Mommsen’s theory as to community of land amongst the Romans.
One never for a moment expected to find agrarian communism amongst the Romans; in the first place because Rome was one of the youngest of the cities of the ancient world, and, at the date of its birth, private property had long held sway in Italy; and, in the second place, because it is well known that the Romans had a very precise and very firm conception of the right of private property, and did as much as any other ancient people to define and protect it. And yet Professor Mommsen states that with the Romans “land was originally held in common;” that “community in land is closely bound up with the constitution of the city;” that “it was only in later times that the land was divided amongst the citizensas private property.”[224]In support of this assertion, the learned and able historian gives three references—to Cicero, Dionysius of Halicarnassus, and Plutarch. But on examining these three references it seems to me that none of them says exactly what Professor Mommsen makes them say.
The first is from Cicero in theDe Republica, II., 14.Numa agros quos bello Romulus ceperat divisit viritim civibus.The meaning of this passage is that the lands which had been conquered by Romulus in his wars with the neighbouring cities had not been divided by him amongst the citizens. But it does not prove, as we shall presently see, that the small Roman territory occupied prior to these conquests was not divided when the city was founded. The quotation from Cicero applies to a certain area of land; it does not apply to all land. It does not imply that no division had taken place before this time; and Cicero does not say a single word which can refer to a period of community.
The second reference is to Dionysius of Halicarnassus, II., 74; and the following is a literal translation: “Numa enacted laws concerning the boundaries of estates; he laid down that each man should surround his land with a boundary and set up landmarksof stone; he dedicated these landmarks to the god Terminus, and ordained that sacrifices should be offered up to him every year; he appointed the festival of the Terminalia.” That the second king of Rome drew up regulations for the worship of boundaries cannot be regarded as distinctly proving that before his time there were no boundaries; and certainly it is not clear evidence that till then private property did not exist. The historian does not say that in the preceding generation the Romans lived under a system of common ownership of land. On the contrary, he says a little earlier that the founder of the city did divide the territory as other founders were wont to do. In so doing he had paid attention to the social divisions already existing; and as the people were divided into thirty curiæ, he apportioned the territory into thirty lots in such a manner that the members of each curia might remain together. Dionysius adds that the founder, when dividing the land, reserved a part to form theager publicus,i.e., the property of the State. This piece of information proves beyond doubt that in the mind of the historian the whole territory was notager publicus, as M. Mommsen thinks. Dionysius of Halicarnassus indicates distinctly that the distinction betweenager publicusandager privatusdates from the earliest days of the Roman city.
The third authority quoted is Plutarch,Life of Numa, 16: “The Roman city had in the beginningonly a small territory; Romulus gained for it by conquest an additional territory larger than its old one; and the whole of this was divided by Numa amongst the poor citizens.” This passage, like the one from Cicero, states that a division was effected by the second king; but at the same time it draws a distinction between the two territories; and it is not possible to draw from it the conclusion that the district first occupied had not been already divided.
Thus not one of three passages quoted by M. Mommsen seems to me to have the meaning he attributes to it. Not one of the three implies that the Romans held their land in common even for a single generation. Other authorities also, which must not be passed over, expressly tell us of this earlier partition, the recollection of which was preserved, as was that of everything else connected with the founding of the city. Besides Dionysius of Halicarnassus whom we have already referred to (II. 7), Varro, who was as learned as a man could well be at that time, declares that Romulus divided the territory into hereditary portions, each consisting of but twojugera[225](about an acre and a quarter). The elder Pliny, Nonius and Festus give us the same information.[226]But this firstpartition, which is contemporaneous with the very foundation of the city, did not follow upon a period of non-division. No Roman historian makes any such statement as that the land remained for a period undivided.
M. Mommsen tries to dispose of these statements, and argues as follows: Twojugeraare too little to support a family; therefore we cannot consider that this was a real partition of the territory; and it necessarily follows that the families must have lived under some kind of communistic system, with a common use of the public lands. An ingenious process of reasoning, but nothing more; mere guess-work. The question is not as M. Mommsen thinks, whether twojugeraare enough for the support of a family; but rather whether the founder, who had only a very small extent of territory at his disposal, with a population already numerous, could grant more. The lots were too small, as it would appear, because the territory also was too small; but we cannot deduce from this, as M. Mommsen does, that the Romans followed some system of communism. The insufficiency of the land, besides, gives a reason for the conquests which were soon afterwards effected under Romulus.
