cases in which individual initiative is fettered by the authority of the mir. Before the abolition of serfage, the lord granted to the VILLAGE COMMUNITIES IN RUSSIA. 15 peasants about half the arable land, and kept the remaining half for himself, which he had cultivated by means of the labour supplied by the corvée. The serf had to work three days in the week for his master. The forest and waste lauds supplied the cultivators with wood and pasturage, for which certain supple- mentary services were reserved. In 1861, m Russia proper, 103,158 proprietors owned 105,200,108 dessiatines, with twenty-two millions of serfs, who had a usufruct of one-third of the whole surface, or of some 35,000,000 dessiatines; which allowed rather more than two- and-a-half dessiatines a head, or about seven dessiatines for each family. In the region of the " black " soil, the population was denser, and the share of each was consequently less. This share was called the nadiell. The nadiell served as the basis of partition between the peasants and the lords, decreed by the act of emancipation. The lord was bound to leave as the property of the enfranchised serfs a portion of the soil, reserv- ing a money rent always redeemable \ The amount varied with local circumstances ; but in every village a minimum is fixed for each male inhabitant. This minimum varies. In the steppe regions, it is from three to eight dessiatines; in the industrial districts, it is smaller ; thus, in the province of ]\[oscow, it is as low as one dessiatine. In the region of the "black" soil, it averages from two to three dessiatines. Prac- tically, the portion of land, which the enfranchised serfs have obtained, corresponds very closely with the nadiell, or the share which they previously had to cultivate. This is the position of an ordinary peasant family in the province of Novgorod. It cultivates about 20 hectares, or 49 English acres, of which half is arable, the rest hay or pasture land. The triennial rotation of crops is generally practised in Russia, so that one-third of the arable is sown with rye, the second with oats, and the remaining one is fallow. The stock consists of two horses, three cows, and four or five sheejD. It pays to the lord seventy francs for the rent, or about a franc . ^ The government makes advances to the peasants to eualile them to redeem the rent. The former serfs occupy on the average about au acre, paying a rent- of from twenty to twenty-four francs. 16 PEDIITIVE PROPERTY. and a half per acre; to the state, a tax of twelve francs for each male, or about thirty francs in all on the average; and to the priest another six or seven francs \ So far from the emancipation laws proving the death- blow of the collective existence of the mir, the new communal organization established by the ukase of February 19, 1861, has rather strengthened it. For it has confirmed the principle, which made each commune a corporation, jointly responsible for the exact payment of all taxes due to the state, to the province or to the commune from its inhabitants individually. The heads of families, united in general assembly, may introduce individual property and put an end to the system of commu- nity; but to determine this transformation, a majority of two- thirds is necessary. It is asserted that, if the decision could be taken by a mere majority, the communities would have soon ceased to exist. Observed facts do not seem to confirm these predictions. The peasants do not so readily abandon ancient customs; and it is only by gradual and insensible changes, that old institutions are modified under the influence of new ideas and new requirements. Here is a curious example, which shews how strongly the Russian peasants are attached to the agrarian organization of the mir. Some years ago, on a property in the district of Peterhof, the proprietor wanted, in the interests of the serfs, to introduce the agrarian system of western countries. He divided the land into independent holdings, on which he built at his own expense separate houses for each family. Scarcely was the abolition of serfage decreed, wheij the peasants hast- ened to re-establish the primitive community, and to rebuild their houses on the old spot, in spite of the very considerable amount of labour which this entailed. There were public rejoicings to celebrate the return to the old customs of the mir. One peasant alone refused to give up his separate holding : he w^as dishonoured and declared a traitor by the whole village^. In the eyes of the Russian peasant every attemjDt to withdraw from the bonds of the community is ^ See tlie interesting report of Mr Michell in Reports respecting the Tenure of Land in the several Countries of Europe. 2 Eckardt, Eusslands Idndliche Zustande, § 102. VILLAGE COMMUNITIES IN KUSSIA. 17 a desertion, a theft, a crime fur which there can be no pardon. What is a still more curious fact, is, that the German colonies established in Russia have spontaneously adopted the periodic partition of the land. In the villnge of Paninshoï, near the Volga, peopled by colonists from Westphalia, M. do Haxthausen states that the commune effects a now partition of the soil every three, six or nine years, according to the increase in the number of inhabitants. The other German colonies in the government of Saratoff have also demanded and obtained permission to adopt the same system. Tartar agriculturists practise this Russian method of partition. It is also found among the people of Little Russia, in the district of Voronege and in Bessarabia. In spite of the periodic partition, inequality has been intro- duced into the mi7% and many peasants have no land. First, certain inhabitants of superior intelligence or influence, by means of brandy, acquired a larger share. The niougik calls them the " consumers of the mir'' {miroiedy). Others were too poor or too idle to cultivate a share ; they live by wages. In a very instructive work of Prince Vasiltchikof, partial sta- tistics from a province are given, from which it appears that out of 1,193,000 households, 75,000 have no land at all, and 7,400 have only preserved the hereditary enclosure \ The patriarchal family is the basis of the commune ; and the members of the mir are generally considered as descended from a common ancestor. Family ties have maintained a force among the Russians, as also among the Slavs of the Danube and the Balkan, which they have lost elsewhere. The family is a sort of perpetual corpcration. It is governed by a chief called "the ancient," with almost absolute authority. All property is in common. There is usually neither succession nor partition. The house, the garden, the agricultural imple- ments, the stock, the produce — moveables of every descrip- tion — remain the collective property of all the members of the family. No one thinks of claiming a separate share. On the death of the father of a family, his authority and administra- ^ See the excellent article of M. Anatole Leroy Beaulieu in the Ecvue des Deux Monde.i of Novumher lt>, 187G. M. 2 18 PEIMITIVE PROPERTY. tion devolve on the eldest member of the house : in some districts, on the eldest son ; in others, on the eldest brother of the deceased, provided he live under the same roof. In some parts, too, the members of the family themselves elect the new chief. If all the survivors are under age, a relation establishes himself with them and becomes a co-proprietor. The head of the family is called Khozain, -which signifies "the administrator," or Bolsliak, that is, the "great one\" When, on a death, a division of property takes place, which is less rare than in former times, it is not made according to the degrees of relationship, but each adult male living in the house takes an equal share. An orphan cannot succeed for his father by representation ; and those who have left the paternal roof have no right of succession. The females remain in the charge of one branch or other of the family, and receive a portion on their marriage. In the north, the house passes to the eldest son. In the south, the youngest inherits it, because, ordinarily, the eldest has set up a separate establishment during the lifetime of his father. It is not blood, or descent, which gives the title to succeed, but a much more effective title, co-operation in the labour which has produced the property whose division is in question. The adult uncle, nephew, and cousin, have laboured together : they shall take an equal portion. The young girl and the child have contributed nothing to production : their wants will be provided for, but they have no right to a share in the inheritance. In the Russian family as in the Russian state, the idea of authority and power is confused with that of age and paternity. The word starosta signifies "the old;" the word starshina is in the comparative, " older." The emperor is the " father," — the " little father." This is the real principle of the patriarchal system. Since the emancipation the old patriarchal family has tended to fall asunder^ The sentiment of individual inde- pendence is weakening and destroying it. The young people ^ See Mackeuzie Wallace, Russia, i. c. 6 ; and also, for descri2)tiou of the luir, c. 8 and 9. ^ The report of the commission appointed May 2fi, 1875, witli the Minister of the Domains, Waluzew, as president, contains much information gathered from different provinces, which proves that the family division is being effected on all VILLAGE COMMUNITIES IN RXTSSIA. 19 no longer obey the "ancient." The women ([uarrel about tlie task they have to perform. The married son longs to have his own dwelling. He can claim his share of the land ; and, as the Russian peasant soon builds himself a house of wood, which he shapes, axe in hand, with marvellous facility, each couple sets up a separate establishment for itself. The dissolution of the patriarchal family will perhaps bring- about that of the village community, because it is in the union of the domestic hearth that the habits of fraternity, the indiffer- ence to individual interest, and the communist sentiments, which preserve the collective property of the mir, are developed. Formerly, the method of overcoming the resistance of obstinate members or of getting rid of incorrigible idlers was to hand them over for the conscription. The fathers of families, in conjunction with the starosta, thus purged the community of all recalcitrants. It is the habit of submission to the despotic authority of the father which has given the Russian people the spirit of obedience, of self-denial, and gentleness, characteristic of them. How marked is the contrast between the Russian and the American ! The latter, eager for change and action, athirst for gain, always discontented with his position, always in search of novelty, freed from parental authority in his earliest years, accustomed to count on no one but himself and to obey nothing but the law, which he has himself helj)ed to make, is a finished type of individualism. The Russian, on the contrary, resigned to his lot, attached to ancient tradition, always ready to obey the orders of his superiors, full of veneration for his priests and his emperor, and content with an existence, which he never seeks to improve, — is perhaps happier and more light-hearted than the enterprising and unsettled Yankee, in the midst of his riches and his progress. Animated discussions have been raised recently as to the origin of the community of lands, which is the actual basis of the mir. The Russian patriots see in it " the primordial institution " of the great Slavonic race. This opinion, propa- gated in Europe by the writings of the Baron de Haxthauscn, sides, to the general disadvantage. For tlie disastrous consequences of the par- tition, see tlie work of Von Ileussler already quoted. 2—2 20 PRIMITIVE PROPERTY. was admitted without dispute, until Tchitcherine and Bistrr.m^ lately maintained a directly opposite theory. According to them, the peasants, up to the end of the sixteenth century, were free and independent owners of the land they cultivated. They made terms with the lord as to the rent to be paid, and sold, inherited, let or bequeathed their holdings, without any interference of communal or seignorial authority. Community of land and periodical partition were unknown. The commune exercised no supervision over its members. The independence of the peasants, however, suited neither the sovereign, who wanted taxes and soldiers, nor the lords, who required hands to cultivate their land. A ukase of Czar Fedor Ivanovitch, in 1592, attached the peasants to the soil. The lords established registers, in which were enrolled all the labourers living on the land, which they regarded as their domain ; and the peasants were forbidden to remove without permission. Later laws of Boris Godunof introduced serfage definitely. Under Peter I. the poll-tax on every male inhabitant, the joint responsibility of the commune for the payment of taxes and for providing recruits, and th« census, induced the peasants to put their lands in community, and to divide them in proportion to the working hands, that each might be in a position to contribute to the communal expenses, in proportion to his strength, " Agrarian community," says M. Tchitcherine in conclusion, " was the product of slavery ; it Avill disappear with it before liberty." The theory of MM. Tchitcherine and Bistram was strongly opposed by Professor J. Belazew in the Bîisskaja Besseda. — According to this writer, the Russian commune with periodic partition of the soil has existed from the earliest times, being in conformity with the genius of the Slav race. Families, which could cultivate more land and pay higher taxes had a larger portion allotted to them. No doubt, as Tchitcherine shews, private property did exist ; it even predominated in cer- tain parts of Russia. But we must not therefore conclude that it was the ordinary system. Common property was the rule. Professor Hergei' Ssolowzew^ has lent the support of his 1 Staatsworierhiich von Bhintschli. Lciheifjcnscliaft in Jiitsslaud, p. 396 — 411. Vou Bistram, Die rechtllche Natur der Slcidt- und Landyemeinde, St Peters- burs, 186(3. ' See Rnsski Vestnik. Lib. 22. p. 289. VILLAGE COMMUNITIES IN RUSSIA, 21 authority to Belazew's opinion ; and now it is generally ad- mitted in Russian literature, that collective property did exist in ancient Russia. The more accurate knowledge of the primitive history of the Russian commune is chiefly due to the researches of Professor Leschkow\ Originally the or- ganization is found to be exactly the same as in the Germanic mark, under the name of luerw in Southern Russia, and of poffost or guba further North. In the Werw, the elders, or " centeniei'S," administer justice and maintain order. But the partition of the collective domain, and all questions of im- portance, are decided in a general assembly. After the appear- ance of the Waregue princes, a territorial aristocracy sprang up ; it usurped many of the lands occupied by poor cultivators, who remained free, but were bound to certain services. The most ancient law of Russia, the HusJcaja Frawda, contains six articles to protect this class of occupiers from the exactions of their lords, and to regulate their condition. By the side of the cultivators, or co-partners of the mark, and the tenants of the seiguorial lands, were a large number of independent proprietors, who sprang into existence in the following way. The extent of unoccupied soil being very great, the settlers who brought it into cultivation acquired a life ownership, and, in fact, even a kind of hereditary right in it. The same right exists in Java, where the system of collective property is in force under the same conditions as in Russia. The mode of cultivation employed by the settlers was that always practised when primitive forests are reclaimed. They built themselves a rough log-house, made so as to be moveable. They then set fire to the surrounding forest, and cultivated the soil until it was exhausted; then they migrated further. In consequence of this nomadic cultivation a great number of small hamlets were formed, which were not subject to the rules of the mark. The necessity of periodic partition did not make itself felt, until the population was permanently fixed and become . so large as to make the system of intermittent cultivation insufficient. . This Ï Russki Parod i Gosotidarstvo, p. 69 — 71, &c. M. Von Ronssler mentions the chief sources of the history of the agrarian Rystem and the rnral slaves in Russia, in his work already quoted, GeschicJUe des bduerliclien Gcmcindc- besitzes, p. 16» 22 PRIMITIVE mOPERTY. explains how the lot of each family, the Utschastoh, was at first the subject of a life ownership, or even of hereditary- ownership, and how partition was only introduced at a later period. Exactly the same process is being carried on, even at the present day, among the Cossacks. In the fourteenth century, we find the wolost, with its council of elders, comprising several villages (selo), each with their chief (golovi), their " centenier " {sofskie), and their elders (starostis). In the sixteenth century, the communes still enjoy great independence. The code of 1497, and that of 1550, recognize and protect their privileges in the face of the nobles and the representatives of the prince. Soon after, however, under John IV., and still more under his successor Feodor, the taxes become excessive ; and, in order to check emigration, a ukase of 1592 attaches the peasants to the soil, and in return grants them a right in the soil which they cultivate. The ancient communal system differed, in some respects, from that which is in force at the present day. Every member of the commune obtained as much land as he could cultivate. This portion was called Udel, Utschastoh, and also Sherehi, a word corresponding- to the Loosguter, the lots, and recalling the drawing by lot. The whole of a peasant's property, with the right of enjoyment attached to it, was the Diuor. The Dwor comprised the house and garden, or orchard [usadba), the cultivated land (obsha), of an average extent of 9 to 15 des- siatines, the meadows, the pasturage, the wood, the marsh, and the river for fishing. It was precisely the German Bmiergut, or Hube. There was however some difference between the Germanic and Russian mark. The latter remained more democratic ;— the right to a lot of land being recognized in every one, even in the strangers, wdio could be adopted into the families without difficulty. Among the Germans the mere inhabitants, Beisassen, were excluded from the partition; and at a very early period some families had usurped a larger share, while others had allowed their right to perish. In the middle ages the Germanic mark, with the large village in the centre, was a fixed organization, closed and, so to speak, crystallized ; while in Russia the TFeny, with its immense extent of uncultivated land, its widely scattered houses, and VILLAGE COMMUNITIES IN RUSSIA. 28 its cultivators always extending the area of tlioir nomadic cultivation, Avas still in process of formation\ Tlio Russian commune was based on the same principles as that of the Germans and other nations, but external circumstances, and particularly the more primitive system of cultivation, modified their practical application. Even now, in the steppes of the South, the agrarian organization has hardly advanced to the point which it had reached in Germany in the days of Tacitus. Mr Mackenzie Wallace has observed a custom there which was in force in Germany at the most remote period. When the boundaries are traced between two neighbouring marks, children are brought to assist at the operation, and smartly beaten, that, the fact being impressed on their memory, they may be able to give evidence on the matter all their lives. In the fourteenth and fifteenth century, when the increase of population made it necessary to keep the soil in permanent cultivation by the triennial arrangement of crops, the com- pulsory rotation, or Flurzwanj, became general. The idea that the land of the commune belonged to all the inhabitants collectively was part of the juristic instinct of the people ; but, originally, there was no necessity for the application of the principle, because every family could cultivate as much of the steppe, or forest, as it required. We can thus grasp the very important phase in economic progress and in the evolution of landed property, where periodic partition is preceded by the free power of occupation, the clan's right of eminent domain being however never lost sight of. The transformation is going on even in our own day. In the colonies established in this century on the steppes in New Russia, there was at first the system of free occupation : every one took as much land and meadow as he required : but as the population increased disputes arose, to put an end to which periodic partition was introduced, and became general in the provinces of Kerson, Tauride, Woronesh, and Ssamara. The same was also the case among the Don Cossacks. Originally every one might cut down timber, cultivate land, or depasture cattle at will; and all the territory was the xin- 1 According to von Rcusslor, tlio name of the villaf;;e, dereu'va, from derevo, land newly reclaimed, indicates the ouward march of colonization. 24) PRIMITIVE PROPERTY, divided property of the wliole nation. Subsequently the ter- ritory had to be divided among the Stanitsas. The domain of each Stanitsa, called jart, was subject to the right of free occupation. The population, however, increasing, it was necessary to have recourse to periodic partition, which was finally regulated in 1835. These partitions are made per head. Every male over seventeen years of age is entitled to 15 dessiatines of arable land. Mr Mackenzie Wallace states that this system has put an end to disputes, and, by re-es- tablishing equality, has improved the condition of the poor. The meadows are mown in common, and the hay divided. Among the Cossacks of the Oural the right of occupying the meadows is regulated in this way: On a fixed day every member is entitled to appropriate all the grass within the circle that he can trace out with the scythe between morning and evening. In Switzerland, in the mountain cantons, we find a very similar custom. On the thirteenth of August, the "Wild mower" {Wildheuer) at sunrise occupies one of the grassy ridges which are to be seen on the summit of the rocks, in almost inaccessible sj)ots, and is entitled to make the hay on it, which he afterwards ties into bundles and throws into the valley below. In Siberia, -in consequence of the extent of land unoccupied, the peasants transmit by descent the lands which they cultivate. But they may not alienate them out of the family, and the eminent domain of the commune is re- cognized, for already in many localities, especially Slovina and Tobolsk, where inequality had increased with the population, periodic partition has been introduced ^ Some towns still have common lands, which they distribute. Thus the town of Mologa, in the province of Jaroslaw, possesses a pasturage, which is divided into eleven parts ; and each of the eleven sotnis, or groups of burgesses, successively obtains each part, so that, in eleven years, each sotni has occupied all the lots. These sotnis recall the Rhodes of Appenzell. From the facts collected by Von Eeussler, it would ap- pear that in ancient Russia the right of every one to an equal share of the communal domain was not as general as it 1 See Eiisskaja Besscda, 1860, v. u. p. 119, and N. Flerowski, Polojcnie rahotchazvo klassa vi Jîossi. Petersburg, 1869, p. 75. VILLAGE COMMUNITIES IN RUSSIA. 2a is to-day. The substitution of an individual poll-tax for the old land-tax has given this right extension and increased vigour. As every one had to pay the tax and the commune was responsible for it, it was to the interest of the latter to provide every one with sufficient land to enable him to pay his share of the sum total due, and this share being the same for all, the lot of land was also made equal. When we find village communities among all Slav nations, among the Germans, and the nations of antiquity, in America, in China, India, Java, in all societies, in a word, when they quit the nomadic and pastoral state and adopt the agricultural system, it is impossible to admit the theory that in Russia this institution, which survives to the present day, was introduced simply in consequence of the laws of Fedor, of Boris Goduuof, or of Peter I. The principle of collective property existed from the first in Russia, as it did everywhere else. But the vast extent of unoccupied land was favourable to the dispersion of families and the establishment of several ownership. Periodic parti- tion was not introduced generally, as we now see it, until the growth of the population made it no longer possible for every one to take at his will a vacant lot in the forest or the steppe. The poll-tax and the joint responsibility of the commune accelerated the movement, because every one, in order to be able to pay his share of the tax, required his parcel of ground. CHAPTER III. ECONOMIC RESULTS OF THE RUSSIAN MIR. The advantages and inconveniences of collective communal property bave been for twenty years tbe subject of deep dis- cussions between the partisans and adversaries of tbe system. M. Von Reussler, in bis book already often quoted, lias col- lected, from Russian sources, all tbe arguments adduced on citber side, as well as tbe discussions wbicb took place on tbe subject at tbe Agricultural Congress at St Petersburg in 1865- Tbe great agricultural enquiry in 1873, tbe results of wbicb bave been collected by tbe Government in five volumes, also contains mucli material for tbe study of tbis question \ Tbe Panslavists believe tbat tlie community of tbe mil' will ensure tbe future greatness of Russia, Western nations, tbey say, bave possessed similar institutions ; but, under tbe influence of feudalism and tbe civil law, tbey bave allowed tbem to perisb. Tbey will be punisbed for it by social struggles, and by tbe implacable contest between tbe ricb and tbe poor. It is contrary to justice, tbey add, tbat tbe soil, wbicli is tbe common patrimony of all mankind, sbould be appropriated by a few families. Labour may be a lawful title of owuersbip in tbe product created by it ; but not in tbe soil, wbicb it does not 1 This commission, presided over by a person of great eminence, the "minis- ter of Domains," P. Waluzef, received more tliau a tho;;sand reports and more than two hnudred verbal depositions. Unfortunately, as M. A. Leroy Beaulieu remarks, only persons of the higher classes were heard, who are generally hostile to the system of communities. M. Von Ruussler sums up the opinions of the writers, — A. Butowski, J. Ssolozew, Th. Von Thorner, Von Buschen, Hertzen, Tschitscheriuo, Kawelin, Juriu, Ssawitsch, Koschelew, Ssamarin, Belazew, Tschernuschewski, Besobrasow, Pauazew, &c. ECONOMIC RESULTS OF THE RUSSIAN MIR. 2/ create. In Russia, the commune recognizes in every individual able to labour the right to claim a share in the soil, which allows him to live on the fruits of his energy. Pauperism, the bane of Western societies, is unknown in the mir ; it cannot come into existence there, for every one has the means of subsistence, and each family takes care of its old and infirm members. In the West, a numerous offspring- is an evil that is avoided by methods which certain economists advocate, but which morality condemns. In Russia, the birth of a child is always matter of rejoicing ; for it brings the family new strength for the future, and entitles them to claim addi- tional laud for cultivation. The population can increase. There are vast territories in Europe to be colonised ; and, when these are stocked, the immense plateaus of Asia will open for the indefinite expansion of the great Slavonic race. So long as the race preserves the venerable institution of the mir, it will escape class struggles and social war, the most terrible of all contests, for it caused the fall and subjection of ancient societies, and at the present day is threatening modern societies with the same dangers. The Russian nation will remain united and therefore stronar : it will continue to increase on the basis of the "primordial institution," which alone can guarantee order, because it alone allows of the organisation of justice among mankind. Such is the language of the advocates of the mir; — it assumes various shades. First, there are the conservatives, such as the Baron von Haxthauseu, who would protect the patriarchal system and the ancient institutions. Then come the numerous group of Slavophiles, such as Aksakof, Byellyayef, Koschelyef, Samarine, and Prince Tscherkasski, followed by many persons in high society, and distinguished women who take very exalted views of the great destiny reserved for the Slavonic race. Finally, there are the socialist-democrats of the school of Herzen and Bakunin, such as Tschernischewski and Panaeff, who maintain that the agrarian organisation of the mir contains the solution of the social problem, sought in vain by Saint-Simon, Owen and Proudhon. The institutions of the Russian commune are so coni[)lotcly at variance with all our economic principles and witli the 28 PRIMITIVE PROPERTY. sentiments of individual property developed in us by habit, that we can with difficulty form a conception of their existence. The viir seems to us a kind of social monstrosity, — a legacy of barbarian ages, to which modern progress will not stay to do justice. Yet a glance round us is sufficient to shew how the principle of collectivity is invading us on different sides, and threatening the independence of isolated individualism. On the one hand joint-stock companies, a collective power from which responsibility is entirely banished, not only mono- polise all the large industries, but crush, under their irresistible competition, even the artisans and small traders on a ground where they seemed unassailable, — the making of garments, of boots, furniture, and retail business. Joint-stock compa- nies are formed for every purpose, and multiply continually. Every one soon will be a shareholder or in receipt of a salary ; there will be no room for the small independent tradesman, or the independent workman belonging to no society. On the other hand, Ave see increasing in number, with alarming rapidity, societies in which the principle of com- munity is applied even more rigorously than in the Russian mir, and "Udiere all distinction of meum and tuum is strictly proscribed. I refer to religious houses. Once gi'ant these houses a civil personality and a right to take landed property on the same title as individuals, and the struggle between individualism and collectivity will not remain long undecided. Within a hundred years religious houses will be temporal lords of the land in everj catholic country ; and the whole soil will be in their hands. Under the old system, every sovereign, — even the most devoted to the church, such as Philip II. and Maria Theresa, — was constantly issuing law upon law to stop the encroachments of mortmain. Modem laws forbid religious bodies to exist as civil persons or to hold property as such : yet we see them multiply- ing under our eyes in France, in Belgium, in Holland, Prussia and England ; — in every country where violent revolutions have not expelled them, as in Spain, Italy or Portugal. Their wealth and power increase in proportion as the most firmly established governments have recourse to exceptional measures for their limitation. In Belgium they will soon be strong enough to ECONOMIC RESULTS OF THE RUSSIAN MIR. 29 brave all opposition and to dictate their wishes to the legis- lature and the sovereign. With a legislation such as that of the United States on the subject of foundations and civil persons, religious communities would eventually usurp the whole soil. The example of religious houses may help us to understand the existence of village communities. Undoubtedly man always pursues his own individual interest. He seeks happiness and shuns pain; and the more perfect the organisation of respon- sibility, the more will he be compelled to do well and to labour. But as faith discloses to him the perspective of eternal felicity in another life, it may be, that to become worthy of this, he will work here below obediently and devotedly, as in certain monasteries. Custom and tradition also exercised, in primitive times, an influence of which moderns can scarcely conceive. It is under the influence of these motives that agricultural labour is carried on in village communities. Besides, notwithstanding the periodic partition of lands, it is always to the advantage of the cultivator to till it well, as he alone takes the harvest, be it good or bad. This practice, therefore, strange as it appears, does not prevent the usufructuaries giving the soil good manure and proper dressings. The Irish tenant at will, or even the tenant who has only a short lease of three or six years, a term unfortunately too common, has still less security for the future than the Russian peasant, from whom the mir, every nine or twelve years, takes the field which he cultivates, only to give him others of at least equal value. If the soil of Russia is badly cultivated by the peasants, it is because, until lately bowed beneath the yoke of serfage, they want instruction, motive, and energy. A visit to the arable land of the allmends in Switzerland and the district of Baden is sufficient to prove that the system of temporary enjoyment is not the cause of the backward state of rural economy. The allmends are also divided from time to time among the usufructuaries, and yet they are in a perfect state of cultivation, while, on the other hand, in Russia, the lands, which are the private property of the nobles, are no better . cultivated than the lands of the communes. 30 PRIMITIVE PROPERTY. What periodic partiti(3n docs prevent, in great measure, is permanent and costly improvement, which a temporary possessor will not execute, as another would reap the profits. It is in this respect that the village community is evidently inferior to individual property. None but the hereditary pro- prietor will make the sacrifice necessary for the permanent improvement of sterile soil, and for sinking the capital necessary for perfect, intensive cultivation. In all western Europe we have to admire the marvels accomplished by private ownership ; while, in Eussia, agriculture abides by the processes of two thousand years ago. Yet there would be nothing to prevent the commune itself executing large permanent works, for irrigation, drainage or roads, such as are carried out by the communal administration of the towns and the Allmends in Switzerland. By the use of collective resources and combined labour, much, more complete results are obtained than by the isolated, intermittent, and insufficient efforts of individuals. If nothing of the kind is done in Russia it is for want of information, and not in con- sequence of any incurable defect in the agrarian system. The results of community and periodic partition are not at all alike in the two great agricultural divisions of Russia. In the circle of the " black " soil the land gives abundant harvests without manure and almost without labour. So long as the peasants are content with growing corn, there is no necessity to sink a large capital in the land ; they need only till it and gather in the harvest. The system of partition is, therefore, no obstacle to works of improvement, which the cultivator would not execute in any case. The alluvial lands of the Banat in Hungary, and those of Moldavia, although subject to private ownership, are no better cultivated than the " black " soil of Russia under the system of community. In the light soil of the centre and the north, which would require copious manuring and works of permanent improve- ment, too frequent periodic partition undoubtedly hinders the progress of agriculture. Central Eussia is the country where agricultural produce is the poorest in all Europe. It is estimated that the cultivator only reaps three or four times what he has sown. It is true that the laws of Von Thunen might be called ECONOMIC RESULTS OF THE RUSSIAN MIR. SI in to explain this fact. In a tliinly peopled country, where there are no great centres of consumption, there is no advan- tage in carrying on intensive agriculture. It is better to call into action the natural forces, offered by the vast space still undisposed of, than to accumulate a large capital on a small area, as one is compelled to do when the population becomes denser. Thus it is that the English in Australia, while prac- tising a most perfect system of market-gardening in the neigh- bourhood of Melbourne, Sydney or Brisbane, devote themselves, in the interior of the country, to the pastoral system in all its primitive simplicity. The point in the organization of the mir, which is really calculated to alarm economists, is that, contrary to the maxims of Malthus, it removes every obstacle to the increase of popula- tion, and even offers a premium for the multiplying of offspring. In fact, every additional head gives a right to a new share on the partition. It seems, therefore, that the population ought to increase more rapidly than anywhere else. This is the chief objection raised by Mill to every plan of reform in a com- munistic sense. Yet, strange as it seems, Russia like France is one of the countries where the population increases most slowly. The period required for the doubling of the popula- tion, which is about a hundred and twenty years for France, is ninety years for Russia ; while in England and Prussia it is only fifty years. What is the cause of this unexpected pheno- menon, which seems to contradict all the previsions of political economy ? There are various circumstances contributing to produce the result. The first is the large mortality among young children. The fertility of marriages is a little greater in Russia than in other European states. The eminent Russian statis- tician. Von Buschen, makes the number of children for each married couple 4"96 in Russia ; while in Prussia it is only reckoned at 42.3 ; in Belgium at 4-72 ; and in England at 377 ^ According to M. Quételet^ the number of births is relatively nearly twice as large in Russia as in France. The number of children, however, is not highest among the peasants. 1 Aperçu statUtique des forces produetircs de hi Ilussie, Paris, 18G7, 2 Physique socinlç, Brussels, 1809. 82 PRIMITIVE PROPERTY. Thus, in the province of Novgorod, which may serve as an example for the rest, the number of children to each marriage was 5*8 for the higher classes ; 5 '5 for the peasants ; 5 for the bourgeois; 4'8 for the smaller class of traders; and 3'75 for the floating population. The mortality in Russia, compared with the number of inhabitants, is in the proportion of 1 to 26 ; while in Prussia it is 1 to 36 ; in France 1 to 39 ; in Belgium 1 to 43 ; and in England 1 to 49. The average length of life in Russia is, therefore, very much less than that given for other countries. Instead of being about thirty-five years, as in the countries of Western Europe, it is only from twenty-two to twenty-seven years. In the agricultural region of the Volga it sinks to twenty years, and in the provinces of Viatka, Perm and Orenbourg, even to fifteen. This unsatisfactory average is due especially to the great mortality among young children. M. Buniakovski, a member of the Imperial Academy of St Peters- burg, states, in his work on the Laws of Mortality in Russia, that out of a thousand male children only five hundred and ninety-three attain the age of five years. Nearly half die before that time, and about one-third die within a year of their birth. There is yet another fact, which is well known, to be taken into account, namely, that children dying before they arc baptized are not registered at all. Thus the great mortality among infants is the principal cause which prevents the increase of the population. It is want of proper care that carries off so many people. According to M. Giliarovski, who has made special researches as to infant mortality in Russia, the mothers, overburdened with work, are in many cases incapable of nursing their new-born chil- dren. They give them with the bottle a kind of gruel of bitter rye-meal, which produces diarrhoea. Custom requires the mother, three days after her confinement, to take a vapour bath ; and this bath, for want of proper precaution, has often evil results. The baptism, which consists of a complete im- mersion, is also in winter the cause of many diseases, and even of deaths. In summer the labours of the harvest are even more fatal : 75 per cent, of the children who die succumb during the months of July and August, because the mothers, ECONOMIC RESULTS OF THE RUSSIAN MIR. oo being detained all day in the fields, are obliged to entirely abandon tlieir nurslings. The difference of age frequently existing between husband and wife is also a check to the increase of the population. This disparity is the result of the patriarchal system of the family. The working hand is rare in Russia, and valuable in propor- fion. It is, therefore, to the interest of each family to find among its members the number of hand's necessary for the cultivation of the portion of land belonging to it. The head of the family, accordingly, is anxious to marry his sons as early as possible, that the young woman may discharge the -duties of the servant, to whom high wages would have to be paid. In this way young boys of eight or ten are married to women of five-and-twenty or thirty y^ars of age. Two very mischievous consequences result from these ill- assorted marriages. In the first place, the woman is approach- ing the déclin:© . Schedo-Ferroti and Kawelin wish to reform this system without abolishing its principle. They would give each family the hereditary enjoyment of its parcel, which it might sell, devise, or lease. The commune would retain only the eminent domain ; and, to avoid the accumulation of property in the hands of a few people, a maximum would be fixed. At Rome and in Greece we meet with laws of this kind; but similar restrictions are scarcely in accordance with the spirit of modern legislation. The institution of the mir forms a perfect, traditional system, which ought either to be respected or replaced efltirely by independent property. We may say of it, as of a celebrated order, Sit ut estant non sit. I think the government should not rudely and authoritatively destroy an organization centuries old, which penetrates with such deep roots into the whole life and history of the Russian nation. Give free course to social influences, and institutions which are obstacles to progress will gradually disappear, or be more or less modified according to new requirements. We should see with regret the suppression of a system which, if improved, may be the safeguard of modern democracy. With regard to the Russian system of attributing the col- lective ownership of the soil to the commune, and a temporary enjoyment of an equal share to each family, there is no doubt that, as practised in Russia, the custom presents insurmount- able obstacles to agricultural progress. The intermingling of the parcels forming the several lots and the consequent Fhtr- zwang, the compulsory rotation and cultivation of the same crop ECONOMIC RESULTS OF THE RUSSIAN MIR. 37 on the whole of a particuUir zone, imposed on all the culti- vators, prevents individual initiative introducing improvements in agricultural processes on its own account. These improve- ments might be decided on by the assembly of cultivators ; but, for this, it requires the majority to possess an amount of enlightenment, which is evidently wanting in them. Hence routine must of necessity prevail. These undeniable drawbacks are not absolutely inherent in the system, which they have almost universally accompanied. In the first place, an independent family lot might be given to each family for it to cultivate as it liked for a period of twenty years, or during the lifetime of the father. The position would then be similar to that of a commune belonging to an indi- vidual jDroprietor, who granted leases to tenants for terms of ' twenty or thirty years, as is commonly done in England. The advantage of thorough cultivation would be the same in the two cases ; there would be no obstacle to the employment of the best agricultural processes. The only difference would be, that the cultivators, instead of being tenants of a lord, would be tenants of the commune ; and that, instead of paying a rent continually increasing with each economic advance, they would enjoy their portion of the soil gratuitously and in virtue of their natural right of possession, which certainly would make their position no worse. The opponents of the Russian system always attack it with regard to property, as if in the West the soil was always culti- vated by its owners ; whereas the converse of this is the case : the larger part of the soil is cultivated by tenants who have only the temporary use, and that for a term generally shorter than that which is secured to the Russian usufructuary. I admit that the condition of the proprietor is preferable to that of the usufructuary ; but I maintain that that of the usufruc- tuary is better than that of the tenant. And the Russian peasant has the usufruct of the land which he tills, or, at any rate, occupies it by virtue of a lease for a long term. In England we often see small proprietors selling their property, to apply the proceeds of the sale to the cultivation of a large farm, which they take on lease and from which they derive large profits, by employing a relatively large capital. 38 PRIMITIVE PROPERTY. The terra is for twelve or eighteen years, at the outside ; and yet this limited enjoyment seems to them sufficiently long for them to engage all that they possess in agricultural enterprise. In this case leases lead to more intensive cultivation than actual ownership, because they allow of the application of a larger capital to the land. These facts shew that enjoyment of land secured to an enterprising man for twenty years is sufficient to make it to his advantage to cultivate on the best methods possible. It is not, therefore, the shortness of the term of enjoyment in Russia which checks the progress of agriculture. This system, moreover, offers a peculiar advantage. As he has not to buy the land, but receives it gratuitously, the peasant can invest all the capital belonging to him in the undertaking. Elsewhere he must first expend the purchase-money of the farm he intends to cultivate, or else pay the rent for it every year, which is so much reduction in the profits. Under the Russian system the cultivator has neither purchase-money nor rent to pay. He may, therefore, employ his whole capital to increase the fertility of the soil. In Russia, it is true, the cultivators have neither capital at their disposal, initiative spirit, nor the knowledge of rural economy necessary for the introduction of intensive scientific cultivation. But if all this is wanting, it is the fault of serfage, not of the system of col- lective property combined with individual enjoyment. This is shewn by an examination of the condition of the allmends, which are subject to the system of Russian community, in Switzerland and the country of Baden, and are nevertheless as well cultivated as the lands of private proprietors. Under the Russian system a man obtains the use of the instrument of labour, not by title of succession as heir to the fruits of his parents' toil, but by a personal title in virtue of his natural right to the property. There is succession in the commune, instead of succession in the family. It is true that one effect of the system may be to weaken the motive for labour in the father of a family, because he knows that his children are always entitled to a share in the common property, and that they will therefore never be reduced to absolute want. But, in the first place, he can leave them the house, the instrumen- ECONOMIC RESULTS OF THE RUSSIAN MIR. 39 turn fundi, capital to cany on cultivation, and all tlic moveable property gathered together by him. The motive for economy and saving is not therefore destroyed. Besides, right of succes- sion in the commune and by personal title seems, on principle, more conformable to justice and nature. A man can claim the enjoyment of a share in the productive soil the moment he is capable of tilling it for himself and has need of it to found a new family, instead of attaining to it by the accident of a death, perhaps too late, perhaps in the time when he is yet too young to cultivate his inheritance by his own labour. Under the system of the civil law in force in the West, children only succeed on the death of their parents. At the moment they lose those who should be dearest to them, they attain to their property. This tends to produce, and does actually produce, unnatural sentiments. Literature and paint- ing have often depicted in strong colours the immorality of this state of things, shewing the heir consoled in his grief by the thought of the money which it brings him. Often a hor- rible crime, at which humanity revolts, occurs to shew the danger of makinsf the right of succession come to life with the death of the parents. Institutions, which attach the acquisition of property to the death of the father or mother, beget in the mind unnatural greed, which, when grown to excess in vicious natures, leads to parricide. If, on the contrary, a man is in- vested with his share in the inheritance, on attaining full age or on founding a new family, impatience to obtain his property will not arise to stifle or weaken his natural affections ; and he will not have to balance the profit accruing from the loss of his relations. Among the Slavs, whore the ancient succession in the com- mune and in the family is maintained, the family has remained much more united than in the West. A bond of brotherly affection and patriarchal intimacy unites all its members. With us family feeling has l ost almost all its force. Weakened by un wholes ome cupidity, it constitutes but a very subordinate force in the social order. In the Russian system personal responsibility is respected much more than with us. At one time it was thought right to extend to descendants, even " to the tenth generation," the /v2< 40 PRIMITIVE PROPERTY. penalty of faults committed by tlieir ancestors ; as also to let the children enjoy the honours and titles earned by the father. In the present day we think it more equitable not to admit this hereditary responsibility, and to treat every one, considered alone, according to his merits or demerits. We no longer allow of hereditary offices or places in the political system. But, under the empire of the civil law, if the father has been ex- travagant or unfortunate, the children have nothing; and, on the other hand, if he has accumulated wealth, they may live in opulence and idleness, contrary to nature and morality, which demand that man should only live by the fruits of his labour, and not by the fruiis of another man's labour. In the Russian commune the children are less liable to suffer for the faults of the father, and also have less right ta enjoy the fruits of his merits and his energy. They obtain a share in the collective inheritance, and so work out their own destiny. The prosperity they may attain to they owe to themselves, not to their ances- tors. The system is therefore more in accordance with the principle of individual responsibility. Where this system of collective property exists, not, as in Russia, side by side with an aristocracy, which in its growth has usurped half the soil and imposed serfage on the peasants, but, in all its purity, as formerly among the Germans and Slavs, and in Servia and Java even to the present da}'-, it attains to such democratic equality, that it is likely to produce in the society a kind of uniformity and rigidity little favourable to new enter- jjrise and rapid progress. The primitive cantons of Switzerland afford us a picture of this social condition. On the other hand, the fact maintained by von Haxthausen is incontestable, that this system prevents the inequality of conditions becoming extreme, and that it also offers great securities for social peace. By retaining the soil in the possession of the commune, it gives no opportunity for a few powerful families to monopolize it. JMoreover, the periodical allotment prevents the formation of a proletariat, as. it assures to every one an inalienable portion of the common propei'ty. We may see around us, in some families, generation after generation transmitting the right of consuming much without producing anything ; and in other families, generations continually toiling without ever attaining property. ECONOMIC RESULTS OF THE RUSSIAN MIR. 41 When the natural right to a patrimony is respected and esta- blislied in an institution, siniihxr contrasts cannot present tlienr- selves : for there can be no class without inheritance. Genera- tion succeeds to generation in the enjoyment of the collective domain, and in the obligation to labour to make it productive. The system is accordingly a preservative against social struggles and wars of class with class. To this it has been- replied, that if it prevents a rea/1 prole- tariat from being developed, it is by keeping every one ia poverty, and so creating a nation of proletarians. Look, it is said, at the Russian peasant : his condition is hardly better than that of the agricultural labourer of the West. He is neither better clothed, better lodged, nor better fed. Equality i» main- tained, it is true, but it is the equality of destitution. To this we can answer: the wants of the Russiaa peasant are simple and few in number, but they are satisfied ; his mode of life is riot refined, but he knows no other and is content. There is this great difference between the Russian usufructuary and the proletarian of the West, that tlie latter depends for his living on his employer, while the former, enjoying a patrimony in his own management, is his own master and labours for himself. He has no fear for the future and lives in tranquillity ; while with us the iabourer is always fearing the reduction of his wages, the tenant the increase of his rent. Moreover, we should not forget that the Russian system has never yet been tried under favourable conditions. The peasant, it is true, had his patrimony; but at the same time he was subject to serfage : he was, that is to say, at the mercy of the lord, to whom he owed half his time. At once proprietor and slave, the burden of this service was likely to discourage his zeal for labour and to stifle in the bud initiative spirit and the taste for improvements. Agriculture has never been fully developed where serfage existed. The abolition of serfage has put other impediments in the way of progress, by compelling the peasant to purchase the land which he occupied at an excessive price, and by depriving him of the use of the forest and pasturage which he had before. To form a correct estimate of the mir we should regard it under its normal conditions. Suppose that the Russian peasants, now that they "are 42 PRIMITIVE PROPERTY. enfranchised; were to receive such instruction as is given in the American school, and that thuy were put on a level with the recent progress of agriculture : by an understanding such as we have indicated, they could apply the most advanced processes of large cultivation as carried on in England. As it is, in conse- quence of the Flurzwang, or compulsory rotation, all the terri- tory of the commune is treated as if it only formed a single farm. One-third part of the arable land of a particular tenant is sown with winter-grain, one-third with summer-grain, and the remaining third is fallow. Each has his share in the vast fields ; but there are no boundaries, hedges, or ditches to sepa- rate them, and the division of the property is not shewn by any break in the cultivation. Nothing therefore would be easier than to execute the work of cultivation by means of a steam- plough bought at the common expense and used for the com- mon profit. As every one has his share, or, as one may say, his stock, in the collective patrimony, the basis of co-operative culti- vation is ready to hand. The Flurzwang and the absence of inclosures, which were impediments to small individual cultiva- tion, would, on the contrary, become an element of success for associated agriculture on a large scale. Already the Russian peasants execute the different agricultural operations at the same time, after deliberation and decision come to in full assembly. This is exactly how they would proceed in a co- operative cultivation formed on the lines of the commune. There would then be a kind of joint-stock company, in which all the usufructuaries would be shareholders, and which would take measures for making the laud productive according to scientific principles. In France the complaint is that the subdivision of property prevents the application of machinery to agriculture. In Ensfland, on the other hand, the excessive concentration of property in a few hands is the cause of alarm. The Russian system, judiciously applied, would combine the advantages of small property and large cultivation. There would be more proprietors than in France, because all the cultivators would be, and are already, proprietors ; and agriculture Avould be carried on on even a larger scale than in England, as the whole of every conmiune would bo cultivated as a single farm. To ECONOMIC RESULTS OF THE RUSSIAN MIR. 43 arrive at this result, the only thing necessary is to maintain collective property and allotment, while improving the legal organization, and, at the same time, to give the cultivators the instruction necessary for them to profit by it, by the adoption of an improved system of agriculture. CHAPTER IV. VILLAGE COMMUNITIES IN JAVA AND IN INDIA. The maguificent Dutch colony of Java, with more than seven- teen millions of inhabitants, possesses a communal organiza- tion exactly similar to that of Russia. In some districts of the island private property as applied to the soil is to be met with ; but, as a general rule, the land is the property of the commune. By virtue of the principles of the Koran, accepted in all Mohammedan countries, the sovereign possesses the eminent domain. He is the true and only proprietor ; and, by this title, he levies the taxes in kind which represent rent, and exacts the corvée. In Java, according to the adat, or custom, the cultivator was bound to hand over to the sovereign the fifth part of the produce, and to labour for him one day in five. The native princes went so far as to demand the half of the crop in the irrigated rice-fields, and the third part from the other fields. The Dutch re-established the old adat; and contented them- selves with one day's work in seven, apj)lying the labour to the cultivation of sugar and coffee, according to the system of General Van den Bosch. As in Russia, the village community is jointly responsible for furnishing the required number of days' labour and for the payment of the taxes. The use of a portion of the wood and waste land is common to all the inhabitants. But the proj)erty of these unoccupied lands is considered as belonging to the state. In the districts, where the soil is not the property of the commune, it often happens that the inhabitants have not the enjoyment of any common pasture. It was even asserted VILLAGE COMMUNITIES IN JAVA AND IN INDIA. 45 that, in this case, no such right existed. But M. A. W. Kinder de Camarecq has proved, that even in villages where private property is to be met with, a right of common pasturage is also to be found. He quotes among otliers the village of Sembis in the district of Soemedang, in the Government of Preanger, where the sawahs are private property, and the tsgals, or dry lands, common property, and where the hamlets or kampongs exercise the right of pasture on the unoccupied lands \ The sawahs, or irrigated rice-fields, are divided among the families, every year in some districts, every two or three years in others. As in the Russian village, the houses with the gardens attached to them are private property. They cultivate principally rice, which forms almost the sole food of the Javanese. To conduct on to the fields the water coming down from the higher grounds, gi^eat- labour is indispensable for the formation of canals. It is also necessary to surround all the fields with drkesi to keep in the requisite amount of water, and to dig numerous trenches, with great eare, to distribute it. These works, which require much intel- ligence, are executed by the inhabitants under the direction of the communal authorities. The division of the sawahs is carried out according to families, but not everywhere on the same plan. In some villages, or dessas, the simple labourers who have no draught beasts, the orang-inenoempangs, are excluded from the partition. According to the rules, which the Dutch Government is endea- vouring to introduce, all the heads of families are to have a share, that they may all be able to furnish their payments in kind and the requisite number of days' work. The general custom seems to have been that, to obtain a share, a man must own a yoke, that is to say, a pair of buffaloes or oxen. Hence it follows that generally the menoempangs, or mere labourers, excluded from a share in the allotment, are a numerous body, and that every family has not its parcel of ground, as is sometimes supposed. 1 See the interesting work, entitled Bydrage tot de hennis der Volhtinstel- lingen in de oostebjke Soeiida-laiiden, published in the Tydschrift voor indixclie taal- land- en volkenlamde, iiitge.fjevcn door het Tiataviaasch Genootschap van Kunsten en Wetenschappcn. 46 PRIMITIVE PROPERTY. A law of 1859 ordains that the allotment should be made by the chief of the dessa, under the supervision of the com- missioners of the district and of the " Residents " or prefects. A kind of rotation is observed in the assignment of the portions, so that each family in turn possesses all the lots to be disposed of. The chief of the dessa is elected for the term of a year by those of the inhabitants who are entitled to a share in their soil ; the election has to be ratified by the Resident. The chiefs or mayors {Loerah or Koewoe) are usually chosen from among the richest and most respected inhabitants, age being also a ground of preference. They obtain, almost everywhere, a larger share of land or one of better quality. The elders of the village (kemitoeas), who assist the chief with their advice, enjoy the same privilege, as also the secretary (djoeroetoeli), the priest {moedin), his assistant (kabayan), and the surveyor of irrigations {kapala handonyan). The same custom existed among the Germans; the chiefs and principal men of the tribe obtained a larger lot : Agri occupaMur, quos mox inter se secundum dig- nationem partiuntur^. The sawahs are generally well cultivated, although the peasants are obliged to put part of their time at the disposal of the government for the seignorial corvées (heerediensten) applied to public works, and also for the agricultural co7'vées {kidtuurdiensten) devoted to the State coffee and sugar planta- tions. After the rice the people of Java obtain a second crop of a fast-growing nature, such as tobacco, or more especially maize, which is ripe in two months after it is sown. The raw produce of a houw, which is about 1'75 acres, is estimated as worth for the two harvests from 170 to 200 florins, or from £16 to £17. This is a very good result, which the lands sown with grain in Europe seldom give^ I know of no complete treatise on the tenure and owner- ^ Tacitus, Germany, c. xxvi. ^ The first crop of rice, paddi, gives per hoinu about 40 picols of nearly 140 lbs. each, which, at 8 francs the picol, makes about 320 francs. The second crop of maize gives 10,000 ears at 6è francs per thousand, which makes 65 francs, that is to say about 385 francs, or between £15 and £16. The cul- tivation of a boino of rice requires about thirty days' labour ; that of the maize in the second crop twenty days. VILLAGE COMMUNITIES IN JAVA AND IN INDIA. 