In conclusion, it appears to me exceedingly rash to maintain that the Romans had at first a system of common ownership of land. Such a statement is not supported by any ancient authority. On the contrary, theearly writers describe a partition of land which takes place at the very time when the city is founded; and the land thus divided becomes complete and hereditary property. Some years later the city conquers fresh territory; and again, with but little delay, it is divided into private property. This is all that we are told.
We are, however, able to gather that these two successive partitions were not in every respect alike. The first related only to theager Romanus,i.e., to that part of the territory which was in primitive times attached to theUrbs; the second related to conquered territory. In the first, the ground was distributed amongst thecuriæ, each curia then distributing it amongst itsgentes, whence it came about that these lots for a long time retained the name of the several Romangentes; in the second partition, which followed the first but did not annul it, the land was divided according to heads,viritim. This innovation will be seen to be of deep importance by any one who is acquainted with the ideas of the ancients and with ancient law. At the time of the first division, property still belonged to the family; at the second, it belonged to the individual. Thus, then, the two kinds of proprietary right that the ancient world successively recognised are seen, one after the other, with an interval of but forty years between. The Roman nation was one of the first to substitute individual for family property. They madeuse of bequest and sale from an early date. Roman law did indeed retain some traces of the early rights of the family; but what really characterises it is that it brought about the triumph of the system of individual ownership.
[224]Mommsen,Roman History,Engl.trans.,vol.i.,p.194. This theory has been copied and reproduced word for word, without verification, by M. Viollet and M. de Laveleye.
[225]Varro,De re rustica, I. 10: “Bina jugera, quod a Romulo primum divisa viritim, quæ heredem sequerentur.”
[226]Pliny, XVIII. 2, 7: “Romulus in primis instituit.... Bina tunc jugera populo Romano satis erant nullique majorem modum attribuit.” Nonius,edit.Quicherat,p.61. Festus, v. centuriatus ager.
On the application of the comparative method to this problem.
It is impossible to deny that the comparative method is not only of use but also absolutely indispensable in dealing with a subject of this kind. In order to discover the origin of property in land among mankind it is plain that every nation must be studied; at any rate every nation that has left any trace behind it. Some part of this work of comparison had already been attempted by Maurer; but he had limited himself to the Slavonic and Scandinavian countries. A great and powerful writer, Sir Henry Maine, has applied the comparative method to India. But the first to attempt what I may call “universal comparison,” is, if I mistake not, M. Emile de Laveleye, in his work, “On Property and its Primitive Forms,” published in 1874. His theory is that the agricultural groups of the whole world, from India toScotland, for a long time cultivated the soil in common, and that “the history of all lands reveals to us a primitive condition of collectivity.” M. de Laveleye is an economist; but it is by historical evidence that he endeavours to support his thesis, and it is this evidence that I shall now proceed to test. His reputation either as economist or moralist can receive no injury from a purely historical discussion.
He passes in review one after the other (I am following the order of his chapters) the Slavs of Russia, the island of Java, ancient India, the German Mark, the Arabs of Algeria, the ancient Moors of Spain, the Yoloffs of the coast of Guinea, the Afghans, the ancient Greeks, the ancient Romans, England, the Southern Slavs, Switzerland and the Netherlands. Here we have peoples of every race, every degree of latitude, and every age; yet this list does not include all nations. To mention only some of the ancient world, we do not find here the ancient Egyptians, the ancient Jews, or the ancient Assyrians, peoples which, nevertheless, are much better known than the Yoloffs, the Javanese, or the ancient Germans. Why are they not here? Can it be because all the documents concerning them, however far back we may go, bear witness to the custom of private ownership, and do not show a trace of community in land? It is certain that the history of Egypt shows the existence of property from the remotest times. It iscertain that contracts for the sale of land have been discovered upon Babylonian bricks. It is certain, also, that the sacred books of the Jews refer to property and the sale of land as far back as the time of Abraham (Genesis XXIII.). Was it for this reason that they were omitted in the universal comparison of all nations? But as our author was seeking a general rule for the whole human race, and says that he has found it, he ought not to pass over a single people of whom we know anything. When one seeks to construct a general system, the facts which contradict it must be presented as well as those in its favour. This is the first rule of the comparative method.