47 ship of land in Java. To form an idea of it, we must gather together the hints scattered through official reports and in the excellent collection entitled Tydschrift voor nederlanchch Indie^. A note communicated to the Dutch chambers in 1869 by the colonial department contains some details on the agra- rian constitution of the different parts of the island ^ In the provinces of Bantam, Krawang and Preanger, the woods and waste lands are common ; but the arable land is private property, and is sold, devised, mortgaged, or devolves by succession. There is no annual partition. Ancient registers exist containing the names of the proprietors and the descrip- tion of their property : they are a sort of primitive cadastre*. Any one who reclaims a part of the common land becomes the owner of it. In the provinces of Cheribon and Tagal private property and collective property exist side by side. The sawahs jassas, or cleared lands, belong to him who has brought them into cultivation, and are transmitted by succession as long as they continue to be cultivated. Collective property, however, is gradually absorbing private property, because the communal authorities find it to their advantage to enlarge the communal domain which they have to divide. They also find in it facilities for furnishing the corvées to the state. Thus, in the district of Talaga, out of 8,884 houius, only 43 are known as sawahs jassas, or private hereditary property. In Samarang all property is held in common. There are no saiuahs jassas. Any one who reclaims waste land has merely the enjoyment of it for three years. After this time the saiuah returns to the domain, which is subject to the partition effected by the chief or loerah every year. In Pekalongan, sawahs poesakas, or hereditary property, is the exception. The effect 1 Interesting hints, however, are to be found in the capital work of Sir Stamford Raffles on Java; in Pierson's book Het Kultuurstehcl ; in Java, by J. W. Money ; in the numerous publications of M. van Woudricliem van Vliet on the colonial system, and in an article by M. Sollewyn Gelpkc, in the Dutch Review De Gids, Jan. 1874. 2 Session 18G8, 9, no. 126. Grondhezlt op Java, inzondcrJu'ld ui verhand met art. 14, van het indinch Staatshlad, 1810, no. 5. ^ [An official statement of the quantity and value of realty made for purposes of taxation.] 48 PRIMITIVE PROPERTY. of the corvées demanded by the state, for the furnishing of which each village is jointly liable, is to favour putting land in community, like the joint-responsibility for taxes in Russia. In Japara, 8,701 hoinos, in the hands of 7,454 proprietors, are found existing by the side of village communities. The clearances, which create these small properties, are executed by the richest inhabitants, frequently in combination, as they alone have sufficient means to carry on the works of irrigation, indispensable in the cultivation of rice. But it is reckoned that small properties, newly created, do not remain long in the hands of their proprietors. Fifty years, on an average, sees them united .to. the. collective domain. If a proprietor leaves the dessa his property goes to the commune. And it is the same if he ceases to cultivate it, if he has no direct heirs, or if he fails to pay his contribution. In Rembang, out of 158,425 houws of arable land, 48,185 bouws were found subject to private ownership,- which was acquired over half of them by right of clearance, and over the other half by succession or purchase. In the majority of dessas the partition is executed annually. In some villages it only takes place every five years ; in others, from time to time, as the number of families increases. Those who have draught beasts receive a larger portion. In the province of Bagelen, the inhabitants of the kampongs, or villages without arable lands, can sell their houses with the land to whomsoever they wish ; but the inhabitants of the dessas cannot sell theirs to strangers. The same rule existed in the German mark, and still exists in Russia. In the provinces of Madioen, Patjitan, Soerabaya, Madoera, Pasoeroean, and Kedirie, all the saiualis are common jjroperty, and subject to annual partition. Any one who clears a parcel of land in the forest or w^aste land keeps the individual posses- sion for three or five years. After that time the land returns to the common stock, and is subject to periodic partition; To encourage clearing the Dutch government endeavoured to extend the enjoyment by the person reclaiming land to eighteen years, or even till his death ; but the adat, or custom, in many cases prevailed. As the sentiment of private ownership in the VILLAGE COMMUNITIES IX JAVA AND IN INDIA. 4!) soil is not yet awakened, collectivity very ({uickly absorbs ill- defined and ill-defended individual rights. The gogols, or cultivators entitled to a share in the soil, hold to the periodic partition, because by its means they suc- cessively occupy the best lots. Sir Stamford Raffles, the eminent administrator, who governed Java from 1811 to 181G, in the name of England, then mistress of the Dutch Indies, wished to introduce individual property, by assessing the taxes no longer on the commune jointly, but on the cultivators in- dividually, in proportion to the land which they tilled. The latter submitted apparently to the new regulation, and paid the sums exacted ; but afterwards made a fresh apportionment of the tax among themselves, conformably to the old custom. A law of April 3, 1872, systematically regulated the land- tax to be levied on the lands of Java. The lands are divided into ten classes, according to the revenue they return, from 10 to 100 florins; and the tax is levied at twenty per cent, on the registered revenue. The amount of the total contribu- tion to be paid by each dessa is m.ade known to the mayor, or loerah, who, with the concurrence of the inhabitants, fixes the quota due from each member, on account of the parcels which he possesses, or of which the temporary enjo3rment has been allotted to him. The mayor keeps a register of this assessment, and gives au extract from it to all the contri- butories. There has been much discussion as to who i« the actual owner of the soil in Java. As the native princes seem to have made what disposition they pleased, both of the soil and of the labour of the inhabitants, the Dutch, succeeding to their authority, concluded that they were now the real owners of the soil. In a report of August 31, 1803, a special commission, instituted to inquire into colonial affairs, asserts that the sovereign possesses the sole right of property over the Avhole territory, and that the Javanese had no conception of the right of property as applied to the soil ; but that, this notwithstand- ing, ancient customs ought to be observed. The regulation of January 27, 1806, does not even mention this last restriction, and the Governor, Daendels, was of opinion that " not only was landed property entirely unknown to the Javanese, but that M. 4 50 PRIMITIVE PROPERTY. from time immemorial they had been accustomed to labour for their princes and chiefs." When the English became masters of Java they wished to introduce a regular system of taxation ; and, accordingly, were induced to inquire into the nature of ownership in the colony. Who were owners of the soil ? The cultivators, the State, or the intermediate "Regents," who were very similar to the Zemindars in India ? In India, contrary to all justice, the question had been decided in favour of the Zemindars, \fho were merely functionaries, charged with levying the taxes, reserving a certain deduction for themselves. In Java, Daen- dels had clearly established the subordinate position of the " Regents." The English could not, therefore, regard them as proprietors of the soil. The Governor, Raffles, recognised the fact that " there existed no right of property between that of the sovereign and that of the cultivator^;" and was of opinion that the eminent domain was vested in the State, just as is allowed to be the case in England by every jurist whose opinion has any authority ^ Raffles wanted to give the cultivators a more permanent property in the soil, by granting them the enjoyment of the land in consideration of a fixed rent. The cultivator, it is true, would be the tenant of the Government, but would have a kind of usufruct, — a lease, in fact ; and the rent, which he would have to pay the State, would be nothing, one may say, but a land-tax. The lease, however, could in the first instance only be granted for a year, because of the difficulty of deter- mining fairly the rent to be paid by the cultivator {Revenue Imtructions, Feb. 11, 1814). When the Dutch government recovered possession of Java, it did not express in any precise terms in what aspect it regarded the dominium, which Raffles had attributed to the State. J. Van den Bosch, the governor, expresses himself on the subject in the following terms: "The right of the sovereign 1 Raffles, History of Java, i. p. 136. 2 Blackstone says on this point: "This allodial property no subject in England has, it being a received and now undeniable principle in the law, that all the lands in England are holden mediately or immediately of the crown. The sovereign, therefore, only hath absolutum et directum dominium," VILLAGE COMMUNITIES IN JAVA AND IN INDIA. ôl is confined to levying a portion of the produce of the soil, which belongs to him in accordance with the adat or custom, or else in exacting a certain amount of labour as an equivalent. In other respects lands are transmitted by sale or succession, according to the principles of the adat." In 1849 the Dutch government submitted to the chambers a propovsed law authorising the sale of lands in Java, The impost, paid by the natives, is here spoken of as "a rent received by the state for the letting of lands belonging to it." A representative. Baron Sloet tot Oldhuis, vigorously attacked these expressions and the idea which they embodied ; and, from that time, official documents have avoided using any terms which might seem to attribute to the State the civil right of property over the cultivated land. This right was not, however, recognised any more fully in the cultivators. It seems that all that they are recognised as having, is a usufructuary enjoyment, an emphyteusis or heredi- tary lease (erfpacht). The state renounced the right of arbitra- rily taking from the cultivators the soil which they tilled, but did not give up the eminent domain ; and, at the same time, claimed the right of disposing absolutely of unoccupied lands, whether by cultivating them immediately, by selling them, or by granting them on lease. In several parts of the colony, however, lands and houses are inscribed in the registers of the cadastre as the private property of the Javanese'. Under the British rule lands were sold to Europeans. But since Holland has recovered possession of the colony, they have only been granted leases for terms of greater or less dura- tion, frequently of twenty-five years. The governor, Du Bus, thought that land should not be sold, for two reasons : — first, to avoid introducing a principle borrowed from Europe, into the midst of a totally different system ; and secondly, to enable the leaseholder to expend in reclaiming the ground what he would have had to employ as purchase-money. The govern- ment retained this system ; and, under the new law, grants leases [erfpacht] for seventy-five years, with exemption from ^ See tlie note presented to the Dutch Chambers in session of 1865 — C, Vaststelling der Gronden, waarop ondernemingen, landhoino en mjverheid in nederlandsch Indie kunnen warden gevestigd. — Memorie van tocUchting. 4—2 o2 PRIMITIVE PROPERTY. land-tax during tlie first seven years, and of half the tax from tlien till the twelfth year. This seems to be an excellent system, and very superior to that of perpetual grants, generally practised in English colonies, in Australia and America. A lease of seventy-five years is sufficiently long for the lessee to execute all the works of cultivation ^vhich a proprietor would perform. On this point there can be no doubt, when we see magnificent build- ings in England erected on lands leased for sixty or seventy years. The immense works of art required for the construc- tion of a railway incomparably surpass those which must be executed to bring the productiveness of the soil to its highest pitch ; and yet the millions necessary for these gigantic enter- prises are never wanting. In Java, many lands have been cultivated at great expense, notably in the Residences of Cheri- bon, Tagal, Samarang, and Banjoemas, even with leases of twenty-five years. It is by these means, especially, that tea plantations have been formed : and they have been so well worked, that, at the expiration of the term, the lands could be re-let for an annual rent of 80, 100, and 130 francs the hectare \ The lease has a great advantage over perpetual grants, inasmuch as at the expiration of the term the land returns to the state, which disposes of it again, to the profit of all. The revenue arising from the soil is the taxation. All the income can be applied to purposes of general interest, instead of being employed to satisfy the fancies of a few wealthy families. It is an actual realization of the system, advocated by the " physiocrats," of a single tax on land. During the session of 18G6 — 7, a member of the Chamber of Representatives in Holland expounded the position of pro- perty in Java, according to Asiatic and Mahommedan ideas, in terms which it may be useful to summarize here : — " The soil belongs to the creator, God, and, in consequence, to his earthly ^ In 1856 the tea-plantations in the domain of Djatienangar and of Tjilcadjang were let to Baron Band for a rent of 50 florins the home of 71 ares. The government tea-plantatious at Lodok, in the presidency of Bagelen, are let at from 45 to 32 florins the homo. — See Memorie van toelichting, quoted above. [The hectare is about 2i acres, and the are about 4 perches.] VILLAGE COMMUNITIES IN JAVA AND IN INDIA. 53 representative, tlie Sovereign. The enjoyment of the soil is granted to the commune in general, and in particular to him who has reclaimed it, for such time as he or his descendants observe the conditions determined by the adat, or custom. If he ceases to fulfil them, the riglit of enjoyment reverts to the community, the dessa. If the soil has been reclaimed by the combined efforts of all, it is on the same principle common to all. This common territory is divided annually among the members of the dessa. In making the allotment, regard is paid to the quality of the different parcels, and to the working- strength and the number of draught beasts which each family has at its disposition, and also to rules consecrated by custom. A portion of the common domain is reserved for the chiefs and priests ; but they are bound to support, out of the produce of this portion, the mosque (mesdjid), the sick and the aged. In certain districts it is the priests' duty to superintend the canals and the whole system of irrigation. Certain lands are an appanage of the sovereign for his support: these he may not alienate. The whole soil is granted out by him to tenants, a certain rent being reserved in kind or in labour. The fami- lies, which have more land than they can cultivate, keep labourers, menoempangs, who are their servants and form part of the domestic circle. When the communal domain is en- larged by new clearances, or when lots fall vacant, the menoem- pangs receive a share in turn. " This agrarian system is in close harmony with the mode of cultivation. Eice, which forms the staple food of the Java- nese, requires a general system of irrigation, which is impos- sible without association, and which leads to cultivation in com- mon. The system really establishes a kind of communism, but it secures to the cultivators their chief means of subsistence ; and, as they cannot alienate their right of enjoyment, they arc preserved from pauperism. "If the Javanese wishes to increase his comfort or his in- ■ come, he can do so by obtaining a second crop, of whic4i the cultivation is entirely free and indejDendent." At different times the Dutch chambers have discussed the question of introducing in Java individual property, by promoting the partition of the common domain of the dessa 54 PRIMITIVE PROPERTY. among the inhabitants. The partizans of this measure pointed to the example of Europe. The village communities to be found in Java, they said, are not peculiar to Asia : they existed formerly in the majority of European countries, where they were met with in the form of the mark. The same customs, which are still observed in the dessas of Java, were formerly in force in the Slavonic and Germanic marks. Agricultural processes have been improved, and agricultural produce has increased in proportion as individual property has replaced common ownership in Europe. Why should not the same be the case in Java ? Property is the best stimvdus of labour ; for it gives full efficiency to the essential principle of responsi- bility. Besides, the system of collective possession of the soil cannot be maintained indefinitely. The population increases annually by from 300,000 to 400,000 heads ; and, consequently, the lots assigned to each family are continually diminishing. No doubt there remains much cultivable land as yet unre- claimed. According to Raffles, only one-eighth part of the soil capable of cultivation was occupied ; according to other authori- ties there might be one-fifth or sixth part. In any case, vast spaces remain to be brought under cultivation; but this is only to defer the difficulty without solving the problem. The time must arrive when the partition will only give each holder an inadequate portion. It is, therefore, advisable to provide against this final crisis, by adopting at once individual pro- perty, which would be less favourable to the increase of popu- lation. The partizans of the Javanese system of community replied that a blow should not be lightly struck against an agrarian organization, which dates from time immemorial, and is in close harmony with the system of agriculture practised in the country. The proper irrigation of the rice-fields demands works of art : canals to bring the water, and ditches to retain and distribute it. These are objects of common interest, the ex- penses of which ought to be supported by the whole village. To derive full benefit from the irrigation, the different agricul- tural operations of planting, weeding, and watering, are exe- cuted by common consent ; and collective cultivation thus leads naturally to collective ownership. VILLAGE COMMUNITIES IN JAVA AND IN INDIA. 55 The Javanese, like all Asiatics, is improvident: ho is induced to sacrifice the advantages of a secure position in the future for present enjoyment. Give him property over whicli he has absolute power of disposition, and ho will soon sell it to Chinese speculators, who in a very short time will have accu- mulated in their hands the whole soil. In the 33,000 dessaa there are at the present time some two million families of agriculturists having a share in the ownership of the soil. They form the solid basis of society, as being interested in its maintenance ; for their life is happy and contented. Once make a definite division of the communal property, and at the end of a certain time a class of proletarians will be formed with nothing to attach them to the social order, which will henceforth be constantly harassed and threatened. Such are the principal arguments employed in a discussion which is still being carried on. Hitherto the Dutch government has respected the ancient communal institutions of the colony, and has acted wisely in so doing. No attempt has ever been made to impose on the Javanese the partition of the collective domain ; there was only the wish to authorise the inhabitants themselves to decide by the vote of the majority, whether a definite division should be effected, exactly as was done in Holland for the marks ^ which still existed in considerable numbers in that country, at the time of the introduction of the civil code. In Java the communal territory is absolutely inalienable; it is extra commercinm. Its unimpaired preservation is a matter of public interest. Hence it results that even a majority can strike no blow against it. It is the inheritance of future generations, and those of the present may not dispose of it at their will. Persons well acquainted with the manners and ideas of the Javanese assert, that a law, which authorised partition, would remain a dead letter : and that in no dessa could a majority be found to attack this primordial int;titution, which they venerate as much as the adat or custom itself\ 1 Cases, however, are qiioted in which villages have renounced pcriodii; partition. M, Kinder de Camarccq, formerly resident in Java, mentions a dessa in the country of Kadoe, where the cultivators have introduced a now system of lauded pvo^jcrty more like the principle of allodial property than that 56 PRIMITIVE PllOPEETY. Opiuiuns differ as to the origin of village communities in Java. Some writers trace it to the conquest and to Mussul- man laws : while others maintain that they come from India. The latter opinion is probably the correct one. The same institutions existed, as a matter of fact, in India ; it is to this country that Java owes all its ancient civilization ; and, moreover, those districts of the island, where Hindoo influence has been strongest, are the parts where the system of village communities is most general. Yet, community of the soil being the system natural to primitive peoples, it was probably already in existence before the influence of Indian institutions made itself felt. In Java the collective system seems favourable to the increase of population, although the case is quite otherwise in Russia. In Java, the number of inhabitants increases more rapidly than in any other country in the world, owing to the excess of the births over tlie deaths, a very exceptional fact in the tropics. The population amounted in 1780 to 2,029,500 souls; in 1808 to 3,730,000; in 1826 to 5,400,000; in 1863 to 13,649,680; and finally, in 1872, to 17,298,200. It is estimated as doiibling itself in thirty years. In the United States this requires twenty-five years, but immigration there contributes a considerable contingent. The effect of this increase of population is to^ reduce the share of each cultivator in the periodic partition of lands. M. W. Bergsma recently drew an alarming picture of the situation in this respect'. In certain regions, he tells us, the peasant only obtains tlic third or fourth part of a houw, or from 1| to 2^ roods. The cultivators say they have no more than the half or quarter of the sawaJis, which their fathers tilled. They even ask that the government should forbid subdivision into parcels smaller than a half bomv. of communal property. (See Tijdschrift voor Indische taal- land- en volkenkunde, X. 290.) lu other districts, especially in the provinces of Madura and Cheri- bon, the system of collective property has been recently introduced or general- ized. In Manilla, in the cultivated parts of the island, the system of individual property has su^jplanted collective property, but there remain numerous traces of the old agrarian organization. — See J. Wiselius, Een bezoet aan Manila, La Hague, 1875. 1 See Revue Jnraiiaixc : Tijdschrijt van hct Indisch kuidbuuw-geiiooliichaj), 1873, no. 3. Laiidbouw-wctiievinii, VILLAGE COMMUNITIES IN JAVA AND IN INDIA. 0/ The principal merit attriLuted to the periodic partition is that it prevents a proletariat. Whereas, JM. Bergsma asserts, the system will soon result in converting all the Javanese into a people of proletarians. There will still be equality ; but it will be equality in misery. Dutch conservatives, and even moderate liberals, such as M. Thorbecke, have always defended the system of collective possession, as did conserva- tives of the shade of M. de Haxthausen in Russia, They arc opposed to the introduction of private ownership, borrowed from the West. The reformers, on the contrary, maintain that they should at once put into force in Java the laws which regulate landed property in Europe, because the economic ad- vantage thereof will be the same there as here. In Java, as in Prussia, this collective system is favourable to colonization. Several fomilies leave their native village to found a new community. For this purpose, they construct a system of irrigation by means of labour carried on in common. The water having been brought by the co-operation of all, it follows that the sawahs, or rice-fields, so fertilized, become the undivided property of the communal group. It is a kind of partnership. To encourage individual clearances, enjoyment for life or for a long term, thirty or forty years for instance, as in the case of a railway concession, must be guaranteed. In India the primitive community of Java and Russia no longer exists, except in the most retired and least known parts of the country. According to Sir Henry Maine, one of the causes which has made collective ownership of the soil dis- appear here, is that pasturage plays a less important part in the rural economy than in Europe, and that the use of meat as an article of food is almost entirely excluded. The Slavonic and Germanic races maintained numerous herds on large undivided pastures : and this common tenure, which has sur- vived in many countries to our own times, even after the arable land has become private property, formed the basis of village communities. In India, where there were fewer herds and less pasture, undivided co-operative cultivation had less ground of existence. Nearchus, however, the lieutenant of Alexander, writing in the fourth century before Christ, tells us that in eertain eoun- 58 PRIMITIVE PROPERTY. tries of India tlie lands were cultivated in common by the tribes, who, at the end of the year, divided the crops and produce among their members^ We see in Elphinstone that these communities survived till a period very near to our own^, and they exist even now in some remote parts of the country. Although the periodic partition of lands has generally gone out of use, most of the other characteristics of the ancient institution have been preserved. I have no hesitation, says Sir H. Maine, in asserting that, in spite of certain differences, the mode of occupation and cultivation among peasants, grouped together in village communities, is the same in India as in primitive Europe. The English did not at first notice or understand these communities. Although the laws of Manu mention them, the Brahminic code of the Hindoos, which the English jurists first examined, was not sufficient to throw light on institutions and customs so different from those of modern Europe. It is only quite recently that they have appreciated the importance of this ancient organization, even for present purposes of administration. In its relations with the state, the village is regarded as a jointly responsible corporation. The state looks to this corpo- ration for the assessment and levying of imposts, and not to the individual contributor. Sir George Campbell relates that there are villages in the presidency of Madras, which have for half a century apparently submitted to the system of individual taxa- tion, but which really pay the impost in a lump, and afterwards allot the payment according to their special mode of division^ The village owns the forest and uncultivated land, as undivided property, in which all the inhabitants have a right of enjoy- ment. As a rule, the arable land is no longer common pro- perty, as in Java or in Germany in the days of Tacitus. The lots belong to the families* in private ownership, but they have 1 Strabo, 1. xv. c. i. 60. 2 Mountstuart Elphinstone, History of India, 5th Edition, pp. 71 — 72, 263. ^ Tenure of Land in India, in Sj/stems of Land Tenure in various Countries, pablished by the Cobden Chib in 1870, * Sir H. Maine, however, tells ns that, in the central provinces, " there are examples of the occasional removal of the entire arable mark fiom one part of the village domain to another, and of the periodical redistribution of lots VILLAGE COMMUNITIES IN JAVA AND IN INDIA. 59 to be cultivated according to certain traditional rules which arc binding on all. In some remote regions the most archaic form of com- munity is to be found, of which ancient authors make sucli frequent mention. Tlie land is cultivated in common, and the prouuce divided among all the inhabitants. At the present time, however, collectivity no longer exists generally, except in the joint-family. This family community still exists almost everywhere, with the same features as the zadrucja of the Southern Slavs, which we shall describe at length presently. Each family is governed by a patriarch, exercising despotic authority. The village is administered by a chief, sometimes elected, sometimes hereditary. In villages where the ancient customs have been maintained, the authority belongs to a council, which is regarded as representing the inhabitants. The most necessary trades, such as those of the smith, the currier, the shoe- maker, the functions of the priest and the accountant, devolve hereditarily in certain families, who have a portion of land allotted them by way of fee. The soldiers of the in-delta in Sweden receive, in a similar manner, a field and house for their support. In England, there are numerous traces' to shew that a custom formerly existed there exactly similar to that practised within the cultivated area. There is no information of any sj^stematic removal, and still less of any jieriodical re-partition of the cultivated lands, when the cultivators are of Aryan origin. But... though the practice of redistribution may be extinct, the tradition of such a practice often remains, and the disuse of it is sometimes complained of as a grievance. If English influence has had anything to do with arresting customs of repartition, which are, no douht, quite alien to English administrative ideas, it is a fresh example of destructive influence, unwillingly and unconsciously exercised.... The probability, however, is that the causes have had their operation much hastened by the English, but have not been created by them." 1 In an article in the Contemporary Revieic, May, 1872, On Village Commu- nities, M. Nasse mentions, on the authority of Mr Williams' Archceologia, a manor, in which the meadows, divided into parts or hams, were annually allotted among the inhabitants. Of these parts, one was called the Smith'.-! }iam; another the Steward's ham; and another " The alienation of landed property," says Sir G. Campbell, "is very rare, and the village community has a right of veto." (Systems of Land Temire, p. 166.) See also for the droit de retrait, the cm-ious work of M. Viollet, Carac- tère collectif des premieres propriétés immobilières, p. 30. THE AGRARIAN SYSTEM OF THE IRISH CELTS. 12Ô according to the practice still iu force in many countries, antl especially in the Belgian Ardennes : the occupancy is, however, only temporary, and the ownership still remains in the tribe. The system of periodic redistribution, with alternate occupancy, is still maintained under the form of rutidale^. A great part of the soil was subject to methods of tenure and agrarian cus- toms, strongly impregnated with traditions of the old ji)int ownership. At the time oîtheBvehon Laivs, private ownership had hardly been evolved from the primitive community of the soil. An Irish manuscript of the twelfth century, the Lehor na Hiddre, has preserved the memory of this transformation, and indicates its cause, as an economist might do. It contains this curious passage : " Round the fields there was neither ditch, hedge, nor stone wall, and the land was not divided until the time of the sons of Aed Slane. It was in consequence of the great number of families at this time, that divisions and boundaries of the soil were introduced in Ireland." This is, in truth, one of the chief causes which give rise to private pro- perty. When the number of co-partners becomes excessive, the lot which accrues to each in the common domain is too slender for the " extensive " agriculture which they practise. They have to adopt a mode of cultivation which demands per- manent improvements and the sinking of capital in the soil ; and this cannot be done without the guarantee of hereditary possession, or, at any rate, of a very considerable term. Hence arises several occupancy, of permanent duration, and trans- 1 The word rundale is said to come from the Celtic roinn-diol, which sig- nifies a share in the distribution, or the portion of one member. Under tlio nindale system, a certain portion of land was occupied by a group of families, (George Sigerson, Hlstori/ of Laud 'Tenures in Ireland, p. 161.) The pasturage and bog were subject to joint occupation, and the arable, divided into holdings, passed periodically — sometimes as often as every year — from one family to another. Other traces of the mark system were also frequently met witli ; the arable was divided into three zones of different qualities, and every family had one or more lots in each zone. (See WakefwhVs Account, Vol. i. p. '2()(), and Sigerson loc. cit.) Quite recently the same agrarian system was to be found in the Scotch Highlands. Sir H. Maine states, that in the Western Highlands, village communities, which have been recently dissolved, used to divide tlie land periodically among the inhabitants by lot. Mr Skene, who is of great authority on this subject, expresses an opinion that this agrarian system once prevailed generally among the Scotch Celts. (See his note on Tribe Communities in Scotland in the second volume of his edition of Fordun^s Chronicle.) Co- operative societies, " knots," for agricultural purposes were established among kinsmen and also among strangers; and, according to Mr Sigerson, results were thus obtained, which isoLiti'd families could never have arrived at. 126 PRIMITIVE PROPERTY. missiWe within the family. The periodic partition, every year or every three years, evidently allows of only a rudimentary cultivation, which consequently produces little, and so requires a large extent of ground. In another Irish manuscript, older than the Lehor na Huidre, and bearing the title Liber Hymnorum, a method of occupying the soil is mentioned, which exactly recalls that which is still in force in the Swiss Allmends. There is a periodical allotment to each family of a share in the bog, the forest and the arable. The weide, wald und feld of the Germanic ma7-k correspond exactly to the bog-land, wood-land, and arable-land of the Celtic tribe. The Liber Hymnorum (probably of the eleventh century) contains the following passage : " Very numerous were the inhabitants of Ireland at this time (the time of the sons of Aed Slane, from the year 651 to 694), and their number was so great that they only received in the partition three lots of nine ' ridges ' of land, namely nine ridges of bog-land, nine of forest, and nine of arable." Every family in the Swiss Allmend receives, in the same manner, certain parcels in each of the zones of the communal domain. This passage of the Liber Hymnorvm clearly shews that it was the increase of the population which put an end to the periodic re-distribution of the collective property. Tacitus, describing the customs of the Germans, also shews the close connection that exists between extensive cultivation and the temporary occupation of the soil. "The extent of their fields," he tells us, "facilitates these partitions ; " and he adds, " They do not labour to contend with the fertility of the soil, which bears nothing but corn : every year they change the part for cultivation, and some always remains unoccupied." The system of succession in force among the Irish Celts, called by English jui-ists gavelkind, resembles that which is still to be found in the family communities or Zadrugas of Servia. When a member of the sept or Irish clan dies, leaving property, the chief makes a new distribution of all the lands of the sept among the different households, who thus obtain a larger num- ber of parcels \ Succession in the direct line is accordingly still 1 The word gavelkind comes from Gahliail-cine, which denotes " accepted from the tribe."' It refers therefore to the partition among the members of the THE AGRATIIAN SYSTEM OF THE IRISH CELTS. 127 unknown : the collective succession of the clan is the system in force, and women are entirely excluded. The Irish gavelkind, it will be seen, is quite different from the cfavellcind customary in the county of Kent. The latter merely enjoins the division of the inheritance in equal parts among the children, as in the French law. If we wish to form an idea of the agrarian or- ganization prevailing among the Irish Celts at the time of the Brehon Laios, we must look for its type, not in the village communities as still existing in Russia or Java, but rather in the system of family communities, such as are to be seen among the French peasants of the middle ages, or the modern Servians. The Irish sej^t is almost exactly similar to the Slav Zadruga : the primitive community has given way to the family property of the gens. There is however one very great difference to notice. In Ireland the chief of the sept has already acquired the authority and privileges of a feudal lord, whereas in Servia an aristocracy is not yet developed, and the democratic equality of primitive times is maintained. sept. This system of succession was in force as late as the time of James I. yir .John Davis, the attorney-general at the time, thus speaks of it at tho commencement of the seventeenth century : — " Issint les terres de nature de gavelkind ne fueront partibles enter le prochen heires males de cesty qui morust seisie, mes enter touts les males de sou sept en cest manner. Le canfinny, ou chief del sept (this is the ciiput cognationis), fesait toutes les partitions per son discretion. Cest canfinny, après le mort de chescun terteuant que avait competent portion de terre, assemblait tout le sept, et aiant mis touts lour possessions en hotchpotch fesait nouvel partition de tout : en quel partition il ne assignait a les fils de cesty que mourust le portion que lour père avait ; mes il allottait al chascuu del sept solonque son antiquity. Et issint per reason de ceux frequents partitions et removements ou translations des tenants del un portion al auter touts lc3 possessions fueront incertaines, et le uncertainty des possessions fuit la verey cause que nul civil habitation fueront erected, nul enclosure ou improveraout fuit fait du terres." Davis, Reports, Le iri> wandering life of patriarchal families. "J'he practice of ])ublic re]>asts was general in Greece and Italy. According to Aristotle, tlie Œnotrians, at the time when they abandoned the nomadic life for agriculture, received from their king Italus the institution of common repasts. The philosopher would have been more correct, had he told us that the Œnotrians, on becoming settled, preserved, instead of adopted, the institution of common re]^asts. For it is, in all probability, a relic of the nomadic life. The Opici, living on the Tyrrhenian coast, also ate at a common tal)le; and, in the time of Aristotle (some four hundred j'cars, that is to say, after the foundation of Rome), the Chonians on the coast of lapygia, and the inhabitants of some districts of Bruttium and Lucauia, remained faithful to the old tradition'. And every one knows how long this practice was maintained in the island of Crete". "Among the Spartans the ancient public repasts left a double trace, alike on their laws and their manners. On the one hand, the legislator took hold of the old custom ; he sanctioned and ])er- petuated it by formal commands, obliging all the citizens, including the kings themselves, to sit down at the same table ; and on the other hand, the people retained a religious remembrance of these primitive customs ; and, side by side with the Sussilla, or legal re^msts, they had other meetings, entirely spontaneous, which pre- served the old tradition in even greater purity. This popular repast of the Spartans, which is far less known than the official banquet, was called Copls. Athenseus has preserved the desciiption given by Polemon, a writer of the second century before our era : — "Wlien the Sjiartans celebrate the kottiç, they begin by setting up tents near to a certain temple ; they then make beds of grass, on which they str-etch carpets, and thei'e hold the banquet, all lying down. They entertain not only people of our country, but also travellers who are staying there. In these copis banquets they sacrifice kids, and no other animal. They give every one a portion of the meat, and also what is called the phi)siGillon^ that is, a small piece of bread like an encridon, but more spherical in form. Tliey also give to every one pi-esent a fresh cheese, a slice of the paunch and fat intestine of the victim, and dessert of dried figs and beans. Every Si)artan may give a copis when he i)leases ; but in the town they are only given at the feast called Tithenidia, celebrated for the preservation of infants. At this time the nurses bring the male children into the country to present them at the temj)le of Diana Coruthallis, situated near the river Tiassa, by the side of the grace Cleta. There they celebrate the copis, as we have just described it. They sacrifice on this occasion sucking pigs ; and {pndes, or baked bread, is served at the banquef\" ^ Aristotle, Politics, 1. vii. c. 9. ^ See especially Athenœus, Banquet des Savants, dil. Dindorf, Vol. i. Lip.sirr, 1R27, pp. 322, 823. 3 Athenapus, Vol. i. pp. 314, 315, 1. iv. § 16. 14S PRIMITIVE PROPERTY. "Even thing licre is primitive; and we see the common repast in its ancient simplicity. "In otlier conntries also this tradition can long be recognized, though subject to much alteration. At Athens for instance, and in several Greek cities, the magistrates, and those who are distinguished for especial services, take their meals in the common hall, or Pryta- neum^ : and when a young man is newly admitted into the tribe, all the members partake of the sacred food with him". At Home, too, every c^iria had its banqueting-hall, and all the curiœ have a common hall, very like the Pri/tauea of the Greeks, says Dionysius of Halicarnassus^ May we not naturally refer all these recollections to the primitive custom of common re])asts'? Aristotle, strvick with the great antiquity of the custom in Italy, concludes that it originated in this country, and thence passed to Greece ^ Dionysius of Hali- carnassus, on the other hand, afier mentioning the public repasts of the Roman curiœ, recalls the Lacedaemonians, and concludes that Koniulus borrowed them from the legislation of Lycurgus. Not so, however ; — Romulus borrowed nothing from Lycurgus, as Dionysius supposes, nor did Greece copy Italy, as Aristotle would affirm. Alike in Greece and Italy, the custom of common repasts was established quite naturally, — or rather was maintained. In both countries it remained, a.s a lingering evidence of the old nomadic life^, and the primitive community of the soil: in both countries religion and custom preserved the memento." Aristotle eulogizes the common repasts as a means of main- taining equality : — " In Sparta and all Greece the legislator had the wisdom to base the community on the custom of public repasts." (Lib. Ii. c. 2.) " The common repasts of the Cartha- ginian Hetairies resemble the Lacedaemonian phidities." (Lib. II. c. 8.) "The establishment of these common repasts is gene- rally regarded as applicable to every well constituted state. I am of this opinion myself, but it is necessary that every citi- zen, without exception, should take part in them. The ex- penses of divine worship are still a common burden of the state. The land, therefore, should be divided into two portions : the one for the public, the other for private individuals. The first portion will then be subdivided to meet the expenses of religion and of the common repasts." (Lib. ix. c. 9.) "The establishment of common repasts is quite as ancient : in Greece 1 Atheunpiis, Vol. i. p. 402, 1. v. § 2. ■^ Demosth. Oratio adversus Macartntum. Parisiis, Didot, 1845, p. 565. ^ Diouysius of Halicarnassus, Ilomaii Antiquities, 1. ii. c. 2.3. ■* Aristotle, Politics, 1. vii. c. 9. * It is surprising that there is no chapter devoted to the common repasts in the work of Dorn Sciffen, Vestigia vitœ Nomadicce, tuin in 7)iorilHts qumn legibus Romanorum comj^icua. GOLDEN AGE AND COLLECTIVE PROPERTY IN ANTIQUITY. 149 it goes back to tlie reign of Minos, and in Italy it can be traced to a still more remote period." (Lib. IV. c. 9.) Not only is the primitive community preserved to ns in traditions concerning the golden age and in certain radically communistic institutions, such as that of the common repasts ; but it has also left its impress on the constitution, the laws, the manners and the ideas of antiquity. In Greece the indivi- dual is always sacrificed to the State, and political writers, like Aristotle and Plato, have continually in vie\y the maintenance of equality of conditions, by imposing certain limits on indivi- dual activity, and especially on the accumidation of landed property in the hands of a certain number of persons. Great legislators, such as Lycurgus and Minos, are said to have based the constitutions attributed to them on a new division of pro- perty. The idea of regulating the distribution of wealth, so as to check excessive inequality, recurs at every moment in the writings of the ancients, and it is from them that Montesquieu and Rousseau have derived it. As M. Viollet correctly remarks, the origin of individual property is nearly always referred to an original division, effected on the footing of equality, which makes us suppose, that before this distribution the soil was collective property, or that it was at least thought to be so by those who related these facts. M, Viollet quotes a great num- ber of these distributions noticed by ancient authors. " The tradition of this distribution is common among the Greeks : we meet it among the inhabitants of the Cy eludes', of Tencdos, Jjesbos and the neighboining islands^ It also exists in Sardinia'^; and it is to be found in the Péloponnèse when overrun by the ])()rians." We may here remark that minute discussions have been raised with regard to the division of the soil by the Dorians^ : it seems that we can separate histuntries, p. IdC». 152 PRIMITIVE PROPERTY. thing in the system is simple and logical, the moment we refer it to this liistorical idea." In Greece the neighbours take part in the act of sale, either as witnesses or as guarantees. Sometimes, as at Thurium, they received a small coin, Theophrastus tells us, which seemed to be the price of their assent, or the acknowledgment of certain rights of joint-ownership. According to the German civihan Puchta^ the ancient mode of acquisition by a fictitious vindi- catio before a magistrate, called in jure cessio, can only be explained by the State's right of eminent domain over all moveable and immoveable property. The retrait, or right of claiming land, in case of sale to a stranger, recognized in the inhabitants of the village, is found everywhere. It exists in most Mussulman countries, in Algeria, in India ^, and Java. The retrait by the townsmen was still in force in Illyria and Italy under the emperors ; for a constitution of the year 391, concerning these provinces, abolished the cus- tom. We have seen that it exists in Russia. It is also to be found among the Southern Slavs, and in primitive times was common among the German tribes. In Switzerland it still exists for the All mends. In France, this primitive custom survived nntil a very recent period. In the district of Angle (Saint-Omer), and at Fillièvre (Hesdin)^ the inhabitants had the right of retrait against every stranger purchasing lands in its territory. Traces of it are also to be found in the Libri feudorum\ We may, therefore, assert that the right of retrait formerly existed everywhere as a remnant of the previous collective property. When the right of alienating land was introduced among the Germans, the transfer of property continued to be a public act, which could only be effected in the assembly of the inhabit- ants of the district. According to title Lix. of the law of the Ripuarian Franks, sales had to be performed in the Mallum. Gifts, also, were authenticated in this assembly. In England, during the Saxon period, the transfer of landed ' Pucbta, Cursus der Institut. - Sir William Hay Macnagbteu, Principles of Hindu and Mahommedan Law, c. IV. pp. 204, 205. 3 M. Viollet borrows these facts from BourJot de rvicliebourg, Vol. i. p. 306 ' and H 47. * Libri feudorum. lib. v, tit. xiii. xiv. GOLDEN AGE AND COLLECTIVE TROrERTY IN ANTIQUITY. 103 property was effected in tlie general assembly, after puLlic proclamation \ In the provinces of the Low Countries, in the middle ages, sale of land preserves the character of a public transaction. It was carried out in the presence of the sheriff of the commune, and an official report was kept in the Hôtel-de-Ville^ I regard the fact that immoveables, even when they have become individual property, are originally in every case inca- pable of being sold or devised, as an additional proof of the primitive community of the soil. M. Fustel de Coulanges, from whom we borrow further on the passage in proof of this fact, attributes it to the influence of primitive religion. This explanation is insufficient, as there w^as no sale or devise of lands in Germany, nor is there at the present time in Russia, or the Swiss AUmends. For a fact of such universality we must seek an equally general rule. Its origin seems to liave been this. Originally the right of possessing a portion of the soil is a natural right, inherent in a man's person. The land is divided among all, according to an unalterable custom, which no one can modify at pleasure. The individual attains to pos- session of the soil, not by virtue of a contract of sale or testa- mentary devise, but by reason of his character as a member of the human race, and his inalienable right of living by labour applied to the soil, the common foster-mother of his kind. An agrarian organization, founded on such a conception of property, obviously allows of no alienation of immoveables, whether by sale or testament. It is not human caprice, but a principle of public order, which controls property. We will now borrow from M. Fustel de Coulanges some proofs of the original inalienability of the soil : " Plato, in his treatise on the Laws, did not claim to be ad- vancing a new rule when lie foi'bade the proprietor to sell his laud ; he was only x-eviving an old law. Everything leads us to su])poso that ill ancient times property was iiialienaVjle. It is well known * Giardon, On Courts Baron, and Kelham, Domesday Book, p. 242. * For the towns of Amiens and Lille, see the sources quoted by M. Viollot, Ancient Custoinn of Aviienx (first half of the thirteenth century), Art. (i in A. Thierry, Recueil des Mon. inédits du Tiers-Ettit, district of the North, Vol. 1, p. 129. Second custom previous to 1202, ibid. pp. 16li, 1(>4. Conf. a sale effected in 1170 hefore the commune of Amiens; a gift in ll'Jô of the same kind, ihid. pp. 01, 0.5-118, 110. 154 PRIMITIVE PROPERTY, that iu Sparta a citizen was formally forbidden to sell his lot of laud '. The same prohibition was inclvided in Locrian and Leuca- dian laws*. Pliido of Corinth, a legislator of the ninth century, ordained that the number of families and of properties should remain fixed^ This ordinance could not be observed unless the sale and even the division of lands had been prohibited. The law of Solon, later by seven or eight generations than that of Phido of Corinth, no longer forbade the sale of property, but it subjected the seller to a severe penalty, the loss of all the rights of citizenship ^ Finally, Aristotle informs us in genei'al terms, that, in many towns, the early legislation prohibited the sale of lands. Our knowledge of the Roman law only begins from the XII Tables ; at this period it is clear that the sale of property was permitted. But there is reason to suppose, that in the early times of Rome, and in Italy before the existence of Rome, the soil was inalienable, just as iu Greece." In ancient India the sale of immoveables was unknown^ and is still rare in tlie districts not yet " anglicized." The same was the case in ancient Germany. The sale of land does not appear till the barbarians were acquainted with the principles of the Roman Law. The first law of the Visigoths, published by Blume'', does not mention land among the things that may be sold ; and the revised text, promulgated later, adds the word "lands." Sive mancipia seu quodlihet animaliam genus ven- ditm% said the original text : sive terrce, adds the more recent one. Several German laws seem to concede the power of selling land as a- new right \ Others even put considerable restraint upon the right. If the necessity of the sale is not proved, immoveables cannot be alienated. Thus in the law of the Saxons: "Liber homo qui sub tutela nobilis cujuslibet erat, qui jam in exilium missus est, si hsereditatem suam neces- sitate coactus vendere voluerit, offerat eam primo proximo suo, ...V ^ Plutarch, Lycurgus, Agis. Ai-istotle, Polities, ii. p. 10. 2 Aristotle, Politics, ii. 4, 4. '^ Id. n. 3, 7. 4 yEschines, Contra Timarchum. ^ Mitacshara, trad. Orinnve, p. 50, G Bliune, Die tcestgotldsche Antiqua odcr das Gesetzhueh Reccared des Ersten, 1847, ch. 294, p. 18, 20. !■ See Law of the Thuringians, tit. xiii. : "Libero honiini liceat lirereclitatem siiam cui voluerit tradere." Cauciani, Bar. leg. antiq., v, m. pp. ill — 36, and Walter, Corpus jur. Germ., v. i. p. 380. Law of tlie Saxons, tit. xv., " Traditiones et venditiones omnes legitimœ, stabiles permaueant," and the followiug with Canciaiii's commentary, v. iii. p. 51. Cf. Lex. Burg. t. i., aud tit. lxxxiv. § 1, iu Pertz, Mon. Germ. Leg., tit. ni. pp. 532— 568.— Lex Alemauuorum, iu Pcrtz, Mon. Lejes, t. iii. p. 45. (borrowed from M. Viollet). 8 Cauciaui, Barb. leg. ant., t. ni. p. 50. GOLDEN AGE AND COLLECTIVE TROPERTY IN ANTIQUITY. l.')5 And in Scotland [Leges Burr/orum, cap. cxxxviii.), "Et testabuntur quod vendons vcndidit illani terram ratioue pau- perpatis, et illa paupertas fuit probata, ante venditionem, per duodecim legatos et iideles homines \" By the customary law of the island of Gothland (cap. XXXVlil. § 1), " Landeigenthum mag niemand verkaufen ohne Noth. Treibt ihn die Noth dazu, so soil er zusagen seinen nœchsten Vervvandten im Beiseyn seiner Kirchspielgenossen und der librigen Familienglieder, und diese sollen untersnchen, welche Noth ihn dazu treibt"." And in the custom of Bibnitz (Mecklenburg-Gustrovv), " Wird allhie einem jeden, der dazu qualificirt, und deme es im Rechten nicht sonderlich verbothen, ^eine Glither in Notli- fgellen zu verœussern, zu verpfœnden, oder zu verkauffen er- stattet, yedoch ober also das, ...^." Primitive law is as intolerant of testamentary devise as it is of sale, because the transmission of land is a matter of public interest, the regulation of which must not be left to the decision of individual caprice. In the earliest period, as in Germany formerly, or in Russia at the present day, the soil belongs to the tribe, and is periodi- cally re- distributed among the families, according to fixed traditional rules. In the second period the soil belongs to the patriarchal family, such as we see it in France in the middle ages or among the Southern Slavs in our own day. In neither of these two systems is the individual allowed, during his span of life, to interfere with the natural order of the hereditary transmission of the soil. In an agrarian organization so conceived the notion of a testament cannot even arise. Plato again accurately under- stands the reason why the testament could not be admitted in the system where property belongs to the patriarchal family. 1 Houixrcl, Traités xiir les coutumes Ançilo-normandcs, t. ii. pp. 449, 450. 2 Scliildeuer's translation, Guta-LagJi, Greifswald, 1818, p. y'J, and compare Mirror of Saj-nnij, 1. i. art. 34: — " Ohne des liicliters Urlaub, niag ein Mann sein Eigeu wohl vergeben mit geuehm seiner Erbeu ; nur dass er eine balbe Hufe davon bebalte uud ein Gehoeft, da man einen Wagen daraiif umwouden mag." (Translation by Sachsse, SacJiscnspieijel oder Saechsisclws Landreclit, Heidelberg, 1«48, p. 72.) 3 Codicillus juriuni civitntum megapolensium de an. 1850, in Westi)halcn : Monumeuta iiiedita rerum geriiiauicaruiii prcecipue cimbricarum et viegapolcnsiuin, II. LipsiiP, 173!), col, 2(mi'. 15G PRIMITIVE PROPERTY. •' Ye Gods, says the man ou tlie point of death, is it not hard that I may not dispose of my property as I desire, and in favour of whom I please, leaving more to one, less to another, according to my regard for them?" But the legislator replies, "Thou canst not promise thyself more than a single day; thou art but a sojourner here below ; and is it for thee to control such matters ? Thou art neither master of thy goods nor of thyself; thou and thy property alike belong to thy family — to thy ancestors and thy descendants \" This primitive idea seems far superior to the modern idea of the freedom of testamentary disposition. The principle governing the transmission of property forms the very basis of social order. For a certain period, at least, it is a rule which is better than any other. It is the most conformable to justice and the best guarantee of general happiness. This rule is for juridical science to discover and for the lawgiver to publish; it should not be lawful for individual desires, often dictated by caprice or folly, to infringe it. The ancient Hindoo law did not recognise any testament ; and until the arrival of the English even the idea was un- known. It was only introduced as the judges, deriving their inspiration from the English law, admitted it^ "The Athenian law, before Solon, absolutely forbade all testamentary dispo- sition ; and Solon himself only allowed it to those who left no children ^ The testament was long prohibited or unknown in Sparta, and was only authorized subsequently to the Pelopon- nesian war. The memory has been preserved of a time when the same was the case in Corinth and Thebes. It is certain that the power of absolutely devising property was not originally recognized as a natural right." "Before the law of the XII Tables we have no legal text either forbidding or allowing testamentary disposition, but the language preserves the remembrance of a time when it was not known ; for it calls the son lucres suus et necessarius*." Even after testamentary disposition was allowed, the wish of the testator had to be ^ Plato, Lava, \i. ^ See Sir George Campbell's Essay in the Cobdeu Club's volume, Si/ateins of Land-te)iur(' in various Countries, p. 172. •^ rintareh, Solon, 21. * Fustel lie Coulanges, La cite antique, 3r(l edit., p. 89. GOLDEN AGE AND COLLECTIVE TROrERTY IN ANTIQl'ITY. \'û ratified by tlie sovereign authority, that is, by the peo])lo assembled in the curies, under the presidency of the pontiff. The most ancient form of testament is that comitiis calatis. In Germany the testament was unknown, nullum testanientum ' ; and the barbarians only made use of it after the conquest, under the influence of Roman ideas and of the church, which found in it an abundant source of wealth^ "The best autho- rities," says Sir H. Maine, " agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subse- quent settlements on the edge of the Roman Empire ^." Originally the clan, or village, is the collective body owning the soil ; later on, it is the family, which has all the character- istics of a perpetual corporation. The father of the family is merely the administrator of the patrimony : when he dies, he is replaced by another administrator. There is no place for the testament, nor even for individual succession. We shall see pre- sently that this is still the case among the family communities of modern Servia. Such was also the law everywhere where these communities have existed; and, probably, every nation has passed through the system. So far from being a natural right, testamentary disposition is a novelty in the history of law. As Sir H. Maine remarks, tlie Romans invented it. The testament was not at first con- ceived of as a means of distributing wealth or effecting the division of property, but only for better regulating the interests of the family. Customary law, and the great jurists, who have interpreted its spirit to us, are equally hostile to the testament. The fun- damental maxim of the customary law on this point is, Institu- tion dliéritier na j^oint lieu. Legacies were but tolerated. The indulgence of the law, says Bouijon, allows a man at his death a sort of empire over his property ; but the law is wiser than the individual. Therefore he shall not interfere with the order established by it. Human wishes should not trouble the divine order, says Domat, All customs impose more or loss limitation on the right of testamentary disposition. ^ Tacitus, Germania, xx. " Lalwulaye, D^ la roiidition civile et iwlitique des Fentmrs, \\ !'0. ■•* Ancient Leur, p. 17'2. CHAPTER XI. PROPERTY IN GREECE. The Roman idea of a right of absolute property was alvva3^s foreign to Greece. The territory of the state was regarded as belonging to it alone; the citizens had merely an enjoy- ment of it, subordinate to the general interest, hence the frequent partitions of the soil and the constant intervention of the law to regulate the distribution of property. The philo- sophers, the politicians, and the legislators of antiquity, all evinced the same desire, that every citizen should have a portion of landed property, and that the law should prevent excessive inequality. In the Republic of Plato the land is divided in equal parts among all the citizens. In order that all might be interested in the defence of the country, Aristotle would have every one hold two plots of land, assigned by lot, one near the city, the other near the frontier\ In the majority of Greek states we find measures intended to maintain equa- lity in landed property. In Leucadia thé sale of hereditary property was absolutely forbidden ; among the Locrians it was only allowed to meet a necessity on proof of such necessity. At Corinth, the legislator Phidon, to maintain the equality of the lots, endeavours to make the number of citizens invariable, Philolaus, a Corinthian by birth, who gave laws to Thebes, endeavoured to attain the same end by regulating adoptions, and Phileas of Chalcedonia hoped to re-establish the equality of property by enacting that the rich should give portions to J Arist. rolitk!^, IV. 0, § 7. PROPERTY IN GREECE. 150 their cUiugliters, but sliould not receive them ; while the poor should receive them, but not give them \ Sparta, at the time when it appears in history, had already discontinued the system of primitive community. It had, apparently, arrived at the system of collective property in the gens, or clan. The elementary unit of society was the yévof, the same word as the Roman gens, and corresponding to the lignées and geschlclcliter of the towns of the middle ages. It was a group of families, connected by traditional descent from a common ancestor, whom they worshipped in common, their religious ceremonies being celebrated at the same altar. The patrimony was inalienable. There, as among the Jews, the object of all land legislation was the preservation of the familv. When a daughter was the only heir of a famil}^, the nearest relation was obliged to marry her, and even to divorce his existing wife for the purpose. He might also claim her, even against her will. In theory, every inheritor succeeded by individual title ; but the community was generally maintained between brothers. There was no partition. "All the children remained grouped round the same hearth," M. Jannet tells us ; " one of the brothers, the most cajDable, and, as a rule, the eldest, by reason of the sacred privilege of his birth, regulated the community and bore the expressive name of karLo-iràixwv, the preserver of the hearth. Plutarch, in his Treatise on Paternal Affection, shews that these communities played a very important part in the ancient social condition of Greek nations. They were probably the pivot of the family organization. Partition among the children was only effected in exceptional cases. In course of time this was reversed ; but then the principle of compulsory partition was at variance with the other institutions, all of which had in view the preservation of the patrimony in the family. Hence arose the incoherence of the Greek law, which Cicero notices, in comparison with the Poman system based on the testamentary institution of an heir." The sons and their male descendants completely excluded the daughters, as at Athens and in other Greek states. The testament here, as in all primitive Greece, was unknown. Right and the interests of society, not the arbitrary will of the 1 Aristotlo, PoUlici, 11. 4, § -l;-!!. .3, § 7 ;— ii. 4, §§ 1, 2. 160 PRIMITIVE PROPERTY. individual, fixed the succession. The constitution of property was, therefore, the same at Sparta, as among the Southern Slavs of the present day, or in the rural districts of France in the middle ages. The primitive community left deep traces on the social organization of Sparta. Plutarch, in his Life of Lycurgus, c. XVI., tells us that, at the birth of each child, the elders of the tribe assigned to it one of the 9000 lots of land in the territory of the state. The truth of this statement is denied, because it would follow that there was no right of succession, and that the earth was common, which is contrary to esta- blished facts. But, side by side with the family patrimonies, there may very well have existed a collective domain, like the Germanic Allmend, in which every one obtained his share. Sparta had a communal domain of great extent, the pro- duce of which served in some measure to maintain the public repasts. There, as in the majority of the other Greek states, it comprised forests and mountain'. The public repasts, Syssi- ties, which were arranged in messes of fifteen persons, were the basis of the military and political organization, under the name of Phidities and Andries. A similar institution existed in almost all of the Greek states. Its economic importance Avas not everywhere the same, but depended on the common revenue. At Sparta every one had to contribute towards it a certain number of measures of oil and barley. In Crete, according to Aristotle, the Phidities contributed most to the maintenance of equality. Grote and other historians regard with doubt the famous division of property into 9000 equal parts, which, according to Plutarch, was effected by Lycurgus. There may be some doubt with regard to the details, but the division, in itself, is entirely in harmony with the spirit of ancient politics. A division of property seems to have taken place at the time of the founda- tion of the state, about the year 1000 b. c, and after the conquest of Messenia under Polydorus (700 B.c.). However this may be, Aristotle reproaches Spartan legislators for not 1 See Herodotus, vi. 57; Pausanias iii. 20; Plato, Laws, i. The Cretan towns derived from their common lands, cultivated by a particular class of serfs, sufficient to provide the public repasts. The citizens had therefore at least the means of subsistence. PROPERTY IN GREECE. IGl liaviûg taken efficient steps to maintain equality of condition. The population, he says, was divided into rich and poor : all the wealth was in the hands of a few individuals, possessed of colossal fortunes. According to Aristotle this concentration of landed property was carried so far, that in the time of Agis III., the w^hole of Laconia was the property of one hundred persons. The population rapidly decreased. The number of men capable of bearing arms was reduced from 10,000 to 1,000 even in the time of Aristotle, and was only 700 in the time of Plutarch. Aristotle saw no other remedy for the decay of the state than a partition of lands, with a view to the re-establishment of equality of property. The struggle between the rich and the poor had already begun at the period when the Stagyritc wrote. In several towns, he says, the rich had taken this oath : " I swear to be the enemy of the people, and to do them all the harm in my power \" At Sparta, and in many other Greek states, tlie kings placed themselves at the head of the people in opposition to the aristocracy. Osesarism was demo- cratic and socialistic. Agis advocated a division of property, but was killed. The king Cleomenes (288^222 B.c.) carried out the popular programme : — the abolition of debts, the parti- tion of property, and the grant of political rights to all who had been deprived of them. Laconia was divided into 15,000 parts allotted to the Periœci, and 4,500 to the citizens. Cleomenes, overthrown in foreign war, was succeeded by other " tyrants," who continued to oppress and despoil the rich, to retain the favour of the people. The economic history of Sparta, repeated in the other Greek states, is very similar to that of Rome. So long as equality was maintained by the families preserving their patrimony, political liberty survived. When once the rich usurped the soil, the struggle of classes began, and was only ended by the establishment of despotism and the destruc- tion of the state. Aristotle, in his Politics, sums up in a few words the con- clusion derived from the economic history of Greece. " For them (the legislators) the crucial point seems to be the organi- zation of property, the one source, in their opinion, of revolu- tions. Phileas of Chalcedonia Avas the first to lay down the 1 Politics, viii. 7, M. 11 162 PRIMITIVE PROPERTY. principle that equality of fortune was indispensable among the citizens." In fact, when the division of property is too unequal, democracy leads to social revolution ; for the man who has the suffrage, seeks also to have property. Democratic institutions have only brought man peace, when, as in Switzerland and in primitive time, manners are simple and conditions very equal. In the other Greek republics we find the same economic evolution as at Sparta, — the concentration of landed property, the advance of inequality, cultivation by slaves, whose number is continually increasing, and finally depopulation. When Greece became a Roman province it was transformed into a desert, where the flocks wandered at will, and wild beasts lurked in the ruins of temples and cities. At the end of the first century of our era, the population was so reduced that the whole of Greece could hardly produce 3,000 fully armed warriors, the number which Megara alone sent to the battle of Platea. Equality was the basis of Greek democracies; in- equality was their ruin\ ^ See the instructive work of Karl Biicher, Die Aufstcinde der mifreien Arbûiter, 1874, ch. iv. CHAPTER XII. PKOPERTY AT ROilE. The Romans, after passing the two successive stages of the village community and the family community, -were the first to establish exclusive, individual property in land ; and the prin- ciples they adopted on this subject still serve as the basis of law for continental states. Scarcely, however, was quiritary dominion established, when it threatened the existence of the democratic institutions and of the Republic, by its power of encroachment. It was in vain to set limits to it : la grande propriété consumed la petite. The economic history of Rome is little else than a picture of the struggle against the encroach- ments of quiritary dominion\ The philosophers and legislators of antiquity knew well, by experience, that liberty and political equality can only exist when supported by equality of conditions. The Politics of Aristotle enumerates a number of means employed by the Greeks to maintain this equality. At one time they limit the maximum amount of land, which a citizen may possess ; at another, they declare property inalienable to prevent its accu- mulation ; at another, individual property is modified by common repasts, of which all partake. There is one constant struggle against inequality. "Inequality," says Aristotle- with much perception, " is the source of all revolutions." According to Bockh, the war between the rich and the poor destroyed Greece I So long as landed property preserved its collective ^ See an interesting essay by G. Arendt, Du régime de la inopritté terri- toriale, considéré dans ses rajyports avec le mouvement politique. 2 Politics, V. 1. 3 Staatsh. der Ath., i. p. 201. 11—2 164 PRIMITIVE PROPERTY. character, equality resulted from the periodic partition, as we still see in Russia. This was the golden age, of which the ancients preserved a recollection and which continued to be their ideal. Even later, when the several families lived on their common, indivisible and inalienable patrimony, as in Judaea or ancient Greece and Italy, at the time when the gens and yéi^oç preserved its primitive character, inequality was confined within limits. Bat at Rome, when quiritary, that is to say, individual and exclusive property, capable of indefinite extension, was developed, none of the precautions contrived by the Greeks were adopted to limit it. On the contrary, every newly conquered territory gave it a vast area over which it could extend. Thus the inequality increased- which was to destroy the Republic, and subsequently the whole Roman Empire. We will state briefly the attempts made to check its progress. The writers of gTeatest authority think that in Latium the soil was originally the collective property of the clan. At the time when the history of Rome begins, we find, it is true, lands belonging to citizens in private ownership, agri privati, as well as extensive lands belonging to the people collectively, ager 2)opuU, ager puhlicus. But private property was of small extent. It only comprised the space necessary for the house, court-yard and garden, that is, two jugera \ This was the heredium, the land which was transmitted hereditarily, while the rest of the territory was collective property, ager puhlicus. The heredium, like the lot assigned to the Spartans, was regarded as inalienable, because it was the necessary home of the family, and even to the last days of the Republic it was a disgrace to sell it^. The heredium was not sufficient for the support of a family^, and accordingly they had to obtain the rest of their means of subsistence by cultivating portions of the ager puhlicus, and by turning on to the common pasturage the cattle, which was originally the principal form of wealth. This 1 Varro clearly marks tMs distinctive feature: Bina jugera a Bomulo imnium divisa dicehantur viritim quce, qiiod heredem sequerentur, heredium vocantur. * See Schwegler, Rdmische Gesch. Tubingen, 1856, ii. 6, 444: and Moritz Voigt, die Bina jugera, Rhein. Museum fur Philologie, 1866. ^ The Bina jugera, which are about an acre and a quarter, according to Mommsen, could only jield 800 kilogrammes of corn, or only 400 annually, as they would have to He fallow every other year. PROPERTY AT ROME. 1G5 agrarian system is precisely similar to that of modern Russia or primitive Germany, where the hereditary domain seems to have been much the same in extent as the Roman herediuvi. There is, however, this difference, that we do not find that the collective domain was subject to periodic partition at Rome, as among the Germans or Slavs, The custom, if it ever existed, has left no traces in history. The afjiir puhlicus was subject to the free right of occupancy, as in Java, or in Russia before the partition was introduced to establish equality. Every member of the populus — every patrician, that is — might occupy such vacant portion as he found convenient, on the one condition of conforming to the rules governing this method of occupation '. This did not confer any right of jDroperty, but a mere possessory right, in theory always revocable, which, however long it ex- isted, was never transformed into full ownership, or dominium ex jure Quiritium. As a matter of fact, however, the patricians retained the enjoyment of the lands which they cultivated, because there was no fixed period at which they were to return into the common stock. The lands thus occupied by the patri- cians became so extensive, that they surrendered a portion to clients, precario, that is to say on 'the request of the clients, a portion of the produce being reserved. Later on, when succes- sive conquests increased the number of slaves, the patricians cultivated by their labour the portions which they occupied of the ager puhlicus. They had also the right to depasture their cattle on the public pasturage {pascua puhlica) on paying to the treasury a rent, from which they soon freed themselves. The plebeians, like the hintersasse7i of the Germanic marh had no right of occupancy over the public domain. From time to time, how- ever, lands were distributed among them, and their lots seem to have been ordinarily about 7 jugera in extent^ The plebeian lot was greater than the patrician heredium because it had to suffice for the maintenance of a family, whereas the hlua jugera merely comprised the hof or dwelling-house and its accessories, the arable land and pasturage being taken from the ager 1 For proof sec Maynz' excellent work, Court (If droit romain, § 11 and § 82. " See Ma.ynz. Varro, dc lie Eustica, i. 2, 9 : Livy, v. 24, 30 : Pliny, //. N. xviii. 3, 4 : Columella, de Ee Eustica, i. 3. 1G6 PEIMITIVE PROPERTY. pubUcus. As in early times agricultural labour is the sole source of wealth, every free man must have a portion of land to be able to subsist. Hence, in default of the periodic partition which maintained equality in the German and Slavonic com- mune, it was constantly necessary at Rome to have recourse to distributions of land which the plebeians never succeeded in retaining. According to the traditions collected by historians, there was a division of the soil made by Romulus. He divided the territory among the three tribes. Each tribe was divided into curiœ, and each curia into centuries. The century, like the Anglo-Saxon hundred, contained a hundred warriors or heads of families, and each of them had a private domain of two acres. This was, according to tradition, the quantity allotted to each citizen by Romulus. Dionysius adds, that Romulus reserved a portion sufficient for the maintenance of religious worship, and that another portion remained the domain of the State. This last portion was far the largest. Numa, Tullus Hostilius, Ancus Martins made distributions of land viritim according to Cicero, that is, in equal shares per head. Viritanus ager dici- tur, says Festus, qui viritim populo distribuitur. Servius Tul- lius orders all those who have taken possession of public lands to restore them ; and gives those who have no land seven jugera, in order, as he tells us in the speech attributed to him by Dionysius, that the plebeians might no longer cultivate the lands of other people, but their own, and might be so made more courageous in the defence of their country. Under the Republic there are constant efforts to keep the land in the hands of the plebeia.ns. In 404 B.c. Spurius Gassius proposes to distribute among them the conquered lands of the Herni- cans ; but he lost his life for this proposition, which Livy calls the first agrarian law : Turn primum lex agraria promidgata est (ii. 41*). Some years later, the tribune Icilius effected the ^ For the agrarian laws, consult Eomische Rechtgeschichte of A. F. Eudorfif, p. 38 ; Dr Willielm Ihue, Forschunricn auf dem Oebiete der Rimischen Verfas- svngsgeschichtc, p. 75. Iline shews that if the plebeians were constantly indeoted to the patricians, it was not from having borrowed money of them ; but because they had obtained lands from them, for which they owed rents, which they were often unable to pay. Ludwig Lange, Romische Alterthûmer, p. 140. The first volume of the Corjjus inscriptionum latinarum : de agro publico popuU romani (Mommsen). Laboulaye, I)cs lois agraires chez les Romains. Revue de législation, vol. n. p. 385 and vol. m. 1 ; and esjiecially Autonin Macé, Histoire de la propriété, du domaine public et des lois agraires chez les Romains; PROPERTY AT ROME. 1C7 partition of the lands of the Aventine {Lea) Icilia de Aventino puhlicando). During the century which elapsed between Spu- rius Cassius and Licinius Stolo, M. Antonin Mace reckons twenty- eight bills (rogationes) of the tribunes to obtain an assignment of lands in favour of the plcbs. The patricians, however, defeated them, or else rendered them ineffectual. The continual wars tended more and more to the ruin of the small proprietors, and at the same time tended to favour the accumu- lation of land and wealth, by increasing the extent of land taken from the enemy, which the patricians took possession of and cultivated by the labour of the conquered inhabitants, who were reduced to slavery. The famous Licinian laws were intended to limit the advance of inequality, by checking the diminution in the number of freemen which had become alarm- ing. The Lex Licinia forbade any one to possess more than 500 jugera of public land : ne quis 'plus quam quingenta jugera agri possideret, are the words of Livy (vi. 35). The Greek his- torian, Appian, gives the other clauses of the law: "No one shall depasture on the ager puhlicus more than a hundred head of large cattle, or more than five hundred sheep on his own land. Every one shall support a certain number of free men. The portion of the public land taken from those who have more than 500 jugera, shall be distributed among the poor." The Republic was saved for a time by the better distribution of the soil, which increased the number of free proprietors and of soldiers. Historians are unanimous in commending the good effects of the Licinian laws. " The century which follows the Licinian laws," says M. Laboulaye, "is the one in which the soldiers of Rome seem inexhaustible. Varro, Pliny, and Columella continually refer to these great days of the Republic, as the time when Italy was really powerful by the richness of its soil, and the number and prosperity of its inhabitants. The law of the five hundred jugera is always quoted by them with admiration, as being the first which recognized the evil, and sought to remedy it by retarding the formation of those vast Savigny, Traité de la possession d'après les principes du droit romain; Giraud, Recherches stir le droit de propriété chez les Romains sous la république et sous Vempire; Niebuhr, History of Rome; Antonin Macé, Histoire des lois agraires ; W. Drumann, Die Arheiter und Communisten in Grieclœnland iind Rom. 168 PRIMITIVE PROPERTY. domains, or latifundia, whicli depopulated Italy, and after Italy the whole empire." [Des lois agraires chez les Romains.) Un- fortunately, after the conquest of Macedonia, the clauses of the Licinian law were no longer enforced. Shortly after the first Punic war, the tribune C. Flaminius demanded the distribution of the lands recently taken from the Gauls, to relieve the misery of the plebs, which had again become excessive. The small proprietors had disappeared, and their property had gone to swell the latifundia,. In the country, free men were no longer employed for the cultivation of the soil. In consequence of the foreign wars, slaves were sold at a lovt^ price, and free men could not compete with them. The latter lived in idleness on distributions of corn, and made a traffic of their votes or their evidence. Pasturage replaced agriculture \ and Sicily and Africa were made to provide the corn supply as their tribute. Tiberius Gracchus reproduced almost exactly the Licinian law^ The father of a family could retain, this time on a com- plete title, 500 jugera of public land ; with half that amount in addition for each son. For the lands which he had to restore, he received an indemnity proportional to the improvements he had executed. The lands taken back by the State were to be distributed among the poorer citizens, who were already for- bidden to alienate their share. The law was passed, but its execution was, m great measure, eluded. Caius revived it with the same result. It was almost impossible for the State to recover possession of lands which had been occupied for so long as to be indistinguishable from private property. It could only have done so successfully by a great effort based on some secure support. Tt is well known with what skill the patricians, using fraud and violence by turns, managed to rid themselves of the Gracchi, the greatest citizens and most clear-sighted statesmen that Rome produced. 1 Varro, ii. 10. Caacilius Claudius suffered great losses during the Civil wars, and yet left at his death 3,600 yoke of o^en, and 257,000 head of other cattle (PHny, xxxiii. 47). 2 In the magnificent harangue put into his lips by Plutarch, after saying that one might travel for several days in Italy without meeting a single free man, he exclaims: "The wild beasts have dens and lairs to retreat to, while those who fight and shed their blood iai the defence of Italy, have nothing of their own but the hght of the sun and the air which they breathe ; houseless, and homeless, they wander in all directions with their wives and children." PROPERTY AT ROME, 1G9 But, for tlie salvation of Rome, an agrarian law was not suf- ficient. It required a series of such measures and a consistent policy, having in view the suppression of large properties, and the re-constitution of small ones. Unfortunately, fresh con- quests were continually putting new lands, and slaves for the cultivation of them, at the disposal of the rich; and conse- quently it was impossible to stop the growth of latifundia. After the death of the Gracchi, the higher classes succeeded in passing three agrarian laws, between the years 121 and 100 B.c., which Appian makes known to us. All three were intended to be — and were effectually — favourable to the in- crease of large estates. The first, contrary to the laws of the Gracchi, allowed every one to sell the portion of land which he had received. The result was that the poor sold their shares, which they often did not know what to do with ; and the rich gradually monopolised the whole of the ager puhlicus. The second law forbade any new division of the public land. It was to remain in the hands of its present holders, a rent beino- paid by them, the amount of which was to be distributed among the citizens. The latter, therefore, received in the place of the land which would have compelled them to labour, an allowance in money, which induced them to remain idle and live at the expense of the public treasury. Finally, the third law abolished even the rent ; so that there remained nothing of the laws of the Gracchi but a single clause, favourable to the aristocracy, which gave a definite title to the possession of pub- lic land. Independently of these agrarian laws, an attempt was made to re-establish the class of proprietors by settling citizens and soldiers on the conquered lands. In 422 B.C. when a colony was founded at Labici in Latium, 1,500 plebeians, fathers of families, were sent out, and each obtained the hina jugera (Liv, IV. 47, 5). Eighty-nine years later, 300 colonists sent to Terracina receive similar lots (Liv. Vlil. 21, 11) ; and the maxim is proclaimed that lots of two jugera each are to be given to plebeians in all conquered lands\ In 369 B.c., 2,000 colonists established at Satricum in Latium obtain 2^ jugera apiece ^ Livy, VI. 36, 11, Auderentne posttilare patres ut aim bina jugera agri plebi dividerentur ipsis plus quinqnngenta jugera habere Uceret? — Sic'ul. Fhicc. edit. Lachm, p. 153, Antiqui agrum ex hoste captum victori populo per bina jugera partiti sunt. 170 PRIMITIVE PROPERTY. (Liv. VI. 16, C); in 359 B.c., 3,000 colonists sent to the Volscian country receive Sj^ jugera (Liv. V. 24, 4) ; and after the victory of Yeii, which doubled the territory of Rome, the Senate allotted to every colonist 7 jugera (Liv. v. 30, 8). Pliny tells us that the consul, Manius Curius, after his victory over the Samnites, accused every one who was not content with seven jugera as being a dangerous citizen : — 'perniciosurii intelligi civem, cui sep- tem jugera non essent satis {Hist. Nat. xviii. 4). In 200 b.c., after the return of Scipio from the conquest of Carthage, lands were distributed among the soldiers. The tribune Apuleius Satuminus, in the year 100 B.c., passed a law which gave to the Eoman citizens the lands of Cisalpine Gaul, reconquered from the Cimbri. He also pro- mised 100 jugera of land in Africa to the veterans of Marius. This law, however, seems to have been never carried into exe- cution. Marius contented himself with giving 14 jugera to his soldiers, saying : " Please God, there be no Eoman, who finds a portion of earth, sufficient for his sustenance, too small for him." In the year 65, the tribune Servius Rullus proposed a new agrarian law, which M. Antonin Mace {Hist, des lois agraires) characterises as just and well framed. Rullus endeavoured to reconstitute the public domain, with- out having recourse to confiscation. For this purpose, he pro- posed to sell the lands conquered in Asia, Africa, and Greece, and with the produce to purchase lands in Italy for distribution among the citizens. Cicero attacked this scheme in the speeches which have come down to us, and which are master- pieces of eloquence. The people themselves were induced by them to reject the rogatio, or bill, advocated by Rullus, Three years afterwards, Cicero supported the agrarian law proposed by Flavius. Its object was to purchase lands, and establish colo- nies on them, but it was not passed. Csesar revived the ideas of Rullus and the Gracchi. As Dio Cassius tells us, he wished to restore agriculture ; to re- people the wastes made in Italy by the latifundia; to take from Rome the idle and starving proletarians, by giving them land to cultivate ; and to arrest depopulation, by re-forming fresh families of peasant proprietors. With this object, he in- PROPERTY AT ROME. 171 troduced a law AvLicli distributed tlio public domain — especially that in Campania hitherto let on farm — among all poor citizens with three or more children. The public domain, proving insufficient, had to be supple- mented by the purchase of private estates, with the treasure Pompey derived from his conquests. According to Suetonius, this law was carried into execution, and 20,000 fathers of fami- lies received land. He subsequently gave lands to 00,000 more colonists. At the end of the Republic, Sylla, Caesar, Antony, and Octavius, to reward the soldiers who had won them power, distributed among them the treasure and the lands of the con- quered ; but these were not economic agrarian laws. Neverthe- less, they had the effect of re-populating towns ruined by the civil wars, and of leading to the formation of new colonies. The emperors also endeavoured to increase the number of pro- prietors. Augustus sent colonists to all the provinces, and founded 28 colonies in Italy. In a single year, 30 A.D., 120,000 veterans obtained lands. Nero himself, also, adopted the same policy. According to M. Mace, agrarian laws, that is to say, the dis- tribution of public land among the citizens, produced the best results every time they were really carried into execution : and the aristocracy, by their opposition to them, caused alike their own ruin and that of the empire. Pliny says, with much wisdom : latifundia "perdidere Ita- liam, jam vero et provincias {Hist. Hat. xviil. 7). Italy was handed over to slaves, and no longer subjected to the plough. A few sumptuous villas, and immense pasturages, replaced the varied cultivation, which had been carried on by small pro- prietors of Latin, Samnite, Etruscan or Campanian origin, and had maintained so many flourishing cities. To maintain the populace of Rome and to support the lux- ury of the great, it was necessary to pillage the com^uered countries. Prœtors, proconsuls, and public farmers, fell on the provinces like birds of prey, and ruined them to support the idleness of Rome. The free citizens disappeared ; and the Ro- man world, literally devoured by its plutocracy, became the sport of its armies recruited from strangers and barbarians. The fate of the empire was decided by military iwominciamentos. 172 PRIMITIVE PROPERTY. When the Germans appeared, the country districts and the towns had alike lost great part of their inhabitants. From the commencement of the Republic the concentration of property had been increasing, and towards the close was rapidly accelerated. Cicero was not one of the wealthiest citi- zens, and yet he possessed numerous estates, one of which alone had cost 3,500,000 sesterces (nearly £30,000). When the tri- bune L. Marcius Philippus introduced his agrarian law, he was able to assert, that there were only 2,000 citizens to be found in tlie State, who owned property : 7ion esse in civitate duo mil- lia hominum qui rem haberent (Cic, de Office. II. 21). Crassus, the triumvir, besides many houses in Rome, owned lands valued at 200,000,000 sesterces; and his wife, Cecilia Metella, was buried on the Via Appia in the splendid tomb, which in the middle ages served as a fortress. At the time of the first census under Augustus, one Roman citizen, Claudius Isidorus, was found to have 4,116 slaves, 60,000,000 sesterces, 360,000 jugera, and 257,000 sheep (Pliny, H. N. XXXIII. 9). Half of Roman Africa belonged to six proprietors, when Nero made them disgorge (Pliny, Hist. Nat. XVIII. 7). Pliny also tells us, that ia other provinces the whole of the ager pub- licus was owned by a few families ; and Dio Cassius (Lib. xxix.) says, that the whole Thracian Chersonese belonged to Agrippa. An aqueduct, six Roman miles in length, only traversed eleven estates, belonging to nine proprietors ! " A country," says Seneca (letter 49), "which once contained a whole people, too narrow for a single individual ! How far would you drive your plough, if the boundaries of a province may not limit your estate ? Its rivers run for one man ; and, from their source to their mouth, their vast plains, once powerful kingdoms, are your property." In the Satiricon of Petronius, written under Nero, we find a passage which gives some idea of the extent of a Latifundium : " On the 26 July on the lands of Cumse belonging to Trimal- chion, there were bom thirty boys and forty girls. They took from the threshing-floor, and shut up in his barn 500,000 bushels of corn : they collected in his stalls 500 oxen. The same day they placed in his coffers 10,000,000 sesterces, which PROPERTY AT ROME. 173 he could not invest." Appian describes exactly how these lati- fundia were created. "As the Romans subjugated the various parts of Italy, they took a portion of the conquered soil. The cultivated part was assigned or let to tenants. As for the un- cultivated part, it was abandoned undivided to any one who wished to cultivate it, an annual rent of one-tenth of the grain, or one-fifth of other produce, being reserved. The object was to multiply the Italian race, which was patient and courageous, so as to increase the number of citizen soldiers. The contrary, however, of what was intended, took place. For the rich, who were masters of greater part of the undivided lands, embold- ened by length of possession, obtained by voluntary purchase or actual force the inheritance of their poor neighbours, and created vast estates of their holdings. They employed slaves for their labourers and shepherds. Military service took free men from agriculture : the slaves, who were exempt from it, re- placed them, and rendered the new properties productive. The rich thus became disproportionately wealthy, and the number of slaves rapidly increased. In the meanwhile, the Italian race was impoverished, and disappeared consumed by taxes, by misery, and by war. The free man was destined to sink into idleness : for the soil was tilled by slaves, and entirely in the hands of the rich, who had no need of him." We find then, originally, village communities, which sup- ported a numerous population in Italy of commoners, who were both warriors a,nd cultivators, and lived under free, democratic institutions. The absolute right of individual property, or qui- ritary dominium^ was constituted at Rome, and a powerful landed aristocracy was formed on this basis. It gradually invaded the ager puhlicus, the common domain, which still represented the primitive collective mark. Continual conquests, always furnish- ing new lands for usurpation and slaves to cultivate them, con- stantly augmented their wealth and power. The attempt to re-constitute the old class of small free proprietors by means of .agrarian laws failed. By the side of the large estates cultivated by slaves, there was no place for them : just as in the Southern States of the American Union, small independent property could not subsist by the side of the large plantations Avorkcd by negroes. The plebeians ol^taincd political riglits : but as 174 PRIMITIVE PROPEKTY. they succeeded in establishing no means of obtaining property, they soon derived no other benefit from their vote than that of selling it. The concentration of property in a few hands, by multiplying the number of slaves, dried up the natural source of wealth, free and responsible labour ; and by destroying the sturdy race of proprietor cultivators, at once excellent soldiers and good citizens, who had given Rome the empire of the world, it destroyed the foundation of republican institutions. Latifundia peî'didere Italiam, the irremediable fall of the Ro- man Empire justifies the phrase, which re-echoes through the centuries as a warning to modern societies \ The French Revo- lution, and most continental legislation, has been inspired with the feeling, which dictated the Licinian laws and those of the Gracchi. It endeavoured to create a nation of proprietors ; such had been the actual result of j)rimitive communities. To-day, in presence of the democratic movement, by which we are im- pelled, and of the equalising tendencies which agitate the la- bouring classes, the one means of averting disaster and saving liberty, is to seek an organization, which may confer property on all citizens able to labour. 1 The eminent German economist, Bruno HildcbrancT, sums up an instruc- tive treatise on the distribution of landed propei-ty in antiquity as follows : — " The agrarian history of antiquity shews us that all ancient lawgivers en- deavoured to secure to every one a certain inheritance, and to make every family participate in the benefits of landed projierty. Everywhere, however, the proprietors were too independent, and succeeded in centralizing and monopolizing the possession of the soil, and thus the ancient world was ruined." — Vertheilung des Grundeigcnthums im Alterthum. — Jahrbiicher fur Nationalokon., 1869, xii. p. 1—29, 139, 155. CHAPTER XIIL FAMILY COMMUNITIES SUCCEED TO VILLAGE COMMUNITIES. "With the progress of "what we are accustomed to call civiliza- tion, family sentiments and family ties are weakened and exercise less influence over the actions of mankind. This fact is so general that we can see in it a law of social development. Compare the constitution of the family among the Romans in time past, or among the rural classes of Russia, who have not yet emerged from the patriarchal period, with that which we meet with among the Anglo-Saxons of the United States, who have pushed the modern principle of individuality to its ex- treme limits. Mark the contrast. In Russia and in Rome, alike, the father of a family, or patriarch, exercises a despotic authority over those who are subject to him. He regulates the order of labour, and apportions its fruits ; he marries his sons and his daughters without regard to their inclination ; he is the arbiter of their lot, and, one may say, their sovereign. In the United States, on the contrary, paternal authority is almost a nullity. Young lads of fourteen or fifteen years of age choose their own career, and act in a manner completely independent. Young girls are allowed to go out free from all restraint, to travel alone, to receive alone whom they like, and to select their husband without consulting any of their friends. The new generation disperses at an early day to the four corners of the world. Thus the individual is developed in all his energy j but the family group plays no part socially : it has only to shelter the children until the moment, never very late in coming, when they take their flight. These domestic habits 176 PRIMITIVE PROPERTY. of the Americans are one of their most striking features to strangers. In primitive societies all social order is centred in the family. The family has its worship, its particular gods, its laws, its tribunals, its government. It is the family which possesses the land. It is a true, perpetual corporation, which transmits its patrimony from generation to generation. Every nation is composed of a union of independent families, feebly held together by a lax federal bond. Except in such groups of families the state has no existence. Not only among the several races of Aryan origin, but among nearly all nations, the family in its origin presents the same characteristics. It is the 7éz^oç in Greece^, the gens at Rome, the clan of the Celts, the cognatio (to borrow Caesar's word) of the Germans. As M. Fustel de Coulanges has very clearly shewn in his work La Cité Antique^, the Roman gens, which played a great part so late as the first days of the republic, has descent from a common ancestor as its basis. The ancient Roman law considered members of the same gens mutually capable of inheriting. By the law of the XII. Tables, in default of children and agnates, the gentilis is the natural heir. The gevs had, accordingly, a kind of eminent domain over the possessions of the family. Family communities are found among all nations with similar characteristics, alike among the Indians of North America, and the Irish Celts in the time of the Brehons or in the joint family of modern India. In Scotland, among tlie highlanders, the clan is re- garded as a large family, all whoae members are connected through an ancient common ancestor. In Wales they still count eighteen degrees of relationship. Cousinship among the Bretons is proverbial : and in Lower Brittany it extends inde- finitely, the fifteenth of August, when all the inhabitants of a parish assemble together, being called the Feast of Cousins. Among any people, whose isolation has excluded it from the 1 Plato in liis day retained the early notions on this point. "In my capacity of lawgiver," he says, "I teU you that I regard neither yon nor your goods as belonging to yourselves, but as belonging to your whole family, and your whole family with all its goods as belonging to the state." Plato, De Leg. 1. V. ^ La Cite Antique, cap. x. FAMILY COMMUNITIES SUCCEED TO VILLAGE COMMUNITIES. 177 influence of modern ideas and modern sentiments, we may still form an estimate of the power formerly possessed by the ancient organization of the family. In remote times, when as yet the state with its essential attributes had no existence, individual man would have had no means of subsistence or of self-defence if he lived in isolation. It was in the family that he found the protection and assist- ance indispensable to him. The ''oneness" of all the members of the family was, consequently, complete. The vendetta is not peculiar to Corsica ; it is found among all primitive nations, being the primordial form of justice. The family takes upon itself to avenge wrongs of which one of its members has been the victim : and this is the only means of repression possible. Without it crime would go unpunished, and the certain im- punity would multiply misdeeds to such a degree as to put an end to social life. Among the Germans, it was the family which received or paid the Wehrgeld, or compensation for crime ; and there is exactly the same practice among the Alba- nians at the present day, and among all Indian tribes. We have seen that everywhere, in India or Java as in Peru or Mexico, alike among the negroes of Africa and the Aryans of Europe, the elementary social group was the village commu- nity, which was in possession of the land, and divided equally among all the families its temporary enjoyment. At a later period, when common ownership with periodical partition fell into disuse, the soil did not immediately become the private property of individual owners, but it was held as the hereditary and inalienable patrimony of separate families, who lived in common under the same roof, or within the same inclosure. We have no data to discover the exact moment of transition in the long economic evolution, by which enjoyment of the soil passed from the primitive form of community to that of quiri- tary dominium ; but even at the present day we may study the system as actually at work among the southern Slavs of Austria and Turkey. We possess circumstantial details regarding the system in the middle ages, and, even after it disappeared, it left many traces in customs and laws. Thus there was gener- ally a prohibition on the alienation of land without the consent of the family, M. 12 178 . PRIMITIVE PROPERTY. Originally, testamentary disposition was completely un- known: primitive nations did not understand how the mere wish of an individual, taking effect after his death, could decide the ownership of property, the transmission of which, in the patriarchal group, was regulated by the sacred authority of custom. Even later, when wills were introduced, the testator could only dispose of that which he had acquired, not of that which had come to him by descent. He was absolute master of all that his own industry and economy had created ; but the land which he took as his patrimony was the hereditary product of the accumulated labours of the family, which he was bound to transmit just as he had received it^. So early as the Assize of Jerusalem, remarks Gans^ we see a distinction between those things which can be freely disposed of by will, and those which are not subject to the caprice of the testator, but become by force of law the property of his direct heirs. Property acquired by the testator can be transmitted just as he thinks good. The same distinction appears both in the old and new customary law of France between the héritage and the acquêts ainsi que les meubles^; for the first kind of property the amount that may be disposed of never exceeds one-fifth ; for the others it includes the whole. This limitation imposed on the right of testators, which was subsequently adopted to some extent by the Code Napoléon, is the expression of an idea essentially sound and equitable. It is the German principle of which Tacitus tells us; respect being paid alike to the freedom of individual intent and to the rigid and immutable rights of the family. Over all that he has acquired the testator has free power of disposition ; but his power is checked the moment he attempts to touch the land of his inheritance, the family property which he has administered rather as a mandatory than as absolute owner. The sound reason for these provisions, which are found uni- versally at a certain period, is that civil society is based on ^ It is exactly the same in the Ii-ish sept {Corns Becsna, Ancient Laics of Ireland, iii. 5), aud in the joint-family of Modern India. See Sir H. Maine, Early History of Iiistitntions, p. 111. ^ Hist, du droit de succession en France au moyen-âge, par Edouard Gans. Tradïict. de Loménie, 1846, p. 204. * We find tlie same provision in an ancient English statute of Henry I. " Adquisitioues snas det cni magis velit ; si boclaud autem haheat, quam ei parentes sui dederiut, non mittat earn extra cognationem suam." FAMILY COMMUNITIES SUCCEED TO VILLAGE COMMUNITIES, 179 family groups regarded as perpetual corporations, whose pre- servation it is bouud to secure. The same motive led to the exclusion of women from succession to land. It was necessary to prevent its passing by their marriage into the hands of a strange family. As we have seen in India, in primitive Greece and among the Germans, as also at the present day among the family communities of the southern Slavs, females cannot in- herit. They have only a right to a share in the moveables, to a dowry. Just as, under the system of village communities, no one could dispose of his private property, his house and enclosure, without the consent of the other inhabitants of the mark; so in later times he could not alienate land, except with the consent of the other members of the family. In default of such formality, the alienation was void, and the land could be claimed back. The retrait-lignager, which was maintained in Germany till the sixteenth century, and in Hungary almost till our own time, was based on the ancient principle which attributed the eminent domain to the family. If the members of the family could enforce the re-transfer of the land to them- selves on re-paying the price, it was obviously because they had a superior right over it which had been disregarded. Trusts and entails, which make the possessor a mere usu- fructuary, are the aiistocratic form of the family community. The property still forms the inalienable and indivisible domain of the family, but the eldest alone enjoys it, and no longer all the descendants in common. We will first consider the family communities among the southern Slavs; and will then en- deavour to construct them as they existed in the middle ages. 12—2 CHAPTER XIV. FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. Although the Slavs probably settled in Europe at an earlier period than the Germans, they have yet preserved the in- stitutions and customs of a primitive age for a greater length of time than the latter people. On their first appearance in history, they are described as a nation living chiefly on the produce of their herds, of gentle though brave disposition, and remarkably fond of music. They had not, that is, yet emerged from the pastoral system, although they had in part renounced a nomadic life. The land belonged to the gmina — the German gemeinde, or commune — which effected annually in its general assembly (vietza) the partition of the soil among all the members of the clan. The yearly possession was allotted to the patri- archal families in quantities proportional to the number of individuals composing them. Each family was governed by a chief, or gospodar, whom it elected for itself\ The feature which the old Slav historian, Nestor, especially praises in them, is the force of family sentiment, which, he tells us, was the basis of society. He adds that it was preeminently the national virtue. He who broke away from family ties was regarded as a criminal who had violated the most sacred laws \ For a more detailed account of ancient Slav institutions, consult for Bohemia the excellent history of M. Palaçki and his Slawische Alter thilmer, Leipsig, 18-13; — for Eussia, Ewers, Aeltestes Rccht der liussen, Dorpat, 1826; — for Poland, Eossell, Pulnische GeschichtP., and Mieroslawski, La Commune polo- naise du dixième au dix-linitihne siècle; — and for the Southern Slavs, the exliaustive treatise of M. Utieseuovitch, Die Hauskommunionen der Siid-Slaven, and also the admirable work of M. Bogisitch, Zhornik sadasnjih pravnits obit- chaja u juznits Slovena, Agi-am, ISV-l. M. Fedor Demelitch has just published a summary of this excellent treatise, Le Droit coiitumier des Slaves méridionaux d'après les recherches de M. V. Boyisitch, Paris, 1877, FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 181 of nature. The iiuUvidual could exercise no rights except as member of tlie ftimily. The family was in fact the elementary social unit, ami in its bosom reigned community without con- fusion; omnia erarit eis communia, says an old chronicle. The ancient national poems, whose discovery at Koniginhof in Bohemia has given the great impulse to the Tchek literary movement, enable us to grasp this ancient family constitution. In the poem called Lihusin Sad, or the Judgment of Libusa, two brothers, Staglav and Hrudos, quarrel about an inheritance, and this appears so monstrous that the Moldau mourns and a swallow laments over it on the heights of the Visegrad. The queen Libusa pronounces judgment: "Brothers, sons of Klen," she says, "descendants of an ancient family which came into this blessed country in the train of Tchek, after crossing three rivers, you should agree as brothers on the subject of your inheritance, and you shall hold it in common according to the sacred traditions of our ancient law. The father of the family governs the house, the men till the ground, the womeii make the garments. If the head of the house dies, all the children retain the property in common and choose a new chief, who on great days presides in the council with the other fathers of families." In Poland, in Bohemia, and even among the Slavonians of Carinthia and Carniola, these family communities disappeared in the middle ages under the influence of the civil law, which, dating from an epoch when private property was established in all its rigour, was destined gradually to undermine the ancient communism, by means of the adverse decisions of the jurists. The southern Slavs escaped the influence of the civil law, by reason of the perpetual wars which devastated their territory, and more especially in consequence of the Turkish invasion. Beaten, isolated, and thrown back on themselves, their only thought was the religious preservation of their traditional institutions, and of their local autonomy. This is the cause of their family communities surviving to our own times, without being sub- jected to the influence either of the Roman law, or of that of feudalism. At the present day they still form the basis of agrarian organization among all the southern Slavs, from the banks of the Danube to beyond the Balkans. In Slavonia, in 182 PRIMITIVE PROPERTY. Croatia, in Servian Voivodia, in the Military Confines, in Servia, Bosnia, Bulgaria, Dalmatia, Herzegovina and Montenegro, the ancient institution presents itself with identical characteristics. In Bosnia the Mohammedan beys themselves often live in community even in cities, as at Serajevo. Except in the towns, and in the very restricted portion of the Dalmatian littoral, where owing to Venetian influence the Roman law has found its way, the vicissitudes of history, which have subjected one half of the Slav empire of Douchan to the Turks and the other half to Hungary, and the difference of political institutions consequent upon this division, have wrought no harm to rural customs, which have continued to exist in obscurity, without attracting the attention of the conquerors. It is only recently that the system of family communities has been regulated by law, as for example in Servia. Otherwise it only exists by virtue of custom ; but everywhere its principles are the same, because the national traditions are similar. As M. Utiesenovitch remarks, the queen Libusa might erect her throne of justice in every part of the Southern Slav district, and pronounce, amid the applause of the village chiefs, the same judgment as in days gone by on the slope of Visegrad, in the legendary dispute between the brothers Staglav and Hrudos. We will now examine more closely this curious institution, which, in these countries, impresses on property in land so different a form from that which it has assumed with us in the West. The social unit, the civil corporation, which owns the land, is the family community, that is to say, the group of descendants from a common ancestor, dwelling in the same house or in the same inclosure, labouring in common and enjoying in common the produce of agricultural labour. This community is called by the Germans Hauskommunion, and by the Slavs themselves druzina, druztvo, or zadruga, words which have much the same meaning as " association." The head of the family is called gospodar, starchina, or domatchin. He is elected by the members of the community, and has to transact the business of the community. He buys and sells the produce in the name of the association, in the same way as the manager of a joint-stock company. He regulates the work to be done. FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 183 but acts in concert witli those subject to him, wlio are always summoned to dehberate on resolutions to be formed, whenever the subject is an important one. There is, in fact, a free parliamentary government in miniature. The chief represents the community in its transactions with any third party, and in its relations with the state. He settles all disputes which arise within the family circle, and is the guardian of all infants. The gospodar has the executive power, while the united asso- ciates exercise the legislative power. The authority of the head of the family is far less despotic than in the Russian family. The spirit of independence here, too, is much more pronounced. The gospodar, who attempted to act without the advice of his associates, would be an object of detestation, and would not even be tolerated. In Bulgaria every inhabitant has the right of veto on important questions. When the head of the family feels himself growing old he usually resigns his office, agreeably to the Servian proverb : ko radi, onaj valja, da sudi, "he who toils should govern." His successor is not always the oldest member of the group ; but is that one of his brothers who seems most capable of managing the common interests. The elders are respected, and their experience secures a ready hearing for their advice ; but they do not enjoy the almost sacred prestige which surrounds them in Russia, The wife of the gospodar, or some other woman, chosen from the family group, the domatchica, regulates the household and takes care of its domestic interests. She directs the education of the young and chants the national poems to them in the evenings. Her place at table is by the side of the gospodar. She is consulted in all marriages, and is respected by all. The dwelling of a family community consists of a consider- able number of buildings, often constructed entirely of wood, especially in Servia and Croatia, where the oak is still abun- dant. Within an inclosure surrounded by a strong hedge or a palisade, and generally in the middle of a lawn planted with fruit-trees, rises the principal dwelling-house, occupied by the gospodar and his children, and occasionally by another couple with tbeir offspring. In this house is the large room, where the family take their meals in common, and meet at night for IS-i PRIMITIVE PROPERTY. the evening'. In buildings adjoining these are rooms for the other members of the family. In Servia the starshinas house is distinguished by a very high and pointed roof covered with wooden tiles. It is carefully whitewashed, and contains, besides the common hall, from two to four sleeping-rooms. The other couples have small dwellings constructed less carefully on piles, at some distance from the ground, like the barns in the Valais. Sometimes young couples make themselves a separate home Avithin the inclosure, Avithout, however, leaving the association. On one side are stalls for the cattle, barns, sheds, and a drying- room for maize, which together make a considerable block of buildings, or farmstead, reminding one very much of the large chalets of Simmenthal, in Switzerland, with their numerous dependencies. Each community consists of from ten to twenty persons. Some are found numbering as many as fifty or sixty ; but these are exceptional. In Herzegovina there are gene- rally from twenty to five-and-twenty persons. The larger the family the more fully is the blessing of heaven supposed to rest upon it. Distress, they tell you, never comes, except when communities are dissolved. " The isolated family has more pain than joy," says the proverb. Nevertheless, the communities are never sufficiently numerous to constitute a village. There are villages where all the inhabitants bear the same name, but yet they form several zadrugas. ^ All wlio have had a near view of Servian homes have been struck by the fraternal intimacy of theii* patriarchal life. M. Kanitz, in his admirable work on Servia, describes it as follows : " In the evening the whole family collect in the house of the starshina, near the large common hearth, where a bright wood fire crackles. The men make or repair the implements for their daily toil. The women spin wool or flax for their garments. The children jDlay at the feet of their parents, or ask the grandfather to tell them the history of Castrojan or of Marko Kraljevitch. Then the starsJnna, or one of the men, takes his giizla, and begins to sing, accompanying his voice with the stringed instrument. The sagas follow with lays of the heroes, and all recount in burning hues the trials of their country and its stniggles for independence. Thus the common dwelling becomes an attractive spot to all, which arouses and fosters in each man affection for his family and his country, and in all enthusiasm for the greatness, the prosperity, and the liberty of the Servian nation." Serbien, Leipsig, 1868, p. 81. Who can look on this family life, alike so invigorating to the individual and so salutary to the state, without asking himself, with the German author of La Famille: "Does the economist, in considering the system of common pro- perty, take sufficient account of its moral element ? Can statistics estimate by ciphers the happiness enjoyed by the family, where the children receive at the grandmother's knees the lessons and the traditions of their ancestors, and where the old men see their youth revive in the animated grou^) of their chil- di'en and grandchildren ? " FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 185 The population, hitlierto, has not increased very rapidly. New generations replace those which pass away, and so the composition of a family community remains nearly constant. In those which I have visited in Croatia and in the Military Confines, I have generally found three generations collected under the same roof — the grandj)arents reposing after their toil, the sons devoted to labour, one of them discharging the functions of gospodar, and finally the young children of different ages. When a family becomes too numerous, it divides, and two communities are formed. The difficulty of finding a dwelling, the merging of individual advantage in the well-being of the association, and the living in common, are all obstacles to early marriages. Many young men go to service in the towns, join the army, or devote themselves to liberal professions. They retain, however, the right of resuming their place under the common roof, so long as they are not definitely settled else- where. The young women on marrying pass into their husband's family. Sometimes, but very rarely, when the number of working hands is short, the daughter's husband is received into the family. In this case he enters the community, and acquires the same rights in it as the others. In many instances, every married couple obtains the private enjoyment, for the year, of a small field, the produce of which is exclusively their property. In this they sow hemp or flax, which is spun by the wife, and furnishes sufficient cloth for the wants of the pair and their children. The women also spin the wool of their sheep on a hanging sj^indle, which they can turn as they walk about and watch their cattle. From this the white or brown woollen stuffs, almost exclusively worn by the southern Slavs, are woven. The white garments of the women, embroidered with needlework of the brightest hues, in patterns which recall the East, have a charming effect. Each family thus produces almost all that its limited and simple wants demand. It sells a few cattle, especially pigs, and buys certain manufactured articles. The fruits of agricultural labour arc consumed in common, or divided equally among the married couples ; but the produce of each man's industrial labour be- longs to him individually. Each individual member can thus make himself a small peculium ; and can even be sole owner 186 PRIMITIVE PROPERTY. of a COW or a few sheep, which go to pasture with the common flock. Hence, private property does exist : but it is not applied to the soil, which remains the common property of the family association. The average extent of the patrimony of each community is from 25 to 80 jochs^, divided into a great number of parcels, ordinarily the result of periodical partition, long since given up. The stock on such a farm consists of several couples of draught- beasts — oxen or horses — from four to eight cows, from fifteen to twenty young beasts, twenty sheep and pigs, and a great quantity of poultry, the chief article of food. The produce of its lands and flocks is almost alwa3^g sufficient to supply the wants of the community. The aged and infirm are supported by the care of their children, so that pauperism, and even, saving rare exceptions, accidental distress, are unknown. When the harvest is very plentiful, the surplus is sold by the gospo- dar, who gives an account of the use to which he puts the money so received. Individual members or couples purchase themselves fancy articles or finery, which they are allowed to retain, with the produce of their private industry, or of their private plot. In certain districts the women take the manage- ment alternately, each for eight days, of the different house- hold duties, consisting of cooking and baking, milking the cows, making the butter, and feeding the poultry. The manager for the time being is called I'edusa, which signifies "she whose turn has come." Communities dwelling in the same village are always ready to lend one another assistance. When a pressing work has to be executed, several families join together, and the task is completed with general animation. There is a kind of holiday. In the evening, popular songs are sung to the sound of the guzla, and there are dances on the sward under the tall oaks. The Southern Slavs delight in singing, and rejoicings are fre- quent among them : their life being to all appearance a happy one. Their lot is secure, and they have fewer cares than Western nations, who strive in vain to satisfy wants which become every day more numerous and more refined. In their ^ The Austrian jock is nearly equivalent to one and a half English acres. FAIVIILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 187 primitive foiin of society, where there is no inheritance, and no purchase or sale of lands, the desire of growing rich or of changing one's lot hardly exists. Every one finds in the family group the means of living as his ancestors have lived, and asks no moi'e. The rules of succession, which give rise to so much strife between relations, the greedy desire of the peasant stint- ing himself in everything to increase his property, the anxiety of the proletarian uncertain of to-morrow's wage, the alarms of the farmer who fears the raising of his rent, the ambition to rise to a higher position, so frequent in the present age — all these sources of agitation, which elsewhere trouble men's minds, are here unknown. Existence flows along peaceably and uni- formly. Men's condition and the organization of society are not changed , there is nothing which can be called progress. No effort to secure a better or different position is attempted, for the mere reason that the possibility of changing the tradi- tional order which exists is not conceived of. In the juridical point of view, each family community forms a civil person, which can hold property and be party to a suit. The immoveable property belonging to it forms an indivisible patrimony. When a member dies, there is no succession, except in respect of moveables ; his children are entitled to a share in the produce of the soil, not by virtue of any heredi- tary right, but by reason of their own personal right. It is not as representatives of the deceased, but as labouring with the others to turn the common property to account, that they claim a share in the enjoyment of its produce \ No one can dispose of any portion of the soil by gift or will, inasmuch as no one is actual owner, but only exercises a species of usufruct. It is only in the case, where all the members of the family but one are dead, that the last survivor can dispose of the property at his pleasure. If any one leaves the common dwelling to settle definitely 1 Art. 528 of the Servian civil code regulates the succession -nàthin tho zadniga in the followiug manner: "Relations who live together in the com- munity succeed in preference to those who Live outside the zadritr/a, although the latter may he nearer in blood. The stranger, who has heeu admitted into the community, prevails against relations outside it. Children under ago who accompany their mother, when she leaves the community, retain all their riglits in it. The same rule holds for all who are detained at a diatauce by military service, captivity, or any other involuntary hindrance." 