Having insisted on this omission, of which every one will see the importance, I shall consider one by one the nations spoken of by our author, and verify his assertions.
1. Among the Slavs of Russia M. de Laveleye observes themir,i.e., a village dividing its soil annually or every few years among its members. In thismirhe recognises an association with common ownership of the soil. “Themiralone,” he says, “owns the land, and individuals have nothing more than the enjoyment of it, turn and turn about.” On this I have two observations to make. In the first place, the Russianmiris only a village and a small village, the population rarely exceeding two hundredsouls; it always cultivates the same land; so that if this be a communistic group it is at any rate one which is confined to a narrow radius. Themirby no means represents a “tribal community,” still less a “national community.” One cannot conclude from themirthat the Russian nation follows a system of agrarian communism, or that the soil is the property of the whole nation, or that the soil is common to everyone; so that the example departs widely from the thesis that is sought to be maintained.
In the second place, if we examine themiras it was before the reforms of the last Czar but one, we discover that themiris not owner of the soil, but is itself owned by some one else. In themir, lands and men alike belong to a lord; and lord and landowner are one. M. de Laveleye does not deny this fact; he even recognises “that themirpays the rent to the lord collectively.” This single fact makes the whole theory fall to the ground. Since the soil belongs not to themir, but to some one else, themirdoes not represent agrarian communism. It is a village, like all our villages of the Middle Ages, which is the private property of a single individual; the peasants are only tenants or serfs; the only peculiarity about it is, that these peasants who pay rent for the land collectively also cultivate it collectively.
It is true that there are certain theorists who say: “It is probable that there was a time when thelandlord did not exist, and when the land was possessed in common by the peasants.” This is precisely what would have to be proved. They ought first to prove that the landowner or lord at one time did not exist, and next that the peasants then possessed the land in common. Now these are two propositions in support of which no one has ever been able to bring forward proof or even an appearance of proof. On the contrary, according to M. Tchitchérin and other writers who have studied the subject, it has been proved that the association of themirhas only been in existence for three hundred years; that it was created in the year 1592; and that far from being the result of a spontaneous and ancient growth, it was instituted by the act of a despotic Government, by an ukase of the Czar Fédor Ivanovitch. Before this epoch land in Russia was an object of private property; so one is led to believe by the documents of donation and bequest quoted by M. Tchitchérin. I am aware that the question is still warmly discussed and remains obscure; but so long as documents proving the existence of themirbefore the 16th century are not produced, we must continue to doubt whether themiris an ancient institution at all. So far as we know at present, it only came into existence with the feudal period; it forms one of the wheels of the feudal organisation in Russia—a group of serfs, which the Government requires to cultivate its land in common, so as to be moresure of the payment of the rent. Far from being collective ownership, themiris collective serfdom. That, at any rate, is what appears from the material in our possession. Theorists are at perfect liberty to hope that new documents will come to light which will show the contrary. Till then, it is impossible to bring forward themiras a proof that the human race once practised agrarian communism.
2. M. de Laveleye passes on to the island of Java, and describes the condition of things there in a chapter full of interest; in some places the soil is cultivated in common, it is in others annually divided. But I cannot help noticing that throughout he is speaking of the present time. He describes the condition of things as they are now. He makes use of the regulations of the Dutch Government, of laws of 1853, of parliamentary reports of 1869. The furthest date to which he goes back is to certain regulations of 1806. And yet, since he is dealing with the problem of the origin of property, what one wants to hear about is the ancient state of things. I am aware that some people will at once say “such a system must be old;” but a student who has any critical instinct will rather say that the present existence of such a system proves nothing at all in relation to earlier times. And, indeed, we read in one of the reports on which M. de Laveleye relies, that “this system beganwith the cultivation of indigo, sugar and coffee for the benefit of the Dutch Government.”[227]The sort of communism we are now considering would in this case be but a recent institution, a creation of the European conquerors. It is true that others make it commence earlier, with the cultivation of rice.[228]This is easily explained: “Rice growing in water requires a system of irrigation, which would be impossible without association; and this necessity gives rise to the practice of common cultivation.” It has been ascertained how these villages arose. “Several families agree to establish a system of irrigation in common. As the water has been brought by the co-operation of all, the result is that the land irrigated by it is cultivated by all.”[229]But it is apparent that the soil does not belong to the nation or the tribe; it belongs to a group, an association. An association of proprietors is not communism; it is one of the forms of property.