188 PRIMITIVE PROPERTY. elsewhere, he loses all his rights. On her marriage, a young woman receives a dowry proportional to the resources of the family, but cannot claim any part of the patrimonial property. This property is, like the majorat^, the solid basis on which the continuance of the family rests ; it cannot, therefore, be dimin- ished or divided. The widow continues to be supported, but in return she gives . her labour. If she remarries, she leaves the community, and has only a right to dowry. The member who has contributed most to increase the wealth of the zadruga, may claim a greater share of the common property in case of his leaving it. In certain districts of the southern Slavs the customs regu- lating the family communities have received a legal consecra- tion. The law of May 7, 18.50, which regulates the civil organization of the Military Confines, completely adopted the principles of the national institution. There is, however, one point which is peculiar to the Military Confines, the obligation to carry arms imposed on all those who have a right to an .undivided part of the soil as members of the communities. This is exactly the basis of the feudal system. The soil belongs to men alone, because they only obtain a grant of it on the condition of. military service. In the Slav countries subject to Hungary, Croatia and Slavonia, the civil law paid no regard to national customs respecting these communities. In Servia, on the contrary, the code gave them the force of law, but not in all cases without admitting certain principles, borrowed from the Roman law, which, had they been enforced, must inevitably have led to the destruction of the institution. Thus, by art. 515, a member of the community may hypothecate his un- divided share in the common property as guarantee for a debt contracted by him personally, and the creditor may pay himself out of this portion. This article is diametrically opposed to traditional custom and to the preceding articles of the same code, which ensure the indivisibility of the patrimonial domain^ 1 The Majorat is the immoveable property which is attached to the posses- sion of a title aud cannot be alienated, but passes, with the title, from heh- to heir, whether natural or adoptive. " II est contre le système d'égalité dans l'ordre équestre d'y établir des majorats." J. J. Rodsseau, Gouv. de Fol. x. ^ By art. 508, " the goods and property of the community belong, not to its members in severalty, but to all in common." By art. 510, " none of the members of the family cau sell or give in security FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. ISO In Bosnia, Bulgaria and Montenegro, the national custom lias not been regulated by law, but their populations have only shewn themselves the more attached toit, the more the severity of the oppression, to which they were exposed, increased. Men instinctively associate together to resist whatever threatens their existence. The family group was far more capable of defending itself against the severity of Turkish rule than were isolated individuals. Accordingly, it is in this part of the southern Slav district that family communities are best pre- served, and still form the basis of social order. In Dalmatia, Venice had taken advantage of this agrarian organization to establish in the rural districts a militia for the purpose of repelling Turkish invasion. When France occupied the Illyrian coast, after the treaty of Vienna in 1800, the principles of the civil code were introduced into the country, and the legality of the system of communities no longer recog- nized. They continued to exist nevertheless, and in the interior of the country have lasted to the present day, although beyond the protection of the law, so deeply has the custom thrust its roots into the national modes of thoufjht. In the neiç^hbour- hood of the towns the more varied life has weakened the ancient family sentiment. Many communities have been dis- solved, their property divided and sold, and their members have degenerated into mere tenants or proletarians. Yet, even in the towns, great and wealthy families can be named, who still live under the associated system of the zadruga. The Vido- litch family, for instance, in the island of Lussin Piccolo, consists of more than fifty members, who carry on a large business and shipping trade. It is a curious example of the ancient agricul- tural community transplanted into an entirely different sphere. In the Slav provinces of Hungary, about 184?8, a spirit of liberty and insubordination seized on the whole population, and led to the dissolution of many communities. The young for a debt any of the property belonging to the commuuity, without tho consent of every man of full age." " The death of the chief of the family," runs art. 516, " or that of every other member does not alter its position, and in no way modifies the rehitions, which result from the common possession of tlie patrimony belonging to all." " The rights and duties of a member of the commuuity are the same, what- ever tho degree of relationship, or even if, being a stranger, he has been ad- mitted into the association by the unanimous consent of the family." . 190 PEIMITIVE PKOPERTY. couples wished to live by themselves independently, and de- manded partition, to which there was no legal obstacle. The common patrimony was cut up, and a class of small cultivators sprang up, whose condition from the first was one of much misery. Neither the wealth nor the population of the country was sufficient to allow of the success of the small intensive culture of Lombardy or Flanders. Austria had a crisis to overcome ; taxes were suddenly nearly doubled, and the young and active labourers carried off as recruits. Many of these small independent cultivators were obliged to sell their parcel of soil, and to work for wages as day-labourers. To put an end to the subdivision, which it was feared would ruin the soil, it was enacted that in case of partition the farm should belong to the eldest; and at the same time a minimum was fixed beyond which no one could divide the parcels of arable land. The construction of railways, the ever-growing extension of commercial relations, the new ideas which find their way into the country districts ; in fine, all the influences of Western civilization, hel]) to destroy the family communities of Croatia, Slavonia, and Voivodia. In the Confines they continue to exist, because the law has made them the basis of military organization ; and also to the south of the Danube, because in these remote regions they are in harmony with the sentiments and ideas of the patriarchal epoch, which still survive there in all their vigour. The most eminent men among the southern Slavs, such as the Ban Jellatchich, Haulik, Archbishop of Agram, Stross- mayer, the eloquent bishop of Diakovàr, and especially M. Utiesenovitch and M. Mate Ivitch\ have all boasted of the advantages of the agricultural system of their country. These advantages are real. The system is not opposed to permanent improvements and to the employment of capital, like the village community with periodical partition. Each family has its hereditary patrimony ; and is as much interested as the ^ Utiesenovitch, Die Hauskommunionen der SUd-Slavcn ; Mate Ivitch, Die Haiiskomnmnionen, Semliu 187-4, au interesting work followed by a scheme for the regulation of iamily communities. See also an article by Prof. Tomaschek in the Zcitschrift fiir das priv. und off'ent. Eecht der Gegemcart, v. ii. b. 3 ; and Eolin-Jacquemyus, Revue de Droit intern. 8*= an. (1876) p. 265, Legislation dans la Croatie, FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 191 owner in severalty in rendering it productive. Under this system every cultivator has a share in the ownership of the soil. Every one can boast, in the words of the Croatians, tliat he is domovit and imovit, that is, that he owns his dwelling and his field. The result of English law has been to take landed property out of the hands of those who cultivate it, and to accumulate it in vast latifundia, for the benefit of a small number of families of princely opulence. The object of French law, on the contrary, is to secure the possession of the soil to the greatest number, by means of the equal division of inheritances. But this result is only attained by an excessive subdivision, which often cuts the fields into strips that are almost too small for cultivation, and which is therefore opposed to any sound system of agriculture. The Servian laws, by maintaining the family community, make every man co-owner of the land which he cultivates, at the same time preserving to the holdings their suitable extent. By means of this association, the advantages of small properties are united with those of agriculture on a large scale. The cultivators may employ the farming imple- ments and distribution of crops customary on large farms, while the produce is divided among the labourers, the same as in countries where the soil is subdivided among a multitude of small owners. Civil taxes and the accidents of life are much less burden- some to the family community than Avhere each couple has a separate establishment. Should one of its members be sum- moned to the army, attacked with illness, or temporarily pre- vented from working, the others perform his task, and the community provides for his wants, the same offices being ex- pected of him should occasion arise. Let the isolated individual, under other systems, fail, from any cause whatever, to win his daily bread, and he and his are at once reduced to live on public charity. Among the Southern Slavs, with their zadniga system, no bureau de bienfaisance is required, as on the con- tinent, nor any poor-rate, as with us. Official charity is re- placed by family ties and duties. Labour is not a commodity, which, like all others, has to present itself in the market, and submit to the rigorous laws of supply and demand. Very few 192 PKIMITIVE PROPERTY. hands seek employment, for there is hardly any paid labour. Each is co-owner of a portion of the soil, and devotes himself accordingly to the cultivation of his own land. Endemic pauperism, and even accidental distress, is, in consequence, un- known. The family community also admits of the application of the principle of division of labour to agriculture, which en- sures economy alike of time and of work. In three separate families there must be three women to manage household affairs, three men to go to market and buy and sell the produce, and three children to watch the cattle. But if these three families are united in the form of a zadruga, one woman, one man, and one child will sufifice, while the others may devote themselves to productive labour. The associates, too, will work more cheerfull}'' and take greater pains than hired farm-servants, for they will be animated by self-interest, inas- much as they participate directly in the produce of their labour. This agrarian system has the great advantage of allowing the use of machinery for the advantage not only of one individual but of all. The zadruga occupies a considerable extent of land ; it can therefore employ an elaborate system of agriculture as well as a large proprietor, and all benefit by it just as in small holdings. The union in the same hands of capital and labour, which we endeavour to attain in the West bj'- means of co- operative societies, exists here in full vigour, with the additional advantage, that the foundation of the society is not mere self- interest, but the affection and confidence created by ties of blood. Co-operative societies hitherto have, with rare excep- tions, had but an ephemeral existence ; while the family- communities, which are nothing but co-operative societies applied to the cultivation of land, have existed from time immemorial, and are the real basis of economic being in a powerful group of nations full of vigour and promise for the future. The number of crimes and offences is less among the Southern Slavs than in the other provinces of the Austro- Hungarian empire, a result apparently due to the favourable influence exercised by the rural organization of zadrurjas. Two FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 193 causes coutribute to this result. In the first place, nearly every- one has sufficient to satisfy his essential wants, and distress, the great source of crime, contributes but a slight contingent to the tables of criminality. In the second place, as each individual lives in the midst of a numerous family, under the eye of his relatives, he is restrained by this involuntary super- intendence of those about him ; he has, moreover, a dignity to preserve ; he has a position and a name, like the nobles of the West, and the proverb "noblesse oblige'' is not without its application to him. It is evident that this family life must exercise a healthy moral influence, in that it developes socia- bility. At night to pass the evening, and in the day for work and for their meals, all the members of the family assemble in the large common room. They converse and interchange ideas; and one or another sings or narrates a legend. Hence there is no occasion for a visit to the wine-shop in search of distraction, as in the case of the individual living alone, who takes this means of escaping the monotony and silence of his hearth. In these family-communities attachment to ancient tradi- tions is handed down from generation to generation ; and they are a powerful element for the preservation of social order. It is well known what extraordinary power the ffens imparted to the Roman republic. As Mommsen remarks, the greatness of Rome rose on the solid foundation of its families of peasant proprietors. So long as the soil remains in the hands of family- communities, no social revolution can be apprehended, for there exists no leaven of disorder. These associations also play a very useful part in the politi- cal organization. They are intermediate between individualism and communism, and so serve as an initiation into the practice of local government. The administration of the zadruga re- sembles that of a commune or joint-stock company in miniature. The gospodar discharges functions similar to those of a man- ager : he submits a report of his management to the deliberation and discussion of those subject to him. It is like an inchoate parliamentary system, being trained for the practice of public liberty. If the Servians, just emancipated, accommodate them- selves so admirably to an almost republican constitution, and a M. 13 194 PRIMITIVE PROPERTY. system of government, which many western states would find a difficulty in maintaining, it is due to the Servians having passed, in the bosom of these communities, an apprenticeship in the qualities necessary for independence and self-govern- ment. It is surprising, says M. Ivitch, to see the good sense displayed by the Croatian peasants in the public deliberations in which they take part. Another effect of the common life in the zadruga is to develop certain private virtues, such as affection among rela- tions, mutual support, voluntary submission to discipline, and the habit of acting together for the same object. It has been asserted that the family is a mere method of succession. Un- doubtedly the right of succession, which is ordinarily incident on the death of a relation, rouses evil sentiments, which are often placed in relief by the playwright, the novelist, or the artist. In the zadruga there is no succession. Every one having a personal right to a share in the produce, cupidity is never at variance with family affection, and the thought of an inherit- ance to be received never comes to intrude itself on the grief caused by the death of a father or an uncle. The pursuit of money does not inflame their minds, and there is, consequently, more scope for natural feeling. I believe I have not exaggerated the merits of these family- communities, or drawn a flattering picture of the patriarchal life passed in them. A visit to the Slav districts lying to the south of the Danube will suffice to disclose the social organiza- tion exactly as I have described it. The flourshing appearance of Bulgaria, the best cultivated of all Eastern countries, shews decisively that the system is not antagonistic to good cultiva- tion of the soil. And yet this organization, in spite of its many advantages, is falling to ruin, and disappearing every- where that it comes into contact with modern ideas \ The reason is, that these institutions are suited to the stationary condition of a primitive age ; but cannot easily Avithstand the conditions of a society, in which men are striving to improve 1 Thus iu 1869 the Servian minister of interior lamented in the Skuptchina the dissolution of a great number of Zadnigas. In the last few years 1700 have ceased to exist owing to imrtition. See Kanitz, Serbien, p. 592. In Croatia — • strange to say — the diet in which the national party was predominant, recently (187-1) voted a law forbidding the formation of new communities. FAMILY COMMUNITIES AMONG THE SOUTHERN SLAVS. 195 their own lot as well as the political and social organization under which they live. This craving to rise and to continually increase one's means of enjoyment, by which the present age is excited, is incompatible with the existence of family associa- tions, in which the destiny of each is fixed, and can vary but little from that of other men. Once the desire of self-aggran- disement awakened, man can no longer support the yoke of the zadruga, light though it be ; he craves for movement, for action, for enterprise, at his own risk and his own peril. So long as disinterestedness, brotherly affection, submission to the family chief, and mutual toleration for the faults of others, proserve their empire, community of life is possible and agreeable even for the women; but, when these sentiments disajipear, living together becomes a purgatory, and each couple seeks to possess an independent home, to escape the community. The advan- tages of the zadruga, whatever they may be, henceforth are out of consideration. To live according to his own will, to work for himself alone, to drink from his own cup, is now the end pre- eminently sought by every one. "Without faith, religious communities could not survive. So, too, if family feeling is weakened, the zadruga must disappear. 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, with Adam in Para- dise Lost, to enter on a new career, and to taste the charm of independent life, despite its perils and responsibilities. In my opinion, the economist will not see thes3 institutions disappear without regret. 13—2 CHAPTEE XY. FAMILY COMMUNITIES IN THE MIDDLE AGES. Cheonicles, charters, chartularies of abbeys, customs, all shew us that in t^:e middle ages there existed in France, in every pro- vince, family communities exactly similar to those which are found at the present day among the southern Slavs. Until the fifteenth century we find no circumstantial details concerning these institutions ; but, as M. Dareste de la Chavanne remarks, there is no period in the history of France at which there is not some text, revealing, in one phase or another, the existence of these communities. We have no documents to tell us how they were formed, and opinions' vary on this point. M. Doniol maintains in his Histoire des Classes rurales en France, that they were " created at one stroke as correlative to the fief," and adds that " this in- terpretation is the one given by the majority of authors whose study of law has been enlightened by a knowledge of history," and especially by M. Troplong in his book on Louage. M. Eu- gène Bonnemère, who devotes considerable attention to these communities in his Histoire des Paysans, is of opinion tliat they were developed under the influence of Christian ideas and on the model of religious communities. "Prompted by weak- ness and despair, the serfs formed themselves into groups, and thus associating themselves obtained possession of the soil, no longer in isolated independent ownership, but con- nected in aggregations of families." These explanations are manifestly erroneous. They rest on the evidence of the com- mentators of the fifteenth and sixteenth centuries, who were the first to notice these communities in France, but never suspected the remote antiquity of the primitive institution. FAiriLY COMMUNITIES IN THE MIDDLE AGES. 197 We must not look to circumstances peculiar to France and the middle ages for the origin of these associations, as they are found among all Slavonic nations, as well as among the Hindoos and nations of Semitic origin, and may be traced back to the ear- liest forms of civilization. Formerlj^ when all the territory still remained the common property of the village, the lots were peri- odically distributed, not among the individual members, but among the family groups, as is the custom in Russia at the pre- sent time, and was, according to Cassar, the custom among the Germans. " No one holds lands as his private property, but the magistrates and chiefs distribute them annually among the clans and families who live in community \" These cognationes homi- niim qui una coierunt are manifestly family associations similar to those of Servia. German jurists are generally agreed that there did exist among the ancient Germans collective property of the family, a condominium in soUdum based on the active and pas- sive solidarity of the kindred. It was shewn, in the first place, by the obligation of the faida or vendetta : — suscipere inimicitias sen patris, sen propinqiii necesse est, says Tacitus [Germ., c. 21) ; secondly, it was shewn by the joint obligation to pay the com- position, the Wehrgeld or Blidgeld, in which all the kinsfolk of the victim also participated : recepitque satisfactionem universa domus, Tacitus again tells us ; thirdly, by the guardianship ex- ercised by the head of the family, or munduald, whose position was similar to that of the Slav gospodar and the Russian sta- rosta; fourthly, by the hereditary seisin which gave rise to the maxim of the middle ages : le mort saisit le vif son hoir. As Zacchariai says {Droit civil, § 588), there was no individual pro- perty ; but it w^as collective and constituted a community in solidum. All the kinsmen were proprietors ; there was, there- fore, no acquisition by right of inheritance as at Rome. There was rather a continuity of possession. " On the death of the , munduald," says M. Wlirtli^ " those who had been under his 1 It may be of use to give the text of this important passage : " Nee quis- qiiam agri modum certain aut fines habet proprios, sed maçjistratus ac principes, in annos singulos, gentibus cognationibusque hominum qui una coierunt, qxmntum lis et quo loco visum est, agri attribuant atque anno post alio transire cogunt." CusAR, De Bello Gallico, vi. 22. '^ De la Saisine, by M. Wiirth, procureur général at Ghent. Ganil, 1873. See also J. Simonnet, Hist, et théorie de la Saisine, and Lehiierou, bist. carol., p. 52. 198 PRIMITIVE PROPERTY. control either became heads of houses themselves, Selhinunduald, or else were placed under the authority of such chiefs. The seisin of those who remained under the mundium was transmit- ted with the same instantaneousness to the new munduald, the successor to the authority of the deceased one." As the family community was the unit for the periodical partition, it naturally followed, when this partition fell into dis- use, that the communities were owners of the soil, and they continued to exist in obscurity, resisting all destruction, until they attracted the attention of the jurists, about the end of the middle ages\ Yet it is certain that the conditions of the feudal system were singularly favourable to the preservation or the establish- ment of communities, which were beneficial both to the peasants and their lords. There was no right of succession for mainmort- able serfs, Avhose property at every death returned to the lord. On the other hand, when they lived in community, they suc- ceeded to one another, or rather there was no opportunity for succession to occur ; the community maintained an uninter- rupted succession in its character of a perpetual civil person. "As a general rule," says Le Fèvre de la Planche^, "the lord was considered successor of all who died : he regarded his sub- jects as serfs and ' mortaillahles' ; he only allowed them rights when in societies or communities. When they were in this community, they succeeded to one another rather by right of accrual or jure non decrescendi than by hereditary title, and the lord only inherited on the death of the last survivor of the com- munity." Hence it was only in the association of the family group that a serf family could obtain property, and find a means of improving its condition by accumulating a definite capital. By means of cooperation, it acquired sufficient strength and consistency to withstand the oppression and incessant wars of the feudal epoch. On the other hand, the lords found it greatly to their ad- 1 Before this period we may from time to time snatch traces of the exist- ence of communities. Thus we see, in the Pohjptique d'Irminon, on the domains of the abbey of Saint-Germain-des-Près, an association of three families of tenants cnltivating seventeen honniers of land ; but the commenta- tors on customary law were the first to give precise details on this subject. 2 Traité du Domaine, Préface, p. 81. See La Commune agricole, par M. Bonnemère, p. 32 et seq. FAMILY COMMUNITIES IN THE MIDDLE AGES. 199 vanta£re to have for tenants communities rather tlian isolated households : as they afforded much better security for the pay- ment of rent and for the performance of the corvée^. As all the members of the association were jointly answerable, if one of them made default, the others were obliged to discharge the payments to which he was liable. It is precisely this same principle, the joint responsibility of the workmen, which made possible the establishment of the popular banks to which the name of M. Schulze-Delitsch is attached. The promissory notes of an isolated artizan cannot be discounted, because the chances of loss are too great ; but associate a group of workmen, esta- blish a collective responsibility among them, based on capital produced by economy, and the paper of the association will find credit on the best terms, as it will offer full security. Documents of the time shew us the lords universally favour- able to the establishment or maintenance of the communities. " The reason," says an old jurist, " which led to the establish- ment of community among the mainmortahles is that the lands of the seigniory are better cultivated and the subjects in a better condition to pay the lord's dues, when they live in common than if they formed so many separate establishments." In many cases, the lords demand, as the condition of granting cer- tain concessions, that the peasants should adopt the system. Thus, in an act of 1188, the Count of Champagne only grants the maintenance of the right of commonage on condition that "the children live with their father and share his fare." In 1545, the clergy and nobility get an edict issued, which forbids peasants, on escaping from mortmain, to become owners of land, unless they constitute a community. Up to the seventeenth century in la Marche, the landlords make indivisibility a con- dition of their metayagcs\ 1 " Mornac treats at great length of the communities of Auvergne and the neighbonrhood," says Chabrol {Comment, sur la coutume (VAureri/nr, vol. ii. p. 499) ; " he considers them of great advantage to the progress of agriculture and for the assessment of public imposts." 2 For sources, we refer the reader especially to the three works already quoted of MM. Dareste de la Ghavanue, Doniol, and Bonuemère, as wt'U as tlio books of Troplong on Louaijc and the Contrat de Société. When a perpetual metayage was granted to the metayers, a guarantee tliat they would live iu community was exacted. Dalloz {Jurisprufl. nciicr.) quotes a title of 1025, imposing the condition that tbo lessees should have but " one pot, one hearth, and one morsel, and should live iu perpetual community." 200 PRIMITIVE PROPERTY. The organization of these communities was based on the same principles as the Servian zadruga. The association cul- tivated a parcel of land in common, and inhabited the same dwelling. This dwelling was of large extent or composed of several buildings connected together, opposite which were built the barns and cattle-sheds. It was called celle {cello), and the name is preserved under different forms in a number of villages, as La Celle-Saint-Cloud, Mavrissel, Courcelles, Vaucel. The domain bore the name of the family, and even now properties are distinguishable by the article, les, which custom has retained before their name, as les Avrils, les Bollins, les Segands, les Bayons, les Bernards, les Avins, les Gault. The associated members were called " comjmins " {compani), because they lived of the same bread, — " partçonnîers," because each took his share of the produce, — or "frarescheux," because they lived together as brothers. The community was called "com- pagnie," "coterie^" "fraternité;" — domus fraternitatis, in the Polyptique dirminon. Beaumanoir, the oldest author who gives any information on the juridical constitution of these communities, thus explains the term by which they ai'e often designated: " Compagnie is constituted by our custom, by having a single common dwellmg, the same bread, the same pot, for a year and a day, when the property of the several members is confused together." In the Institutes coutumières by Antoine Loysel, published in 1G08, several rules are still found relating to family com- munities (I. LXXIV.) : " Serfs or mainmortahles cannot make a will and have no right of succession, unless they live in community" {Edition JDupin et Laboidaye, t. i. p. 122). The lord succeeded to the serf, so that all agricultural work would have had to be carried on without the stimulus of a succession within the family group, if these agricultural communities had not existed. The serfs, living in community, and having the richt of succession one to another, could also make a will in favour of one another, without impairing the rights of the lord. 1 "This is a ■word found in many customs, and applied to village societies living together to hold of a lord some iuheritauce, which is said to be held in cotterie. It is particularly prevalent among the gens de main-morte " [Dictionnaire de Trévoux), FAMILY COMMUNITIES IN THE MIDDLE AGES. 201 According to Lauriere, in his notes on Loyscl's work, the serfs living in community have this right of succession, "because they possess their property jointly, so that the portion of any who die belongs to the survivors by a kind of right of acci'ual'." When the co-partners cease to partake of the morsel or the bread, that is to say, when they set up a separate establish- ment, the community is at an end. The majority of customs favourable to the communities do not apply these rules rigor- ously. According to the custom of Nivernais (c. VIII. art. 13), "persons in a state of mortmain are not regarded as having separated until they have maintained, for a year and a day, a hearth and home apart, separated and divided from one another." In La Marche the separation was only effected by the express declaration of the co-partners ; when once separated, they could only constitute themselves into a new community with the consent of the lord. Living in this community had so much importance in matters of succession, that at Paris in ancient times, Lauriere tells us, the child who was in celle (cella, dwelling), and lived of the bread and fare of his parents, succeeded to the exclusion of the others. Article XXXIII. of Loysel says : " A single child, being in celle, receives mortmain." The child in " celle " alone inherited, and prevented the devolution on the lord by mort- main; and, according to the custom of several districts, the other children were enabled to succeed throuofh him. The community was generally recognized as existing in fact when the peasants inhabited the same house and lived " of the same pot " for a year and a day. It was only in later times and to avoid the growing process of partition, when the institu- tion was already tending to pass away, that several customs required a contract to make immoveables common jiroperty. Certain customs only allow community where " there is relation- ship between the co-partners." This was obviously the original form of these agrarian associations ; and it is only in later times, under the influence of the feudal system, that communities ^ See Chopin, Paris, tit. Covnnunauté-'!, n" 31 ; — la coutume de la septnine de Bourges, Foruerium, art. 36 ; — lib. iv. Quotidianorum, cap. 7, aucl the Glossaire du droit français. Y" Le chanteau et partage divisé. LXXV. " Un parti tout est parti, et le chanteau part le vilain." LXXVI. " Le feu, le sel et le pain, partent l'homme mortemain." 202 PRIMITIVE PROPERTY. were constituted of persons who were not descended from a common ancestor. Those who lived in the community succeeded to one another to the exclusion of relations not members of the society ; and even a stranger, when once admitted to the commimity, as forming a part of it, prevailed over the kinsmen who were outside the community. Guy Coquille admits this principle after having previously called it in question. "On consideration, it seemed to me more reasonable to assert that the stranger to the community is regarded as absolutely excluded. For this rigorous law seems to have been framed in favour of the family, to keep it united, especially in the district where village-estab- lishments cannot be maintained except by a large number of persons living together in community; and experience shews that partition is the ruin of families in a milage. Since, then, the law speaks generally, and the presumption is that its intention was to preserve the family that they might not be dissolved, it seems we must follow the terms of the law, and say that the kinsman in the community alone succeeds\" In another passage of his commentary he calls these agrarian associations families and fraternities. Elsewhere he expresses himself in these terms: "These communities are true families forming a society and university, and are maintained by the subrogation of persons either born within them, or introduced from outside^" Communities w^hich were formed tacitly, without inventaires, and which were continued indefinitely among the survivors, were called tacit (taisihles). As in the Slav zadruga, the associates elected a chief, the mayor, maistre de communauté, or chef du chapiteau. The allotment of labour, buying and selling, and the administration and government of the community were in his hands ; he exercised the executive power. Guy Coquille, the old writer on customary law already quoted, describes in quaint terms how agricultural operations were carried on in these peasant associations. "According to the old system of husbandry, several persons were united in a 1 Guy Coquille, Nivernais : D^s Biwdelnçies. See also Vigier, Angoumois, art. 41, and passim. Cout. de la Marche, 217, etc. * Des Bordclages, art. 18.— Des communautés et associations, art. 3. FAMILY COMMUNITIES IN THE MIDDLE AGES. 203 family to carry on a cultivation, which is very laborious and entails many operations, in this country of Nivernais, which is naturally unadapted to cultivation. The task of some is to till the ground and prick on the oxen, lazy cattle, of which as many as six are commonly required to draw the carts. Others have to drive the cows and young mares to the pastures, others to take the sheep, and others to take charge of the swine. These families, composed of several persons, all of whom are employed according to their age, sex and capacity, are governed by one man, called the master of the community, and elected for this purpose by the rest. He directs the rest, goes to the towns, fairs or other places for the transaction of all business, has power to bind the personal property of his co-partners in matters concerning the welfare of the community, and his name alone is enrolled for purposes of taxation or subsidy. From these proofs we understand that these communities are true families or colleges, which, figuratively speaking, form one body composed of several members. The members may be distinct from one another, but by fraternity, friendship, and economic ties, are formed into a single body. As the ruin of these houses is the absolute, and inevitable result of partition and separation, it was enacted by the ancient laws of this land, alike in the case of households and families of serfs and of those households where the inheritance was held in hordelage, that those who were not members of the community should have no right of succession to the others, and likewise that there should bo no right of succession to them." They also elected a woman to take charge of all domestic matters and to direct the household. This was the mayorissa, who appears in the Salic law and also in the ancient chartulary of Saint-Père de Chartres. The French, more cautious than the Slavs, would not allow the mayorissa to be the wife of the mayor, for fear of mutual understanding between them resulting to the disadvantage of the association. When the daughters married, they were entitled to a marriage-portion, but they could claim nothing further from the community which they left. The same rule was observed in the Slav zadruga. All agricultural operations were executed for the common profit. But each married couple had, in many cases, a small 204 PRIMITIVE PROPERTY. 'peculium, which could be increased by certain industrial occu- pations. The wife spun; the husband wove material of wool or flax; and so the family itself produced all that was necessary for its wants. There was little ground for buying and selling. Later, however, as industry developed, the communities no longer remained strangers to it. In entering on commerce they applied the principle of division of labour, distributing the profits also among all. Legrand d'Aussy, in his Voyage en Auvergne^, written in 1788, describes some communities as occupied in the manufacture of cutlery. " Round Thiers, and in the open country, are scattered houses inhabited by societies of peasants, some of whom pursue the occupa- tion of cvitlers, while the others devote themselves to tilling the soil. Besides these single, isolated habitations, there are others more thickly peopled, in which the community is still more intimate. The hamlet is inhabited by the different branches of a family, devoted to agriculture. As a rule no marriages are contracted except between its members ; and, under the guidance of a chief, elected by itself and subject to deposition by it, it forms a kind of i^epublic in which all labour is in common, because all its members are on a footing of equality. " In the neighbourhood of Thiers there are several of these family republics, Tai'ante, Baritel, Terme, Guittard, Bourgade, Beaujeu, &c. The first two are the most numerous ; but the oldest, as well as the most celebx'ated, is the Guittard family. The hamlet, which is formed and inhabited by this family, is to the north-west of Thiers at about half a league from the town. It is called Pinon ; and this name has, in the district, prevailed over their pro])er family name, and they are called the Binons. In the month of July, 1788, when I visited them, they formed four branches or households, containing nineteen persons in all, men, women and childi-en. But the number not being suffi- cient for the cultivation of the laud and other labour, they had with them thirteen servants, which raised the total population to thirty- two persons. The precise date of the foundation of the hamlet is unknown. Tradition makes its establishment date from the twelfth century^. The administration of the Binons is paternal, but elective. All the members of the community assemble ; a chief is elected by the majority of voices, who takes the title of 'master'; and being constituted father of the whole family, is bound to watch over every- thing that concerns its welfare " The master, in his character of chief, receives the monies, sells and buys, ordains repai-ation, allots to each his task, regulates all that concerns the houses, the vintage and the herds ; in short, plays ^ Vol. I. pp. 455 — 95. Quoted by Bonnemère, La Commune agric. p. 89. 2 Chabrol, who also speaks of the Piuons, makes them go back " to the most remote times." Ou Auvergne, vol. ii. p. 4:99. FAMILY COMMUNITIES IN THE MIDDLE AGES. 205 the same part in the society as the f;ither in his family. Uut this father diÔers from others, in that, haviut^ only a deputed authority intrusted to him, he is responsible to those of whom he holds it, and can lose it in the same way as he received it. If he abuses his position, or administers its afliiii'S badly, the community assembles again and deposes him ; and there are actual examples of this severe justice. " The internal domestic details are enti'usted to a woman. Her department is the poultry-yard, the kitchen, the linen, clothes, àc. She bears the title of 'mistress.' She directs the women as the * master ' directs the men ; like him, she is chosen by the majority of votes, and like him may be deposed. But natural good sense warns these simple peasants, that if the ' mistress ' were the wife or sister of the ' master,' and these two officers lacked the honesty necessary to their administrations, the two combined would possess a digree of power dangerous to the community. Accordingly, to avert such abuses, by one of the constitutional laws of the miniature state, it is declared that the ' mistress ' shall never be chosen in the same household as the ' master.' .The latter officer, as his name signifies, has a general supervision, and is invested with power of giving advice or administering reprimands. Everywhere he holds the place of honoiir : if he marries his son, the community gives a feast, to which the neighbouring communes are invited. His son, however, is only like the rest, a member of the republic, and enjoys no special privilege. When his father dies, he does not succeed to his honours, — unless, indeed, he is foimd worthy of them, and deserves to be elected in his turn. "Another fundamental law, observed with the greatest rigour, becaiise the preservation of the society depends upon it, is that which regards property. Never, in any case, is property divided : all remains in a mass ; no one takes by succession ; and neither for marriage nor any other reason is there any division. Should a Guittard woman leave Pinon to be married, they give her six hundred pounds in money ; but she forfeits all further claim, and so the general patrimony is preserved entire as before. The same would be the case if any of the young men should go to establish himself elsewhere " Whenever their work does not necessitate their being apart, they labour together. They have a common room for their meals, a large and spacious kitchen veiy well appointed... They have constructed a recess in it which forms a kind of chapel, and contains figures of Christ and the Virgin. Here, every night, after sup})cr, they join together in prayer. This prayer is only offered in the evening : — in the morning each offers up his own privately, as the hours of rising vary with the various kinds of work. " Independently of the hamlet, the Guittards are also owners of forest, garden and arable land, vineyards and large chestnut-woods. The soil is poor and produces nothing but rye ; and the thirty-two mouths to be fed consume the whole crop, so that nothing remains 206 PRIMITIVE PROPERTY. to be sold. Moreover, these agricultxiri.st,s, whose habits and life of labour inspire respect, perform great works of charity in the place of their abode. The poor nevxu' come to their door without being re- ceived, and never leave without being fed. Thei-e is soup and bread for them at all times. If they wish to stay the night, there is a bed for them : — in fact, there is a room in the farm-building especially set aside for this purpose. In winter, hospitality extends even fur- ther. The poor then are lodged in the bake-house. They are fed and ])rovided with a warm shelter secure from the cold. " I shall never forget a simple answer given me on this subject by the ' master ' for the time being. Curious to learn the small details of the establishment under his direction, I went over the buildings with him. Passing through one court, I saw sevei^al large dogs, which at once began to bark. ' Do not be afraid,' he said, ' they only bark to give me warning. They are not dangerous: we train them not to bite.' 'Why should they not bite?' I asked. 'Surely, your safety depends on their doing so.' ' Oh ! a beggar often comes to us in the night time. At the noise of the dogs we rise to take him in ; and we would not have them do him any harm, or prevent his entering.'" All contemporary authors, who have treated of these com- munities, assert that they secured to the peasants competence and happiness \ It appears that at the close of the middle ages, Avhen a definite order was established in feudal society, agri- cultural production and the well-being of the rural classes had attained a far higher level than under the centralized monarchy of the seventeenth century '^ Writers on customary law affirm that when the dissolution of these associations came to pass, it was actual ruin for people who had before lived in abundance. What shews that they must have been in harmony with the social requirements of the time, is that we find them in every province, in Normandy, Brittany, Anjou, Poitou, Angou- mois, Saintonge, Touraine, Marche, Nivernais, Bourbonnais, both Burgundies, Orléanais; in the Chartrain district, in Cham- pagne, Picardy, Dauphiné, Guienne; alike in the east and the 1 "It is in eommnnifes that the mainmortalles grow rich," says Denis Lebrun, Traité des Communautés, p. 17. "The labour of several persons united together," says Dunod, "is more effective than if they were all inde2)endent. Experience teaches us that in the province of Burgundy the peasants of main- vwrtahU places are in much easier circumstances than those who live in the franchise, and that the more numerous the family, the more wealth it ac- cumulates." 2 There is a complete study of this curious phase in the economic history of France, in a note of the Belgian historian Moke on La richesse et la population de la France au quatorzième siècle. See Mémuires de l'Académie de Belgique, vol. XXX. FAMILY COMMUNITIES IN THE MIDDLE AGES. 207 west, the centre and the south*. "The association of all the members of the family under one roof, on one property, with a view to joint labour and joint profits," says M. Troplong, " is a general and characteristic fact from the south of France to its opposite extremities." [Commentah'es sur les sociétés civiles, Preface). We may, then, affirm that under the old 1 The existence of these asi'icultnral societies, so far from being an excep- tional fact, was, on the contrary, general and constant until the eighteenth centm-y. The following quotations admit of no doubt on this point. In La Marche there was no comnniuity between husband and wife, except by express convention ; and yet Ct. Brodeau, in his commentaries, tells us that *' this custom is sanction and authority for communities and associations of relatives or strangers, and is for the maintcndiice of the familij.'" — "These societies are not only frequent, but general, and even necessary, selon la con- stitution de la religion, inasmuch as the exercise of husbandry, which consists in tilling the ground and feeding cattle, requires a number of persons " (Guy Coquille, on Nivernais, j). 478). "We have several of these societies in Berry and Nivernais, principally in the houses of inaf/es, which, bj^ the custom of the country, all consist of assemblages of persons Uving together in community" (Jean Chenu, on Arrêta de Papon, 1610). "Formerly," writes La Lande in 1774 (Coitt. d'Orléans), "it was a general custom in this kingdom for a tacit association to be formed between several persons living in common under the same roof for a year and a day Tacit associations are more esiDccially the rule in villages, where there are largo families, which live in community under the command and direction of a chief, usually the oldest member of the society. We find clear instances in Berry, Nivernais, Bourbonnais, Saintonge, and other jilaces." " This kind of community and tacit association was formerly in general use," says Boucheul (Poitou, art. 231). " Anciently, tacit association among persons living together, with common purse and common expenditure, was a universal custom in the kingdom, as is shewn, on the authority of Beaumanoir, by Eusèbe de Laurière in his dis- sertation at the end of the Works of Loisel, fol. 12, 13 " (Valin, Gout, de la Eochellc). " Anciently," says Valin {La Rochelle), "tacit association between persons other than husband and wife, living together with joint purse and joint expendi- ture was general in the kingdom." "It seems," says Denis Lebrun in his Traité de la Commnnnnté, " that we are compelled to admit this as a general usage in rural districts, where com- munities are so common, even in customs wliich do not mention them. " " The origin of these associations of inhabitants, such as we see them to- day," writes Dénisart in 1768, " is not well known. We may supjDose they owo their origin to Christianity, which gradually diminished the rigour of slavery, in which the people were subjected to their lords. In France in the earliest days of the monarchy there were but two classes of free persons, the nobles and the ecclesiastics. All commoners were serfs." " At the present day community is held in slight estimation," says M. Trop- long {Com))ie)ttaires des sociétés civiles, preface, passim). " The Komans spoke of them with enthusiasm, and put them in practice on a large scale... But the middle ages pre-eminently were an epoch of extensive association. This was the period which gave birth to the numerous societies of serfs and labourers, which covered the soil of France and made it productive. This period, too, multiplied the religious communities, whose benefits were so great in reclaiming land and establishing themselves in the midst of depopulated country. Then, probably, there was less talk of the spirit of association tlian at present, but the spirit was active and energetic." These quotations are borrowed by the author from M. Bounemcre, La com, rurale, p. 39. 208 PKIMITIVE PROPERTY. system agricultural labour was carried on in all parts of France by cooperative associations of peasants, exactly as it is at the present time among the southern Slavs. Thus in the middle ages, work in all its forms was executed by associations, by religious cummuaities, by peasant communities, or by craft communities. Laferrière has succeeded in putting this fact in a strong light : " The spirit of association, revived by Christianity, extended its salutary activity over the customs of the middle ages. It was under the protection of associations of every kind, by community of labour and habitation, by corporations, by societies for public and private profit, and under the in- fluence of the spirit of social and Christian fraternity inculcated by them, that the serfs, the poor labourers, the artisans and craftsmen, the commercial classes, the people of the towns and country alike, improved and developed their condition of life. Isolation would have been their death; association made them live and grow for better times." As to the time and manner of these family communities disappearing we have no information. Profound change in the social organism of the rural districts has always been effected gradually, without attracting the attention of historians. Up to the seventeenth century, terriers, and other titles, make fre- quent mention of societies of persons "with associated joint property." From the sixteenth century, jurists shew themselves less favourable, and, as time goes on, even hostile to the system of indivisibility. As soon as the spirit of fraternity, on which it was based, grew weak, this system gave rise to many difficul- ties and disputes, because it rested on custom and not on any written code. It had to encounter two sources of ruin : one in the spirit of individuality characteristic of modern times; another in the passion for clearness and precision in juridical matters, which the jurist imbibed from the study of the Roman law. Moreover, the successive disappearance of serfage and tnortmain took away from these associations one of the most powerful reasons for their existence. So long as the serfs and gens de mainmorte had no right of succession except in the family community, they could not escape from the system of collective property ; but, when once the rights of the lord were 1 Laferrière, Hist, du droit frmiçais, vol. ii. p. 591. FAMILY COMMUNITIES IN THE MIDDLE AGES. 209 confined to receiving, under tlic form of various paymcnls, the equivalent of the rent-service, the peasants could yield to the spirit of individuality which urged them to make inde- pendent properties for themselves by means of partition. The progress of industry, the improvement of roads and the exten- sion of commerce also led the rural population to rouse itself and cast its eyes upward. New aspirations were sure to be fatal to institutions formed for the protection of cultivators sub- jected to the invariable rules of ancient customs. Family communities survived from the earliest days of civilization up to a modern date. When the desire for change and improvement in everything took possession of men, they gradually disappeared with other traditions of earlier ages. Yet, in the seventeenth and eighteenth centuries, there still existed many of these rural associations' : terriers and acts of partition make frequent mention of them ; but we find them exciting an almost universal hostility. A report presented to the provincial assembly of Berry in 1783, and analyzed by M. Dareste de la Chavanne^ proves clearly how the sentiments of egotism and individuality were to bring about the destruc- tion of an institution, which could only last by mutual con- fidence and fraternal understanding. It is only in the most 1 M. Préverand states that in France tlie communities disappeared rapidly from the end of the 15th century. Very few survived till the eighteenth. Their few last representatives sold their lands to citizens of the towns or persons who replaced them by tenant farmers. V Eglise et le Peuple by E. Préveraud, Paris 1872, p. 181. 2 The author of the report, who attacks the commimities, declares that the one object of the members of them was mutual deception for the advancement of their private interest. "We may see," he said, "a member of a community buy or sell cattle on his own account, while the ' master ' of the community has not sufficient money to purchase an ox in the place of one that has died or been lamed. None of the partners lets his own gain be known ; no one bu>s im- moveables, and if they have hives or sheep, the knowledge that the affairs of the association are going to ruin is sufficient to make them conceal their move- able effects." The report further states, that, as each one wishes to benefit by the advantages of association without taking part in its expenses, it follows that with many hands very little work is done. Besides, the chief of the coninninity administered and did not labour. The other associates, having no interests to manage, passed their lives in ignorance and inactivity. The picture is perhaps too gloomy ; but, at any rate, it reveals two certain facts, — the opposition which the existence of these communities encountered, and the spirit of individuality which was destined to bring their ruin. The same causes are acting in the same way at the present day among the Southern Slavs. Economic evolution is everywhere very similar, even in coimtries very distant and very different from one another. M. 14 210 PRIMITIVE PROPERTY. remote provinces, such as Nivernais, Auvergne, and Bourbon- nais, that any trace of the system has been preserved to recent days. The elder Dupin has described one of these communities, "which he visited about 1840, in the department of Nièvre. The details which he gives are so characteristic that it may be well to quote them. " The group of bnildings composing the village of the Gaults is situated on a small hill, at the head of a beautiful valley of meadow- land. The principal dwelling-house has nothing remarkable in its exterior ; in the interior, on the ground-floor, is a vast hall with a large fireplace at each end, the mantelpiece being as much as nine feet across ; but these dimensions are none too large to allow room for so numerous a family. The existence of this community dates from time immemorial. The titles, which the ' master ' keeps in a vault, go back beyond 1500, and they speak of the community as already an ancient institution. The possession of this corner of the land is retained in the Gault family, which, by the labour and economy of its members and the union of all profits, has accumulated a pi'opeity of more than 200,000 francs ; and besides this portions have been paid to females passing by marriage into strange families'." M. Dupin points out very clearly the juridical features of these institutions : '' The capital of the community is composed of four pai'ts : first, of the original land ; secondly, of acquisitions made with savings for the common account ; thirdly, of bensts and moveables of all descrip- tions ; and fourthly, of the common cash. Besides this, every one has his peculium, composed of Jiis wife's portion and the property she has received by succession from her mother, or which has been given by gift or legacy. The community only counts males as eflfective members ; they alone are included in the number of heads in the society. When the daughters marry a portion is given them in cash. The portions, which were originally very trifling, have risen in recent times to as miich as 1350 francs. When once this portion is paid, the daughters and their descendants have no further claim on the property of the community. As to strange women who marry mem- bers of the community, their portion is not merged in the common stock, inasmuch as they are not intended to acquire any personal right in the community. When a man dies, he transmits nothing to any one by succession. There is a head fewer in the community, which continues unbroken among the others, and takes the portion, })0ssessed by the deceased, not by any title of succession, but by right of non dêcroissemenf, or non-diminution. This is the original, funda- mental condition of association. If the deceased leaves children, and 1 Dupin, Excunion dana la Nièvre, 1810. FAMILY COMMUNITIES IN THE MIDDLE AGES. 211 they are males, they become members of the community, in which each is rcokoncMl, not by hereditary title, the father having trans- mitted nothing to them, but from the sole fact that they were bora in the community and for its benefit : if they are females, they have only a right to a portion. The peculiar, distinctive nature of these communities is well shewn. It differs from that of ordinary con- ventional associations, where the death of one of the members entails the dissolution of the society, as the industry pursued is optional, and personal capacity is requisite in such societies. The ancient com- munity was of another character. It formed a sort of cor])oration or college, — a civil j»erson, like a monasteiy or borough, which is per- petuated by the substitution of new constituent members, without any change in the actual existence of the coi-poration, either in its manner of life or in the government of its affairs." Further on, in the commune of Prëporché, M. Dupin found traces of a community once numerous and flourishing, that of the Gariots. Since the revolution, it had effected a partition of its property, and the majority of the members had come to ruin. The large rooms had been divided ; the great fire-place was also divided by a partition-wall. Their houses were dirty and poorly built. The inhabitants, ill-clothed and savage looking. "At Gault, all was comfort, health, and gaiety; in the Gariot village, all was gloom and poverty... I certainly do not deny the advantage of separate propei'ty, and the benefits resulthag from eveiy- one having his house, his garden, meadow, and arable land, all well cultivated and well cared for. But well-directed association has also its advantages. I have pointed out its hapj^y effects, and where it yet exists with good results, my hope is that it may survive with unabated vitality. I believe that, for the cultivation of their farms, it would be es[)ecia]ly advantageous for the peasants to hold together. A numerous family is sufficient in itself for agricultural operations ; if it is weak, it must be supplemented by hired servants, who require high wages, and consume the greater part of the profits, without giving the same attention to the cultivation of the soil or the care of the cattle, as the masters themselves would do. Moreover, the chil- dren by remaining with their pai'ents, profit alike by their instruction and example ; whereas, when separated from tliem and put to service too young, they are liable to corruption and often ovei'taken by desti- tution. On the otiier hand, the practice of frequent and excessive subdivision, produces a miorcellemcnt, such that the children of the same father can no longer live in the dwelling-house, and the frag- ments of land become too small to be well adapted to cultivation." M. Doniol has seen several of these rural communities, and he boasts of their excellence as a " social institution," {Jlist. des Glasses Ravales, 2nd Edit. p. IG-i). M. Lejsla.y, in his instructive li— 2 212 PRIMITIVE PEOPEETY. work, L'Organisation de la, Famille, shews minutely the position of a patriarchal family in Lavedan, and the evils brought upon it by its partial dissolution. Emile Souvestre, in his work on Finisterre, mentions the existence of agrarian communities in Brittany. He says it is not uncommon to find farms there, cultivated by several families associated together. He states that they live peace- fully and prosperously, though there is no written agreement to define the shares and rights of the associates. According to the account of the Abbe Delalande, in the small islands of Hcedic and Houat, situated not far from Belle Isle, the inhabitants live in community. The soil is not divided into separate properties. All labour for the general interest, and live on the fruits of their collective industry. The curé is the head of the community ; but in case of important resolu- tions, he is assisted by a council composed of the twelve most respected of the older inhabitants. This system, if correctly described, presents one of the most archaic forms of agrarian community. In 1860, the commissioners for the prize of honour for agriculture in the Jura were struck with a fact which the author of the report took care to put prominently forward : almost all the farms are directed by a group of cou- ples, of patriarchal habits, living and labouring in common. There are, then, still existing here and there traces of the ancient communities, which for so many centuries protected the existence of rural populations ; but, like those representatives of primitive Fauna which are on the point of disappearing, it is to the wildest and most remote spots that we must go in search of them. One cannot refrain from a feeling of regret, on thinking of the complete ruin of institutions inspired by a spirit of fra- ternity and mutual understanding unknown to the present age. Formerly they were the protection of the serf against the rigours of feudality ; and, what was not less important, pre- sided at the birth of small property, which is characteristic of the agrarian condition of France. We shall see how in England the nobility took advantage of its supremacy in the state to create latifundia at the expense of the small properties, which it gradually annexed as it made their existence more and more difficult. How was it that in FAMILY COMMUNITIES IN THE MIDDLE AGES. 213 France, where the nobility were armed with even more exces- sive privileges than in England, and the peasants were far more crushed and destitute of rights, a similar economic evolution was not produced ? Why, even under the old system, did small property make such progress in the country where every- thing was against it, and disappear in that where political liberty seemed to afford it complete security ? 1 have never yet seen any explanation of this striking contrast presented by the two countries. The chief cause seems to me to be that agrarian communities were preserved in France until the eighteenth century, whereas they disappeared at a very early date in England. So long as they existed, they formed an obstacle to the extension of the lord's domain : in the first place, because their existence was secure and their duration permanent ; secondly, because the principle of collectivity gave them a great power of cohesion and resistance : and, finally, because their property was, one may say, inalienable, and was protected from excessive subdivision and the vicissitudes of partition re- sulting from succession or sale. If these associations could sur- vive through the whole of the middle ages without material change, like the monasteries, it was because they had a similar constitution to the monasteries. Being corporations, they had the perpetuity of corporations. When the peasants dissolved these communities, and created small rural property by parti- tion, the nobility had lost all power of extension, and the Revolution was already at hand, which was to destroy their privileges and to afford the rights of the cultivators a full security. Between the moment when the members of the communities transformed themselves into small proprietors, and that when the Code Civil appeared to finally emancipate them, the feudal aristocracy, already enfeebled, had not had the time to employ its wealth and its supremacy for the enlargement of its domains. In England, on the contrary, communities ceased to exist at a period when the nobility were still all-poAverful. The small proprietary cultivators found themselves isolated, and unable to defend their rights. Their lands were consequently usurped one after another by the lord of the manor. The agricultural population acquired individual property too soon ; and so latifundia were constituted at their expense. If coUec- 214 PRIMITIVE PROPERTY. tive property had been maintaiued longer, agricultural associa- tions on disappearing would have left in their place a nation of proprietors, as in France. It is a reraarkable fact that by the agrarian system of primitive times falling into desuetude in England earlier than in other countries, the feudal nobility has been enabled to perpetuate itself there, and that it is the pre- mature establishment of individual property which has pre- vented the creation of a rural democracy such as we see in France. CHAPTEH XVI. FAMILY COMMUNITIES IN ITALY, IN GERMANY, AND AMONG THE ESQUIMAUX AND OTHER NATIONS. The system of family communities was, also, formerly very general in Italy, aiid has left many traces in the various provinces. M. Jacini in his excellent work on Lom hardy, has described those which are to be met with in the hill-district of that country. They exist in combination with metayage, and greatly facilitate the maintenance of the system. The proprietor regards associated cultivators as more desirable tenants than isolated householders. For the resources of the association are larger ; and it offers better security for the payment of rents in kind, and for the faithful execution of contracts. It is better able to carry on large cultivation, and to support the losses of bad years and all the inevitable acci- dents of agricultural undertakings. The communities as a rule enjoy a comparative competence, and are remarkable for what are known as patriarchal virtues. These associations are usually composed of four or five couples living in common in a large farmstead. They recognise the authority of a chief or i^ggitore, and of a housewife or massara. The reggitore regulates labour, manages all buying and selling, and invests the savings, subject however to the advice of his associates. The massara has charge of all household matters. The head of the stables is called the hifolco ; he is the chief overseer of the labour. These ancient institutions are yielding to the passion for independence, the desire of growing rich. 21 G PRIMITIVE PROPERTY. and, in a word, to the spirit of modern times, just as they are yielding on the banks of the Danube, or as they yielded in France in times past. M. Jacini has thoroughly analysed the various sentiments which tend to produce their final anni- hilation. Men begin to ask : " Why should we and all our belongings remain in subjection to a master? It were far better for each to work and think for himself." As the profits derived from any handicraft form a sort of private peculinm, the associates are tempted to enlarge this at the expense of the common revenue, and self-interest begets dissensions and quarrels to disturb the fraternal concord. The women especially seem to incite their husbands to insubordination. The authority of the massara is burdensome to them, and they demand a home of their own. Every one sees clearly the advantages of the patriarchal association, that his living and lodging are more secure, that there is more support and less disastrous results in case of illness, and that agricultural operations are more easily carried on ; yet, in spite of all, the craving to live independently carries him away, and he quits the community. Among a race in the extreme north, and under physical conditions entirely different from those of Italy, we find family communities with identically the same characteristics ; a mani- fest proof that habits are not fashioned by climate. The Esquimaux of North America and of Greenland live in very large buildings which contain several families, — often as many as ten. Each individual is absolute owner of his arms and implements, but even the quantity of them is limited by custom ; while the boats, sledges, dogs and provisions belong to the whole community, as also does the hunting-ground; generally, too, the produce of fishing is divided among alP. Ï Tales and Traditions of the Eskimo, by Dr Hears Eiuk, director of the royal Greenland Board of Trade. London, Blackwood, 1875. See also the analysis of the work by Mr Cliffe Leslie, The Academy, January 17, 1876. Mr Leslie, siieakiug of these family communities, says : "In the society thus con- stituted we see, in the first place, besides some development of individual pro- prietorship, the agnatic and patriarchal family which appears in societies far advanced beyond the fishing and hunting state, with a custom of primogeniture which bestowed an inheritance of patriarchal authority and responsibility along ^\'ith the chief family property. When a man died the eldest son inherited the boat and tent along with the duties of the provider. If no such grown-up son existed, the nearest relative took his place and adopted the children of the deceased as his foster-children. The inheritance represented obligations and burdens rather than personal gain." The association of several families in one FAMILY COMMUNITIES IN ITALY, GERMANY, &C. 217 Family communities also existed in Germany under the name of cognationes, magschaften, konne, gescJdechter, and were long maintained there \ They cultivated their domain for the common profit, formed an association for common defence (gesammt-geiuere), and lived at the common expense, in einer cost nngetheilt, — à un pot et à un pain. — The right of inherit- ance was based not upon ties of blood, but upon the life in common, and only applied to relations living in community (kinder in der luere), whether collaterals or even strangers admitted by adoption. These communities were maintained under the feudal system, and did not disappear till after the Thirty Years War. A remnant of them survived in the custom which forbade the head of a family to alienate its property, or even to change the nature of the land by clearing, planting or otherwise, without the consent of the kinsmen. In Chapter IX. we saw that these family communities existed alike among the tribes of America and the Semitic races in Africa, and that they still survive in Russia, although since the abolition of serfage the spirit of individualism has been rapidly destroying them. The more or less absolute exclusion of females from the in- heritance is a proof of the existence of family communities, house is clearly analogous to tlie house-community with which Sir H. Maine and M. de Laveleye have made us familiar as still existing in parts of Eastern Europe, and formerly among the peasantry of France. Like the French house- community, that of the Eskimo has assumed the form of a voluntary copartner- ship ; but we believe we may confidently say of the latter what Sir H. Maine does of the former {Early History of Institutions, p. 7), that originally "these associations were not reaUy voluntary ijartnerships, but groups of kinsmen." Again, the Eskimo village is the analogue to the Indo-Germanic village-com- munity, with the distinction that it is a fishing, not an agricultural or pastoral community, with rights of common user of the station and landing-place for whaling, seal-hunting and fishing, instead of common pasture and wood-rights. We might add, that the vestiges of a larger tribal community, analogous to the Teutonic paguf^, seem traceable in Dr Eink's account of the customs of the Green- landers, although he makes no such suggestion. Animals of great size, especially whales, and game captured in times of great scarcity, were the common property of all the inhabitants of neighbouring hamlets (p. 31) ; and Dr Rink's observa- tion (p. 79), that the ancient principle of mutual assistance and semi-commiinism which still prevails among the Greenlanders may have sprung from a feeling of clanship, is obviously applicable to an original feeling of tribal consanguinity, or connexion by adoption, on the part of the inhabitants of a group of hamlets ; although local connexion or neighbourhood has taken the place of the tie of a common ancestry. When we take into account, further, the periodical meetings of the inhabitaiits of neighbouring hamlets for both festive and judicial pur- poses, the analogy to the jx^rjus of the ancient Germans appears uearly com- plete." i Vou Maurer, GescJdchte der Frohnh'àfe, B. iv. p. 231—350. 218 PRIMITIVE PROPERTY. which afford the best explanation of the fact. M. Fustel de Couhmges {La cité antique, Liv. ii. c. vii. § 2) thinks that the reason for this exckision is the incapacity of females to perform the sacrifices. But among the Germans, under the feudal law, and also among the Mussulmans, females only succeed in a more or less limited degree ; and among these nations the an- cient sacrifice did not exist. Everywhere where we find family communities, alike in France in the middle ages or in Modern Servia, the daughters are excluded from the succession. As in the Laws of Manu\ and as at Athens, they are only entitled to a marriage portion. The reason of this exclusion is manifest. The whole social order is based on the families, which have to preserve intact the patrimony from which they derive their sup- port. If females inherited, seeing that by marriage they pass into another family, they would, by claiming their share, effect the dismemberment of the joint domain, and the consequent destruction of the family corporation. When we find the same custom, the exclusion of females from the succession, existing in Slavonic countries, in German countries within the pale of Christianity, and also in India, and pagan Greece and Rome, we are bound to seek its origin in some motive economic ra- ther than religious; and this motive is the preservation of the gens, the patriarchal family, based upon the indivisibility of the family property, a system which everywhere succeeded that of the village community. "After the death of the father, the sons shall divide the inheritance," says the code of Manu. At Athens daughters do not inherit^. Solon decides " that division shall be made among the sons." (Isœus, VI. 25.) At Rome the principle appeared, but in a modified form : the married daughter was excluded from the succession, and the unmarried woman could bequeath nothing except with the consent of the agnates, in whose guard- ianship she was. In the codes of German origin, females do not inherit land, except in default of male heirs : De terra salica in mulierem nulla poi^tio hcereditatis transit {Lex Salic. Tit. 62, c. G). The oldest manuscripts do not contain the ad- 1 " The law and customs of Hindoostan divide the inheritance between the sons and other agnates. Females only inherit on failiu'e of all male heirs." bir George Campbell, Essay before quoted, p. 175. - Pemostheues, in Bœutum; Lysias, in 3Iantitli, 10; Isasus, x. 4. FAMILY COMMUNITIES IN ITALY, GERMANY, &C. 219 jective salt'ca. Females were therefore excluJcJ absolutely from succession to land\ There was the same principle among the Anglo-Saxons^ In Northern Scandinavia, where ancient German traditions sur- vived longer than anywhere else, females were excluded from the succession to land until half-way through the middle ages. Among the Anglo-Saxons they ultimately obtained a portion of the Bokland, but no Falkland. Among the Irish Celts females were excluded from the inheritance ^ Among the Burgundians, male children succeeded their pa- rents, to the exclusion of female children*. The code of the Alamanni, like other laws of German origin, excluded daughters from the succession®. Even the Ripuarian law, which is far the most favourable to the rights of females, excludes them from the succession, "whenever there are any male heirs : Sed dwm virilis sexus extiterit, femina in hœreditatem aviaticam non succédât. In the formularies of Marculf we read : Diuturna sed impia consuetudo inter nos tenetur, ut de terixi imterna sorores cum fratrihus portionem non haheant. (JVIarc. Form. i. 8.) The spirit of the German laws, says Gans, is to favour the males to the exclusion of females". Laferrière tells us that the customs of Auvergne and the Bourbonnais excluded the daughters from succession to the father^ Even in the eighteenth century, in Provence, the daughters had not an equal share with the sons in succession ah intestato^. The custom of Champagne, collected in 1509, still declares, in successions in noble families, the share of the eldest son is to be first deducted, and then the remainder divided among sons and daughters alike, except that a son takes twice as much as a daughter. (Tit. l. § 14.) The custom that prevailed ^ See Waitz, Das alte Recht der sal. FranJcen, 1846, p. 121... ^ See Lex Angl., tit. vi. 5; Cauciani, Barhar. leijes aut. t. iii. p. 50, note i. ; Lex Franc. Chaniav. in the Revue hist, dn droit franc, et étr. 2, i. (1855), p. 442. ^ Siv James Ware, Antiquities, e. xxx. : "By this custom among the Irislj, the inheritance of the deceased (below the degree of Thanist) was equally divided among the sons both lawfully and uulawfiiily begotten, female.^ being wholly excluded." * Lex Burg., tit. 14, § 1. s Lex AJam., tit. 51, § 2. 6 Hist, da droit de succession en France au moyen-ûye. Trad, de L. D. do Loménie, p. 61, 1846. ^ See Hist, da droit franc., 1830, 2, i. 6, 199. 8 Lantheuas, Inconvénients da droit d'uincsse, p. IG. 220 PRIMITIVE PROPERTY. in the Soutli of France, of making the daughters, on their mar- riage, renounce all rights of succession, can only be explained by reference to the original exclusion \ Among the Albanians, who have preserved intact their an- cient customs, the daughters only succeed, when necessary to prevent the property passing from one family to another^ In the Mussulman law, male children are the only true heirs, Aceb; females are only entitled to a share always very inferior to that of the sons, being a mere deduction made before di- vision. In the district of Liege females did not at one time succeed to registered lands situated outside the towns : Gen- saria, extra oppida et francisias sita, pertinent ad filios tantum et non ad filias'^. Another trace of the family community is to be seen in the custom, which is found everywhere, by which the alienation of immoveables was not valid without the consent of the kinsmen*, or was liable to "retrait." 1 Gide, Étude stir la condition privée de la femme, p. 44, and Laboulaye, Droit de succession des femmes. 2 See the interesting work of M. Albert Dumont, Souvenirs de VÂdriatique, Revue des Deux Mondes, l" Nov. 1872. 3 Héuaux, Hist. de. Liège, p. 127 (Third Edit.). 4 The Mirror of the Saxons (18th century) says (i. 52, 34) : "If any one has sold or gi'anted an immoveable or a serf without obtaining the consent of the agnates, they may claim the property alienated without being obliged to repay the purchase-money. Even with this consent and the intervention of justice, no one may alienate all his immoveables ; he must retain half-an-acre of land, or at least a space of sufficient size to form a court in which one can turn a carriage." This is the inalienable heredium of Sparta and Rome. See Zachariœ, Geist der dcutsclicn territorial terfassung, p. 226. The vendor's kinsmen and even the co-occupiers of the mark had a right of i^re-emptiou (Maurer, Gesch. der Markenverfas., p. 184 ; Gesch, der Dorfverf, i. p. 320 ; Gesch. der Fronhofc, 111. p. 74). CHAPTEK 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 assist- ance 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 preserved — town is the zaun, the tim, the inclosure or village. In the township also the citizens assemble to elect functionaries, to vote taxes, to determine the 222 PRIMITIVE PROPERTY. necessary labours, and to frame regulations. There is no hierarchy of functiooaries imposing administrative decisions. The townships enjoy complete autonomy, under the empire of general laws, to which the judges insure respect ; their federa- tion 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 wdiich the maintenance of equality was guaranteed by a measure so radical as the periodic parti- tion 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 associa- tions 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 popu- lation more completely enslaved than in England, Italy or THE ORIGIN OF INEQUALITY IN LANDED TROrERTY. 223 France. In consequence of what changes in agrariaii organiza- tion 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 main- tenance 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 in- equality nevertheless invaded the equality of these associa- tions 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 hifang in the German, from the verb hifâhan, which means to seize, to surround or inclose. The word 2^07y7-isa, in French pourpris, pouijirinse, has precisely the same sense. Many titles of the earliest times of tlie 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 224 PEIMITIVE PROPERTY. of acquliiug 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^; 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^ 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 Flurziuang ; 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 {cMrtis) 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 w^as subject to partition, private, independent properties, seigniories, or ciirtes nohilimn. The enclosed land was called ager exsors, as being free from the assignment by lot. In Denmark these independ- ent domains were called ornuin: they were surrounded by a ditch and marked out by boundar3^-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 ornum, having no right to the enjoyment of the pasturage and forests of the 1 Daroste de la Cliavanne, Histoires des classes apricnies en France, cliap. iir. He also quotes a plea of 852, in which, on a question of property, one of the parties exju'esses himself thus : 3Ianif€stinn est quod ipsas res (the property in dispute) retineo sed von injuste, quia de eremo eas traxi in aprisionem. ^ NiiUus novum terminum sine consortis prœsentia ant sine inspectore con- stituât. Lex Bui-g. tit. III. 1, V. De tcrminis el limitilus. THE ORIGIN OF INEQUALITY IN LANDED PROPERTY. 22.', community, was naturally exempted from taking part in the payments in labour or in kind which the members of the com- mune 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 appro- priated 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 re- sumption : 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 con- dition being in complete discord with primitive agrarian organ- ization, 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 \ When the population increased, the large primitive marks were subdivided ; and the subdivisions, having less and less im- portance 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 marJc. From the moment when agricultural labour was executed ^ See Eoth, Geschichte des Beneficiahvenen, pp. 248—25.3. It is hard to imagine with what rapidity property accumulated in the hands of the Church. The bishopric of Augsbuurg, at tlie commencement of the ninth century, owned 1,427 farms, mansi, and tlie ctmvent of Benedictbeuern, in Upper Bavaria, 6,700 in the year 1070. M. 15 226 PRIMITIVE PROPERTY. 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 con- sequence of the introduction of Christianity and the establish- ment 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 prac- tise 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 arras, which those who were ex- clusively devoted to agricultural labour had discontinued, the former succeeded in gradually enslaving the latter. Neverthe- less, this profound change was not accomplished everywhere at the same time nor in the same manner: there are some dis- tricts, 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 fre- quently 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 ORIGIN OF INEQUALITY IN LANDED PROPERTY. 227 the soil ? The characteristic of the feudal system is the fief, the feod or benejicium, that is to say, laud granted to a usufructuary as recompense for certain services to be rendered. The suze- rain 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 war- riors. 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 in 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 super- vision of a steward always inclined to rob his master, it was more to their advantage to grant the farm to coloni, enjoying the pro- duce 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 condi- tion was improved, the income of the proprietor was increased. In this way was created the class of coloni medietarii, or me- tayers, 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, nalnely, a grant of enjoyment for life made by the proprietor, either gratuitously or in consideration of a rent. 15- -2 228 PRIMITIVE PROPEKTY. Grants of 2^^'6caria were frequeut 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 culti- vate 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 recog- nized, the suzerain reserving the eminent domain with the rents to which it entitles him, the cultivator having a heredi- tary 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, agi'i 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 \ 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 esta- blished, 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 esta- blished on Roman territory for its defence. The other obliga- tions 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 1 Even in ancient Egypt we find grants of lands as a reward for military service, which remind us of the Swedish in-delta and the feudal system of other countries. According to Herodotus (Bk. ii.) the warriors enjoyed a peculiar privilege entitling them to twelve acres of laud free from every kind of rent or tax But they succeeded one another in the occupation of this land, and the same men never possessed the same lands. It was therefore the same system as Caesar mentions among the Suevi [Com. iv. 1. 3). THE ORIGIN OF INEQUALITY IN LANDED PROPERTY. 229 laad, some, as we have seen, were destined to serve as an lionorarimn 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 conseubliciis) or folcland, was regarded as royal domain, cyninges folcland, and the king disposed of it, either alone, or with the consent of the national assembly or ^rntan^. Thus registered private property, or hoc- land, was develoj)ed. In the tenth century — even before the 1 Document of the year 858. Kemble, Cod. Dijil. 1, 104. Ego rex cum consensu ac licentia meorum o])timatum. HISTORY OF LANDED PROrERTY IX ENGLAND AND CHINA. 243 Norman conquest — the mark had been ah'eady transformed into the manor, although the term was not yet in use. The country was covered with a great number of domains (maneria), of very different extent, from the maneriolam of one plough to the latifundium of fifty ploiighs. The lands dependent on the manor were in some cases still mixed up with those of the cul- tivators, or else lay side by side with them. Although, since the Roman invasion, the soil was never common property subject to periodic repartition, private pro- perty was still submitted to many restrictions. Only the village, with the orchard and garden attached to each house» was enclosed. Hence the name of town, zaun, or " fence," given to the cluster of dwellings \ All the inhabitants had to assist in keeping up the fences^ intended for the protection of the village and of the flax-gardens against domestic animals grazing at large. The German villages in Transylvania are to this day surrounded by a fence, and the entries closed by a barrier. The cultivated portion of the communal territory was di- vided into three parts, successively devoted (1) to rye, (2) to oats, and (8) to lying fallow. In each of these portions, every proprietor had one or more lots, and all these lots were subject to the general compulsory rotation of crops, the Fliirzivang. They had to be all sown in the same way, because they were given up to common pasture at the same time. These scattered lots originated in the old periodic partition, but they had by degrees become private property. The two portions occupied by rye and oats were temporarily surrounded by a wooden fence", which was thrown down on Lammas day. These barriers Avere ^ The dwellinf^-bonse itself bore the name of town, from being surrounded by a hedge. In cyningcs tune, — on eorlcs tune ("In the house of the king," or "of the earl "). — Laws of Alfred, i. g 2 and § 13. The farmyard alsp bore the name "town." See the excellent work of E. Nasse, Ueber die mittelalter- liche Feldrjemcinschaft in England. ^ The laws of king Ina rendered any one, who was careless in constructing his share of the fence, responsible for any damage caused by cattle. The old Jute law of the year 12-10, in. c. 57, Van th'dncn the makende (of the construc- tion of fences) explains in detail the obligations of the villagers as regards the keeping up of fences surrounding the houses or the village. See, as regards Germany, Von Maurer, Geschichte der Frolinlwfe, iii. p. 195. ^ In Domesday Book there is frequent mention of forests set aside to supply the necessary wood for these enclosures. Sih-a, — ncmus ad clausuram, — ad sej^es, — ad sejn's reficiendas, — ri^mlia ad .lepes. — See General Introduction to DomesdaTj Book, by Sir H. Ellis, 1833, Vol. i. p. 100, quoted by Nasse. IG— 2 241 PRIMITIVE PROPERTY. thrown down by the assembled crowd, amidst songs and shouts of joy. This momentary return to the primitive community was one of the chief festivals in the country. The herds then took possession of the whole land of the village. As the arable land produced no fodder for the cattle, a wide extent of pasture land was necessary to provide grass for the summer and hay for the winter ; and this pasture land was occupied in common. Each family had a share in the portion laid for hay ; and the cattle of the whole commune were pas- tured indiscriminately on the remainder. The laws of Edgar speak of common pasturage, as the ordinary property of every village or tunship. There is also frequent mention, in docu- ments of the time, of the common forest \ Certain remote districts retain the ancient agricultural system, by which every portion of the territory was successively brought under cultivation, by a rotation of eighteen or twenty years, without any permanent distinction between arable and pasture land. This was the primitive rotation in Germany, and is still practised on the fertile steppes of Russia, as well as on the barren plateau of the Ardennes and the virgin forests of Brazil, wherever, in fact, there is sufficient space. The agricultural systems just described lasted in England till the commencement of the present century, and many traces of them still exist. William Marshall, who described exhaus- tively the rural economy of England, writing between 1770 and 1820, speaks as follows on the subject : " A very few centuries ago, nearly the whole o£ the lands of England lay in an open, and more or less in a commonable state. Each parish or to\\aiship was considered as one common farm ; though the tenantry were numerous " Round the village in which the tenants resided lay a few small mclosures, or grass yards, for rearing calves, and as baiting and nursery gi'ounds for other farm stock. This was the common farm- stead, or homestall, which was generally placed as near the centre of the more culturable lands of the parish or township as water and shelter would permit. " Round the homestall lay a suit of arable fields, including the deepest and soundest of the lower grounds, situated out of water's way, for raising corn and pulse, as well as to produce fodder and litter for cattle and horses in the winter season. 1 See Kemble, Cod. Biplom., Nos. 179—190, 241, £05, 432, 843, 1142, 1281. HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 245 " And, in the lowest situation, as in the water-fonued base of a rivered valley or in swamj>y dips, shooting up among the arable lands, lay an extent of meadow grounds or 'in(/s,' to afford a supply of hay for cows and working stock in the winter and spring months. " On the outskirts of the arable lands, where the soil is adapted to the pasturage of cattle, or on the springy slope of hills, less adapted to cultivation, or in the fenny bases of valleys, which were too wet, or gravelly water-formed lands, which were too dry, to produce an annual supply of hay with siifficient certainty, one or more stinted pastures, or hams, were laid out for milking cows, working cattle, or other stock which required superior pasturage in summer. " While the bleakest, worst-soiled, and most distant lands of the township were left in their native wild state for timber and fuel, and for a common pasture, or suit of pastures, for the moi-e ordinary stock of the townshij), wliether horses, rearing cattle, sheep, or swine, without any other stint or restriction than what the arable and meadow lands indirectly gave ; every joint-tenant, or occupier of the township, having the nominal pi'ivilege of keeping as mvich live stock on these common pastures in summer as the appropriated lands he occupied would maintain in winter. "The appropriated lands of each township were laid out with equal good sense and propriety. That each occupier might have his proportionate share of lands of different qualities, and lying in different situations, the aiable lands more particularly were divided into numei-ous parcels, of sizes, doubtless, according to the size of tlio given township and the number and ranks of the occupiere. " And, that the whole might be subjected to the same plan of management, and be conducted as one common farm, the arable lands were moreover divided into compartments, or ' fields,' of nearly equal size, and generally three in number, to receive in constant rotation the triennial succession of fallow, wheat (or rye) and spring crops (as barley, oats, beans and peas)." Sir Henry Maine expresses his surprise at the number of traces, that he has met with, of the former existence of collec- tive ownership and joint cultivation \ In many counties turf-grown ridges, or baulkes, are still to be traced, which formerly separated the three fields of the tri- ennial rotation. These baulkes were so long, that in some villages they measured as much as eighty acres, although not ten feet in breadth. In several counties, a large portion of the land is not enclosed, but is divided into open, intermixed fields. According to Marshall, " in Huntingdonshire, out of a total area of 240,000 acres, 130,000 were commonable." The agra- 1 Village Commiuiities (187(1), p. 88. 246 PRIMITIVE PROPERTY. rian organization in England and Germany are, therefore, pre- cisely similar. In the Anglo-Saxon period, although the lords had already more extensive lands together with certain privi- leges, the condition of the cultivators was easy, and very general equality prevailed among them. The Anglo-Saxon hide, the ordinary portion of each family, with its virgata ter^rœ, con- tained from sixteen to fifty acres, according to the fertility of the soil. It was sufficient to produce the corn necessary for the support of the family. The wide extent of the common pasturage enabled them to keep large herds, and there was plentiful supply of wood. The first wants of life were therefore abundantly supplied for every one. The result of the Norman conquest was to increase the power and wealth of the higher classes, and to lower the con- dition of the mere free man. The Saxon kings had already, from time to time, disposed of waste land and so reduced the domain of the communes ; but the Norman sovereigns, regard- ing themselves as proprietors of the whole soil, by right of conquest, made much more frequent grants, and the greater part of the folcland was converted into terra regis or royal domain. This usurpation was especially directed against the forests. Another circumstance contributed to the growing depend- ence of the cultivators. In Greece and Rome, as well as in India and Germany, we find the precarium, that is, land granted for a term of considerable length — for life, or for several lives — a rent in kind beinof reserved. The oldest An^lo-Saxon docu- ments mention the Lœnland, land granted to peasants, who were bound to render cattle, corn, poultry or eggs, or else to execute certain agricultural operations on the manorial lands. These cultivators, it seems, were attached to the soil ; or, at least, the domain was sold " mid mele end 'mid mannum." Their condition, therefore, resembled the Russian serfs\ After the Norman conquest, the lords of the manor made use of the pre- dominance given them by the habit of bearing arms, to reduce ^ This is precisely the condition of the German serf as described by Tacitus : " Ceteris servis, non in nostrum morem, descriptis per familiam ministeriis, utuntur : suavi quisque sedem, suos pénates regit. Frumenti modum dominus, aut pecoris aut vestis, ut colono injungit, et servus liactenus paret : cetera domus officia uxor ac liberi exsequuiitur," HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 247 the free cultivators more and more into the condition of vassals. The economic constitution of the manor was as follows. The dwelling of the lord, curia manerii, aula dondnii, was more or less extensive and well built, according to the wealth of its owner. The territory dependent on it was divided into two parts ; one being granted to the vassals, terra hominmn, tenen- tium; the other being farmed directly by the lord, ten^a do- minica, or demesne lands. The ten^a dominica was cultivated by the corvée of the vassals, who had to provide the oxen for ploughing, and to sow, reap, mow, and gather in the harvest. Among the cultivators there were distinct classes. In some manors, the lord had granted the cultivation of a portion of the terra dominica to tenants, who were called tenentes de dominica. Their tenure was only a temporary one. There were first the villain, whose condition resembled that of the Russian serf; they had a portion of the soil, sufficient for their subsistence, but they had to cultivate the lord's land, to make his hay, and reap and gather in his harvest. Next there were the free tenants, libera tenentes or tenentes in libera socagio, and the liberi soc- manni, who merely owed the lord smaller payments in kind or labour. The rent to be paid by them was often nominal, con- sisting of a fowl, a pair of gloves, or a flower. Their holding was also the old plot, sufficient to support a family, the hide or virgata terrœ, of which the extent varied from sixteen to fifty acres. Those, who held only half this, were called socmanni di~ midii, or dimidii liberi homines. These were the old free men. Finally, those who had still less land, or had nothing but their dwelling house, were designated cotarii, or cotmanni, because they inhabited a cot or cottage. The lord granted out the right of cultivating the waste lands, which formerly belonged to the village, reserving certain rents, at first in kind, then frequently from the thirteenth century in money. Tenants holding these lands are called in old documents isti qui tenent de novis essartis. The enjoyment of the forest and pasture land remained col- lective and undivided between the inhabitants of the village and the lord ; but the latter had already usurped the eminent domain, which he was later to convert into full ownership. The meadow lands were generally divided every year among the in- habitants. The arable land had become private property ; but 248 PRIMITIVE PROPERTY. all the customs of the old agrarian community were maintained. Every one had plots in the different fields of the rotation. These fields — and not the several plots — were surrounded by an enclosure, at which all were bound to work. The peasants com- bined their forces, and cultivated their lands, as well as those of the lord, according to a cooperative system imposed on them by the requirements of agricultural labour. To till the soil, they harnessed eight oxen, or four horses and four oxen, to the plough. If the peasants had not enough beasts, two or three of them united together to form a team. The population being very thin, the portion of cultivated land was far smaller than the uncultivated. Collective enjoy- ment, therefore, extended over the greater part of the territory: and even the arable land, as soon as the harvest was gathered in and the enclosures thrown down, became common pasture again for all the cattle of the village, tended by a single herds- man. As Nasse remarks^ with great justice and penetration, the inequality resulting from the constitution of the seignorial manor must not be confounded with that which followed from the introduction of feudalism. The relations of the lord of the manor with his tenants, whether villani, socmanni or cotarii, were purely -economic. The payments which the tenants owed to the manor were really a payment of rent for the land, over which the lord claimed a right of ownership or eminent do- main. This subordination of the tenants to the proprietor, or of serfs to the lord was established, with the aid of the kings, in the same way as in Germany, and more recently in Russia, without any conquest subjecting vanquished to vanquishers. The relations of the feudal hierarchy were likewise based on grants of land ; because, in the absence of taxation, a grant of enjoying a portion of land was the only possible method of re- warding a service, or duty. Nevertheless, the feudal hierarchy was preeminently political. It constituted the state organiza- tion ; for the benefice was originally granted for life to the count or marquis, who governed a town or district ; to the man of arms who owed military service ; or to the vassal who was bound to appear and aid his sovereign in judging or administer- 1 See M. Nasse's instructive article in the Contemporary Review, May, 1872, Village Communities, HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 249 ing. It was only in later times that the benefice became here- ditary ; while military service, originally imposed on every free man, became the condition of enjoying a fief. The feudal sys- tem, being at its full development at the time of the conquest of England by the Normans, was applied there in a more com- plete and systematic manner than anywhere else. It was ad- mitted in theory that the sovereign was now proprietor of the whole soil, and henceforth all land was considered as granted by the sovereign. For this reason Blackstone, and other jurists, admit even now that English soil is the property of the Crown. The Anglo-Saxon lords, remaining in possession of their domains, became the conqueror's vassals, like those of his companions, to whom he had actually granted confiscated property. There was no longer any free allod ; all lands were comprised in the net- work of feudal tenures. This was not the case in Germany, and still less so in Holland and Scandinavia. There, side by side with the seignor and the feudal manor, village communities at first, and peasant proprietors subsequently, maintained their independence for centuries, and, in some provinces, even to the present day. The complete feudalization of property in England had two results, which at first sight seem contradictory. On the one hand, it led to the preservation or re-establishment of political liberty, because, royalty being from the first very powerful, the nobles allied themselves with the bourgeois to limit its power and to found the parliamentary system on the traditional type of the witan, the Germanic thing or mallus. On the other hand, it was singularly favourable to the development of ine- quality and the extension of latifundia, because a share in the judicial and legislative power was given to the lords, while elsewhere such power was exercised by the kings, for the advan- tage of their prerogative and at times in favour of the middle classes, whose support was sought by the Crown. Mr Cliife Leslie^ M. Nasse, and Mr David Syme^ have described in detail this remarkable economic evolution, the final result of Avhich has been to concentrate the possession of the soil of England in the hands of a few thousand families. ^ Lnnd Systems in Ireland, England and Continental Countries. Loudou,1871. " Landlordism, by David Syiue. Loudou, Triibucr, 1871. 250 PEIMITIVE PROPERTY. To sum up rapidly the phases of the continued progress of inequality. After the conquest, the corvée became more and more severe. The tenant, who occupied a virgata, owed the manor three or four days' labour a week, from the first of August to Michaelmas ; and two or three days during the rest of the year. He was bound besides to plough the land one day a week, as well as to sow and harrow it when ploughed. He also owed extraordinary services, to gather in the hay and harvest, to cart wood, or dig ditches. The lord's domain did not form a compact whole. It was composed, like the cultivator's virgata, of a large number of scattered parcels in the three fields of the rotation, these being also the lots of the old partition. In many localities, the lord endeavoured to break in on the indivi- sibility of the arable, and, by means of forced exchanges, formed for himself a separate domain which he enclosed. The fief having been granted by the sovereign to the lord, the latter assumed, as a consequence, that the whole soil belonged to him. He did not, on this account, suppose himself able to despoil the peasants of the enjoyment of their lands or of their right of using the common forest and pasturage, but these rights were regarded as servitudes exercised over the pro- perty of the lord. In consequence of this usurpation, the lord began to enclose, for his own use, all that portion of the com- munal pasturage, which was not required for the wants of the tenants. The Statute of Merton in 1235, and the Statute of Westminster in 1285, decided that the complaints of the tenants, libère tenentes, against the usurpations of the lord of the manor were not to be allowed, when it was shewn that ipsi feoffati habeant sufficientein jMsturam quantum pertinet ad tene- menta sua. As to the rights of the villani, there is nothing to shew that the law protected or even recognised them. The lords made large use of the privilege granted them by the Statute of Merton, to extend their private domain. There was also another custom, calculated to enrich them further. This was the jus faldce, in virtue of which the tenants were obliged to fold their sheep on the lord's land, so as to manure it abundantly. Under the primitive triennial rotation, manure from the stable was rare, as the beasts were nearly always out at grass. The result, therefore, of the jus faldce was HISTORY OF LANDED TROPERTY IN ENGLAND AND CHINA. 251 to impart to the lord's land the elements of fertility -svliich it took from the tenants' lands. The same custom enriched the one and impoverished the other. From the thirteenth century, there commenced in the agrarian situation of England a slow and gradual revolution, which at first seemed favourable to the cultivators, and yet ultimately produced a remarkable reduction in their number. It gave them liberty, and, at the same time, took away their property. In England, which, in consequence of its geographical posi- tion, is essentially a commercial country, the use of money became common earlier than elsewhere. Thus, in the thirteenth century, we find in the registers of property belonging to churches and monasteries, that payments in labour were com- muted for money rents. So the lease gradually replaced the corvée; and, at the same time, the lord had agricultural labour carried out on his demesne land by hired labourers. After the great plague, which carried off considerable num- bers of men, wages rose to such a point, that a special law, the Statute of Lahowers, was passed, fixing the wages at two pence per day in winter, and three pence in summer; and compelling the labourer to work at this rate under pain of imprisonment. The lord of the manor, having to pay these high wages, did not find it so profitable to cultivate his land himself as to let it. This is Avhy we find, that in the sixteenth century servile tenancies had almost entirely disappeared. The position of the cultivators, in a juridical point of view, was at the same time improved. The villain, instead of being liable to the corvée at the lord's caprice, became what the laAV of the time styles "tenants by copy of the court roll," and, in later times, "copyholders." As the courts of justice decided, in the time of Edward IV., that copyholders could not be evicted, so long as they fulfilled the obligations prescribed by custom, such tenants acquired a permanent possession, and came to take a place by the side of the socmen and yeomen already enfranchised. The fixed money rent, which they had to pay, soon became less burdensome in consequence of the deprecia- tion of the coinage. Thus, towards the end of the middle ages, when serfage 252 PRIMITIVE PROPERTY. elsewhere was becoming more burdensome, there was formed, in England, a numerous class of proprietor cultivators, living in comfort, and independence, and comprising an infinite series of degrees, from the squire, who was scarcely distinguishable from the noble, to the cottier, or rustic labourer, who like- wise had his house and field. It was this yeomanry, which made the power of England, and conquered the French Chivalry in the wars of a century. Hallam says, it is the proud inde- pendence of this noble stock of free socage tenants that has given so marked a stamp to the national character, and estab- lished so much freedom in our constitution. A chronicler, whose evidence Mr Clifîe Leslie adduces, uses the following terms to describe the position of yeomen possessing property at a rental of £6 sterling in the money of the period. " These commonly live wealthily, keep good houses, and travail to. get riches. They are also for the most part farmers to gentlemen, or at the least artificers, and do come to great wealth, insomuch that many of them are able and do buy the lands of unthrifty gentlemen, and often setting of their sons to the schools, to the universities and to the inns of court, or otherwise leaving them sufficient lands whereby they may live without labour, do make them by those means to become gentlemen. These were they that in times past made all France afraid." Thus, in Saxon times, the island was peopled by free men, proprietors and warriors, regulating their own interests and administering justice. After the Norman conquest, feudalism reduced the greater number to slavery or to a state of great dependence; but gradually they get their payments in labour or kind rigidly defined ; commute them for pecuniary rents, not subject to increase, and so regain a sort of property. To-day, strange as it appears, there hardly remain any of these independent proprietors, — of the yeomen who fought so valiantly for the greatness of their country abroad, and for her liberties at home. At the end of the seventeenth century, though much reduced in number, there were still 1GO,000, forming with their families one-seventh of the population. A few were said to exist a short time back in the lake district ; and Mr Fawcett, in his book On the British Labourer, tells us he knows of localities where, a century ago, they existed HISTORY OF LANDED PROrERTY IN ENGLAND AND CHINA. 253 Ly hundreds. At the present day, the noble and powerful class of yeomen seems extinct: large jDroperty has absorbed its last representatives. It is a repetition of the history of Roman latifundia. In Longfellow's poem, Hiawatha, em- barked on his vessel, disappears in the rays of the setting sun, and passes away to the regions whence there is no return ; — it is a picture of the red man becoming extinct at the approach of the white. But the yeomen were of pure Anglo Saxon blood. They were owners of the soil ; possessed of competence ; they had survived the conquest, and been emancipated from the yoke of feudalism. Why did they disapiDenr at the very time when the power and wealth of England were increasing? And how comes it that the rural bourgeoisie, which everywhere else increased in numbers and influence, ceases to exist in the one country where modern liberty and civilization were first established ? Several causes have been favourable to this great revolution which passed unnoticed ; although its result, as Mr Morier remarks, has been to make England the only civilized nation, where property in land has been entirely taken from the hands of those who cultivate it. Mr Cliffe Leslie enumerates the more important of these causes with great precision. According to him they are these : (1) Confiscation of their ancient rights of common, wdiich were not only in themselves of great value, but most important for the help they gave towards the maintenance of their sepa- rate lands. (2) Confiscation to a large extent of their separate lands themselves, by a long course of violence, fraud, and chicane, in addition to forfeitures resulting from deprivation of their rights of common. (3) The destruction of country towns and villages, and the loss, in consequence, of local markets for the produce of peasant farms and gardens. (4) The construction of a legal system based on the principle of inalienability from the feudal line, in the interest of great landed families, and incompatible with either the continuance of the ancient, or the rise of a new class of peasant landholders.. 254 PRIMITIVE PROPERTY. (5) The loss, with their territorial lands and rights, of all political power and independence on the part of the peasantry ; and, by consequence, the establishment and maintenance by the great proprietors of laws most adverse to their interests. (6) Lastly, the administration by the great landowners of their own estates in such a manner as to impoverish the peasantry still further, and to sever their last remaining con- nection with the soil. Several of these causes began to produce their effect in the middle ages. When the corvée was transformed into a rent paid in money, the lord of the manor began the war against small property. From the moment that he had no claim on their service, but only to so much an acre, it ceased to be to his advantage to have many vassals. It was, on the contrary, more convenient for him to deal with a single large lessee, than with several small tenants ; and it was to his profit to reduce the number of persons entitled to exercise a right over the pasture land and the forest of the domain. He, therefore, strove by any means to unite several holdings into one large farm. As early as the fourteenth century, the archives of the Church of St Paul mention several examples of this grouping of several holdings into one\ Harrison, in his Description of England at the beginning of the Holinshed Chronicles, shews how "our great encroachers" transformed numberless small holdings into vast sheep walks. The considerable rise in the price of wool, in the fifteenth century, determined the lords of the manor to let nothing pre- vent their extending the grass lauds at the expense of the arable. They had recourse to clearances, such as have been carried out more recently in Ireland. They attained their object in this way. The demesne land, as we have seen, con- sisted of numerous parcels intermixed with those of the tenants, and subject, like theirs, to the compulsory rotation. When they effected a new partition, so as to transform their domain into a large farm under a single tenant, they united to it a portion of the tenants' lands, and so disorganized the whole of the old agrarian constitution. By appropriating vast extents ' See Nasse, Veher die mittdaltcrliclie Feldgcmcinschaft. HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 255 of the common land, they ruined, or at least made more dif- ficult, cultivation by small proprietors, who were impoverished by having less wood, and less pasture for their cattle. If a famine, or a bad harvest occurred, there was nothing for them to do but surrender their property to the lord, who united it to his own domain. The numerous prosecutions, instituted against those who had thrown down enclosures, shew to what an extent the peasants suffered. In the end of the fifteenth, and throughout the sixteenth century, the destruction of small holdings and the conversion of arable into grass lands aroused the most violent opposition, A law of Henry VII., in 1488, pi'ohibits the destruction of farm buildings which are let with twenty acres of land. " Many houses and villages," says the preamble of this law, " are now deserted. The arable land which belonged to them has been enclosed, and turned into grass land ; and idleness is becoming general. Where two hundred people were living but lately by their labour, two or three shepherds are now to be seen." Bacon commends this law because its object was "to keep the plough in the hands of the owners and not hirelings." Four similar laws were passed under Henry VIII., which is evidence how power- less they were. One orders the re-building of the houses that had been demolished, and the return to the plough of the lands which had been taken from it. Another commands the building of houses for every cultivated area from thirty to fifty acres in extent. The law of 1634 is intended to stop the overrunning of sheep. "A few individuals have accumulated in their own hands enormous extents of land, on which they feed countless flocks. Some among them possess from ten to twenty-four thousand sheep. Consequently, cultivation is abandoned, and the country depopulated ^ " Bishop Latimer, in his famous sermon On the Plough, preached before the court of Edward VI. (1549), reproaches the nobles for being inclosers, graziers, and rent-raisers, transform- ing the yeomanry into disinherited slaves; the shepherd with his dog, he exclaimed, has taken the place of the vanished in- habitants. Bernard Gilpin accuses the gentlemen of want of ^ For all this, sec the work of Nassc, akcady quoted. 256 PRIMITIVE PROPERTY. gentleness: "Driving the unfortunate from their homes is no crime in their eyes." In 1.551, the bishop of Rochester pre- sents a petition to the king, in which he complains that two acres out of three are taken from cultivation, and that the rural population will soon resemble " the serfs of France more than the old, prosperous yeomanry of England V After the death of Henry VIII., the protector Somerset in- stituted an extraordinary commission to examine the situation, and to seek a remedy. The most active member of this com- mission, John Hales, drew up a report, in which the condition of the rural districts is depicted in the most gloomy colours. " We can see nothing but houses in ruins and cultivators with- out homes ; sheep and oxen have taken their place. The king can no longer find soldiers, and has to employ foreign merce- naries." This commission, which aroused so many hopes, had no result. The nobles were too powerful : witnesses were afraid to give evidence against them. The country people durst not appear, or were not summoned. Bills were submitted to Parlia- ment, ordaining the division of the large farms, and limiting the amount which the proprietor might cultivate himself: but they were not passed. Commencing with the great insurrection of the peasants in 1549, there were numerous local risings throughout the six- teenth century, all with the same object, the destruction of the enclosures which deprived them of their lands. In the reign of Elizabeth, the price of wool still rising, the clearances and expulsion of the cultivators in no way abated ; and the destruction of small properties has continued to our own days, by means of the " Enclosures Acts," passed succes- sively from 1710 to 1843. These laws, which allowed the lords 1 Sir Thomas More echoes the same complaints: — "Noblemen and gentle- men, yea, and even certain abbots, not contenting themselves with the yearly revenues and profits that were wont to grow to their forefathers and prede- cessors of their lauds, leave no ground for tillage. They inclose all into pas- tures; they throw down houses; they pluck down towns, and leave nothing standing. And as though you lost no ground by forests, chase lands, and parks, those good holy men turn all dwelling-places and all glebe-lauds into desolation and wilderness." In the Utopia, a strange country is mentioned where sheep devour men. Bacon, in his History of Henry VII., boasts of the acts of Parliament and the wisdom of the King, checking the usurpations of the great, the effect of which was to take the common lands from the inhabitants, to destroy the dwelling-houses, and to depopulate the country. HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 257 of the manor to enclose for their own use the common lands, ^vrongly regarded as their property, brought into private domain 7,660,413 acres\ or one-third of the cultivated area of P]ngland, which in 1867 amounted to 25,451,626 acres. This immense amount of land was taken from the enjoyment of the cultivators almost without indemnity. In 1845, Lord Lincoln could assert in Parliament, without contradiction, that, in nineteen cases out of twenty, the House had disregarded the rights of the jDeasant, not from any feeling of antagonism, but from sheer ignorance. The country people could not produce, before the committee which discussed the laws, any proof of rights reposing merely on custom, nor could they pay counsel to defend them. They only ^ The encroachments of lords of the manor on commons have been carried on in our own days. Some very curious details on this point may be found in a letter addressed by Mr Shaw Lefevre to the Times (17 Nov. 1874) with regard to Epping Forest. Going back no further than 1851, 559 illegal enclosures had been made in this forest, which was common property in which the city of London had the right of common pasture. The inhabitants of the neighbour- hood were entitled to gather fuel there in winter, on this condition, however, that every year on December 11, at midnight, the oldest of them shoiild fix his axe in one of the trees. A story is told of a certain Lord of the Manor who wanted to interrupt this prescription. On the given day he invited all the inhabitants to a supper, hoping to make them drunk, and make them forget the exercise of their right. An old man, however, stole away and fixed the axe in the forest. Later on a common workman named Willingdale resisted for thirty-seven years the enclosure made by the lord of the manor of Loughton. "It was about this time that great portions of Epping Forest were arbitrarily enclosed. In one single manor of that Forest the lord of Loughton, who was also rector of the parish, enclosed no less than 1300 acrea of common. Six Thomas Wilson, the Lord of the Manor of Hampstcad, commenced the enclosure of that much-freciuented common, and demanded £400,000 as the market value of it. The late Lord Brownlow enclosed 500 acres of Berkhampstead common with iron rails, and added them to his park. Queen's College, Oxford, was similarly advised by its solicitors to appropriate two important commons in the south of London — viz. Plumstead Heath and Bostal Heath, besides a smaller open space, known as Shoulder-of-Mutton Green. An enclosure was also made of Tooting Graveuey Common. If these proceedings had passed unnoticed, there can be no doubt that in a very short time all the commons in and round London would speedily have disap- peared." The City of London, in an action to stop these encroachments, gained its case. A judgment of November, 1874, declared illegal all enclosures effected since 1851 on an extent of 3200 acres. At the present time the magistrates of the City betake themselves annually with great pomp to the Forest, in recollection of the right of hunting Avhich they formerly exercised there. According to Mr Shaw Lefevi-o, there still remain, within a radius of fifteen miles from Loudon, sixty commons of an average area of 130 acres, and 120 smaller commons with an average area of 20 acres. The thirty-second Report of the Enclosures Commission (1877) estimates that there still remain in England 2,000,000 acres of common land. Since 1845, 600,000 acres have been en- closed. See an excellent article by Miss Octavia Hill: "The^ Future of our Commons," FortnUjhtly Review, Nov. 1877. M. 17 258 PRIMITIVE PROPERTY. learnt that they were dispossessed, when the enclosures, erected by virtue of Act of Parliament, prohibited access to the lands which they had used from time immemorial. The legislature ignored the existence of rights derived from the ancient mark organization. It allowed the lord of the manor's eminent do- main ; and thought, with economists, that the common lands should be surrendered to the more productive efforts of indi- vidual activity. In the middle ages and in the sixteenth cen- tury the copyholders had been despoiled of their property, because their title of occupation was deposited in the records of the manor, against the usurpation of which they had to defend themselves ; and also because the judges all belonged to the class of their adversaries, who employed fraud, violence, and corruption, to attain their object. Until the eighteenth century the legislature endeavoured to preserve small properties. The laws of Henry VII. ordained that every cottage should have four acres of land belonging to it. They tried to enforce this rule for a long time, but to no pur- pose. In 1627, in the reign of James I., Roger Crocker was fined for building a cottage on his domain of Frontmill, without the prescribed four acres. In 1636, Charles I. nominated a commission to devise a means of enforcing the ancient prescrip- tion. Cromwell renewed the prohibition against building a house without allotting at least four acres to it. In the first half of the eighteenth century complaints were made that the dwellings of the agricultural labourers had not at least one or two acres\ In the eighteenth century, on the contrary, legislation becomes favourable to large properties. The large landed proprietors took advantage of their power in Parliament to confiscate, by means of Enclosure Acts, all the domain of the ancient folkland. This was not effected without protest : and numerous writings appeared on the subject. " In a large number of parishes in Hertfordshire," writes an indignant pen, 1 These details are borrowed from Karl Marx, Das Kapital, c. xxiv. It is perhaps too severe a pictm-e of the concentration of property in England, but a great number of curious, and perhaps little known, quotations may be found in it. See also H. Denis, Tendances actuelles du prolétariat européen, in the Revue de Philosophie positive, March 1872 to January 1875. I HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 250 "twenty-four farms, averaging from 50 to 150 acres, have been formed into three'." "In Northamptonshire and Lincolnshire enclosure of common lands has been effected on a large scale, and the majority of domains so formed have been converted into pasture,' so that, where there were formerly 1500 acre^i of land under the plough there are now but 50. Ruins of houses, barns and stables, are the only traces left of the old inhabitants. In many places hundreds of houses with the families have been reduced to eight or ten. In the majority of parishes where the enclosure only dates from the last fifteen or twenty years, the number of jjroprietors is but small compared with that which cul- tivated the soil when the fields were open. It is not uncommon to see some four or five rich cattle-breeders usurping recently enclosed domains, which were previously in the hands of twenty or thirty farmers, and a large number of small proprietors and rustics. All the latter and their families have been expelled, together with a number of families whom they employed and supported ^" It was not only waste lands, but those also which had been cultivated, either in common, or on payment of a certain rent to the parish, that neighbouring landowners an- nexed under pretext of " Enclosure." " I am now speaking of the Enclosure of lands and fields already under cultivation. Even the writers who support Enclosures are agreed that, in this case, they reduce the area of cultivation, raise the price of provisions, and lead to depopulation And, even when applied only to uncultivated lands, the operation, as at present practised, deprives the poor of part of their means of existence, and encourages the development of farms which are already too large'." " When the soil," says Dr Price, " falls into the hands of a small number of large farmers, the small farmers" (whom he has elsewhere designated as so many small proprietors, living themselves and their families on the produce of the soil they cul- 1 Thomas Wright, A ahort Addresn to the Publie on the Monopoly of Large Farms, 1779, p. 23. - Addington, Enquiry into the Reasons for or against Enclosing Open Fields. London, 1772, pp. 37, 43, passim. 