We must also observe that private property does exist in Java. In six out of the twenty provinces of the island that alone is to be found, and association is unknown; in eight the two methods are practised side by side; in six association is only practised on the rice fields and irrigated lands, and the rest of the land isheld entirely as private property. From these facts I cannot draw the conclusion that community in land was a primitive and natural institution in the island of Java. We meet with it only under modern circumstances, and even here we must recognise that it is less a community than an association.
3. Our author next devotes a few words to ancient India, and here I shall imitate his brevity. He gives but one reference; a sentence from Nearchus, the officer of Alexander the Great. I shall give it first as translated by M. de Laveleye, and then as it really is. “Nearchus informs us that in certain districts of India the land was cultivated in commonby tribes, which, at the close of the year, divided the crop among them.” Now the Greek signifies: “In other parts the work of agriculture is carried onby each familyin common,κατὰ σνγγένειαν κοινῇ; and when the crops have been gathered each person takes his share for his support during the year.”[230]We see that M. de Laveleye had overlooked the wordsκατὰ σνγγένειαν. He has mistaken a community of the family for a community of the tribe. I know that many people only too readily identify the two things; but a littleattention will show that they are essentially different. When a family, even though it may form a large group of persons, cultivates its land in common, this is not agrarian communism; it is merely an undivided family and undivided family property.
4. M. de Laveleye next speaks of the Germanic mark. Here he does not do more than reproduce Maurer’s theory, on which he relies without apparently having verified a single one of his references.
5. Then follows a chapter on agrarian communities amongst the Arabs of Algeria, the Moors of Spain, the Yoloffs of the coast of Guinea, the Mexicans, the Caribeans, the Afghans and the Tchérémisses. A story or sentence from some traveller is quoted about each of these nations. As to this I have one remark to make: there is nothing rarer or more difficult than an accurate observation. This truth, which is recognised in all other sciences, ought also to be recognised by every one who is dealing with history; for history is precisely that one of all the sciences in which observation is most difficult and demands the greatest attention. A traveller makes the general statement that amongst the Caribeans or the Yoloffs he has seen a partition of land, or has been told that such a thing was customary. But has he observed between whom the partition took place? Was it amongst the members of the same family, or amongst all the inhabitants of the same village, or between the villages and all thevarious parts of the tribe or nation? These are shades of differences that a hasty traveller cannot notice, and that an historian equally hasty refrains from inquiring into. And yet, the character and consequences of the partition depend altogether upon the answer to this question. The study of a social system is a serious undertaking, and one not often to be met with in travellers’ tales.
And then we must ask whether, side by side with certain facts reported by travellers, there are not others which contradict them. You see common land among certain Arab tribes; but it must also be noticed that the Koran recognises private property, and that it has existed among the Arabs from time immemorial.[231]There are other nations where you may meet with examples of land held in common, but where, nevertheless, it must be acknowledged that private property greatly preponderates. In Spain, for instance, we are told that “in certain villages the land is divided anew each year amongst the inhabitants.”[232]In how many villages? Two ardent inquirers, whose only desire was to find proofs of this community in land, M. Oliveira Martins and M. de Azcarate, found it in only four villages in the whole Iberian peninsula.[233]Perhapsyou will think that these are vestiges of an earlier state of things that may once have been general. Not at all. It has been proved that in these four villages the system of common ownership did not appear until the twelfth or thirteenth century,A.D.; and the particular causes which led to its appearance are well known. This kind of community was, therefore, neither general nor ancient. M. de Laveleye also mentions a village community in Italy; but it is one which was only created in 1263. A certain estate of about 5000 acres had till that date belonged to a private owner; that is, it had been precisely the opposite of common property. In 1263 the owner, who happened to be a bishop, gave it to the tenants, on condition that they held it in common. Can a few isolated facts like this prove that mankind used to hold land in common in primitive times?