3 Dr R. Price, Vol. ii. p. 155. Consult too Forster, Addingtou, Kent, and James Anderson (Karl Marx, Das Kapital, p. 756). [After considerable search in the library of the Britisli Museum I have been unable to find the original of these works, and am therefore compelled to retranslate most of the passages here cited. ] 17—2 260 PRIMITIVE PROPERTY. tivate, and the shee]), poultry, pigs, éc, which they depasture on the common lands) " the small farmers will be transformed into so many persons compelled to earn their living by labouring for others, and to go to the market to purchase what they require. More work will, perhaps, be done, because there will be more restraint Towns and manufactures will increase, be- cause more persons will be driven there in search of occupation." "In fine," to quote his summing up of the general effect of En- closures, "the position of the lower classes of the population has deteriorated in all respects. The small proprietors and farmers have been reduced to the condition of day-labourers and hire- lings, and at the same time it has become more difficult to earn a living in this condition." This usurpation of the common lands and the agricultural revolution consequent upon it were, in fact, so severely felt by the rural labourers, that, according to Eden himself, an ardent advocate of Enclosure, between 17G5 and 1780 their wages began to fall below the minimum, and had to be supplemented by government aid. "Their wage," he tells us, " was insuflQcient for the first necessaries of life." In the last years of the seventeenth century the yeomanry, a class of independent cultivators, — the " proud peasantry," — were still flourishing. It was this class that constituted the strength of England in the middle ages, and to it she owed her superiority over France. At the end of the eighteenth century the yeomanry had disappeared \ The dispossession of the old proprietors, transformed by time into mere tenants, was effected on a large scale by the " Clearing of Estates." When a lord of the manor, for his own profit, wanted to turn the small holdings into large farms, or into pasturage, the small cultivators were of no use. The proprie- tors adopted a simple means of getting rid of them ; and, by destroying their dwellings, forced them into exile. The clas- ' See A Letter to Sir T. C. Bunbury, On the High Pricefs of Provisions, by a Suffolk Gentleman, Ipswich, 1795, p. 4. A violent partisan of large farms, the author of the treatise, An Enquiry into the connections of Large Farms, &c., London, 1773, himself says (p. 133): "I most lament the loss of our yeomanry, that set of men who really kept up the independence of this nation; and sorry I am to see their lands now in the hands of monopolizing lords, tenanted out to small farmers, who hold their leases on sucli conditions, as to be little better than vassals ready to attend a summons ou every mischievous message." Karl Marx, Das K(qnta!, p. 752. HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 2G1 sical land of this system is Ireland, or more particularly the Highlands of Scotland. It is now clearly established that in Scotland, just as in Ireland, the. soil was once the property of the clan, or sept. The chiefs of the clan had certain rights over the communal domain ; but they were even further from being proprietors than was Louis XIV. from being proprietor of the territory of France. By successive encroachments, however, they trans- formed their authority of suzerain into a right of private owner- ship, without even recognizing in their old co-proprietors a right of hereditary possession. In a similar way, the Zemindars and Taluqdars in India were, by the act of the British government, transformed into absolute proprietors. Until modern days the chiefs of the clan were interested in retaining a large number of vassals, as their power and often their security were only guaranteed by their arms. But when order was established, and the chiefs, or lords as they now were, began to reside in the towns and required large revenues rather than numerous retain- ers, they endeavoured to introduce large farms and pasturage. We may follow the first phases of this revolution, which commences after the last rising under the Pretender, in the works of James Anderson^ and James Stuart. The latter tells us that in his time, in the last third of the eighteenth century, the Highlands of Scotland still presented a miniature picture of the Europe of four hundred years ago. " The rent" (so he misnames the tribute paid to the chief of the clan) " of these lands is very little in comparison with their extent, but if it is regarded relatively to the number of mouths which the farm supports, it will be seen that land in the Scotch Highlands supports perhaps twice as many persons as land of the same value in a fertile province. It is the same with certain lands as with certain monasteries : * The more mouths there are to feed, the better they live,' " When, in the last thirty years of the eighteenth century, they began to expel the Gaels, they at the same time forbade them to emigrate to a foreign country, so as to compel them by these means to congregate in Glasgow and other manufacturing towns. In his observations on Smith's 1 James Anderîson, Oliservations on the means of exciting a Spirit of National Industry. Ediuburgh, 1777. 262 PRIMITIVE PROPERTY. Wealth of Nations, published in 1814, David Buchanan gives us an idea of the progress made by the " Clearing of Estates." "In the Highlands," he says, "the landed proprietor, without regard to the hereditary tenants" (he wrongly applies this term to the clansmen, who were joint proprietors of the soil), "offers the land to the highest bidder, who, if he wishes to improve the cultivation, is anxious for nothing but the intro- duction of a new system. The soil, dotted with small peasant- proprietors, was formerly well populated in proportion to its natural fertility. The new system of improved agriculture and increased rents demands the greatest net profit with the least possible outlay, and with this object the cultivators are got rid of, as being of no further use. Thus cast from their native soil, they go to seek their living in the manufacturing towns...." George Ensor, in a work published in 1818, says : " They (the landed proprietors of Scotland) dispossessed families as they would grub up coppice-wood, and they treated villages and their people as Indians harassed with wild beasts do, in their vengeance, a jungle with tigers Is it credible that in the eighteenth century, in this missionary age, in this Christian sera, man shall be bartered for a fleece or a carcase of mutton, nay, held cheaper? Why, how much worse is it than the intention of the Moguls, who, when they had broken into the northern provinces of China, proposed in council to exterminate the inhabitants, and convert the land into pasture ! This pro- posal many Highland proprietors have effected in their own country against their own countrymen^" M. de Sismondi has rendered celebrated on the Continent the famous Clearing executed between 1814 and 1820 by the Duchess of Sutherland. More than three thousand families were driven out ; and 800,000 acres of land, which formerly be- longed to the Clan, were transformed into seignorial domain. Men were driven out to make room for sheep. The sheep are now replaced by deer, and the pastures converted into deer- forests, which are treeless solitudes. The details of this new transformation are to be found in Mr Robert Somers' book. Letters fi^om the Highlands, London, 1848, which appeared first ^ George Ensor, An Inquirij into the Population of Nations, London, 1818, pp. 215, 216. See Karl Marx,"7>rts Kapital, p. 759. HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 203 in the form of letters in the Times. The Economist of June 2, 1866, said on tliis subject: — "Feudal instincts have as full career now as in the times when the Conqueror destroyed thirty-six villages to make the New Forest. Two millions of acres, comprising most fertile land, have been changed into desert. The natural herbage of Glen Tilt was known as the most succulent in Perth; the deer-forest of Ben Aulden was the best natural meadow of Badonock; the forest of Bleak Mount was the best pasturage in Scotland for black-woolled sheep. The soil thus sacrificed for the pleasures of the chase, extends over an area larger than the county of Perth. The land in the new Ben Aulden forest supported 15,000 sheep; and this is but the thirtieth part of the territory sacrificed, and thus rendered as unproductive as if it were buried in the depths of the sea." The destruction of small property is still going on, no longer however by encroachment, but by purchase. Whenever land comes into the market, it is bought by some rich capitalist, be- cause the expenses of legal enquiry are too great for a small investment. Thus large properties are consolidated ; and fall, so to speak, into mortmain, in consequence of the law of pri- mogeniture and entails. In the fifteenth century, according to the Chancellor Fortescue, England was quoted throughout Europe for the number of its proprietors, and the comfort of its inhabitants\ In 1688, Gregory King estimates that there were 180,000 proprietors, exclusive of 16,560 proprietors of noble rank. In 1786, there were 250,000 proprietors in England. According to the "Domesday Book" of 1876, there were 170,000 rural proprietors in England, owning above an acre ; 21,000 in Ireland, and 8,000 in Scotland ^ A fifth part of the entire coun- try is in the hands of 523 persons. "Are you aware," said Mr Bright in a speech delivered at Birmingham, August 27, 1866, " that one-half of the soil of Scotland belongs to ten or twelve persons ? Are you aware of the fact that the monopoly of landed property is continually increasing, and becoming more and more exclusive^ ? " 1 Be Lmulibus Legum Anglia:, Cap. 29 — 36. 2 ^QQ i^ote A at end of volume. ■* See au excellent article by Mr Shaw Lefevrc, in the Forlnifjhthj Review, 264 PRIMITIVE PROPERTY. In England, then, as at Rome, large property has swallowed lip small property, in consequence of a continuous evolution unchecked from the beginning to the end of the nation's history; and the social order seems to be threatened just as in the Roman empire. An ardent desire for a more equal division of the produce of labour inflames the labouring classes, and passes from land to land. In England it arouses agitation among the industrial classes, and is beginning to invade the rural districts. It ob- viously menaces landed property, as constituted in this country. The labourers, who till the soil, will claim their share in it; and if they fail to obtain it here, will cross the sea in search of it. To retain a hold on them they must be given a vote ; and there is fresh danger in increasing the number of electors while that of proprietors diminishes, and maintaining laws which render inequality greater and more striking, while ideas of equality are assuming more formidable sway. To make the possession of the soil a closed monopoly, and to augment the political powers of the class who are rigidly excluded, is at once to provoke level- ling measures and to facilitate them. Accordingly we find that Eno-land is the country where the scheme of the nationalization of land finds most adherents, and is most widely proclaimed. The country, which is furthest from the primitive organization of property, is likewise the one where the social order seems most menaced. The history of property in China and at Rome is very simi- lar to that which we have just sketched for England. The oldest Chinese chronicles represent that country as having al- ready arrived at the agricultural stage; but private property was not yet applied to the soil. The land was divided among all those who were capable of cultivating it, that is, among the inhabitants between twenty and sixty years of age. Each valley had an independent administration, and elected its own chiefs ; the sovereif-n being also elective. These ofiicers had certain Jan. 1877. 5,000 persons own two-thii-ds of the country, or an average of 10,000 acres each. See also Mr CUffe Leslie. Even the partisans of large pro- perties cannot deny that they devour small properties. "It is quite true," says Mr Froude, " that about two-thirds of Great Britain belong to great peers and commoners, whose estates are continually devouring the smaller estates that adjoin them." HISTORY OF LANDED PROPERTY IN ENGLAND AND CHINA. 2G5 lands assigned to them, the produce of which enabled them to live according to their dignity. This is exactly the same sys- tem as we have seen in Germany. From the year 2205 B.c. the empire became hereditary \ The provincial chief also usurped a hereditary right of succession. The sovereigns made grants of land reserving certain rents, and the lords in turn did the same. A kind of feudalism was thus established ; the pro- perty cultivated by the peasants, however, continued to be di- vided among the families joroportionally to the number of hands which each could command. In the partition, the distance of the lands was taken into account, and a smaller portion given in those which were nearer at hand. One lot in nine had to be cultivated for the benefit of the State by the families who obtained the remaining eight. The system of common lands, gun-tjan, was maintained until about the third dynasty, 254 B.c., and lasted to our own times in the remote districts of Corea. Private property was introduced by the house of Zin : but gra- dually, as the chronicles tell us, the rich usurped all the lands, and then let them to the ejected cultivators, reserving half the produce as a reut. The government has since, at different times, had recourse to agrarian laws to augment the number of proprietors. The most remarkable and most general of these laws is that promulgated by the Tan dynasty (G19 — 907). Every individual, provided that he had a separate house, re- ceived a portion of land in perpetuity ; and a second piece tem- porarily, conditionally on his being in a position to cultivate it. The portion assigned to the different classes varied accord- ing to their rank and dignity. The private property was in- alienable, except in extreme cases. Life estates returned to tlie State, to be re-distributed. This system did not long remain in force ; about the year 1000 it gave way to absolute private property, which, notwithstanding the Mantchou conquest and revolutions, has survived to the present day. Landed property, therefore, in the evolution of centuries, has passed through similar phases there to those which it has traversed in the West. 1 These details are borrowed from a rôsumë of the memoirs of tlie Russian mission at Pekin, by M. J. Sachurolf. See Revue Germanique (lirst year). CHAPTER XIX. CO-OPERATIVE CULTIVATION. At the present time there seems to be a desire to reconstitute the old agrarian communities under a new form. In England several agricultural undertakings have been established on the principle of co-operation. One of the oldest is that of Balahine, in Ireland, started in 1830 by Owen's disciple, John Scott Vandeleur. It seems to have met with the best results, both in a moral and economical point of view\ until the experiment collapsed suddenly on the flight of Vande- leur, who was ruined at play. The report of the Eev. James Fraser, the present bishop of Manchester, government com- missioner in the inquiry as to the employment of women and children in agriculture, brings before us two agricultural co-operative societies, which seem to succeed perfectly. They were on the estates and under the supervision of Mr Gurdon, of Assington Hall, near Sudbury in Suffolk. The first dates from 1830. It was formed, at the suggestion of Mr Gurdon, by the association of fifteen ordinary labourers, who each contributed three pounds, and a further sum of four hundred pounds was advanced by the landlord. They have now extended their farm from sixty to a hundred and thirty acres. They have returned the money advanced to them, and each share is worth about fifty pounds, which represents more than sixteen times what was originall}^ invested. One of the associates, elected by his fellows, directs the cultivation, having a committee of four to assist him. The associates may sell their share ; but the 1 See Mr William Fare's Co-operative A(jricnJturc, which contains interest- ing details. The author, however, carried away hy the attraction of his own Utopia, has perhaps given too highly-coloured a view. CO-OPERATIVE CULTIVATION. 267 consent of the landlord and of the society is necessary for the validity of the sale and the admission of the new associate. The second society was formed in 1854 under the same conditions, with the same success. Mr Gurdon again advanced four hundred pounds, which has been repaid to him. The land cultivated has been from time to time enlarged, and now extends over two hundred and twelve acres, the rent of which is two hundred and thirty-five pounds. The original shares, for which three pounds ten shillings were given, are now worth more than thirty pounds. Mr Fraser has much to say of the advantages of the system ; and another writer, who also visited the Assington co-operative agricultural associations, confirmed, in the Fall-Mall Gazette of June 4, 1870, the correctness of the facts given by Mr Fraser. The celebrated German economist Von Thiinen, about 1848, introduced, upon the land of Tellow in Mecklenburg, the system of participation in the profits in favour of his agricultural labourers. According to evidence furnished by Dr Brentano, of the Berlin statistical department, this experiment, which was carried on in spite of the death of Von Thiinen, is giving excellent results ; for each labourer receives an annual dividend of about twenty-five thalers, and the oldest among them have a capital of five hundred thalers in the savings-bank. The working classes in England at the present time regard the idea of applying co-operation to agricultural labour with much favour : and it was even advocated by Mill, who would have had the State grant to co-operative agricultural societies a portion of the common land still existing. These schemes have found their echo in the antipodes, and an association has just been formed at Melbourne, in Australia, called the " Land Reform League," the object of which is to restrain sales by the State of public lands, which it would retain as provision for the future. There is no doubt that it would be desirable to see co- operative association applied to the cultivation of the soil. Its advantages have been fully shewn by several economists, by E-ossi amongst others. Of these advantages the two most im- portant arc : first, that a reconciliation is by this means effected between labour and capital, which arc at the present time 268 PRIMITIVE PROPERTY. always engaged in a lamentable struggle ; and secondly, small properties, which are desirable in a social point of view, are associated with cultivation on a large scale, which is no less profitable economically, as employing machinery and a syste- matic distribution of crops. But we must not be deluded with the idea, that association of agricultural labour could be easily introduced into general practice. The success of the experi- ments made in England at Assington, and in Germany on the land of Tellow, is in great measure due to the prevailing in- fluence of Mr Gurdon and of Von Thiinen, The old agrarian communities were actually co-operative agricultural societies : they were founded on ties of blood, family affection and im- memorial tradition ; and, this notwithstanding, they disap- peared, not by the hostility of state powers, but from the gradual influence of the sentiment of individualism, or of egotism, characteristic of modern times. In the jDlace of family spirit, which has waxed feeble, will a new sentiment of collective fraternity develop itself with sufficient force to serve as cement for future associations ? It is a consummation we may hope for, and the difficulties of the existing situation make it singularly desirable. It is, however, too evident that the labouring classes, especially in the country districts, still want the en- lightenment and spirit of mutual understanding essential to the success of co-operative association. Much as we may hope that a brilliant future awaits such association, we must admit that its hour has not yet come ; though, probably, it is to come. All clear-sighted economists have seen the necessity of agri- cultural co-operation. To quote Rossi on the subject^: "Extensive property and extensive cultivation, small property and small cultivation, are not ideas wliich are necessarily construed each by the other, . . . How can cultivation on a large scale be applied to small properties'? The answer is, 'By association.',.. Tlie spirit of association is natural to man, alike in all times and in all countries. . . . In France the spirit of association will be spread by the multiplica- tion of small capitalists, and to a still greater extent by the diffusion of enlightenment and of j)opu]ar education " The cultivation of gram, of roots, of resinous or dye-producing plants, of j^asture and forests, as well as the dissemmation of sanitaiy and economic principles, are objects to which association may be applied with ease and advantage. . . . 1 Cours d'économie iwUtique, Vol. ii. Lesson 5, pp. 101 — 138. CO-OPERATIVE CULTIVATION. 269 "The terms of association must vary with the manners and customs of the country, witli the kind of cultivation, and the nature of the produce. In some localities, by means of association a large property may be formed of several small holdings, and let to a tenant, while the proprietors can find more useful employment for their labour in some manuflicturing industiy. Elsewhere an administration may bo organized for joint expenditure under the direction of one or more of the associated proprietors. Here they may unite solely for the pui'chase and employment of certain agricultui'al machines and im- plements; there, to organize means of irrigation, and to distribute water among the persons interested. Where would the princijile stop 1 The mind of the labourer, once awakened, would not be slow in finding the forms of association best adapted to local circumstances. " The cultivators ai*e not such strangers as may be supposed to the idea of association, common interest, and division of profits " Unfortunately, the public has at present no very clear idea of the conditions of the problem which it is called upon to solve. So the progress in question cannot be sudden : it is an end towards which we are advancing gradually day by day. Between the dis- solution of the old ties, and the spontaneous formation of new ones, which under the empii-e of civil equality are to unite and co-ordinate individual forces, there was of necessity an intermediate state, an epoch of transition, of agitation and of difficulty, subject to the passions and controversies of mankind. This interval, full of diffi- cidties and dangers, we have nearly completed : we can see distinctly its boundary-line, but it would be a delusion to suppose ourselves already arrived at it, when we are still only on the way " . . .Unless all that we have just said is entirely without foundation, the economic results of laws regulating property in land may be modified and corrected by agreements between the ownei's of land, and especially by association. Henceforth the interest of all questions of succession gi-ows weaker for the economist. What matter great or small properties, the amount of the reserve land, the limitations imposed on testators, and other qvi estions of this nature, where the proprietors, whatever the extent of their possessions, can apply according to circumstances cultivation on a large or small scale, and derive in any case the greatest possible advantage from, that powerful instrument of production, the soil ]" "When subdivision shall have produced all its fruits," says Louis Reybaud, "and in consequence of its obvious disadvantages men return from small cultivation to ciiltivation on a large scale, new progress will be achieved in an alliance of human interests. Association will be the offspring of the continued subdivision of property'." "Association is calculated to banish pauperism, and to assemble in systematic social order the disconnected elements of modern society. The pi-inciple of association will restore to the world the peace for which it is athirst. Those who become its apostles and ^ Études sur les réformateurs modernes, Vol. i. p. 198. 270 PRIMITIVE PROPERTY. obtain it a hearing, will be the benefactors of the human race'." These are the words of M. Michel Chevalier. To quote next M. "Wolowski - : " Social progress cannot consist in the dissolution of every kind of association, but rather in the substi- tuting in the place of the compulsory and oppressive associations of times past, vohintary and equitable associations, combinations not merely for security and defence, but for common production." "The si)irit of association and the spii-it of family divide the woi'ld between them," said M, de Cormenin when treating of agricultural association ^ "Providence has implanted these two instincts in man. Both, when wisely employed according to the object in view, conduce alike to the individual and social welfare. "The division of properties is tending, in more instances than one, to produce the same inconvenience as their extreme accumvilation In countries where the soil is minutely subdivided, the peasant, who is half-labourer, half- proprietor, has all to gain by association. For him it can work marvels. "Further, consider the moral effect of such association; increased welfare in the present, security of mind for the future, and respect for oneself and one's neighbours. Consider the pledges of mutual good will, the salutary and wide-spreading influence of example, the healthy, voluntary, discipline, observance of engagements, and internal peace for the community ! " 1 Michel Chevalier, Diet, de la Conversation, art. Population. 2 Leçons au Conservatoire des Arts-et-Métiers, 16 Dec. 1844. 3 Entretiens de village, etc. xxii. CHAPTER XX. HEREDITAKY LEASES. There is an ancient form of property, wbieb legislators and economists should not fail to examine, as it may contribute to the settlement of the struggle, which is everywhere going on, between those who cultivate -the soil and those who take the rent ; this is the hereditary lease, known in Holland under the name of heklem-regt, in Italy as the contralto di livello, and in Portugal as the aforamento. It is also to be found in France, in various provinces, under various names. In Brittany the term is quevaises ; in some places domaine coiigéahle ; and, in Alsace, erhpacht As under the feudal system, the full proprietorship is, so to say, carved into two distinct rights : the right of the proprietor, which is actually nothing but a kind of mortgage claim, and the right of the tenant, which is a sort of hereditary usufruct. In Portugal, the aforamento gives the occupier of land the right to hold it in perpetuity, conditionally on his fully performing the terms of the contract. He has to pay regularly a rent fixed once for all, which the proprietor cannot raise. When the land changes hands, the proprietor is entitled to a duty, which is called luctuosa, when the transfer is in consequence of a death ; or laudemium when it is the result of a sale. Land held in aforame^ito is essentially indivi- sible ; hence, when there are several heirs, one must take the whole domain and pay an equivalent to the others, or else the land must be sold. In default of heirs near enough to succeed, the aforamento perishes, and the bare ownership now be- comes full ownership. The aforamento is more or less in use throughout Portugal ; it is not unknown in Alemtejo, and is 272 PEIMTTIVE PROPERTY. common in the Algarves; but, North of the Tagiis, it is the mode of tenure generally practised, and to it is attributed the excellent cultivation and the comfort of the cultivators, which distinguishes the province of Minho. The aforamento seems to date from the earliest times of the monarchy ; and is sup- posed to have been first established on the lands of the Bene- dictine monks. In Italy the contratto di livello was very general in the middle ages, and still exists in several provinces, especially Lombardy and Tuscany. In ancient documents, from the sixth to the thirteenth century, the lihellarii frequently appear. The principal rules of the contract M. Jacini supposes to date from the time of the Roman empire. M. Roscher sees their origin in the emphyteusis, which the middle ages borrowed from the Roman law. The assignment of immoveable property, which the owner could not himseh" turn to advantage, to cultivators, who engaged to till it for a fixed rent or canon, and a paj^ment of certain duties, laudemium, in case of alienation, was a con- tract beneficial to both parties; and it is not surprising that large proprietors in the middle ages, who had neither capital nor tenants to cultivate their vast domains, should have had recourse to this means of securing a guaranteed revenue. Livelli are now gradually disappearing in Italy; first, because there, as in Portugal, the legislature and the courts are alike hostile to these perpetual rents, which, they say, recall feudal rights ; secondly, because the system of full ownership is now thought the only reasonable one, and every thing in restraint of it is tolerated with impatience. The hehlem-regt, which is general in the Dutch province of Groningen\ is exactly similar to the Portuguese aforamento. This is additional evidence in support of Tocqueville's remark, that, in the middle ages, under an exterior of great diversity, customs were everywhere fundamentally the same. The fact of the heklem-regt and the aforamento presenting, at the present day, identical features in the two extremities of Europe, is a proof that this contract must formerly have been customary in the in- termediate countries. It is exactly the same with these ancient ^ For details see the Author's Essai sur Vêconoviie rurale de la Néerlande; and for the contratto di livello, his Études d'Economie rurale — Lomhardie. HEREDITARY LEASES. 273 institutions as with certain alpine plants, which are only to be found now in the polar regions and on the lofty mountains of Switzerland ; but which grew throughout Europe in the glacial period. The hehlem-regt is a right of occupancy, at a fixed rent, which the proprietor can never raise ; the right passes to the heirs in the collateral line as well as in the direct. The tenant, or heklemde meyer, can devise, sell, let, or even mortgage the land without the proprietor's consent ; but every time the right of occupancy changes hands by inheritance or sale, the proprietor is entitled to a fine of one or two years' rental. The buildings which are on the land belong as a rule to the tenant, who can claim the price of the materials, if his right of occu- pancy is at any time extinguished. The tenant pays all im- posts : he may not change the form of the property, nor do anything to depreciate its value. The beklem-regt is indivi- sible : it can never vest in more than one person, so that one only of several heirs has to take it as his portion. In paying the stipulated canon, however, in case of alienation — the pr-opi- nen — the husband may insert his wife's name, or the wife her husband's, and they then have a right of survivorship. The word propinen obviously comes from the Greek irpoiriveiVy to drink — the formal emptying of the cup. It recalls the practice of the Germans, who, according to Tacitus, ratified all their juridical transactions with a draught of wine. Propinen is the equivalent of the pot de vin, paid in several countries on the renewal of a lease. The annual rent due to the proprietor varies much, and according to the time when the rent was deter- mined, rather than the actual value of the land. It is found at from five or six to thirty or forty florins the acre. The market value of the tenant's right depends on the price of pro- duce, the state of agriculture, and also on the figure of the annual rent. About 1822, the value of the beklem-regt had fallen so low, that no purchasers were to be found. Since the opening of the English market, however, the tenant has seen the value of his occupancy increase to such a degree, that he has begun to sub-let to ordinary tenants, a result to be re- gretted, as henceforth all the advantages of the beklem-regt dis- appear. When in full ownership, the land is sold at about M. 18 274 PRIMITIVE PROPERTY. 2,500 to 3,000 florins the hectare. If the tenant fails, or is in arrears with the annual rent, the hehlem-regt is not absolutely extinguished : the creditors have the power of com- pelling a sale; but the purchaser has first to pay the pro- prietor all arrears. The origin of this curious variety of hereditary lease is very obscure. It seems to have sprung up in the middle ages on monastery lands. The soil being then of little value, the monks readily granted to cultivators a certain extent of soil, on condition of their paying a certain annual rent, and also a fine at each death. This arrangement secured a fixed income for the monastery, and also freed it from the management of pro- perty, which as a rule produced nothing. The large proprietors and civil corporations also adopted the system. They seem to have reserved the right of ejecting the tenant every ten years ; but they never exercised it, because they would have had to pay the value of buildings, and would also have had difficulty in findinsf a new tenant. Duringf the troubles of the sixteenth century, the right became hereditary, or at least was declared such by several decisions. Jurisprudence and custom settled the various points in dispute ; a more definite formula was framed and generally accepted, and from that time the heJdem- regt, so determined, has existed side by side with the Civil Code. It has always been respected, and been more and more generally adopted throughout the province of Groningen. What surprises one is that this right, which seems so complicated and antiquated, can spread and gain ground even now. The explanation of this strange economic fact is that, in the first place, the proprietor, who wants to grant the heklem-regt over his land, receives a considerable sum, and still retains, at any rate nominally, the ownership. Again, a man who culti- vates his own land and is in want of money, can sell the bare right of ownership, retaining the heklem-regt for himself. The most frequent origin, however, of new contracts of this nature is a public sale ; because, if the true proprietorship and the here- ditary lease are sold separately, a higher sum is realized than if the full property is sold at once. For this reason the polders (land recovered from the sea), where the dams have only been constructed some twenty years, are subject to the heklem-regt. HEREDITARY LEASES. 27^ Whoever has considered the iuconvenienccs of the ordinary lease, will have no difficulty in understanding the advantages of the contract adopted in Groningen. One of the most able writers on- this subject, M. Hippolyte Passy, remarks with reason : " There is no kind of lease really favourable to the progress of production, but such as, by well conceived stipula- tions, makes it to the constant interest of the cultivators to neglect nothing that increases fertility either in the present or the future." Now the beJdem-regt fulfils this condition per- fectly. The tenant can undertake the most costly improve- ments : he is sure to derive the full profit from them ; and he is not threatened, like the ordinary tenant, with an increase of rent proportional to what he has done to increase the fertility of the land he occupies. The legitimate reward of labour is the produce which it creates ; and man labours harder when he is sure of enjoying the fruits of his efforts. The heklem-regt, assuring the cultivators the full enjoyment of any increase in the produce, is therefore the most active stimulus : it en- courages the spirit of improvement, which short leases only penalize. M. Eoscher maintains that a tenant will apply more capital to the cultivation of the soil than the proprietor, because the latter has to devote a considerable sum to the purchase of the land, which the former can employ to increase the intensity of cultivation. This remark is specious, but scarcely well-grounded. As a matter of fact, the purchaser of land can raise on mortgage a sufficient sum to improve the cultivation. He will then pay in the form of interest what he would have paid as rent : and will have this immense advantage, that he will profit exclusively by all improvements, without any risk of seeing them turn out so much loss to him at the expiration of the lease. In any case, the heklem-regt is entirely free from the disadvantage pointed out by M. Roscher. The cultivator, purchasing only a here- ditary lease, obtains it at a cheaper rate, and can devote to cultivation all the surplus which he would have had to lay out in the purchase of the bare proprietorship, which he now leaves to another. While only laying out a far smaller sum than he would have had to give for the entire property, he is neverthe- less sure of enjoying the good results of all the work he may 18—2 276 PRIMITIVE PROPERTY. carry out. The heJclem-regt therefore unites the advantage, which M. Roscher attributes to the lease, with the security for the futvire afforded by ownership. Another objection has been raised against the property in the soil residing in the cultivator. It is said that the pro- prietor cultivator, certain of his subsistence, and not being stimulated by any rise of rent, sinks into routine, and does not obtain from the soil all that it can produce. This objection reminds one of the quaintly cruel question in Cardinal Riche- lieu's will : To what extent are we to suffer the people to live in comfort ? We cannot believe that property, which gives comfort to the labourer, lulls his activity to rest ; and we still think that no one will get more produce out of the soil than its owner. But, even if it were otherwise, the hehlem-regt would again, in this case, have the advantage over ordinary owner- ship ; for, as one alone of the children can inherit the holding, the father will be stimulated to obtain from the soil all that it can give, so as to save the portions for his other children ; other- wise it would be necessary to sell the hereditary lease to avoid its indivisibility. We may, therefore, assert that the heklem- regt is even more favourable than ownership to good cultivation, as allowing the application of more capital, and urging him, who cultivates it, to redouble his efforts to obtain as large a harvest as possible. As land subject to hereditary lease cannot be divided w^ith- out the consent of the proprietor, this contract is a natural obstacle to the " morcellement" of lands. It prevents unsuit- able cutting up of properties resulting from equal partition, and at the same time does not, like the majorat, or entail, exclude a division recommended by sound economy, for if the division brings a real advantage, it needs only an assignment to the proprietor of some share of the profits to obtain his consent. Those who, struck by the forewarnings of Malthus, fear the excessive increase of population, are likely to be partisans of the heklem-regt, for the system affords an efficient check to it. The number of holdings is limited ; and as the sons of the cultivators are accustomed to live in comfort, they only regard marriage as likely to increase the rent of lands, by reason of a HEREDITARY LEASES. 277 rash competition, tending to produce morcellement. Having a certain amount of education they emigrate or choose a career ; and when they take a wife it is because they have the means of supporting her and the chikU'en she may bear them. Thus the beklem-regt is aUke favourable to the production of wealth, and tends to limit the number of those who have to share it ; and so contributes by a double action to increase the prosperity of the population. But, it will be said, if this system of leases is superior to the ordinary term of years, it is inferior to ownership. Un- doubtedly it is, in some respects, as the heklemde meyer has to pay a rent, whereas the owner pays none ; but there is one great distinction in favour of the beklem-regt; namely, that under this system, tlie heklemde meyer cultivates for himself, whereas the proprietor would let the land. Suppose the heklem-regt abolished in Groningen, and what would be the result ? Here, as in all places where land is very valuable, the owner of half a million francs in the shape of eighty or one hundred hectares of land, would go and live in a town, grant the cultivation of his land to a tenant, and take care to raise his rent regularly every six or nine years. The effect, therefore, of an anomalous right, borrowed from the middle ages, has been to create in Holland and Portugal, a class of cultivators enjoying all the advantages of ownership, except that they do not retain for themselves the net profit, which is precisely what would have alienated them from cultivation. Instead of tenants fearing to lose their farm, recoiling before every costly improvement, concealing their prosperity and dependent on their master, we find, in Gronin- gen, a class of usufructuaries, proud, independent and simple in habits, but eager for information, appreciating the advan- tages of education, and neglecting no means of spreading it. They practise agriculture, not as a blind routine or contemp- tible trade, but as a noble occupation, which brings them fortune, influence, and universal respect. They are economical in their own wants, but prodigal to their estate ; ready to make any sacrifice to drain their land, to rebuild or enlarge their farm buildings, and to procure the best machines and the best strains of animals ; and content, moreover, with their condition, 278 PRIMITIVE PROPERTY. because their lot depends on nothing but their own activity and forethought. So long, then, as the heklemde ineyer cultivates his own land, the hereditary lease produces good results. But, unfor- tunately, these results fail so soon as in the exercise of his right of sub-letting, he grants to another the right of cultivating his estate, for a rent which he receives, and out of which he pays the holder of the bare ownership. From this time all the disadvantages of the common lease reappear ; and we return to the ordinary conditions, which are found elsewhere, — with this difference, that the cultivator has to support two classes of idlers instead of one. Sub-letting was rare in former times, because the profits derived from cultivation were only sufficient to support the family of the heklemde nieyer, when he cultivated the land himself; but since the rise in the price of all articles of food, and especially since the opening of the English market, the profits have been so large, that a sub- tenant can be found ready to pay a rent in excess of that taken by the proprietor. Under-letting thus came into use, — a fact which we cannot but regret having to acknowledge. In the island of Jersey the same mode of tenure is still in force. In France, in the "terr-iers" of most monasteries and cathedrals, grants of land are found, the nature of which is indicated by the formula darmis in 'perpetuarti emjyliyteusim. This kind of tenure was, therefore, very general. The quevaises likewise had all the characteristics of hereditary leases ; but, according to information communicated by M. de Lavergne, the proprietor has gradually acquired the right of ejecting the tenant, on compensating him for the value of the buildings, as determined by an expert. The bail à domaine conge'aMe is a tenure peculiar to Brittany, where it is especially in force in the usemens of Bohan, Cornouaille, Léon, Brouerec and Trëguier. Its origin is thus explained in Art. 3 of the usemen of Treguier : " When the proprietor of a house or lands in the country is in want of money, or when he Avishes to secure the rent of land at a distance, and not to be troubled with repairs, he grants the land or house in covenant or domaine congéahle, on condition of the payment of a rent and the performance of the usual corvées, I HEREDITARY LEASES. 279 to be held in perpetuity, subject, however, to the right of the lord to eject the holder at any time, on paying him such com- pensation as is appraised." " The condition of this lease," says Merlin, " is a clause of this sort : ' / grant you the soil IN PRECARio, and all on the surface in full ownership ; ' such a tenure is therefore more advantageous to the tenant than the ordinary lease, inasmuch as he does not lose the improvements, as in the ordinary leased" Anton, in his History of Agriculture in Germany, quotes numerous examples of hereditary leases, which date back to the twelfth and thirteenth centuries. This contract was also very common in the agricultural colonies founded in Germany in the middle ages, by Flemish and Dutch cultivators. In Prussia, Saxony, Hesse and the greater part of Germany, the erhpacht or hereditary lease was established on State domains at the beginning of the eighteenth century, short leases being then generally condemned. On the other hand, laws of the pre- sent century prohibit what is the very essence of this contract, the creation of an unredeemable rent, regarding it as a remnant of feudalism. Still the hereditary lease, under the conditions of the heklem-regt and the aforamento, affords real advantages. A proof of this is the exceptional prosperity which it secures to two regions, that in other respects have absolutely nothing in common, Minho in Portugal and Groningen in the Low Countries. These advantages are indisputable. The afora- mento, imposing indivisibility on the soil, checks excessive mor- cellement: it gives full security to the tenant, and so encourages him to effect all necessary improvements, however costly they may be. It is, therefore, very superior in this respect to the temporary lease, which takes from the farmer every guarantee for the future and every motive for the sinking of capital in the land. These ancient forms of property have been noticed, because modern societies have not yet arrived at a perfect or definite 1 See Merlin, Hep., i. p. 590, and Anlnier, Traité du domaine congéahle. — In Denmark there are taxes which last during the life of the lessee or Faster: they are called Livfœste. The Fœster has to pay the indftcstninii {la^idoiiiuni), when he gets possession of the land, and also an annual rent, landijilde. He may neither sub-let nor alienate his right of occupancy. Certain properties are necessarily subject to the Livfœstc. This obligation is called Fœstetvang. 280 PRIMITIVE PROPERTY, agrarian organization. The social future is so gloomy that we should seek everywhere, even in the past, for the means of allaying the clanger. Undoubtedly these institutions of primi- tive times can never spring up again; the ideas, the require- ments, and the sentiments of the patriarchal age produced them, and alone could perpetuate them. Now, all this has vanished to return no more. Fraternity and the intimate association resulting from it disappeared, first from the village, then from the family. In the present day the isolated indi- vidual has to face the joint-stock company or the religious community, which take the place of patriarchal families and communities. What is to prevail finally? — Small independ- ent property, such as has existed in France since the Eevolu- tion, or latifundia, as at Rome or in England ? A very prevalent opinion is that it will be the latifundia, for the same reasons that enable industry on a large scale to crush industry on a small scale ; that is to say, the employment of machinery, the superior information of the large employers, and the all-powerfulness of capital. In agriculture, however, the triumph of large enterprises is not so decisive ; because agricultural labours, being intermittent, do not so well allow of the application of machinery ; and because, further, the limited extent of productive land makes the price of agricul- tural produce depend on the cost of producing the most expensive. Yet it is not impossible, that, as many economists believe, the supremacy of capital will lead in the long run to the absorption of small property by the latifundia, just as small artisans succumb in the competition with giant manufacturers. If the final result is destined to lead us once more to an agrarian situation such as existed under the Roman empire, where a few proprietors of enormous wealth live in pride and luxury, too often accompanied by depravity, while be- neath them the agricultural labourer remains plunged in a state of ignorance and misery, and where envy and hatred are continually setting the two classes in antagonism and almost in open war : if such is to be the end, we cannot refrain from casting back a glance of melancholy regret to these primitive epochs, when men, united in family groups by bonds of blood HEREDITARY LEASES. 281 and fraternity, sought by common toil the means of satisfying their few, simple wants, as do the Servians of the present day, ignorant, it is true, of the luxury, but also ignorant of the bitter cares, the cruel doubts and unceasing struggles which ag-itate modern societies. CHAPTER XXI. THE MARK IX HOLLAND. In the saudy region of Holland, the Germanic mark still exists; especially in Drenthe, the hunting demesne of the German emperors, granted by Otho the Great to the bishop of Utrecht, in 943. Surrounded on all sides by marsh and bog, this pro- vince formed a kind of island of sand and heath, on which ancestral customs were preserved in their entirety. Even in our day, we find the ancient organization of the Saxon mark; the saxena marka, — traces of which are also to be seen in the district of Westerwolde in Groningen, in the whole of Over- Yssel, in the country of Zutphen, in the Veluwe and even in Gooiland, at the gates of Amsterdam, — that is, in all parts of the diluvial sandy region which was occupied by the Saxons in the fourth century. The mark was the whole territory belonging to the tribe, or to a group of families in the tribe. It comprised wood, plain and arable {het hoiid, het veld en de essch). The name inark was also applied to the wide waste lands surrounding the culti- vated land, and forming an uninhabited border destined to serve as frontier. " Civitatibus maxima laus est, quam latissi- mas circum se vastatis finibus solitudines habere... Hoc se fore tutiores arbitrantur, repentinœ incursionis timoré sublato " (Caesar, de Bello Gallico, vi. 23). The origin of the mark is lost in the obscurity of pre-historic times. When we first come upon it in the Saxon provinces of the Low Countries, individual property had already invaded the primitive community, and from then to our own time the organization has scarcely changed. A share in the mark was called luhare ; and those who possessed wharen, bore the name of erfgenamen, inheritors, THE MARK IN HOLLAND. 283 that is, participators in the joint inheritance. The possessors of a luliare {gewaardemark goioten) were entitled to send their cattle to graze on the heath of the mark, and to cut turf there for litter or firing. This collective and undivided property, the mark, was formerly not transmissible by sale or grant. Now, however, the tribunals have decided that it can be alienated like all other landed property. When, in order to divide the property, the mark is sold, the purchase-money is distributed among the co-proprietors, according to the number of ivharen or parts that they hold in it. This ancient system, which formerly embraced the whole territory, still comprised in 1828, in Drenthe alone, 160 marken of 120,898 Jœctares, or about half the province. In 1800 there only remained 43 marken, comprising 32,995 hectares. Even after partition, however, nearly all the territory of the ancient marken remains subject to common pasturage, and 40 per cent, of the total area is not under cultivation. It is interesting to find still intact an ancient agrarian institution much older than the commime^ or the parish, which, dating from the days when the Germans worshipped Thor and Woden, has resisted alike the feudal sys- tem and modern centralization, and continues its existence, in spite of the text of the Code Civil, just as we see in Italy strong and indestructible fragments of cyclopean substructures jutting out beneath modern monuments. Formerly the partners in the mark met once a year, on St Peter's day, in a general assembly, holting. They appeared in arms; and no one could absent himself, under pain of a fine. This assembly directed all the details as to the enjoyment of the common property ; appointed the works to be executed ; imposed pecuniary penalties for the violation of rules, and nominated the ofiicers charged with the executive power, the markenrigter and his assessors. The markenrigter, or head of the mark, was also called the markgraaf, count of the mark or marquis. He, like the count of the dike {dykgraaf), watched over the common interests. It is easy to recognize in these ^ 111 every commune of relatively recent formation there are several marheu. The commune of Westerbork contains nine, that of Eolde nine, and that of Beilen twelve, and these twelve marken comprised an area of more than 10,000 hectares. 28^! PRIMITIVE PROPERTY. natural associations, founded on the common ownership of land, all the elements of the representative system and the innate habits of self-government, which have been carried across the ocean by the descendants of that same Saxon race, sent forth in times past from the sandy region of Holland, and have given birth to the communes, the counties and the States of North America and Australia. The essential features of the mark organization still subsist. It forms a small administration, supplacing in many respects the commune. It superintends the distribution of water, the keeping up of roads, and the cultivation of common lands, and elects officers to carry out its decisions. They are, however, no longer armed warriors as- sembling in the holting after sacrificing to Woden, but peaceable proprietors, and pacific cultivators meeting after a good dinner at the common expense. The mound where the holting met {Malenpol), is still visible in Heldermalenveld and at Spoolder- berg near Zwolle. In crossing the vast plains of Drenthe or Over-Yssel, one sees from time to time rising above the level of the heath a large field, generally covered with a heavy crop of rye. It is the portion of the mark devoted to cultivation, the essch, — a name which seems to come from an old root that also gave the Latin esca and the German essen, to eat, and here designates the land from which the popvilation derive their sustenance. The essch was formerly the common stock, in which each member of the mark received annually his portion to cultivate, as is clearly proved by Tacitus and Caesar. " Neque quisquam agri modum certum aut fines habet proprios; sed magistratus ac principes iu annos singulos gentibus cognationibusque hominum, qui una coierunt, quantum et quo loco visum est, agri attribuunt, atque anno post alio transire coguut." (Csesar, de Bello Gallico, vi. 22.) During the middle ages, these shares were gradually absorbed in private ownership, but individual property is still far from being freed from the fetters of the primitive commu- nity, for all the ancient customs of common cultivation continue to exist. The essch is divided into a great number of parcels. But as there is no road across this vast cultivated field, there is no approach to the several parcels so long as the crops are standing; and there are no boundaries except four large irregu- THE MARK IN HOLLAND. 285 lar blocks of orranite in the four corners. It follows from this arrangement, that all the parcels have to be cropped with the same grain, and must be ploughed, sown and reaped at the same time. For; if a proprietor wished, for instance, to sow a spring cereal when his neighbour had adopted a winter cereal, he could not till his ground or cart his manure without causing material damage, for which he would have to pay compensation, and which would draw on him general ill-feeling. The triennial rotation is generally followed. The arable is divided into three portions: the winter-essch, sown with winter rye; the Zomer-essch, sown with summer rye; and the hrach- essch, which formerly lay fallow, but where buckwheat is now grown. The collective body of cultivators is called de hoer, that is "the peasant." They meet in full assembly Qiagespraalc), in the open air under immense oaks of centuries' growth, or in a kind of grassy amphitheatre, in the centre of which the old sacrificial altar of stone is still often standing. The cultivator, who keeps the communal bull, also has charge of the cow-horn, which summons the inhabitants to the assembly, and gives the signal for the various works to be executed in the fields. When all interested are assembled, they deliberate and fix the period for ploughing, sowing and harvest. In this assembly, also, are chosen the four volmagten charged with executive power; — with this thoroughly democratic reservation, however, that the hotters, or simple labourers living in a cabin, should nominate tAvo, and the hoeren, or cultivators owning horses, should nominate the other two. When the day fixed for harvest arrives, the horn is sounded at daybreak and all set to work. In the evening when the signal to cease is given, everyone is forbidden, under penalty of a fine, to continue cutting the corn. When the sheafs are formed, everyone is bound to arrange them in stacks of eight, in kokken, to dry them and keep them, as much as possible, from the rain. The day for gathering in the harvest is also fixed, after common deliberation. Merry feasts and deep libations celebrate the happy day, which secures to the cultivators the recompense of their rude labours. The land is then surrendered to common pasturage. Cows are first sent on to it, then sheep, and after that the surface of the soil is turned lightly over, and is soon covered with wild 286 PRIMITIVE PROPERTY. sorrel (rumex acetosella), which the Dutch call schaapsurhel. The name is an appropriate one, for the plant is capital food for sheep, which are very fond of it. On seeing for the first time the esschen of Drenthe, red with the innumerable quantity of these microscopic flowers, one is at a loss to what to attribute the strange colour, for one never expects to see a weed inten- tionally cultivated, which is everywhere else regarded as a nuisance. At night the sheep are folded on the fields. The Dutch maintain that their country gave birth to this prac- tice, which English agriculture has turned to such good account. Every cultivator has to furnish fence in proportion to his head of cattle. The right of common on the stubble is called klauwengang ; and is generally in force. To keep the cattle from the essch, when the crops are still standing, it is surround- ed by a rough wall of turf-clods bounded by a ditch {essch-wal). Every one is bound to work at this wall on the day fixed by the assembly; and whoever is more than half-an-hour late, after the horn has summoned the labourers to the work, has to pay fourpence fine. The village stands at a little distance from the essch. The houses are well built, and kept in admirable repair. They are arranged round a large space (the brink) ; and raise their white gables under the shadow of old oaks whose majestic crests make one think of the vast forests of Teutsch, where the Germans loved to fix their dwellings. There still exist in Holland a few forests held in common, which are relics of the old forest marken. The chief communal forests of the Veluwe are; the Hoogsoerenschbosch, the Udde- lerheegde (492 hectares), the Elspeterbosch (500 Jiect.), the Gortelscherbosch (800 hect.), the Putterbosch (360 hect.), the Spielderbosch (585 hect.), the Speulderbosch (923 hect), and the Meervelderbosch (700 hect). The Yierhouterbosch (334 hect.) is now private property. These woods are composed of forest trees with underwood beneath. The forest trees are, for the most part, beech, the two kinds of oak of the country {qiiercus rohur and petiolatus), and the Scotch fir. They do not let these trees obtain a very large development, but cut them after fifty or fifty-five years' growth. The young trees sow themselves ; and all are carefully left which liave not THE MARK IN HOLLAND. 287 attained the desired size. For new stocking they trust entirely to nature, and seldom have recourse to planting. The under- wood is cut every eleven years. It is of considerable value, as it contains much oak, the bark of which sells at a good price. The inhabitants of the commune are entitled to collect dead wood, leaves and pine cones in the forest. These forests do not give a very high revenue. The Put- terbosch from 1853 to 18G3 produced a total of 44,283 florins (a florin = Is. 8d.), which makes an average of 4,428 florins, or about 12 florins the hectare. A share in the Spielderbosch, about a thirtieth, produced in the last ten years an average amount of 87 fl. 20 c. in wood, and 46 fl. 33 c. in money, or a total of 133 fl. 53 c, which is hardly more than 7 fl. the hectare. One of these shares was sold some years ago for 2,000 fl.; but now, in consequence of the price of wood, much more is asked. The value was re- latively high, even in the middle ages. There were then, probably, old oak trees in the forests. An extract from the register of the Putterbosch shows that a share in this forest was worth 100 florins in 1579 ; and a share in the Spielder- bosch 400 florins. " Op den Z fehruary 1579 is hy de maalen van Putten en Spielderbosch eendragtelyk hesloten en overgegeven van nu voortaan onderholden te sidlen warden, dat die gemeene maalen van Putterbosch ieder hoeve holts die aen geen maelman wesende verkoft vord tot profyt der bosch aan sig te mogen holden voor een hondert gulden ad twintig stuyver het stuJc, ende die maalen van Spielderbosch voor vier hondert gulden." — In 1864 a share in the Speulder bosch brought in 155 fl., and a share in the Elspeterbosch, 90 fl. The first share is estimated at 3,600 fl., and the second at 2,200 fl. The oak underwood for bark {ahkei'maal shout) of ten years growth, sells at about 200 fl . the hectare, which makes an annual profit of 20 fl. In Drenthe and Over-Yssel, this kind of underwood after ten years sells for 500 fl. the hectar'e, which makes an annual revenue of over 50 fl.; but in these districts wood is sold dearer than in the Yeluwe. The common woods in the Veluwe are divided into parts, which are more or less numerous and bear various names. The Gortelscherbosch property is divided into 60 parts called 288 PRIMITIVE PROPERTY. Malen. According to Haasloop Werner, 6,000 trees are felled every year and divided among the co-proprietors. The Putterbosch is divided into 53 parts (andeelen), 6 of which belong to the forest itself, regarded as a civil person. The Spielderbosch contains 44 shares, called hoeven, 14 of which belong to the wood. The Speulderbosch contains 120 parts (deelingen), 58| belonging to the forest. The Elspeter- bosch comprises 54 parts, belonging to 25 co-proprietors; and the Uddelerheegde 120 parts, owned by 29 persons. The shares belonging to the forest are sold ; and the price, less the expense of replanting, supervision, &c., is divided among the co-proprietors. The co-proprietors {maalmannen), before taking part in the general assembly {maalspraak) , had to pronounce an oath, the ancient formula of which is still preserved in the registers of Gortelschebosch, near Epe. The text of this oath recalls, alike in language and spirit, the ancient traditions of Germany : Den eedt der malen. — Ick love en sekere dat ick den bus mît al syn ankleven en regten en geregtigheden sal holt ende trouwe wesen, syn regten to scutten und hestal voer te keeren, ende niet en sal nog om vrienden nog om magen versurgen nog arglist nog am leedt dat onse bus mag schadelick wesen. — So waerlick helpe my Godt ! At Putten they have an old register of the Putterbosch, which begins with the year 1448. It mentions older books which have been lost : it is however shewn that this forest had written customs from far back in the middle ages. De Meester, in a book entitled Aanteekeningen omtrent een par oude velmvsche bosschen (Arnhem, 1850),. published the deed by which Folkerus granted to the abbey of Werden, in 855, conformably to the Salic and Frison laws, the wood (saltus) of Uunnilo, the forest (silva) of Hornlo, 25 parts (scharen) in the Putterbosch, 60 parts in the wood of Ermelo, and the forests of Burlo, Dalbonlo, Wardlo, Orclo, Legurlo, Ottarloun and Langlo. The administrative committee of the Putterbosch consists of two holt-rigters, and a gecommitteerde. This committee, nominated by the co-proprietors {maalmannen), manages the forest and directs the division of its produce. In the part of THE MARK IN HOLLAND. 289 the forest destined to be cut, they make as many equal sliares as there are co-proprietors, and then distribute them by lot. The nature of the ownership of these woods has considerably exercised Dutch jurists. If it were merely common undivided property, a communio honorum, the proprietors might demand partition, and put an end to the indivisibility. But they seem rather to belong to that class of civil persons, corpora vel collegia licita, which are governed by their own rules and institutions. The supreme court leans to this last opinion. On this ground it is held that the large pasturage, de Iloen- weerd, near Hattem, was not mere undivided property of which partition could be demanded, but was an indivisible universitas. In fact, if we glance back to the spirit of ancient German institutions, we must see that they are favourable to the exist- ence of such indivisible common property, for individual owner- shijj of land is of relatively recent origin. In the neighbour- hood of the ancient common forests there are many tumuli, covering large urns of clay hardened in the sun, w^hich contain ashes and carbonized bones. In Holland, we often come upon evidence that the towns are developed out of the inark; for several of them still possess com- mon land, like the town of Thun, in Switzerland, where the drill ground is called the Allmend. The town of Zutphen possesses a magnificent meadow, called Marsch en Helhergen, 150 hectares in extent, on which 668 cattle were turned for pasture. The town of Genemuiden has lost the greater part of its mark, owing to the encroachment of the Zuider Zee. It has still a meadow, de Greente, on which the inhabitants have a right of common pasture for their cattle. Elburg possesses a meadow, het Goor, divided into 612 parts (andeelen), and equal to 308 Koegras (keep for a cow, the Swiss kuhessen). The towns of Genemuiden, Hattcni, Deventer and Steenwyck still possess a remnant of the ancient Allmend, in the large pastures {greente) on which some of the inhabitants, descended from the old families of joint proprietors, are entitled to send a certain number of cows, by virtue of hereditary right, as in the burgh of Lauder in Scotland. It would be easy to collect many other examples on the spot. M. 19 CHAPTER XXII. COMMON LJŒDS IN FRANCE. In Gaul as well as in Italy, during the Koman period, not only the villages, but also the towns, seem to have possessed common lands. Pkires ex municipibus, qui diversa prœdia possi- dehant, saltum comniunem, ut jus compascendi haberent, mercati sunt (Digest, viii. 5, 20.) Festus, speaking of the property of the villages {pagi, villœ), defines the conipascua : — ager relictus ad pascendum communiter vicaneis. Isidorus (Origines XV. 2) gives nearly the same definition : Ager coinjiascuus dictus, quia divisoribus agrorum relictus est ad pascendum communiter vicaneis. According to Alciat, the village common lands were called Vicanalia, ex eo quod ad paguni aliqueni, seu vicuni, et illius habitatores, in universum pertinerent. Even under the empire, Agenus TJrbicus, a commentator of Frontinus, speaking of these common lands, tells us that they were the object of endless usurpations on the part of the powerful : Relicta sunt et inulta loca, quce veteranis data non sunt. Hœc variis adpellationibus per regiones nominantur : in Etruria communalia nominantur ; quibusdam provinciis PROiNDiviSA. Hœc ferl pascua data sunt depascenda sed in communi ; quœ multi per potentiam inva- serunt. The German invasions do not seem to have been fatal to the collective domain ; for in Germany the greater part of the soil was still common property. But in France, as in England, the feudal nobility abused the power, which the habit of carry- ing arms gave them, to reduce the lands of the communes in the middle ages, — and more especially in the parts of the COMMON LANDS IN FRANCE. 291 country where the soil attained most value. Not only did the lords claim to have the eminent domain of the communal lands and especially of the forests, which originally belonged entirely to the villages ; but they also invaded the arable land, and drove out the inhabitants to re-atforest them, and enlarge their chases. To this fact the traditions refer, that exist in many provinces as to the origin of the woods with which they aro covered. According to Hévin [Questions féodales, p. 211), " William the Bastard, Duke of Normandy, destroyed twenty- six parishes in this province, to make a forest of thirty leagues." The forest of Nantes, which stretched from Nantes to Chsson, to Machecoul and to Rince, was likewise formed on the ruins of numerous villages, that the Duke of Retz might hunt as he went from one of his castles to the other ! The Norman kings introduced the same custom in England. Ducange on this subject says : '* William the Bastard, according to the narrative of Walter Mappeus, an ancient Breton historian, took the land from God anil men, and handed it over to wild beasts and to the chase, destrojdng thirty-six parishes and extern] inating their population. Accordmg to Brompton, in the hunting domain, called the New Forest, the same pi-ince ordered several churches and villages to be burned, tlieir inhabitants to be driven ont, and the land stocked with wild beasts. Further on, speaking of William Rufus, he talks of ' tliis new royal forest, called m English Ithene, for which his father, William the Bastard, had expelled the inhabitants, depopulated villages and pillaged churches, and turned an area of more than thirty miles into a forest and refuge for wild beasts'..." The work of Championnière {Prop, des eaux cour.) should be referred to, for an account of how the villeins, who cultivated the soil, were despoiled of their property and their independ- ence. At the time when the customary law was systematized, almost all the villages were still in possession of common lands: nulliis est ferl in Oallia jmgus (Mornac, ad Dig. viii. 3) qui hujusmodi pascua communia non haheat. In the South, all waste land was presumed to be the common property of the inhabitants: Terrce lierhidœ etincultœ, quœ a nemine repcrientur occupatœ, prœsumentur esse universitatis in cujus territorio sitœ sunt." (Championnière, Prop, des eaux courantes, p. 344 ) 19—2 292 PRIMITIVE PROPERTY. In the sixteenth century, especially, when the nobility adopted habits of luxury and extravagance, they strove to ap- propriate the common lands. *' The principal commentators of the feudal law," says Dalloz {Jurisp. génér., " Commune," tit. VI. ch. 3), " Legrand, Pithou, Imbert, Salvaing, de Sainctyon, Duluc, Frëminville, and M. Henrion de Pansey, trace the deprivation of titles, the violence and the fraud made use of to despoil the communities of their property, as far back as the time of Francis I. Many means were employed with this object. The destruction of titles was easily effected by the lords, because the records were in the hands of their officers. The titles once destroyed, the lands, to which they referred, belonged to the lord in virtue of the rule omnia censentur moveri a domino territorii. Sometimes even the production of a regular title was of no avail : certain customs ordained that the tailles and other feudal charges were paid for the right of common pas- turage ; and as common pasturage could always be suppressed for the sake of agriculture, its suppression was effected and the communal land was united to the lord's domain." (M. Latruffe, Dî'oits des Commîmes, vol, i. pp. 57, 79 and 90.) Royal ordinances also prove the existence of these abuses. One of Henry III., in April, 1567, runs: "We forbid all persons, whatever their rank or condition, to take or appro- priate waste lands, which are the commonage and pasture of their subjects." The ordinance of Blois, 1575, is still more explicit : Art, 284 — " We command our jjrocureurs to lay information with all diligence and secrecy, against those persons who, of their own authority, have taken or made away with the letters, titles and other evidences of their subject vassals, in order to appropriate the common lands, which such vassals had previously enjoyed; or who, under pretext of agreements, have compelled such vassals to submit to the decision of such persons as seemed good to them ; and we enjoin our procureurs to institute proceedings with all diligence, and to declare all such submissions, compromises, transactions or decisions so made to be henceforth of no effect." An ordinance of 1629, reproducing the same dispositions, shews that the abuse had not ceased. Royalty, in its struggle with the nobility whose power it COMMON LANDS IN FRi\JS'CE. 2î)3 sought to diminish, fiually took tlie part of the communes, which neither the sovereign, nor the parliament, which repre- sented the aristocracy, had done in England. The ordinances of Louis XIV. in 1659 and 1GC9 went so far as to take the strong measure of retroactive revocation. In the preamble of the declaration of June 22, 1659, we read : " The majority of communities and villages have been induced to sell and alienate to powerful persons, such as the lords of the districts, their land and their rights of user for very inadequate sums; and in many cases such price has never been paid although there is writing to the contrary, by reason of the violence of the purchasers, who have compelled the inhabitants, under false pretences, to sign or grant away that which was lawfully due to them." The communes were, therefore, re- established in full possession of all the property, alienated with- in the past twenty years by any title whatsoever. The ordinance of 1667 likewise annulled all alienations which had taken place since 1620 ; and authorised the com- munes to resume possession of their lands, on restoring the price, in many cases merely nominal, which they had received. The ordinance likewise abolished the right of " triage,'' in virtue of which the lords claimed one-third of the communal property. The preamble accused the judges and nobles of having profited by the weakness of the communes, to despoil them of their property. " To conceal these usurpations, they have made use of false debts and have abused the most regular forms of justice for the purpose." The French Revolution, following the example of the kings, endeavoured, in the first instance, to restore to the communes the lands which the feudal nobility had usurped. It did not however understand that the collective ownership and autonomy of the commune is the only firm basis of democracy, and it wanted to cut up the communal domain into small private pro- perties, as it did with the lands of the church and the nobility. The successive laws of April 13, 1791, April 28, 1792, and June 10, 1793, abolished the right of triage^, annulled all partitions ^ In his report to the Constituent Assembly, Merlin defined the triage, as "the right of the lord to take for himself the third part of the woods or fons, which have been granted, by him or his ancestors, gratuitously and in full 294 PRIMITIVE PROPERTY. made in virtue of this right since the ordinance of 1G69, re- established the communes in all their lands, and the risrhts of user of which they had been despoiled by reason of the feudal rules, and declared them in full ownership proprietors of all waste lands, unless there was an authentic deed "proving that such and such portions of their lands were acquired à titre onéreux." (See Dalloz, Jurisp. génér., " Commune," § cit., ch. VI.) The first article of the law of June 10, 1793, runs: — "All communal lands generally known, throughout the Republic, under the various names of common or waste lands, gastes, gar- rigues, landes, pacages, 2>àtis, ajoncs, bruyères, bois communs hernies, vacants, palus, marais, marécages, montagnes, and under any denomination whatsoever, belong in their nature to the general body of inhabitants or members of the communes, in the territory of which such communal lands are situated." The Convention especially aimed at strengthening the unity of the state. It was instinctively opposed to the in- dependence of the provinces and of the communes, which had its roots in the ancient system. Accordingly it never sought to preserve the communal patrimony ; but thought it more ownership to the commune on his territory." It is not known how, or on what basis, this right was established. Pithou mentions a judgment of December 3, 155'2, which alkxdes to it. Feudal lawjers justify it, on the ground that the lords had not surrendered the entire right of enjoyment over lands, granted by them gratuitously, and that in claiming the third part in fiUl ownership they were merely taking a part in severalty instead of their right in the common whole. — This argument ignored the principle of the irrevocability of gifts; more- over, the collective domain had originally belonged to the communes, and not to the lords. The majority of ancient jurists, it is true, maintained, that, in con- sequence of the German conquest, all the lauds comjjosing the territory of the fief had been originally granted to the lords ; and that all other property, especi- ally the enjoyment of common lands, was derived from their liberality. It was by means of this system that commons in England passed into the hands of the aristocracy — Many modern jurists, Henrion, Merlin, Troplong and Dalloz held the same view for France : and the courts of justice have generally adopted it in their decisions. Some old jurists, such as Legrand, Salvaing, Imbert and more recently Proudhou {Usiif., t. 6, no. 28i4) and Latruffe {Droits des comvmnes, t, i. p. 9) maintained, on the contrary, that the communal property is as old as the commune itself, because formerly it was indispensable to agriculture : and they jjrove that the conquest did not suppress it. In the law of the Burguudians especially, communal lands are several times mentioned:— ASyZyaruni, montium et pascuoriim unicuique j^ro rata siippetit esse communionem. Lex Burg., add. i, tit. 1, c. 6. — De sylvis quœ indivisce forsitan residerunt, sen Gothus sen Jîomaniis sibi eas assiimpserit. Lex Burg., tit. 54, c. 1. — There can be no doubt in fact, that "the forest, the pasturage and the field" belonged originally to the inhabit- ants of the village, from whom the lords took them by successive encroachments. In every case, therefore, where a suit arises between the commoners and the lord or iiis successors, history and right command us to pronoimce in favour of the former. COMMON LANDS IN FRANCE. 295 advantageous to increase the number of small proprietors. This was the idea which economists of the eighteenth century- had rendered popular. At the present day, everywhere, except in Switzerland, men are bent upon the destruction of the collective property of the village. By the law of June 10, 1703, the Convention decreed the division of communal lands among all the inhabitants equally. Where the partition was effected, the lands were sold at a low price, and the patrimony of all was thus considerably reduced, — a deplorable and essentially anti-democratic step. Towards the end of the empire, the law of March 20, 1813, handed over communal lands to a sinking fund. This purchased communal lands, chiefly the most productive portions, for 58,000,000 francs. The Restora- tion gave back to the communes what remained of their property; and since then alienations have not been very ex- tensive \ Communal lands still comprise about 4,000,000 hectares; of which 1,500,000 hectares are forest, and 2,500,000 hectares are waste land. The departments richest in common lands are the Landes, the Hautes and Basses-Alpes, the Hautes and Basses-Pyrénées, Gironde, Isère, Creuse, Bas-Rhin, and Moselle. As to the mode of enjoyment, the " Conseils généraux " have always decided, with reason, against sale and partition ; they advised leases for terms sufficiently long to encourage agricul- tural improvements. It is in fact the best system, after that of the Swiss Allmend. In some districts the system of primitive community has left deep traces. M. le Play gives the following account of the system of cultivation in force in Champagne : — "As m the time of the Gauls, the inhabitants often cultivate m common a wood, a marsh, or waste land. They always ])Ossesa in individual ownership the ten-itory devoted to the cultivation of cereals. This is divided into three regions of equal extent, con- tammg nearly the same number of parcels. Each of these portions receives in turn an autumn and a spring grain, and certain herbs which spring up spontaneously when the soil lies fallow. The in- habitants generally possess parcels in each division, and they are bound by municipal rulers to follow this arrangement of crops. 1 See Hist, des Mens com. en France, by Armand Eivicre. — De la propriété communale en France, by Eugène Caucliy. — Des biens com. en France, by Jules Le Berquier. Revue des Deux Mondes, 15 January, 1859. 29G PEIMITIVE PROPERTY. Under the system of common pasturage, a common flock of sheep receives from each inhabitant a number of heads, determined by the quantity of land which he possesses in individual o^vnership. The shepherd, who is a municipal official, has charge of this flock, and need not trouble himself with any boundaries; m the climate of Champagne the flock may thus dimng the year commencing after the harvest, uninterruptedly occupy the fallow for twelve months, the spring-grain portion for six months, and the autumn-grain poi-tion for three months. Hence the right of common pasturage extends^ on the average, over seven-twelfths of the whole territory'." A trace of the ancient principle of the collective ownership of the soil was maintained in France up to the Revolution, first in the idea that all lands belonged to the sovereign, and secondly in the right of common pasture. Jurists, who de- fended the prerogatives of royalty against the privileges of feudalism, succeeded in establishing the principle that the king had the direct universal domain of all the lands of the kingdom. They maintained, that he is le souverain fieffeux du royaume, making the grant of all feudal holdings, and even the enjoyment of frçe-allods emanate from him. This principle, set up in the code of Marillac (Art. 383) under Louis XIII., and also in an edict of Louis XIV., in 1692, was formulated with the greatest precision in the instructions of this prince to the Dauphin {Œuvres de Louis XIV., v. ii. 6, 93). " All that exists within the extent of our State, of whatsoever nature it is, belongs to us by the same title. You may be well as- sured that kings are absolute lords, and have naturally full and free disposition of all pi'operty, whether held by eccle- siastics or laymen, to use it in everything a3 wise economists." Louis XIV. is here expounding a principle generally admitted by English jurists. In France, as in Spain and all other countries, we may assert that common pasturage was a general right, not merely in the forest and on the communal waste, but even on private lands after the harvest was gathered in. To escape this burden the land had to be put " in defence," or " en garenne " {garenne coming from the German wehr, like guerre and the English war ; — wehren means to defend). We see here that collective occupancy is the general primitive fact; while the putting 1 Le Play, V Organisation de la Famille, 1871, p. 23. COMMON LANDS IN FRANCE. 207 "en défense" enclosure and private enjoyment are the excep- tional and relatively recent fact. Traces of the ancient collective occupancy of the common domain are also to be found in certain dispositions of Germanic laws reproduced in the customs. Thus the law of the Bur- gundians {Lex Burg., t. 28) allowed every one, who owned no forest, to take in that of another fallen brandies, bearing no fruit. The law of the Visigoths {Lex Visigoth. Viii. t. 3, 1. 27) authorized travellers to rest their oxen and horses in unenclosed pastures, and to abide there a day or two, and also to gather the forest boughs for the support of their beasts. The authorization granted by Charles the Bald to the Spaniards is also curious : Liceat eis secundum antiquam consuetudinem, uhique pascua habere et ligna cœdere et aquarum ductus pro suis necessitatibus, ubicumque pervenirent, nemine contradicente, juxta priscum morem semper deducere. Ail ancient writers, says Championnière {Propr. des Eaux cour. p. 337), lay down this principle : potest quis facere in alieno fundo quod ei prodest et domino fundi non nocet. — Basnage at the end of the seven- teenth century wrote : — " It seems that our custom of regarding as common, at certain seasons of the year, waste and unculti- vated lands, is contrary to the common law inasmuch as it deprives proprietors of the free disposition of their inheritance, but public interest has prevailed over individual liberty." {Sur l'art. 82 de la coutume de Normandie.) In the " Custom of Nivernais," Chap. XI., art. 1, we meet with a remarkable custom which seems to have been very general in the middle ages. "Every one may cultivate the lands or vineyards of another, if not cultivated by the proprietor, without any re- quisition, on payment of the ' champart,' or a portion accord- ing to the custom of the place, where the property is situated, until such time as he be forbidden by the proprietor." A commentator, after remarking that the rule was introduced for the public good, and in consequence of the negligence or incapacity of proprietors, adds this detail : " that any one who has grown 'large grain,' and manured the soil, may grow ' small grain ' (that is spring crops, such as oats, &c.) the following year on the same land, which they call suivre les fretis. The cultivator, in this case, will not be prevented 298 PRIMITIVE PROPERTY, the next year from growing 'small grain,' for the whole is, as it were, one agricultural operation spreading over the two years." This is a curious application of the fundamental prin- ciple, that property exists for the general good and not for particular interests. Gleaning too is a right over the property of another, universally recognized. Lauriere, in his commentary (anno 1710) on Art. 15, 1, II. t. II. of the Institutes of Loysel, writes these remarkable words : "By the general law of France, inheritances are only 'en défense' and 'en garde,' so long as the crops are standing, and as soon as they are gathered in, the land, by a kind of jus gentium, becomes common to all men, rich and poor alike. This right of common pasture is inalienable and imprescriptible, like the right of gleaning, of grapter, and drawing water from public rivers, which consist only in a faculty or natural liberty, and are not lost by non-user." (Edit. Dupin, v. I. 6, 251). Here are two other rules of Loysel (1. ii. t. II. Art. 17): "Underwood is not to be cut for four years and a month, after which time every one is at liberty to cut it." — Art. 16. "Vineyards, gardens, and warrens are always enclosable." Davot says : " All land sown with grain is legally enclosable."— Art. 18. "Meadows are enclosable from the middle of March until All Saints' Day, or till the hay is declared to be all made and earned." — Art. 20. "Waste pas- tures are free between parish and parish, but the 'grasses' pastures belong only to the commoners of the parish." "Ac- cording to this rule," says Lauriere, " in common pasture, there is a right of commonage between the inhabitants of neighbour- ing villages who can bring their beasts ' champayer et vain- ^iaturer,' on each other's lands from parish to parish [de clocher à clocher)." We see here a trace of the right exercised over the whole mark, before it was divided into parishes. " The ' grasses ' pastures are the meadows not mown, the fields and woods in the acorn time, v/here beasts are put to fatten." As a rule the proprietor could not put all his land " en defense." He might only exercise this right over a small portion of his inheritance. Thus the custom of the Boulonais, Art. 131, says: "Every one may lawfully enclose the fifth part of his fief; and by this means hold it free, at all times of the year, COMMON LANDS IN FRANCE. 299 and enjoy it freely to liimself, liis tenants or lessees. Every one may also lawfully enclose an area not exceeding one mesure or five quarterons of land whether arable or not, bordering the road or path, and by reason of the said enclosure hold it free throughout the year, provided that he makes the said enclosure to be cultivated, that he plants it and builds thereon a good dwelling-house." This is obviously the terra salica, the enclosure of the Russian izha, private property in the midst of the col- lective territory. Laurierc gives the reason of this rule : " If all who owned lands were pleased to stop and enclose them, and to put them thus 'en défense,' the result would be that there would be no more common pasture, and the beasts of those who had no land would perish, which would be against the common advantage, and pernicious to the State." We see here a curious application of a principle, formerly universally admitted, that the general interest prevails over private pro- perty and sets limits to it. The earlier existing and superior right of the community can alone justify such a limitation of individual right. In obedience to the inspirations of economists, whose only aim was to increase the production of wealth, without any consideration for the still more important point of its distribu- tion, the French Revolution abolished common pasture by the law of September 28, 1791, which says (Sect, iv.. Art. 4): "The right of enclosing, or destroying the enclosures of, inheritances, is a necessary result of the right of property, and cannot be denied to any proprietor." This was not merely depriving the rural population of a hereditary right, but was also striking a fatal blow against the very basis of civil order, by ignoring the superior right of the community, and by sacrificing collective to individual interest. In Spain, the same reform, accomplished more recently, excited violent resentment in the peasants, which found vent in the recent civil war. They overtlirew the enclosures, as the inhabitants of the rural districts did in England in the sixteenth century. In the majority of Spanish provinces the land became public domain after the harvest, and during all the time that it lay fallow. The proprietors, apply- ing the principles of the civil law, have endeavoured to enclose it, and preserve for themselves the enjoyment of their in- 800 PRIMITIVE PROPERTY. heri tance tliroughout the whole of the year. The peasants endeavour to put once more in force the old collective right. In a speech, delivered May 10, 1873, and quoted by M. Cher- buliez {Revue des Deux-Mondes, 15 November, 1873), M. Silvela said to the Cortes : *' This idea of socialism is with us an inheritance of the ancient system, which gave it its letters of naturalization. In the ma- jority of our villages the revolution is regarded as a lawful retuin to communistic habits, which have abided in our blood. It signifies free access to municipal property, and, at times, to private property, the destruction of enclosures, and common occupation of the fallow and of the rest after harvest. This interpretation of liberty is not the child of modem docti-ines, nor of demagogues' promises, nor of the abuse of the press ; it springs from memories and traditions which nothing can eflaoe. So it is less widely spread in the great towns than in the country districts and hidden corners of our territory." This example shews in a striking manner how, by destroy- ing, instead of improving the practical application of the collective right to which the ancient system had still secured an important place, jurists and modern economists have, with their own hands, cast into the upturned soil of our societies the seeds of violent and revolutionary socialism. CHAPTER XXIII. COMMON LANDS IN BELGIUM. In the west of Belgium, where industry and commerce have from the middle ages created populous cities, agriculture ad- vanced rapidly and common lands disappeared ; but in the sandy district of the Campine and beyond the Meuse, in the Ardennes region, the want of communication and the absence of large towns tended to preserve the ancient form of property and cultivation. In 1846, the common lands still comprised 162,896 hectares, of which 80,055 were in the Campine district, and 80,864 in Ardennes district. Formerly under the Spanish rule, the government promoted clearings by the grant of waste lands (1572 — 1586). The ordinance of Maria Theresa, of June 23, 1772, declared that the waste lands of communes and corporations were at once to be sold. It had however scarcely any effect. The law of March 25, 1847, which is still in force, authorizes the government to sell communal lands not under cultivation, whenever grants of them are demanded by individuals. This law caused the sale of 33,000 hectares between 1847 and 1860; and since then these alienations have been continuing. At the present time there only remains about 100,000 hectares of common land. In a great many charters lands are mentioned as belonging to the inhabitants of a village in common^ ; but except in the Arden- nes, the lord had succeeded in usurping the eminent domain, without however destroying the inhabitants' right of user. This right, maintained to the present day, has given rise to long 1 This point has attracted little attention from historians ; bnt it has been well demonstrated in the learned work recently published by M. Leon Vauder- kiudere: Notice, sur Vorigine des magistrats communaux, 1874. Many facts liere given are borrowed from him. 302 PRIMITIVE PROPERTY. and intricate suits. In the documents these common lands are called in Latin pascua communia, communio, warescalli; in Walloon, warescliart ; in Flemish, hemede, opstal, warande, which corresponds to the German word warschaft, the right of sharing in the mark, as indicated by Maurer {Markverfassung, p. 15). The community itself was called communitas ; in Flemish, meentucht; and the co-partners, commarcani, genossen, ganerhen. By the side of the owners of houses, mansionarii, massuiers, there were the cotarii, cossati (in Flemish, koter, cossaeter), who lived in a cabin, kot, built on another man's ground, and had no regular share in the enjoyment of the communal property. The towns themselves preserved their communal lands for a very long time. We will quote some examples from M. Vanderkindere : — "Antwerp has its hemede, 1186, 'Pascua et terrse ad com- munem justitiam pertinentes quae vulgo hemethe vocantur' (Mert. and Torfs, Gesch. v. Antwerpen, i. 81 ; Wauters, Preuves, p. 48), and also its Opstalle (Brab. Yeesten, Codex, i. p. 677 ; Keure d'Anvers of February 21, 1291). " At Louvain, an enquiry was made, in 1323, with regard to the commonable meadows, ^jr^eweene veeweyde {Br-ab. Yeesten, Codex, I. p. 764. See also Chron. de J. de Klerk, i. 641, in 1234, and for the Opstalle, Brab. Yeesten, i. p. 730, Keure of September 17, 1306). "At Ypres an Upstal is mentioned in 1111 (Gheldof V. p. 320). "At Ghent, the Keure of 1192 forbids private individuals disposing of lands toti oppido communia, and building upon them (Gheld. iii. p. 226, § 17 ; cf. Gheld. it. p. 26). "At Malines, in 1264, Walter Berthout grants to the in- habitants land, ' usu communi absque clausura hereditario jure perpétue possidendam' (Wauters, Preuves, p. 212). "There is also the case of Soignies, in 1142 (Wauters, Preuves,^. 19) ; of Montigny-sur-Sambre, in 1253 {Ibid. p. 182} ; of St Trend, in 1324 {Cart de St Trond, i. p. 462), etc' ^ At Soignies, the mayor with the assembled jury of suiTeyors {verejurati) allotted to every cue his share in the lands of the commune of St Vincent : — the cachepoul carries the rope, the Germanic reeb, used for the measurement. COMMON LANDS IN BELGIUM. 303 "We must guard against the idea that these communal lands were only the remnant of a primitive state of things, to which hardly any importance was attached. The Keure de Orammont, 1068 (Warnkonig II. 2", 163), will shew the contrary. This town, as we know, was founded by Baldwin VI. on an allod, which had belonged to a certain Gerard ; but this land being insufficient, the Count granted the town as a fief to the lord of Boulaere, and he, in exchange, provided the new city with the pasturage that it required : ' In recompensationem feudi praenominati, Balduino comitis ad usus Geraldimonten- sium Buzemont, sicut ipse possedit, et Cortelake et pasturam (all the pastures are here enumerated) addidit insuper quod quibuscumque aquis et pascuis homines sui uterentur, liceret Geraldimonteusibus uti communiter.' "Similarly, at Douay, in 1241 (Warnk. IL 2", p. 261), the Count of Flanders recognized the right of the burgesses to the pasture and marsh land surrounding the town ; they are entitled to take whatever is necessary for their personal use, without any charge : ' car Us n estaient tenus anchiennement en nulle cose pour chou.' The Count, moreover, engages not to give any one any part whatsoever of those pastures, over which the inhabit- ants of Douay have an absolute right, nor to allow their enclosure." In a Soignies document, of the date 1248 A. D,, we learn that, in case of a transfer of property, the land was surrendered into the hands of the mayor, who alone could invest the new occupant. " All the lands of the commune must be conveyed into his hands for him * desireter et aireter^.' " At Louvain the adherance and desheritance of allodial lands was effected by the mayor in presence of the sddermcn, tanquam allodii consortes, assisted by two of the fellow allodial pro- prietors, with symbolical ceremonies, cum cespite et ramo. The alienor began by consigning (supportare) the property into the hands of the mayor ; then the two allodial " peers " pro- nounced the adjudication to the new purchaser, to whom the mayor surrendered the property " by branch and clod'^" This 1 "Wauters : Preuves, p. 172. 2 See La propriété foncière au XV' Siècle dam le quartier de Louvain, par E. PouUet, 1866. s 04 PRIMITIVE PROPERTY. is evidently a relic of the primitive period, when the chief of the commune presided over the partition and distributed to each member his share in the communal domain. The co- occupants are often called " parcheniers," or " j)^'^^'^^'''^'^^^'^'^ ^^ having a 2'>cLi't or share in the lands of the commune. In the coal district we find collective property applied to coal-mines S of which the " parceniers " have the use. We have no ancient documents to shew how private owner- ship of land was developed in Belgium, but the appearance of certain villages gives us some insight into the subject. The houses are arranged in a line along the road. Behind each house stretches a long strip of ground, which is nothing but the terra salica, — the appendage of the izha in Russia, which has been gradually enlarged at the expense of the common rtiark"^. The best preserved type of this archaic form is the village of Staphorst, to the north of Zwolle in Over-Yssel. In Flanders, when industry developed and the population increased, intensive agriculture was introduced, and with it private pro- perty. When a man had improved and manured land, he strove to retain it, and such improvements in Flanders date from the earliest times of the Middle Ages^ The town of Termonde probably once had a common mark, for it possessed large herds of swine, sheep and goats. The ancient regulations forbid the inhabitants to let their sows run about in the streets of the town ; the young pigs may be sent out in herds, under the care of the herdsman. Whoever maims one accidentally pays a fine*. There was to be found quite lately at Ghent, on a pasturage which had evidently been a mark, a right of user altogether exceptional, inasmuch as the commoners had quitted the locality where the right had been established. This pasturage was called Hernisse, and had an area of about 50 hectares. Regu- 1 M. Gachard quotes a regulation of 1248, as to the extraction of the coal in the communes of St Guislain, Dour, Quareguon, Boussu, etc. "Et en tous ces ovrages chi devant nommes ne puet-on foir carbon devens les 4 ans deseure escris, en toute l'œuvre et le justice S. Gillain et ses parceniers ka xx puits, en le justice et l'uevre Sainte Wauldruth ka xx puits, &c." 2 Meitzen: Ueher Bildung von Dôrfern in the Verhandhingen der Berliner Gesellschaft fiir Anthropologie, 1872, p. 134. 3 See the author's Économie rurale de la Bek/ique. * See Ordonnances de Police for the town of Termonde, published by au- thority of the commime (18fi8). COMMON LANDS IN BELGIUM. 305 lations issued by the bailiffs, auditors and aldermen, der herrhjk- held, roede ende vierschaere van Suite Baefs, shew that the meadows were formerly subject to a right of a peculiar nature, recalling that of the Swiss Alhmnds. The right of depasturing beasts at certain periods, alternately on the meadows of the "great Hernisse" and "little Hernisse," was recognized by a regulation of 1572, solely for the benefit of certain persons who were inhabitants of the commune of Saint-Bavon in 1578, when the territory of Saint-Bavon was comprised in the new circle of fortifications of Ghent,, though still retaining a distinct magistracy. To keep up the number originally fixed, well-to- do inhabitants of the magistracy of Saint-Bavon might be allowed to fill vacancies, if they could shew each step of their descent through inhabitants of Saint-Bavon from ancestors who were inhabitants in 1578, and who at that date possessed the qualifications of proprietors. In order to the strict observa- tion of this rule, it was ordained that persons qualified should be entered, by the Hernismeesters {Masters of the Hernisse), in a special register, with a declaration on oath of their birth and parentage. The nomination of Hernismeesters was effected annually by an election consisting of two steps. The inhabitants of Saint- Bavon had to choose four electors. These drew up a list of eight of the principal persons, out of whom the bailiff, the écoutète and aldermen, selected the four Hernismeesters. These functionaries took oath on entering upon their office. No horned cattle were allowed on the two Hernisses, unless they had calved since the first of January. The right of a descendant of such as were inhabitants of Saint-Bavon in 1578 to depasture a cow on the Hernisse was inalienable. If the descendant of an inhabit- ant of Saint-Bavon (a vreye Bavenaer) returned to the territory of Saint-Bavon, and dwelt in a free house situated in Saint- Bavon {in een vry huis staende op Sint-Baefs), he might send one cow on to the common pasture (Art. 8 of the regula- tion of May 7, 1707). Finally, to fill the office of Hernismeester, it was necessary to be entitled in one's own right to send a cow on to the Hernisse, that is to be one's self a vreye Bavenaer\ In a recent suit the right of enjoyment of the Hernisse has not ^ Belgique judiciaire, 18C9, p. 761. M. 20 S06 PRIMITIVE PROPERTY. been recognized by the tribunals, because the civil code allows no right of a similar nature. Merlin, in his Répertoire, under the word Bouillon, mention- ing what Csesar says of the periodic partition of lands among the Germans, tells us, " This custom had been preserved in the duchy of Bouillon, so that the majority of the inhabitants even now hold very little land in private ownership. The sovereign possesses a considerable extent of land which entirely surrounds the duchy. This land is called the Ban-V évêcine, because the Bishops of Liege had the enjo3rment of it so long as they retained the duchy of Bouillon." " This Ban, tliough forming part of the domain, is not cultivated or enclosed by the prince. The commissaries-general of his council distribute every year to the inhabitants of each village, a portion of the Ban-V Eveque proportioned to the condition of each family. This distribution is altered every year. They give every inhabitant a different portion every year from that which he had the previous year. The distributions are called virées, because they change each year. There are also virées à bois, or distributions of woofls. " The inhabitants are not owners of the lands and woods, which are distributed to them in the virées: they have only the right of cultivation and user for the period for which they are granted. The lands which are so distribvited to them do not yield two years together. They are cultivated for one year, and then left to i-est far sixteen or seventeen, or sometimes even eighteen years, these lands not having the manure necessary for their fertilization." In certain communes of the Ardennes these virées are still in use at the present time. A portion of the communal terri- tory is divided into a number of parts equal to the number of years necessary to allow the herbage removed by the écobuage to grow again. One of these portions is taken each year, and divided into as many parcels as there are households in the commune. These parcels are distributed by lot among the commoners, and assigned temporarily to those to whom they fall. Every one then removes the herbage from the surface. It is left to dry in the sun, and then is burned ; and the ashes are spread on the ground. This dressing enables a crop of rye to be obtained. The following year parcels are assigned by lot in a second portion ; and the same operation is carried on. But while rye is sown on the second parcel, the com- moner may plant potatoes on his first parcel. The next COMMON LANDS IN BELGIUM. 307 year a new parcel is obtained by lot for the rye-crop, while the second parcel, which has yielded potatoes, is sown witli broom. By this method every household has always three parcels bear- ing some crop : one sown with rye, a second bearing potatoes, and a third giving broom. This last plant is used by way of litter for the cattle in its first year's growth. After that it is left to grow for firewood. After the broom is cut the herbage re-appears on the surface, and then furze; and at the end of eighteen or twenty years it is again subjected to essartage. The whole of the communal territory is thus cultivated in turn, being allotted in private, though temporary, ownership. This is exactly the system of agriculture described by Tacitus : " They change their field every year, and there is always land in reserve," and by Csesar, de Bello Gallico, vi. 22 : " No one has enclosed fields or land in private ownership ; but the magistrates and chiefs assign each year lands in such places and in such quantity as they think fit to the gentes and families living in community. The next year the magistrates make them remove elsewhere." The portion of the communal land that is not allotted, and that which has returned to fallow, serves as common pasturage for the commoners' cattle. The produce of the communal woods is also divided among them. The following rules generally govern the distribution of the right of user. Every year a list is drawn up of persons who have lived in the commune for a year, and had a separate hearth or house- hold. This is called tlie list of the affouagers. The division of the woods, and the distribution of broom, litter, &c., is effected in equal lots among the affouagers, without regard to the im- portance of their families, or to their requirements or neces- sities. Sometimes the communes divide the temporary enjojonent of the communal lands among the inhabitants. For this pur- pose equal parcels are formed, and distributed by way of lot among the affouagers. Sometimes the inhabitants have merely the right of making the essartage and afterwards sowing broom in the sarts ; tliey have to restore the land to the disposition of the commune as 20—2 808 PRIMITIVE PROPERTY. soon as they have gathered in the broom. In this case the period of enjoyment is three or four years. Sometimes these lands are given over to the inhabitants for fifteen or twenty years. They pay the commune an annual rent ; and at the expiration of the term the commune resumes possession of the lands as they then are. The inhabitants have the right of turning on to the common pasture all their cattle, whatever the number, and without regard to the time when they came into possession of them. The owner of a large herd therefore derives more profit from the common pasture than the inhabitant who has few cattle or none at all ; but hitherto there has been no attempt to alter this rule. It follows that the principal farmers, who generally are charged with the administration of the commune, have a great interest in preserving the common pasturage. Accordingly the communes are very much opposed to the alienation of the waste, which the law authorizes. In more than one instance, for fear of such alienation at the instance of a large neighbouring proprietor, a commune has been ready to divide among its inhabitants the domain which it supposed to be coveted. Thus, quite recently, in the village of Ville-du- Bois, the inhabitants, for fear of legal dispossession, allotted about 50 hectares in full ownership. The allotment was effected in this way. Equal parcels, of very moderate value, were formed ; these were distributed by lot among the affouagers. Any parcels that were declined were put up for public sale, but affouagers alone had the right to bid for them. In 1862 Vielsalm sold in the same way a large common waste ; and a clause was inserted in the conditions to the effect that for five years the purchasers should not have the right of re-selling. A similar sale took place recently (1873) in the commune of Lierneux. In certain communes — those, for instance, in the neighbour- hood of Ciney, at Braibant, Sovet, and Emptinne — communal lands are found divided for a long term. They are cultivated, like the Swiss Allmends, in a permanent manner, and even better than the large farms in the neighbourhood. At Braibant «very "fire," or family, has the enjoyment of about a hectare of good land. The partition is effected in equal portions COMMON LANDS IN BELGIUM. 800 among all the "fires" of the commune, — the greater part for terms of thhty years, the remainder for nine years. Formerly these lands were sarts cultivated every eighteen years ; but now they are cultivated without any fallow, although the tenant-farmers still let a portion of their land lie idle. The parcels thus allotted are well manured, because the occupier is sure of retaining a long enjoyment of them, and also be- cause the terms of allotment impose precise obligations in this respect. Whoever does not put on the prescribed quantity of lime and manure loses his parcel, which is granted or let to the oldest commoners, if there are any who have not yet received parcels. Lands distributed for nine years are not so well cultivated, because the occupier neglects them as the end of his occupancy draws near. This instance, which confirms that of the Swiss Allmend, shews that the Russian system, which is subject to so many attacks, may lead to good results, when it is applied in accordance with the prescriptions of well ordered agrarian economy. It is moreover an undoubted fact, that in the poorer villages of Luxemburg the least well-to-do of the inhabitants, who receive their fuel from the commune and have the right of depasturing their beasts on its meadows, have much less ground of complaint than those of the richer Flemish villages. The position of the Flemish labourers is also better when they have a small field for the cultivation of potatoes or rye. CHAPTEE XXIV. THE STATE AS LANDOWNER, AND PEOPERTY IN INDIA. It is well known that in Mohammedan states- the sovereign is regarded as owner of the soil, by virtue of the principles of the Koran. But it is particularly interesting to see how a Euro- pean government, on becoming master of an immense territory where Mussulman principles were in force, took advantage of this right of property. We have already seen the material advantage derived by Holland from the apphcation of this system to its colony of Java. Let us now examine how England solved the problem in India\ India has been so completely subject to the MohammedanS) who twice united all its provinces in a single empire, that the Mussulman principle of the state's proprietorship was universally recognised there. In virtue of this right the sovereign deducted a certain portion of the produce. This has been held to be a mere tax ; but when the tax rises so high as to absorb nearly the whole produce and to leave the cultivators the bare means of subsistence, it is obviously an actual rent that is paid ; and if it is the State that receives such a tax, it may be considered as the true proprietor. Before the arrival of the Eugiish this rent consisted of a part of the produce, varying between one half and one quarter, and was gathered by collectors, who retained a certain proportion as salary, or else by farmers general who paid ^ See especially the excellent treatise of Land Tenure in India, pub- lislied by Sir George Campbell iu the volume of the Cobden Club, quoted several times before, Systems of Land Tenure in Various Countries. See also Ancient Tenures and Modern Land-ley rendciing un- necessary some of the present costly and otherwise hurtful depart- ments. 9. While strictly preserving the right of ownership in land for future generations, the greatest possible facilities for actual and pro- ductive settlement may be afforded. 10. The advantages of almost free land, and the total absence of taxation, would ensure an unexampled condition of steady progress and general prosperity. 11. With an absolute fi'cedom from taxation, and full and un- fettered scope for industry, every inhabitant of the country woulil enjoy a beneticial interest from his share in the state lands, whether occupying a portion of these or not. 12. "The best political economy is the care and culture of men." And such a use of the common patrimony, the gift of God to all, would not only promote to the utmost the material welfire of society, but would raise us mentally in the scale of nations, by affording the most liberal culture of Avhich each is c.ipable ; special privileges, which should be deemed the inherent right of every member of the community. 13. Acting on these principles we would not only do our duty to our own peojile by conferi-ing on them all the advantages possible with our present knowledge of political and eci>nomic science ; but woiild prove to the world at large what may be done for the progress of hiimanity by an enlightened appreciation of the circumstances in which we find ourselves placed. Objects. 1. The immediate cessation of the sale of all Crown lands. 2. The fee simple of the public domain to vest in perpetuity in the State (that is the people in their corporate capacity). 3. Occupancy, with fixity of tenure, and right of ti-ansfer, sub- ject to rental for revenue purposes. 4. Land already alienated from the State to be re-purchased by the State. No i-e-sale to individuals to be permitted. 5. -The gradual abolition of all indirect taxes whatever. The revenue of the State to be derived solely from the rental of the land. According to Mr R. Savage, who comments on this pro- gramme in Tract No. 7 published by the Land Tenure Beform League, the commune would manage the lands, as the Hindoo yilhiges did formerly. It would let them, would collect the rent, would pay into fhe Treasury the proportinii of the tax due, 21—2 324 PRIMITIVE PROPERTY. and would retain tlie rest for the local requirements of educa- tion, roads, police, &c. The numerous advantages offered by communal landed property, as compared with separate pro- perty, have been well stated by M. Préveraud, a proprietor cultivator \ The commune would be able to divide the land into reasonable farms, just as the English landlord does, and to apply to it a good system of manure ^, irrigation, and planting. We cannot here discuss this system fully. We will merely notice a few points which seem to be beyond dispute. It is certainly a crime against posterity to alienate for a dollar an acre communal lands which, in fifty years, will be worth a hundred times as much, and the revenue of which would be sufficient to support the whole public service on a magnificent scale. To induce private enterprise to cultivate public lands, there is no necessity to alienate the fee simple : a lease for 90 years is enough, as a grant for a shorter term is sufficient in the West End of London for the construction of palatial residences, and on the Continent for the construction of all the railroads in existence. To the individual whose life is so short, a tenure of 90 years is equivalent to perpetual possession ; while to the nation, the resuming possession of the soil is a guarantee of future safety. The net produce of the soil is now absorbed by individual expenditure, which contributes nothing in itself to the ad- vancement of the nation. Abolish all taxation which encum- bers industry, and at the same time apply the revenue to encourage education, literature, and art, and to extend the means of communication : economical and intellectual progress would receive an incalculable impulse. This is what Avistralia and the United States might do in the future, if they granted leases of land, instead of selling it as they do now. Mr Mill truly said that proprietors of the present day un- justly enjoy the increase in the value of their lands and rents, resulting from the general progress of society. This increase of value w^ould accrue to the public who created it, by the ^ L'EfiUse et le peuple par M. Edmond Préveraud, Paris, 1872. 2 The town of Grouingeu in Holland bas transformed a vast bog into fertile fields by applying to it, in a scientific manner, the sewage, so generally wasted. See the author's Economie rurale de la Néerlande, p. 238. — It is an example which cannot be too distinctly commended to other countries. THE STATE AS LANDOWNER, AND PllOPERTY IN INDIA. 325 gradual increase of the rent demanded by the State or the commune. In England and in the United States, as in the middle ages, when a charitable or educational institution is established, it is founded on an endowment, which allows of its existing on the revenues accruing therefrom. Thus provision is made for an object of general utility, without its costing any one any thing. Is not this a better means than having recourse to taxation ? If all public services were similarly paid entirely by the revenue of State or communal lands, would it not be an immense advantage to society ? The difficulty of administering the public domain would be nothing in comparison of that which certain States, which engage in any industry, now have to deal with. In Java, the Dutch State, regarding itself as proprietor, not only collects the rents of the lands of the dessas, but on one part of the public domain it has coffee plantations, of which it superintends the cultivation, and gathers and sells the crops '. The State is ^ In Java, State cultivation attains enormous proportions. In 1873, sugar occupied 27,460 hectares, and coffee about 176,252 hectares. In 1872, the sugar demanded the labour of 220,706 persons; and the coffee tliat of 708,980 families, or about 2,000,000 persons.— The cultivation of sugar brought the State an income of 4,818,082 florins; that of coffee in 1871, 40,488,422 florins in Java and Menado, and 6,674,159 florins in Sumatra: in all a total of 47,102,581 florins, deducting 15,240,108 as the cost of production. — The rent of land gives the State a farther revenue of 15,000,000 florins, and the tin mines of Banca, also worked by the State, 5,992,869 florins in 1871. It is estimated, that the rent of land does not exceed 10 per cent, of the gross produce, which is extremely little. — The net surplus, paid into the exchequer of the Mother Country, amounted in 1871 to 25,688,951 florins. In Java, the population increases more rapidly than anywhere else — it amounted to 17,298,300 at the end of 1872 — and its condition improves at the same time, which is a proof that the produc- tion of wealth does not suffer by State monopoly. —The author owes the preced- ing data to the kindness of M. Fraussen Van de Puttc, colonial minister of the Netherlands. In Belgium, France, and most other countries, hospitals have various properties, which they manage perfectly. It would not be more difficult to administer all the lands of the commune. In Russia, the State receives the revenue of all the Crown lands, which comprise a great part of tlie territory, England presents another exami)le of a department admhiisteriug vast landed estates in the board which administers the church property, coming from the fusion of particular ecclesiastical foundations. The income amounted in 1872, to £1,253,245. — See Ticenty -fifth Report from the Ecclesiastical Commissioners fur England. Another very interesting example of a vast territory managed by a collective administration, is that of the Société autrichienne, tho S t aat s- B aim, which. received from the State in Austria an area of 130,000 hectares, with 135,000 in- habitants. — The Society has improved the agriculture of the district, has opened coal and iron mines, regulated tho management of forest, created manufactures and so considerably increased the general production. It is not therefore im- 32G PRIMITIVE PROPERTY. not contented with the part of proprietor, an easy function according to M. J. Say, but it is engaged in agriculture and commerce, which is certainly an arduous undertaking. In Belgium the State manages the railways, as complicated a work as we can conceive, demanding technical and commercial know- ledge, and an organism of machine-like regularity. If the State is capable of administering a network of railways, it must be still better able to collect a rent instead of a land tax by means of its receivers. Therefore, we may admit that new States do violate the right of future generations, by taking from them their domain in the constant alienations Vv'hich they effect. Apparently some colonies are beginning to understand that they need not alienate the fee simple of their lands in order to get them cultivated. Thus in Java, a law of April 9, 1870 {Regeling der uitgifte in erfpaclit van gronden in Nederlandsch Indie) empowers the government to grant hereditary leases {erfpacht) of unoccupied lands for 75 years. A law of 18G7, passed in the province of Nelson,. New Zealand, empowers the Board of Uncultivated Lands to grant leases of 14 years of unoccupied lands, renoAvable at the expiration for a new term of 14 years, -at double the original rental. A lease must not comprise less than 50 acres, or more than 10,000 \ On the East coast of New Zealand, the Maoris have formed a league, the object of which is the total suppression of the sale of land and the substitution of leases in its place. The son of a New Zealand chief, who had been sent to London to study, and had gone through a course of law at the Temj^le, was at the head of the movement. The idea is ingenious ; for if the Maoris lease their lands instead of selling them, they may hope to become one day proprietors of a fertile and well cultivated territory, with towns, farms and mines ; and they will thus eventually have incomes to rival those of the Dukes of West- minster or Devonshire. But would it not be better if all this increase of wealth some day accrued to the State ? possible for a collective corporation to perform the part of a great landowner, with advantage to all concerned. — On this subject see the article by M. Bailleux de Marisy, llevue des Deux Mondes, April, 1874. ^ An Act for Leasing Crown Lands in the Province of Nelson, New Zealand, anno tricesimo i^rimo Victoria" regime, No. 51. CHAPTER XXV. LANDED PROPEllTY IN EGYPT AND TUHKEV. Landed property lias undergone many vicissitudes in Egypt'; and yet the cultivation lias hardly altered under the various systems. Under the Pharaohs^, the soil seems to have be- longed to the sovereign. The Koran sanctions the same prin- ciple: nevertheless the Caliphs for the most part respected the hereditary transmission of its occupation or enjoyment. After the Turkish conquest, the Sultan Selini applied the principle of the Koran more rigorously. He formed many lands into a domain, and appointed a Defterdar to administer them. The old occupiers were henceforth only regarded as usufructuaries. The successor had to purchase the continuation of the tenancy by a tax arbitrarily determined. The mamelukes took advan- tage of their power to seize possession of lands, and the class of moultezins was thus formed. They were about six thousand in number; and their right was nearly that of absolute ownership. The lands of the moultezins were of two kinds. In one the fellahs had a right of hereditary occupancy, paying a tax to the State, and a rent to the moultezins : the others were cultivated directly by the proprietors; these were the oussieli lands. They had to pay a very high duty on alienation, otherwise they re- turned to the State. The property of the mosques, waqfs, was very considerable, and constantl}'^ extending. Lands were de- ^ The data in this chapter are borrowed from a note of Colncci Bey on property in Egypt, in the Bulletin de Vlnstitnt I'l/i/ptiefi; from a treatise of tho advocate Gatteschi on the same subject, and from notes collected in. Egypt in 1869, * Herodotus relates (Bk. ii. c. 100) that " Scsostris divided the soil of Egypt among the inhabitants, giving each a ])ortioii of hind of oinial oxtciit, and do- riving his principal revenue from the rent wliich the occuiiiers had to pay every year.*' 828 PRIMITIVE PROPERTY. vised or given to the mosques, the right of occupation being reserved, because bj this means the State exactions were avoid- ed. For the same reason at the commencement of the middle ages, the allods were transformed into benefices and fiefs. The State, to put a stop to this practice, made its consent necessary to the vaUdity of every gift or legacy to a mosque. Mehemet Ali applied the principle of the Koran even more strictly than Selim. He endeavoured to bring all the soil into the hands of the State. He took back the lands of the mame- lulces and moidtezins, allowing them a certain com23ensation and a temporary usufruct of the oussieh lands. He also took posses- sion of the waqfs property, except gardens and houses. Mehemet Ali is known to have treated all Egy^jt as his private property. He regulated cultivation; established manufacturies and places of instruction; and himself engaged in commerce\ It is perhaps the most curious instance of communistic centralization which history tells of. From that time, private property has been gradually reconstituted by the grants of the sovereign or the tolerance of the State. Finally, the edict of Saïd Pasha in 1858 accords to the precarious possession of the fellahs, though theo- retically subject to the eminent domain of the State, rights which border on absolute property. — Hereditary succession is recognized, even for females. Lands never return to the State except in default of heirs, and, in this case, the village can claim them in precedence of the State. — Mortgage is recognized under the form of a sale à réméré, that is liable to redemption; but notice must be given to the authorities. — Whoever reclaims uncultivated land becomes proprietor of it. The government cannot eject anyone, except on payment of a fair indemnity. It must, however, be added that by means of the tax, the government effectually takes rent from the lands of the fellahs; who, both in person and property, are really in its hands. Lands are divided into two classes, the moulk lands, over which the occupiers have full power of disposition; and the ndrieh lands, the occujîiers of which are mere usufructuaries. Theoretically, the latter cannot be transferred without the au- thority of the sovereign. The greater portion of the soil is 7nirieh. ^ Histoire de VEoypte sous le gouvernement de Mohammed- Ali, by F. Meugin. LANDED PROPERTY IX EGYPT AND TURKEY. S20 There is also a distinction between aclievieh lands of Mus- sulman origin, subject to the tithe in virtue of the Koran, and the khaî'adjîé lands, formerly conquered, but left in the hands of the vanquished inhabitants, conditionally on the payment of tribute. The sovereign at one time made grants of lands on condition of military service. These were the zimmets and Ulnars, or great and little fiefs. They were only descendible in the male line. These fiefs have been abolished. As in the Marh or in Java, when the cultivation is abandoned, the soil returns to the State. Cultivation is the condition of occupancy and of ownership. The constitution of property in Turkey is similar to what it is in Egypt. We here transcribe a sketch of it, as given in some interesting letters, which appeared in the Economiste fran- çais (September, 1873). With the exception of the Mulk lands which are private pro- perty, the soil has but one proprietor, — the State. This, however, is the classification of land as established by the old law [Multequa), the principal provisions of which have been re-enacted iir the law at present in foi'ce, that of June 21, 1858: — 1. Mulk lands, the absolute property of individuals ; 2. Eniirie land, the domain of the State, granted by it, on certain conditions, to individuals j 3. Vacoufs, property that is tied up. The vacovfs cannot be compared to wbat we understand ui Europe by lands in mortmain, because, besides the gisants made for a religious object, they comprise a great quantity of individual property tied iqj with an entirely different motive, and on a peculiar system which will be explained ; 4. Metrouké lands, belonging to the State, and granted by it for public use ; 5. Mevat (dead) lands, belonging to the State, and gi'anted to individuals at its pleasure. Mulk lands. — One might suppose, from the meaning of the word mulk, that these lauds were all free, and that there was no diffei'ence between them. Such a conclusion would, however, be incorrect. These lands are, in fact, divided into four classes; and the rate of taxation is not the same for all. Thus there is the melkiiet, the uchHiè and kharadjiiè. Melkiiet land is that of which the ONvnership is governed entirely by the rules of the religious law. — Jlcltriiè, or tithe land, is that which was divided, at the time of the coiKpiest, among the conquerors, and given them in full ownersliip. — Kharadjïtè lands are those which, at the same time, were left, on recognized titles, in the possession of the natives (non-Mussulmaus). 