6. M. de Laveleye’s theory would be incomplete and insecure if he did not manage to bring in the Greeks and Romans. He does little more than repeat the authorities used by M. de Viollet. Like him, he believes that the legend of a golden age—of an age, that is, when man did not till the soil (for this is the distinctive and essential point in all these legends),—is a proof that nations held land in common at a period when they did till the soil; he even adds that “he isforcedto arrive at the conclusion that the ancient poets depicted in the golden age a state of civilisation(sic) of which the recollection had been handed down to later times.”[234]Like M. Viollet, he quotes the passages from Virgil, Tibullus and Trogus Pompeius without looking to see whether these passages describe a condition of civilisation or one of barbarism. He tells us what Porphyrus says about the 2000 disciples gathered together by Pythagoras in his phalanstery. He quotes the sentence from Diodorus about the Lipari isles; without seeing that it distinctly describes the institution of private property. Trusting in M. Viollet, he borrows his pages on thecopisand the Spartanσυσσίτια; for, like him, he believes that these common meals, from which Aristotle tells us that the poorer Spartans were excluded, were “a communistic institution.”[235]
M. de Laveleye also believes that the division of land at the founding of each city implies an earlier stage in which the city cultivated the land in common. He does not notice that this division, taking place at the very moment when the city is founded, is not the result of an earlier state of communism. It is the earliest fact to which we can go back. So soon as a band of emigrants have made themselves masters of a territory, they parcel it out in lots with complete and hereditary ownership. With very rare exceptions, a Greek city did not hold or cultivate land in common for a single year.
These lots were calledκλῆροςin Greek,sortesin Latin, because they were originally drawn by lot. M. de Laveleye, noticing these two words, at once concludes that the drawing by lot took place every year (p.85). This is a mistake. Out of all the cases where you find mention of a partition, you will not find one in which it was annual or periodical. In every case the division referred to takes place once and for all, in perpetuity.[236]Each portion is henceforward hereditary in the family to which it has fallen by lot; and this is the reason whyκλῆροςhad the meaning of inheritance andsorssignified patrimony.
The prohibition against selling the land,i.e., against separating it from the family in order to transfer it to another family or even to bestow it on the State, appears to M. de Laveleye a proof that the land belonged to the State (p.166). It is merely a proof that according to the ideas of the ancients it ought always to belong to the same family. M. de Laveleye reproaches me with having, in theCité Antique, attributed this prohibition of sale “to the influence of ancient religion.” The phrase gives an incorrect idea of my meaning. What I showed was that family property was closely bound up with family religion. Sale outside the family was not permitted becauseancient law and ancient belief connected the land with the family. The land belonged to the family, not to the individual. It was the same, in my opinion, amongst the ancient Germans and the Slavs; and hence it was that amongst all these nations ancient law did not permit the sale of land.
For the same reason bequest was prohibited among the Greeks, Italians, Germans, and Slavs in the early period of their law. The land must pass to the son or the nearest relations. For the same reason, again, the daughter did not inherit; because by her marriage she would have carried the land out of the family. All these facts, which it is now impossible not to admit, are unmistakable signs of a condition in which property belonged to the family. They are all directly contrary to a condition of communism.
M. de Laveleye also lays great stress upon Sparta; only he omits to mention that private property was established there from the first beginning of the city, and that everyκλῆροςremained attached to the same family down to the revolution of Cleomenes,i.e., for eight centuries.[237]To make up for that, he tells us of certain imaginary brotherhoods, “which must have played an important part in the social body;” astatement for which there is no authority. He adds that Sparta “had a wide extent of common land;” for which also there is no evidence: and that “this common land was used to provide for the public meals;” which is directly opposed to the definite evidence we do possess.
He accumulates quotations, but they are inexact. He refers to Aristotle (Polit.vii., 10); but all Aristotle says is that men began by being hunters and shepherds; does that imply that when they became agriculturists they held the soil in common? He quotes Virgil, who in the Æneid (xi. 315) says that “the Aurunci tilled the land in common;” turn to the passage; the expression “in common” is not there; M. de Laveleye has unconsciously added it himself. Every writer does this who is under the influence of a fixed idea.[238]Speaking of Rome, he declares “that he sees a proof of primitive community in the common meals of thecuriæ;” and he does not notice that these repasts of thecuriaonly took place on certain festivals, and that they were sacred feasts, as we are expressly told byDionysius of Halicarnassus, who witnessed them. “Thecuriæ,” he says, “with their priests, perform sacrifices and eat together on feast days.” This is not an agrarian community; it is a religious communion. Suppose that a stranger, seeing a number of good Christians communicating in our churches, declared that he saw in this a proof that the French held their land in common! A little farther we read: “The law of the Twelve Tables preserves a trace of common ownership; for in default of theproximus agnatusthegensis preferred to the other agnates.” There is nothing resembling this in what we have of the law of the Twelve Tables; the gens was never preferred to the agnates. Our author quotes, it is true, the following sentence, which he attributes to Gaius:in legitimis hereditatibus successio non est: gentiles familiam habento, which is said to be in Gaius iii., 12; but look in Gaius for this extraordinary sentence, and you certainly will not find it. Thus, alike for Greece and for Rome, M. de Laveleye has got together a number of authorities; but there is not a single quotation that is exact, or that has the meaning he attributes to it.