330 PRIMITIVE PROPERTY. These kJiaradjiiè lands are subject : — some to the kharaJji-niou- quauraè, that is the proportional tax, which, according to the im- portance of the produce, may rise from one-tentli to one-half of the harvest; the others pay the kharadji-muvazzat, a fixed tax on the land. Uchriiè and kJiaradjiiè land, on the death, without heirs, of the owner, returns to the State domain, and becomes émirié land. Thus there exist even for mulk lands, legal intricacies, which in practice are an impediment to their free alienation. EiiiRiE LANDS. — Emirié lands, constituting the larger portion of the territory of the Empire, belong to the Sta'e. They ai-e derived, in great measure, from the old fiefs, wliich were granted to military chiefs, on condition of their i-endering personal aid, at the head of a certain number of horsemen, in wars offensive or defensive. These fiefs were of two sorts: the Timar (in Persian, to nourish or tend) and the Ziamet (from zaim, chieftain). The law of April 21, 1858, abolished these fiefs. It declared that they were to return to the State ; and that the lands dependent on them were to be granted to the inhabitants severally. The pro- visions of the law have been observed, and the present state of things is as follows : The grantees received titles (tapou) establishing fheir right of grant (teçarruf). The explanation of these two terms will shew that in reality the holder of lands so allotted has no right of owner- ship. What, then, is the teçari-nf -Ana what is the tapou ? The teçarruf signifies a mode of grant, which gives the liolder, it is true, the right to take the fruits of the property, and even, in some cases, to sell it, but under the express condition of annually paying a specified rent to the State. Moreover-, the tributary nature of émirié land is still indicated by the fact that, in certain cases, the holder is obliged to obtain a new title of possession, which, stating precisely the origin and nature of this laud, renews, so to speak, the act of vassalage. The name tapou, which the title of possession bears, also calls attention to the dependent nature of émirié land. Tapou is derived from the verb tamnaq (to render homage, or worship), and hence it bears the sense of act of servitude, or vassalage. In practice, the tapou is a title of possession delivered on the jjayment of a certain sum, by means of which the right of enjoyment and trans- mission is secured to the holder and his heirs, on conditions deter- mined by law. Vacouf lands, that is lands tied up for religious purposes, are very extensive in Tuikey. They comprise a large portion of the whole territory, and are administered by a special minister, the Evcaf. Vacouf lands are let on lease, but they bring in a very small income, as the law enacts that the lease shall always be granted at the same rent, and will allow of no increase, even where from competition a higher price is offered. The rents having been fixed long ago, the revenue is almost nothing in consequence of the depreciation of money. The holders of vacouf lands have, therefore, a hereditarv lease at a nominal rent. LANDED PROPERTY IN EGYPT AND TURKEY. 8*M There are two kiiuls of vacou/s. The religious vacou/] granted or devised for a pious object ; and the customary vaconf, which is very simihir in its origin to certain benefices of tlio micUlle ages. The customary vacovf is land obtained by the niosciues at a price very much below its real value. By a sale of this descrip- tion, the proprietor grants his land to a mosque, for a stipulated price. The peculiarity of this contract is that the j)i'oprietor re- tains the enjoyment of the land, paying an annual rent (iJjnrè), regulated by the amount of the purchase-money. Conventions of this kind were subject to no restriction, but were framed simply and absolutely at the will of the parties. Formerly, these conven- tions were very common, as the grantor derived numerous advan- tages from them. In reality, he remained master of the prcjperty, and occupied it or let it, as he pleased; in case of debts, the property, being vacoitf, was protected from judicial procedure. On his death the yrtcoit/" returned, it is true, to the EvcaJ] if he had no heirs in the first degree ; but he could in some measure obviate this inconvenience by assigning his rights to another person. Finally, by this means, he withdrew his property from liability to the Cliefâia, or '■'■retrait vicinal," exei'cised by every proprietor over land con- tiguous to his own, and giving him precedence, in case of its sale, over every other purchaser. The mosqiie, on its part, found the following advantages in the arrangement : — a safe investment for its funds, guaranteed by the land ; exemption from repairs, which the tenant had to execute ; the benefit of all repairs and improve- ments carried out on the property; the duties which had to be paid to the mosque on the proprietor disposing of his rights in favour of a third party {droits de Mouhatea) ; finally, the right of succession to the property, which devolved absolutely on the mosque, on the death of the tenant without children. Trrco'»/ lands as well as émirié land were in no way set free by the laws of May 21, 1858, and of June 18, 1867. Since the pro- mulgation of these laws, as well as before, they have borne in the highest degree the character of "immobilisation" and dependence from the State. The following are briefly the restrictive provisions, which in, actual practice encumber émirié lands, as well as the greater portion, of vacoitf s . The meadow land on these domains cannot be broken up and bi'oiight into cultivation without permission of the authorities. The- occupiers are forbidden to work these lands for the manufacture of bricks or tiles, without similar permission. On contravention of this rule, they will have to pay the price of the land so used, according, to its value in the district. No occupier may plant, on his au^ thority, any vines or fruit trees to form a vineyaixl or garden. lu case of contravention, the Treasury has, for three years, the power of removing the trees. After that time, the use of the fruit trees belongs to those who planted them, subject to an annual payment of tithe. In any case, trees, whether fruit-bearing or not, belong to the State, the occupier only taking ths produce. No new buildings 332 PRIMITIVE PROPERTY, may be raised on. êmirié land, without previous permission from the proper authorities. If this nde is infringed, the administration may order the destruction of the buildings. The holder of land by tapou {émirié property) may sell it to whomsoever he pleases, subject however to the express condition that he has previously obtained permission of the competent authority. Without such sanction, any sale of émirié laud is null and void. If the occupier of an estate, on which there are mulk trees, sells it to any other than the owner of such trees, the owner of them shall be entitled for six yeai'S to claim the laud, and to recover it on payment of its value at the time he makes his demand. — Land sold to an inhabitant of another village may be recovered, any time within a year, by the inhabitants of the village in which the land is situated, on re-pay- ment of the purchase-money. This communal retrait has existed everywhere. All land, which shall not be cultivated directly by the holder, or indirectly by way of loan or lease, and which shall i-emain idle for three consecutive years, shall be submitted to the formality of tajiou, whether tlie holder be present or absent. Such land shall be put up for sale, and adjudged to the highest bidder. The holders of émirié and mevcoufé lands are not entitled to mines discovei'ed on the property of which they are usufructuaries, nor to claim any share in them. — Mussulman land cannot pass by descent to non-Mussulman relatives. The sale and grant of émirié lands on conditions held to be illegal by the religions law shall not be valid. This sanctions all kinds of arbitrary and vexatious proceedings against non-Mussulmans, the religious law being veiy severe against them. CHAPTER XXVI. THE RIGHT OF PROPERTY AND HEREDITARY PATRIMONY'. As we have seen, primitive nations, in obedience to an instinc- tive sentiment, recognized in every man a natural right to occupy a portion of the soil, from which he might derive the means of subsistence by his hxbour; and, accordingly, they divided the collective property of the tribe equally among all the heads of families. This mode of regarding the right of property has been frequently touched upon, but, I think, it has been expounded by none better than by two philosophers; one French, the other English, who, working independently, have made use of nearly identical terms. They are M. F. Huet in his work le Règne social die christianisme, Bk. ill. c. v. : and Mr Herbert Spencer, in his Social Statics, c. ix.^ M. Huet writes as follows : — " Publicists, economists, and statesmen vie witli one another in repeating tLat witliout property there can be no liberty. Nothing is more unquestionable. Property, or the right of regarding as one's own a determinate portion of matter, of enjoying it or disposing of it at will, without trenching on the rights of another, always con- stitutes an essential foundation of a true form of society. "Either words have no meaning or to place property among natural rights implies that the original title of investitiu-e in landed property is the quality of man ; that the quality of man engenders of itself, directly, a right to a definite quantity of such })roperty — the original 1 The necessity of the return of landed property to the collective domain of mankind, has been exhaustively treated by M. le Baron do Colins in bis numerous writings, and amongst others in his book, L^Economie politique source den révolutions ; by his disciple M. Agathon de Potter in his Economie Sociale, 1874, and in the Heine de la Pliilosophic de l'avenir, 187(), — but the theory of the natural, individual right of property and appropriation is not sulTicicutly illustrated on juridical grounds. 334 PRIMITIVE PROPERTY. property, which becomes for every one the source, the foundation and the means of obtaining every other kind. "It is tlie most irrefutable consequence of the right of existence. It must be an equal right; for the necessity of the means of existence is alike for all. No one, certainly, should live at the. expense of another : but the man, who has not forfeited his right, is entitled to live independently; he has a light to be so placed, as that his labour and his means of existence shall not be dependent on the pleasure of others. However free he may be in person, if he does not, of natural right, possess some capital; if he is not a proprietor, as well as a man and a labourer, he only produces, and only lives by the permission of his fellow-men: — actually he is in servitude. It cannot be too often repeated — property is an absolute condition of liberty. We may not disregard mankind's first and most sacred of titles, the title to the possession of property'." To carry out this natural right of property, M. Huet pro- poses that the law should enjoin, " that at every decease, the free portions of the patrimony should go to all the young labourers equally. Succession, constituted on these socialistic principles, would thus reproduce, in each generation, the fra- ternity of the primitive partition." " The morality of succession woidd be improved by such gene- ralization : the temptations to which the present system exposes needy and eager heirs are only too well known. Each inheritance is a prey for the. vilest passions to quarrel over. Too often we hear hateful hopes expressed. Far from weakening the family, the right of inheritance would purify and strengthen it. It creates a feeling of security. The fault or misfortune of the fiither does not condemn an unfortunate ])osterity to permanent inferiority. Under this system of real socialism, there exists in foct a general confidence between father and children. " Now, the children of the poor are cast naked on the bare earth, as though they were bo]-n in a savage state. They have no 1 The great German philosopher Fichte has expressed the same idea : " The mission of the State is to keep every cue in iiossession of what belongs to him, to seciu'e him his propertj^ and to guarantee the same to him. The end of human activity is to live, and every individual is entitled to be put into a position to support life. The distribution ought to be effected in such a way as that every one may live by his labour. If any one is in want of the necessaries of life, it should be the consequence of his own fault and not of the acts of others. The portion which ought to come to every one for this purpcse belongs to him of right ; and if he is not yet in possession of it, he should have the means of obtaining it. In a State, regulated by reason {Vernunftiitaat), he will obtain it. In a distribution effected by force and chance, before the awakening of reason, all have not attained to it, because some have taken more than is due to them. To say, everything will settle itself, every one will always find labour and bread, and to trust in this waj' to chance, is to act contrai-y to the demands of justice and right." — Fichte, Dcr qcschlossene llaiulrhlant, B.I., K.l, s. 399, 402,— K. 7, s. 446. THE RIGHT OF PROPERTY AND HEREDITARY PATRIMONY. 33.') ties, no ancestry. The right of patrimony would connect tht'ni once more with the human race. It is a marv(^llous agrarian hwv which, witliout arbitrariness or violence, without putting any limit on pi'operty, or despoiling or disturbing any one, secures for ever the iudei)endence of the labourers and maintains the long succession of generations on a level of eqitality." What M. Huet proposes is nothing else than the system of hinded property in force in the primitive viUage and in llu' Alhnend. Let us now see what Mr Herbert Spencer says : — " Given a race of beings having like claims to pursue the objects of their desires — given a world adapted to the gratification of those desires — a world into which such beings are similarly born, and it unavoidably follows that they have equal rights to the use of this world. For if each of them ' has freedom to do all that he wills provided he infx-inges not the equal freedom of any other,' then each of them is free to use the earth for the satisfaction of his wants, provided he allows all others the same liberty. And conA^ersely, it is manifest that no one, or part of them, may use the earth in such a way as to prevent the rest from similarly using it ; seeing that to do this is to assume greater freedom than the rest, and consequently to break the law. " Equity, therefore, does not permit property in land. For if one portion of the earth's surface may justly become the possession of an individual, and may be held by him for his sole use and benefit, as a thing to which he has an exclusive right, then other portions of the earth may be so held ; and eventually the tvhole of the earth's surface may be so held ; and our planet may thus lapse altogether into private hands. Observe now the dilemma to which this leads. 8iip posing the entire habitable globe to be so enclosed, it follows that if the landowners have a valid right to its surface, all who are not landowners, have no right at all to its surface. Hence such can exist on the earth by sufferance only. They are all trespassers. Save by the permission of the lords of the soil, they can have no room for the soles of their feet. Nay, should the others think fit to deny them a resting-place, these landless men might equitably be expel ed from the earth altogether. If, then, the assum^ition that land can be held as property, involves that the whole globe may become the private don^ain of a part of its inhabitants ; and if, by consequence, the rest of its inhabitants can then exercise their facidties — can then exist even — only by consent of the landowners ; it is manifest, that an exclusive possession of the soil necessitates an infringement of the law of equal freedom ^. For, men who cannot ' live and move and 1 Certain German jurists, such as the eminent Professor Zacliaria?, condemn the right of exchrsive jiroperty iu tlic soil in oven stronger tenus tliaii Herbert Silencer does : — "The rent of land," says Zachariai iu his work, liiichern rom Staut, " is a reduction of the wages which might belong entirely to the labourer, 336 PRIMITIVE PROPERTY. have tlieir being ' without the leave of others, cannot be equally free with those others "... " On examination, all existing titles to such property turn out to be invcilid; those founded on reclamation inclusive. It appears that not even an equal ai)portionment of the earth amongst its inhabit- ants could generate a legitimate pi'oprietorship. We find that if pushed to its ultimate consequences, a claim to exclusive possession of the soil involves a landowning despotism. We further find that such a claim is constantly denied by the enactments of our legislature. And we fiud lastly, that the theory of the co-heirship of all men to the soil is consistent with the highest civilization ; and that, however difficult it may be to embody that theory in fact, Equity sternly com- mands it to be done." Neither M. Huet nor Mr Herbert Spencer appears to have thought that this right to patrimony or joint-heirship could be put into practice immediately, in the midst of the imperfect and complicated relations of modern society. They have framed an ideal scheme ; — but the remarkable point is that this ideal is identical with the form of landed property, spontaneously applied by primitive societies of every nation and every country. The future, to which they look forward, would thus only reproduce the past, but in other forms. if the soil were not the object of an absolute monopoly. All the sufferings, against which civilized .nations have to struggle, may be referred to the exclusive right of property in the soil as their source." (Allé die Leiden, mit ivelchen civilisirte Volker zii kdmpfen liahen, lassen sick auf das Sondereinenthum an Grund uvd Boden als Hire Ursache zurilckfiihren.) The philosopher Ki-ause (System der Rechtspliilosophie, heransgg. von Karl Roder, 1874), and his eminent disciple. Professor H. Ahrens (Naturrecht), regard property as a natural right and as a necessary condition of man's liberty and individual develo^iment. Krause advocated a return to the old German law which sanctions this right. CHAPTER XXYII. THE THEORY OF PROPERTY. A STUDY of the primitive forms of property is essential in order to form a solid foundation for the theory of property. Without understanding the real facts, the majority of jurists and economists have based property on hypotheses which are contradicted by history, or on arguments which load to a conclusion quite opposite to what they wished to establish. They strove to shew the justice of quiritary property, such as the Roman law has bequeathed to us ; and they succeeded in proving quite another thing, — that natural property, such as it was established among primitive nations, was alone in accord- ance with justice. To shew the necessity of absolute and perpetual property in land, jurists invoked universal custom, quod ah omnihis, quod ubique, quod semper. " Universal consent is an infallible sign of the necessity and consequently of the justice of an insti- tution," says M, Leon Faucher \ If this is true, as the uni- versal custom has been the collective ownership of land, we must conclude that such ownership is alone just, or alone con- formable to natural law. Dalloz in his Répe7ioire, at the word Propriété, and Portal is, in his Exposé des motifs du Code civil, assert that without the perpetual ownership of land the soil could not be cultivated ; and, consequently, civilization, which rests on agriculture, would be impossible. History shews that this assertion is not true. Full ownership, as applied to the soil, is an institution of quite recent creation. It was always the exception ; and cultivation ^ Dictionnaire de V Economie polit., voce Proprié.t^". M. 22 338 PRIMITIVE PROPERTY. executed by the proprietor himself has been still more excep- tional. Agriculture commenced and was developed under the system of common ownership and periodic partition. In the provinces of the Roman empire the soil was only occupied by title of usufruct. " In solo j^rovmciali," says Gains, II. 7, " domi- nium pojmli Romani est vel Cœscwis, oios autem possessionem tantum et usufructum habere videmur^ In the middle ages, the free-allod was the exception ; the precarium, and the bene- ficium, the fief, — that is, a sort of hereditary usufruct, — was the rule ; and agricultural labour was executed by " main- mortables" serfs, who, so far from being owners of the soil they cultivated, were not even owners of their own moveables, for the right of succession was denied them. Even now, in England, houses are commonly built on land held by a mere temporary lease ; and the soil is cultivated, as in most other countries, by lessees, whose occiipancy is only secured for a few years, and by tenants at will. For man to plough and sow, it needs but to secure him the fruit of his labour ; and for this, pos- session for a year is, in strictness, sufficient. This we see in Java, and even nearer home, in the Belgian and French Ar- dennes, or in the wastes of Westphalia. For the execution of lasting improvements, and even for the introduction of inten- sive, scientific cultivation, there is no necessity for more than a lease of from nine to eighteen yewcs. We see this every- where. In short, the cultivation of the soil has nearly always been accomplished by the temporary possessor, hardly ever by the perpetual proprietor. Another very common mistake is to speak of " property " as if it were an institution having a fixed form, constantly remaining the same ; whereas in reality it has assumed the most diverse forms, and is still susceptible of great and unfore- seen modifications. We will examine the different systems which have been put forward in explanation of the origin and justice of property. There are six principal ones. The Roman law gives this defi- nition of property : Dominium est jus utendi et abutendi re sua, quatenus juris ratio patitur. The definition of the Code civil français is fundamentally the same : " Property is the right of disposing of and of enjoying things in the most absolute manner. THE THEORY OF PROrERTY. So9 providetl that no use is made of them prohibited by laws and regulations." 1. Roman jurists and most modern ones have considered occupancy of, things without an owner as the principal title conferring property. Quod enim nullius est id, ratione naUirali, occupanti conceditur, says the Digest. This theory can be easily maintained, so long as it only has to do with moveables which can be actually seized and detained, like game taken in the chase, or goods found ; but it encounters insurmountable diffi- culties directly we attempt to apply it to the soil. In the first place, history shews that the earth is never regarded by men as res nullius. The hunting ground of hunting tribes, or the pastures of pastoral nations, are always recognised as the collective domain of the tribe ; and this collective posses- sion continues, even after agriculture has begun to fertilize the soil. Unoccupied land has therefore never been regarded as without an owner. Everywhere, in former times as in our own, it was considered as belonging to the commune or the State, so that there was no room, in former times any more than in our own, for acquisition by occupancy. Most of the partisans of this theory do allow a sort of primi- tive community, communio bonorum 'primceva. But they add, that in order to obtain individual ownership of things which they took possession of, all men tacitly agreed to renounce, each for himself, this undivided right over the common domain. If it is the historic origin of property, that they seek to explain in this way, history knows of no such agreement. If it is meant as a theoretical and logical origin, in this case they lapse into the theory of contract, which we shall examine further on. M. Thiers, in his work De la Propriété, borrows the idea of Cicero, who, comparing the world to a theatre, asserts that every one makes the place he occupies his own : Theatrum cum commune sit, recte tamen did potest ejus eum locum quern quis- que occupavit. The example goes against the theory which he is endeavouring to establish : for, in the first place, the spectator is only in possession of his place, and his possession merely gives him a temporary right and not the perpetual ownership ; and, secondly, he occupies but one place. Hence no one could at best make his own more than the portion of the soil which he 22—2 340 PRIMITIVE PROPERTY. actually retains and can cultivate. M. Renouard, in his ex- cellent work, Du Droit industriel, recognises this : " Of strict natural right, the occupation of land presents serious difficulty in execution. It only gives a right over the soil actually held in possession." Without this limit, in fact, a single man might, by some manifest sign of his intention, occupy a whole pro- vince. Occupation is a fact resulting from chance or force. There are three of us on an island large enough to support us all, if we have each an equal part : if, by superior activity, I occupy two-thirds of it, is one of the others to die of hunger, or else become my slave ? In this case the instinct of justice has always commanded an equal partition. Hence we do conceive of a right of acquisition, anterior and superior to the simple fact of apprehension, which it is called upon to limit and regulate. Most jurists should answer the question, whether the soil can be the subject of exclusive and perpetual ownership, in the nega- tive. "For the sovereign harmony," says M. Renouard, "has exempted from the grasp of private ownership the chief of those things without the enjojTnent of which life would become im- possible to those who should be excluded in case of their ap- propriation." The soil is obviously among the number of such things, as also is the air and water. For man cannot live on sunlight and dew, and the possession of some portion of pro- ductive capital is necessary for him to obtain his means of support. The general principles of jurists, accordingly, com- mend the universal custom of primitive nations, which reserved to the tribe the collective ownership of the soil. According to Cousin, property is the necessary consequence and condition of liberty. Liberty is sacred ; property should be no less so. But liberty is only respected when conformable to the law ; so property can only be respected when determined by justice. "Liberty and property demand and support each other," says M. Renouard. Undoubtedly ; but as all should be free, so should all be proprietors. "Property," says this elo- quent jurist, "is the condition of personal dignity." In that case it is not allowable to make a privilege of it, unless we wish to see the mass of mankind degraded and enslaved. THE THEORY OF rROPERTY. 841 2. The second theory of property would make labour its basis. This is the one adopted by economists, because, since Adam Smith, they have attributed to labour the production of wealth. Locke was the first to expound this system clearly, in his treatise on Civil Government, c. IV. Briefly, this is a summary of what he says on the subject : — God gave tlie soil to mankind at large, but as no one enjoys either the soil or that which it produces unless he be owner, individuals must be allowed the use, to the exclusion of all others. Every one has an exclusive right over his own person. The labour of his body and the work of his hands therefore are like- wise his property. No one can have a greater right than he to tliat which he has acquired, especially if there remain a suflS- ciency of similar objects for others. My labour, withdrawing objects from the state of community, makes them mine. But the right of acquisition must be limited by reason and equity. " If one exceeds the bounds of moderation and takes more than he has need of, he undoubtedly takes what belongs to others." The limit indicated by Locke is, for moveable things, the amount which we may take without allowing them to spoil. For land the limit is the amount which we can cultivate our- selves, and the condition that there be left as much for others as they require. "The measure of property," he says, "nature has well set by the extent of man's labour and the conveniences of life : no man's labour could subdue, or appropriate all ; nor could his enjoyment consume more than a small part ; so that it was impossible for any man, this way, to intrench upon the right of another, or acquire to himself a property, to the pre- judice of his neighbour, who would still have room for as good and as large a possession. This measure, we see, confines every man's possession to a very moderate proportion, and such as he might appropriate to himself, without injury to anybody." So according to Locke the great principle is this: "Every one ought to have as much property as is necessary for his support." The necessity of private property results " from the condi- tions of human life, which require labour and some material on which it may be exercised." 342 PRIMITIVE PROPERTY. As Locke admits on the one hand an equahty of right in all men (ch. I. § 1), and on the other hand the necessity for every man to have a certain portion of material, on which to live by his labour, it follows that he recognizes a natural right of pro- perty in every one. This theory is certainly more plausible than that of occupa- tion. As M. Roder very justly remarks in his work, Die Grundziige des Naturrechts, § 79, labour establishes between man and the objects which he has transformed a far closer connexion than mere occupation, whether symbolical or even actual. Labour creates value; accordingly it seems just that he who has given birth to it, should also enjoy it. Moreover, as no one can legitimately retain more than that which he can cultivate, there is a limit which prevents usurpation. But no legislation ever allowed that labour or specification was alone a sufficient title to establish property. He who is not already owner of the land or the material transformed, acquires nothing by his labour but a right to compensation or to remove the buildings and plantations set up on another man's land. Kant had already remarked that the cultivation of the soil was not sufficient to confer the ownership. "If labour alone," says M. Renouard {Du Droit industriel, p. 269), "conferred a legiti- mate ownership, logic would demand that so much of the material produced, as exceeds the remuneration of such labour, should be regarded as not duly acquired." Nay more: according to this theory the owner would mani- festly have no right to the full value of land let to a tenant. The tenant would become co-proprietor in proportion as the land was improved by his labour; and, at the end of a certain number of years, the proprietor would entirely lose all right of ownership. In any case, he could never raise the rent; for to do so, would be to appropriate the profits of another's labour, which would obviously be a robbery. If labour were the only legitimate source of property, it would follow that a society, in which so many labourers live in poverty and so many idlers in opulence, is contrary to all right and a violation of the true foundation of property. The theory so imprudently adopted by most economists, and even by M. Thiers in his book, De la Fropriété, would therefore THE THEORY OF PROPERTY. 343 be a condonmation of all our modern organization. Jurists have violently opposed the theory. The summary of their objections may be found in M. Warnkoenig's work, Doctnna Juris philosophica, p. 121, and in the JSIaturrecht of Ahrens. If labour is the source of property, why should the Institutes and the Code civil have said nothing of it ' ? It may be said that labour ought to be the source of all property, but this priucijsle would be condemnatory of the existing organization o.f society. 3. In order to explain why men abandoned the primitive community, it has been asserted to have been in consequence of a convention, and thus property Avould be the product of contract. This theory has even less to sustain it than the preceding. In the first place, when we seek to derive a right from a fact, we are bound to establish the reality of that fact, otherwise the right has no foundation. Now, if we go back to the historic origin of property, we find no trace of such a contract. More- over, this convention, which we should have to seek in the night of past ages, cannot bind existing generations, and conse- quently cannot serve as the basis of property at the present time. Convention cannot create a general right, for it itself has no value, except so far as it is conformable to justice. If property is legitimate and necessary, it must be maintained; 1 M. Thiers, it is» true, has not been stopped by certain contradictions. " To every one," he says, " for his labom-, because of his labour and in propor- tion to his labour. We may therefore say dogmatically : The indestructible basis of the right of property is labour." Further on he adds: "In order to labour, man must first seize the material for his labour, that is the land, the indis- pensable material of agricultm-al labour, which makes occupation the first act necessary to the commencement of property, and labour the second." Finally he says again: " Every society originally presents the phenomenon of an occu- pation more or less violent, gradually succeeded by the plieuomeuou of regular transmission by way of exchange for the legitimate fruits of some labour." Thus the robber need only exchange his sjjoil for " the legitimate fruit of some laboiu:," to become the legal proprietor. Property has, therefore, for its origin, according to M. Tliiers, now labour, now occupation, now robbery legitimated by exchange ! Elsewhere he describes a man fishing and growing corn, who says: " This fish for which I have fished with so much patience, and this bread which I have made with such exertion, to whom do they belong ?" The human race will answer: " They are mine." — Dc hi Projyriété, p. 38. And everywhere human laws will attribute the greater part of this fish or this bread, not to him who has gathered them by his toil, but to him who has granted the labourer permission to fish or to till. Thus evidently M. Thiers destroys the basis of cpiiritary ownership, which he strives to defend. 344 PRIMITIVE PROPERTY. but a decision taken by our remote ancestors will not entitle it to respect. Kant holds that specification creates a provisional owner- ship, which only becomes final by the consent of all the mem- bers of the society. Kant does not maintain that this consent was a historic fact: he speaks of it as a juristic necessity, or a fact the justice of which commands respect. But the moment we introduce the idea of justice, we are demanding of the general principles of law the sanction of human institutions, and to what purpose is it then to invoke a convention which has never occurred? It is enough to shew that property is conformable to right. 4. Without having recourse to abstract notions of justice or to the obscurities of historic origins, many writers of very different shades have maintained that property is the creature of law. " Banish governments," says Bossuet, " and the earth and all its fruits are as much the common property of all mankind as the air and the light. According to this primitive natural right, no one has an exclusive right to anything, but every thing is a prey for all. In a regulated government no individual may occupy, anything Hence arises the right of property, and, generally speaking, every right must spring from public authority ^" Montesquieu uses nearly the same language as Bossuet : "As men have renounced their natural independence to live under political laws, they have also renounced the natural community of goods to live under civil laws. The former laws give them liberty, the latter property^." Mirabeau said, in the tribune of the Constituent Assembly, " Private property is goods acquired by virtue of the law. The law alone constitutes property, because the public will alone can effect the renunciation of all and give a common title, a guarantee for individual enjoyment." Tronchet, one of the 1 Polit, tirée de l'Ecrit., Lib. i. Art. 3, 4 propos. ^ Esprit des Lois, Lib. xxvi. c. 15. — Léon Faucher (see Propriété in the Dictionnaire de VEconomie politique) replies that this i^rimitive community of goods has never been found in a state of nature. The most savage tribes, he says, know mine from thine. Undoubtedly : but Montesquieu was speaking of landed property ; and this was collective in primitive times everywhere. TnE THEORY OF mOPERTY. S-iS jurists who contributed most to the formation of the Code civil, also said : " It is only the establishment of society and conventional laws that are the true source of the right of property." Touillier, in his commentary on the Droit civil français, admits the same principle. " Property," according to Robespierre, " is the right of every citizen to enjoy the portion of goods guaranteed to him by the law." In his Treatise on Legislation, Bentham says: "For the enjo3'^ment of that which I regard as mine, I can only count on the promises of the law which guarantees it to me. Property and the law were born together, and will perish together. Before law, there was no property; banish law, and all property ceases." Destutt de Tracy expresses the same opinion ; and more recently, M. Laboulaj^e, in his Histoire de la propriété en Occident, formulates it with great exactness : " Detention of the soil is a fact for which force alone can compel respect, until society takes up the cause of the holder. The laws not only protect property, they give birth to it The right of property is not natural but social." It is certain, in fact, as M. Maynz remarks, that " the three legislations (Poman, German and Slavonic) which now divide Europe, derive from the State exclusively the absolute power over goods which we designate by the word property or owner- ship\" If M. Laboulaye and other authors of his opinion only intended to speak of a state of fact, they are right. If I have gathered fruits or occupied a spot of land, my right hand at first, and subsequently the power of the state, guarantee me the enjoyment thereof. But what is it that my strong hand or the power of the state ought to guarantee to me ? what are the proper limits of mine and thine? is the question we have to determine. The law creates property, we are told ; but what is this law, and who establishes it ? The right of property has assumed the most diverse forms : which one must the legislator sanction in the cause of justice and the general interest ? To frame a law regulating property, we must necessarily know what this right of property should be. Hence the notion of property must precede the law which regulates it. Formerly the master was recognised as owner of his slave; ' Mayuz, Cows dc droit romain, 2* C-àit. p. 082. 34G PRIMITIVE PROPERTY. was this legitimate property, and did the law, which sanctioned it, create a true right ? No : things are just or unjust, institu- tious are good or bad, before a law declares them such, exactly as two and two make four even before the fact be formulated. The relations of things do not depend on human will. Men may make good laws and bad laws, sanction right or violate it, right exists none the less. Unless every law is maintained to be just, we must allow that law does not create right. On the contrary, it is because we have an idea of justice superior to laws and conventions, that we can assert these laws or con- ventions to be just or unjust. At every moment of history and in every society, conform- ably to the nature of mankind, there is a political and social organization, which answers best to the rational requirements of man, and is most favourable to his development. This order constitutes the empire of right. Science is called in to discover it, and legislation to sanction it. Every law which is con- formable to this order is good and just; every law which is opposed to it is bad and iniquitous. It cannot be maintained that in human society, as in the physical Universe, the existing order is necessarily the best, unless we pretend that all social iniquities are legitimate, because they are necessary, and that every attempt at reform is a folly, if not an attack on natural law. In this case, we should also have to admit that slavery, confiscation and robbery are just directly they are enjoined by law; and then the greatest attacks on right would have to be regarded as the true right. The law does not create right ; right must dictate the law. 5. According to certain economists such as Roscher, Mill, and Courcelle-Seneuil, human nature is such as to require property, for without this there would be no stimulus to labour or saving. M. Adolph Wagner calls this system the economic theory of nature. Roscher formulates it thus : " Just as human labour can only arrive at complete productivity when it is free, so capital does not attain to full productive power except under the system of free private property. Who would care to save, and renounce immediate enjoyment, if he could not reckon on future enjoyment ? " (Roscher, Sf/st. I. § 77 and 82.) "Landed property," says Mill, "if legitimate, must rest on I THE THEORY OF PROPERTY. 347 some other justiticatioii than the right of the hibourer to what he has created by his labour. The h\nd is not of man's creation ; and for a person to appropriate to himself a mere gift of nature, not made to him in particular, but which belonged as much to all others until he took possession of it, is jyrimct facie an in- justice to all the rest The private appropriation of land has been deemed to be beneficial to those who do not, as well as to those who do, obtain a share. And in what manner bcueficial ? Let us take particular note of this. Beneficial, because the strongest interest which the coranumity and the human race have in the land is that it should yield the largest amount of food, and other necessary or useful things required by the community. Now, though the land itself is not the work of human beings, its produce is ; and to obtain enough of that produce somebody must exert much labour, and, in order that this labour may be supported, must expend a considerable amount of the savings of previous labours. Now we have been taught by experience that the great majority of mankind will work much harder, and make much greater pecuniary sacrifices, for themselves and their immediate descendants than for the public. In order, therefore, to give the greatest encourage- ment to production, it has been thought right that individuals should have an exclusive property in land, so that they may have the most possible to gain by making the land as pro- ductive as they can, and may be in no danger of being hindered from doing so by the interference of aiiy one else. This is the reason usually assigned for allowing the land to be private property, and it is the best reason that can be given." Human institutions ought, in fact, to be alike just, and such as to procure the greatest possible happiness for the greatest number. But, as M. Adolph Wagner very Avell remarks, quiritary property in land is not indispensable for the good cultivation of the soil. In fact we see on all sides, per- fectly cultivated lands, which belong to the State, to corpora- tions, to village communities, and to great landowners, but are farmed by temporary occupants. It cannot therefore be main- tained that private property in the soil is an economic necessity. As Mr Mill very truly says, if the end aimed at in establishing private ownership of the soil is to create the most powerful 348 PRIMITIVE PROPERTY. motive for realizing its good cultivation, the ownership should always be assigned directly to the cultivators. In any case, according to Mill, the increased value of the soil, resulting from national activity, should be reserved to the nation, and not granted to sinecurists, who reap the advantage in the form of an increased rental. The " natural-economical " theory has this great advantage, that by basing property on general utility, it allows of succes- sive improvements in existing institutions by the elimination of what is contrary to equity and the general interests, and by modifications consonant with new wants and technical ad- vances \ 6. The sixth system regards property as a natural right. In the present day all the advocates of property vie with one another in repeating that it is a natural right ; but there are but few of them who understand the import of these words. The philosophical jurists of Germany have however explained it very well. Fichte's theory on the point is this. The personal right of man as determined by nature is to possess a sphere of action sufficient to supply him with the means of support. This physical sphere should therefore be guaranteed to every one, conditionally however on his cultivating it by his own labour. Thus all should labour, and all should also have where- with to labour. Here are the actual w.ords of Fichte in his excellent work on the French Revolution, Beitrclge zur Berich- tigung des Urtheils ilber die fi-anzosische Revolution : " The transformation {hildung) of materials by our own efforts is the true juridical basis of property, and the only natural one. He who does not labour cannot eat, unless I give him food ; but 1 The theory of property has never been so well treated as in the excellent work of M. Adolph Wagner, and M. Erwiu Nasse, Lelirhuch der jwlitisclien Oeconomie, i. Grundlegung. — According to M. Wagner we must always distinguish between the objects to which property is applied, because it should not be the same for arable land, forests, mines, streams, capital and produce. M. Wagner adopts the "legal" theory, that is to say, he derives property from the law. Undoubtedly it is the decree of the legislator which estabhshes property and the right of inheritance : but what ought the legislator to decree ? This is the question we have to decide. We must therefore go back to the necessities wliich determine what should be law. M. A. Samter, a banker of Konigsberg, adopts the same system as M. Wagner. See his remarkable works, Die Social- Lehre and Gesellscliaftliches-iind-privat-Eigeiithurn, Leipzig, 1877. M. Samter is of opinion that the soil, as well as mines and roads, should belong to the state and the communes, so as to counterbalance the power of private property, the rights of which are much greater, more exclusive and less limited than formerly. THE THEORY OF PROPERTY. 349 he has no right to be fed. He cannot justly make others work for him. Every man has over the material world a primordial right of 'appropriation/ and a right of property over such things only as have been modified by him." In his book on natural law, Grundlage des Natnrrechts, Ficlite says every man has an inalienable right to live by his labour, and consequently to find the means of employing his hands. Immanuel Fichte, the son of the great philosopher, main- tains similar theories in his book on Ethics, System der Ethik (2 B., 2 Th., § 93). The right of possession, according to him, is a direct right, inalienable and antecedent to all law. Property is possession conformable to law, and guaranteed by public power. It is instituted for the general good, from whence it follows that the proprietor not only may not misuse his pro- perty, but is even juridically bound to use it well. "We come," says Fichte, " to a social organization of property. It will lose its exclusively private character to become a true, public institution. It will not be enough to guarantee to every one his property legally acquired; we must enable him to obtain the property which ought to accrue to him in exchange for his legitimate labour.'' " Labour is a duty towards oneself and towards others : he who does not work, injures another, and consequently deserves punishment " (§ 97). Every one ought to be possessed of property, says Hegel in his Rechtsphilosophie § 49 ; "Jeder muss Eigenthum haben." Schiller has rendered the same idea in two lines, which contain the whole philosophy of history : — Etwas muss er sein eigen nennen, Oder der Menscli wh'd niorden uud brennen. " Man must have sometliLng that he may call his own, or ho will burn and slay." The same theory is expounded even more completely in the excellent manual on natural law (XaturrecJit) by M. H. Ahrens. According to this eminent jurist, "law consists in the group of conditions necessary for the physical and spiritual development of man, so far as these conditions are dependent on human will. Property is the realization of the sum of the means and con- ditions necessary for the development, physical or spiritual, of nHj 350 PRIMITIVE PROPERTY. each individual, in the quality and qviantity conformable to his rational wants. The right of property includes the con- ditions and means for the acquisition, retaining, and employ- ment of property, and comprises at the same time the judicial actions given to the proper person, for the recovery, the establishment, or the exercise of ownership." " For every man property is a condition of his existence and develo])nient. It is based on the actual nature of man, and should therefore be regarded as an original, absolute right which is not the result of any outward act, such as occupation, labour or contract. The right springing directly from human nature, the title of being a man is sufficient to confer a right of property." *^ The proof of the truth of this doctrine is that the very persons, who do not recognise it or who would condemn it, have <. , admitted principles which necessarily lead to it. ^ "Property," says Portalis, "is a natural right; the principle <■■ ■ of the right is in ourselves." But if it is a natural right, — a right, that is, resulting from the very nature of man, it follows that we can deprive no man of it. The reason of the existence of property indicated by Portalis, implies property for all. In v.. .^ order to support himself, he says, man should be able to appro- iS priate a portion of the soil to cultivate by his labour. Precisely so: but by man we must understand all men; for all, in fact, are unable to exist except by appropriation of some kind. Hence it follows from the system of Portalis, that the right of appropriation is general, and that no one ought to be deprived of it. "Property," says Dalloz {Eejiert. gen. V\ Propriété), "is not an innate right, but it springs from an innate right. This innate right, which contains jjroperty in the germ, is liberty ; and from liberty property flows of necessity." If Dalloz is right, it follows that every man entitled to freedom is also entitled to pro^Derty. "Every member of the human race," says M. Renouard, "requires to be escorted by and invested with properties, which shall adhere to him and form his proprietary domain." Very well; but then social institutious must be so regulated, that by the exercise of his right of appropriation every one may attain to the escort and investiture of property. THE THEORY OF PROPERTV. 351 The instinctive respect for this natural right to i)roperty residing in every man serves as a basis for the right to assist- ance, which is simply its equivalent, and which all legislatures, and notably that of England, have sanctioned. If the primor- dial right of appropriation be denied, we must allow that Malthus was right: the man who has no property, has not the slightest right to turn it to account: "at the banquet of nature no place is reserved for him; he is really an intruder on the earth. Nature bids him take himself off, and she will not be slow to put this order into execution herself." Nothing can be more true. If man cannot claim the "domain of appropria- tion," which M. Renouard talks of, he no longer has any right to assistance. We occupy an island, on which we live by the fruits of our labour; a shipwrecked sailor is cast on to it: what is his right? May he invoke the universal opinion of jurists, and say: You have occupied the soil in virtue of your title as human beings, because property is the condition of liberty, and of cultivation — a necessity of existence, a natural right: but I too am a man, I too have a natural right to cultivate the soil. I may there- fore, on the same title as you, occupy a corner of this land to support myself by my labour. If the justice of this claim is denied, there is no course but to throw the new comer back into the waves, or, as Malthus says, to leave to nature the task of ridding the earth, on which there is no spot to shelter him, of his presence. If in fact he has not the right to live by the fruits of his labour, still less can he claim to live on the fruits of otlier people's labour, in virtue of an assumed right to assistance. Un- doubtedly we may assist him or employ him at a salary, but this is an act of benevolence, not a juridical solution of the question. If he cannot claim a share in the productive stock to live by his labour on it, he has no right at all. It is no violation of justice to allow him to die of hunger. Need we say that this solution, which seems to be that of the official school of jurists and economists, is contrary alike to the innate sentiment of justice, to natural right, to the primitive legislation of all nations, and even to the principles of those who adopt it ? In the Greek language, in which etymologies often disclose 352 PRIMITIVE PROPERTY. a complete philosophy, the words for Just Siud justice, ro hUaiov, BiKaioavvT], involve the notion of equality of distribution or equal partition. By natural law is understood either, as in the seventeenth and eighteenth centuries, the sum of the laws which human instinct follows in "the state of nature;" or, as in our day, the laws which are conformable to the nature of man, and which reason discloses. Natural law in both these accep- tations sanctions the right of property recognized in all. We have in fact shewn, we believe, that all nations had in primitive times an organization which secured to every man a share in the productive capital. Analysis also shews us that property is the indispensable condition of the existence, the liberty and the development of man. Innate sentiments of justice, primitive right and rational right, all agree therefore in imposing on every society the obligation of so organizing itself as to guarantee to every one the legitimate property which should belong to him. "Natural rights," remarks M. Renouard, "are, as their name indicates, those which being indissolubly attached to the nature of human beings, spring from it, and live by it alone. They are the condition, not the concession, of positive laws, to which they are antecedent, and for which they form the basis." (Bic droit industriel, p. 173.) Rights are absolute \ insomuch as they conduce to perfect order; but their form is modified, because man, the subject of rights, changes. The most perfect order, constituting the obli- gatory domain of justice, is not the same for savages and civil- ized nations. A form of property, which in one place secures the greatest production and the most equitable distribution, may have very different results elsewhere; and in this case it is no longer right. What is the best form of property at any given moment we can only learn from the study of man's 1 Eights are only absolute within the limits determined by reason and general utility. Property is never an absolute right in the sense of conferring an arbitrary power. The power of disposing of objects is always limited by the same end for which property was originally introduced, that is general utility, or, as the Roman law expresses it, extends quatenus juris ratio patitur. The first German civil jurist, Ihering, thus epitomizes the facts of history : "There is no such thing as absolute property, — as property, that is, independent of the consideration of the interests of the community; and history has taken care to inculcate tliis maxim into the minds of all nations." — Geist des roin. Rechts, 1.57. THE THEORT OF PEOrERTY. o53 nature, of his wants and sentiments and the ordinary coritse- quences of his acts. This highest order is "right," because it is the shortest and most direct road to perfection. All that in this order should belong to each member of the human racr, is his individual right. The task fur which every one is must apt, and in which he can be of most use to his neighbours and him- self, ought to be assigned to him, and the instruments of labour necessary to this occupation, in the degree in which they exist, form his legitimate patrimony. So long as men knew of no means of subsistence but the chase, pasturage or agriculture, this patrimony was a share in the soil, a part of the allinend. In the middle ages in the towns, where industry w^as developed and organized, it was a place in the corporation with a share in the ownership of all that belonged to this communit)^ Tlie equalizing movement, which agitates modern society so pro- foundly, will probably end in obtaining new recognition of the natural right of property, and even a guarantee for its exercise, by means of institutions in harmony with the existing necessi- ties of industry and the prescriptions of sovereign justice. Obviously there can be no attempt at securing to every one a share in the soil, but simply an instrument of labour or a spliere for its exercise. There must be for human affairs an order which is the best. This order is by no means always the existing one; else why should we all desire change in the latter ? But it is the order which ought to exist for the greatest happiness of the human race. God knows it, and desires its adoption. It is for man to discover and establish it. M. 23 354 PRIMITIVE PROPERTY. NOTE A. The following is the letter of Mr Mill, mentioned in the Preface, in the original French in which it was written by him : — Avignon, le 17 novembre 1872. Cher Monsieur, J'ai lu vos articles dans la Revue des Deux-Mondes, du P"^ juillet, P"^ août et P' septembre. Votre esquisse de l'histoire de la pro2)riété tenitoriale, et votre description des différentes formes que cette institution a revêtues à différentes époques, et dont la plupart se conservent encore dans quelque endroit, me semblent très- propres au but que vous avez en vue, et que je poursuis aussi depuis longtemps, celui de faire voir que la projiriété n'est pas chose fixe, mais une institution multifoi-me, qui a subi de grandes modifications et qui est susceptible d'en subir de nouvelles avec grand avantage. Vos trois articles appellent et font désirer un quatrième, qui traiterait de l'api^lication pratique de cette leçon à la société actuelle. C'est ce qu'on trouvera sans doute dans votre livre. Quant à l'institution des Allmends, du moins comme elle existe à présent, vous en avez si jjeu dit dans vos articles que je ne la con- nais jusqu'ici que par votre lettre. Il faudrait en avoir bien étudié l'opération pour être en état de juger de son applicabilité à l'Angle- teiTe. Mais je ne crois pas que l'on puisse nier que les réformes à faire dans l'institution de la propriété consistent surtout à organiser quelque mode de propriété collective, en concurrence avec la propriété individuelle : reste le problème de la manière de gérer cette propriété collective, et l'on ne peut trouver la meilleure manière qu'en essayant de celles qui se présentent ; peut-être même est-il à désirer que plu- sieurs de ces modes existent ensemble, afin d'obtenir les avantages de chacun, et d'en compenser les désavantages. Il me semble donc, qu'à titre d'expérience le système des Allmends, constitué de la manière que vous proposez, pourrait être mis en pratique en Angleterre avec avantage. Jusqu'ici les hommes politiques de la classe ouvrière anglaise ne se sont pas portés vers une pareille solution de la ques- tion : ils préfèrent que la propriété collective soit affermée, soit à des cultivateurs capitalistes, soit à des associations coopératives de travail- leurs. Ce dernier mode a été essayé avec succès, et il jouit déjà d'une certaine faveur. La petite propriété, au contraire, n'a guère de NOTES. 355 partisans que quelques économistes et quelques pliilanthroi>e3 ; la classe ouvrière paraît la repousser, comme une manière de multij)lier le nombre de ceux qui seraient intéressés à s'o})poser i\ une nouvelle iqstitution de la propriété territoriale. Pareil reproche ne i)eut guci t; s'adresser au système des Allmends, et j'espère que ce système seiii pleinement exjiosé et discuté dans votre volume. Je vois avec plaisir que vous prenez un peu l'habitude d'écrire pour l'Angleterre. Vous y trouverez un public beaucoup mieux pré- paré qu'autrefois poxu* profiter de ce que vous avez à lui dire, et un penseur belge est dans une position de haute impartialité à l'égard des choses du continent d'Europe, qui le rend particulièrement i)ropre à en donner de saines appréciations à des lecteurs qui sont souvent réduits à croire sur parole. Agréez, cher Monsieur, l'expression de ma haute considération et de ma sincère amitié. J. S. Mill. NOTE B. lu England the history of each estate, where known to us, reveals this constant tendency to concentration. Here is au example : " The occupation of the land on a farm called Holt, in the parish of Clapham, Sussex, consisting of 160 acres, has been traced since the thirteenth century up to the present time. During the thirteenth and fourteenth centuries this farm, which is now occupied by one tenant, was a hamlet ; and there is a document in existence which contains twenty-one distinct conveyances of land in fee, described as parcels of this land. In 1400 the number of proprietors began to decrease; by the year 1520 it had been reduced to six; in the reign of James I. the six were reduced to two ; and soon after the Restoration the whole became the property of one owner, who let it as a farm to one tenant." Qicarterly Review, No. 81, p. 250. NOTE C. It was not till he had nearly completed the révisai of the proofs of this work that the author was ac(iuainted with the very instructive writings of M. Alb. H. Post, judge at Bremen, Die Geschhcht- genossenschaft der Urzeit, and Die An/dnge des Staats-und-Rechts- 35 G NOTES. lebe)is. In these writings M. Post has brought together various examples of the collective ownership of the soil among primitive nations, which have not been noticed in this volume. According to Nicolas de Damas (Bachofen, Das Mutterrecht, p. 21) the Galactophagi owned all property in common. Among the Galactophagi, says Strabo (7, 300), eveiything was common property, except their weapons ; and Nicolas de Damas tells us the same thing of the Sardolybians (Bachofen, Das Mut, p. 21). In many cases the primitive joint ownership is even found applied to the produce, as among the Iroquois (Waitz, Anthropologie der Naturvolker, ill. p. 128); at Lukunor in the Caroline Islands (Waitz, V. 2, p. 117); among the Malays (Waitz, v. 5, 141, 149); among most Negro tiibes; among the Kabardes of the Caucasus, according to Bastiau; in Alasca (Whymper, Travels in Alasca, p. 255); at Samoa (Tui'uer, Nineteen Years in Polynesia, p. 284); in Circassia (Bell, TiKjehuch, S. 153); among the tribes of Brazil (Von Martins, Eechta- zusidnde der Ureinwohner Brasiliens, p. 34) ; in the islands of the New Hebrides (Meinicke, Die Inseln des Stillen Oceans, l. p. 202) ; among the tribes of the Dra vidian race ; in India, and among the tribes of North- Wobt AMca (Munzinger, Ostafricanische Studien, p. 493). COEEIGENDA. Pp. 10, note, 19, 21, 23, 24, 26. For J. von Reusder, read J. von KeussUr. P. 83. For Eowaleiesky, read Koicalewsky. P. 113, 1. 15. For Le sol de la culture en Prusse, read Le sol et la culture ; and add the German title, Der Boden des preussischen Staates. CAMBRIDGE : PBINTED BY C. J. CLAY, M.A. AT THE CNIVEESITY PEEES. 7': ÙtO ' "AMI: ■ -s. if*"* - *5. UC SOUTHERN RFGIONAL LIBRARY PACILITY AA 001 118818 2 m-'^^^ifi