7. We now come to the Southern Slavs,i.e., the Bosnians, Servians, and Bulgarians, who, in their turn, have to furnish arguments in support of the theory.[239]This chapter of M. de Laveleye’s is the mostinteresting in the book, the most curious, and, in my opinion, the most exact. Only I do not see how it bears upon the problem with which we are occupied. It is very true that the Servian or Bosnian village often cultivates its land in common. But this village is composed of a small group of from twenty to sixty persons, who dwell in four or five houses built within a single enclosure; and the land belonging to it seldom exceeds sixty acres. Look at it closely, and you will see that this little village is nothing more than a family. M. de Laveleye recognises this (p.204). The brothers as a rule keeping together and the family continuing to form one undivided body, the property remains united like the family. The land is cultivated in common and the produce is consumed in common, under the direction of the head of the family. This is described by M. de Laveleye with zest and ability; but it is not community in land; it is the common ownership of the family. We have seen it amongst the ancient Greeks; in the most ancient Roman law; amongst the Germans; and now we find it amongst the Servians. The family forms a small village; it keeps to itself on its own land; and this land is a common possession which has belonged to it from time immemorial. It must be added that all the characteristics which accompany family ownership amongst the Greeks and Germans are to be found here. The custom of bequest does not exist, nor does that of giftor sale. All the members of a family are common owners of the soil, and consequently they alone are the heirs. Anyone leaving the family loses his rights over the land; anyone entering it by adoption has the same rights as those who were born into it. Except that the chief is no longer the eldest member or the son of the eldest, but the one whom the rest elect—a change which naturally came about in the course of time—this family resembles in every other respect the ancient Greek family. But that the soil belongs to the nation or the tribe there is not the slightest evidence.
8. M. de Laveleye now comes to theallmendenof Switzerland. He tells us “that never was there a more radical democracy than that which was to be found in primitive Switzerland,” and he describes thelandgemeinde, “which goes back to the earliest times” (pages 270et seq). “TheAllmend,” he says again, “presents the ancient type of true justice, which ought to serve as the basis for the society of the future” (p.282).
I should like to learn, however, whether theseallmendenreally do come down from remote times. Our author tells us so, but without bringing forward any kind of proof. He declares “that they go back to the patriarchal period” (p.291), “that they have lasted for thousands of years” (p.281). It is easy to say this; but on what evidence does it rest? Private property exists in Switzerland, and our author cannotpoint to any epoch in which it did not exist. If we examine the law of the Burgundians and of the Alamanni, by which the country was first governed, it is private property we find, not common ownership. If we examine the charters down to the 12th century, we still find private property. Theallmendenof to-day certainly date back some six or seven centuries. Can they be traced farther back than that?
And what exactly are theseallmenden? Do we see in them a system of non-division of land, a system, that is, under which the land, being considered the common property of the whole people, is not supposed to belong to anyone individually? By no means. Private property is in full force in Switzerland, side by side with theallmenden. Theallmendenare only a part of the land of each village and indeed the smallest part, a tenth, or, at most, a fifth. They are usually forests, mountain pastures, or marshes, and include very little land capable of cultivation. Private property is accordingly the dominant fact; common ownership only concerns accessories.
Theallmendenare just what is to be found in every country; they are the village commons. It would be interesting and instructive if we could discover their origin, just as it is interesting to inquire into the origin of the commons in France. But village commons do not in any way prove a general system of common ownership; and no one has yetbeen able to prove that they are the outcome of such a system. We know that when the Romans founded a colony, they instituted private property from the very first; but at the same time they reserved a portion of the soil, which was to be the common possession of the new city. And to go farther back, we know that Rome herself, from the time she first appears in history, had anager publicusat the same time asagri privati, and that the Greek cities also had aγῆ δημοσία. This public land was in no way an indication that the people lived a single day without individual estates. Theallmendenof Switzerland are commons of the same character as we find everywhere else. Each village has its own; and they are the property of the village, which sometimes sells them, lets them to the highest bidder, or sells the wood upon them, to defray the expenses of its school or church. Frequently the commons are left for the inhabitants to use as they like; and they get wood from them, graze their cattle there, or cultivate small portions. But it is important to notice that only those who own land in the village have any rights of enjoyment over theallmend. I refer chiefly to the condition of things before the last forty years; for only quite recently have such rights been extended to mere residents and the inhabitants generally. In essential characteristics theallmendis not common property; it does not belong to all; it is held in commonby people who are already owners of land. It is an appendage of private property.
M. de Laveleye has written some beautiful passages on the usefulness of these commons, on the mistake which has been made in France in their general alienation, and on the happy results produced by them in Switzerland, both in almost entirely preventing the growth of absolute destitution and in attaching the poorest peasant to his native soil. These considerations are just, profound, and inspired by generous feeling, although but little applicable to modern society. But we are now considering them in relation to the supposed common ownership of land; with that theallmendenhave nothing to do, and they prove nothing as to its earlier existence.
9. M. de Laveleye finally refers to the Scotch townships as a proof of primitive community.[240]In the more distant parts of Scotland, especially in certain islands lying to the north-west, we find groups of people who hold the land of a village in common and divide it amongst themselves in separate lots every year. Is this a system of land communism, or, as it is called, collective ownership? At the first glance one would think so. But if you are not satisfied with a first glance and look further, you will observe that thevillage belongs to a single person, the landlord. The peasants are nothing more than the cultivators. M. de Laveleye cannot help recognising this: “The land of the village,” he says, “is let to them by the owner.” Again: “The land does not belong to them; it is the property of a landlord to whom they pay rent for it.” The cultivators act together as an association “with the consent of the landlord;” and there are villages in which the landlord does not allow this collective system of occupation. “They have a head who is generally appointed by the landlord.” The rent is paid collectively. We have a description of thetownshipin a work published recently. The house of the lord, thedomus dominicaof our charters, stands in the centre of the village, by the side of the church.[241]It is built of stone; and around it, at a little distance, stand the dwellings of the “villeins,” built of mud and thatched with straw. The villeins owe their lord rent and certain personal services.
We see from this that the Scotch or English township is not a community which owns its own land; it is the property of an individual owner, and the only thing about it which is collective is the cultivation. The township is really a private estate; and the group of peasants who till it in common are the tenants. Ownership and tenancy are two distinct things, whichmust not be confused. To be owners in common is very different from being tenants in common under a landlord. We find in France also, throughout the Middle Ages, instances of tenancies in common; and I know that there are writers who are quick to identify them with ownership in common.[242]But this is a mistake which no one can make who has any accuracy of thought; for it is quite evident that whilst the land was cultivated by a common group of peasants, it belonged to a lord who stood above them. The Scotch township has no connection whatever with an ancient system of community in land.
M. de Laveleye puts forward an hypothesis; he supposes that there was an earlier period in which the township belonged to the peasants themselves, and the lord, whom we find in later times, did not exist. But this is a mere hypothesis unsupported by a single document or a single fact. He goes further and maintains that this system of village communities was in force throughout the whole of England in the Saxon period. But there is no evidence for this in the Anglo-Saxon laws; they give not the slightest indication of it. Thetuncipesmotis not community in land; nor is thefolcland. We must never lose sight of the fact that history is based upon documents, and not upon hypotheses or flights of the imagination. When M.de Laveleye says that “the English manor has destroyed the old village community,” he makes an entirely hypothetical generalisation. To imagine the manorial lord of the Middle Ages as a warrior who has forcibly set himself over a community of free men, is to show that one knows nothing of the documents from the fifth to the tenth centuries, and that one has an altogether childish idea of the origin of feudalism.
To come back to the comparative method. I believe that it is infinitely fruitful; but only on condition that the facts which are compared have a real resemblance to one another, and that things which are widely different are not confused. When you bring together the Scotch township which is nothing more than an association of tenants, the Russianmirwhich seems to have long been only an association of serfs, the Servian village which, on the other hand, is a household community, and theallmendor commons which are a consequence and accompaniment of private property, you confuse things which are absolutely different, and which, moreover, are very far removed from the system of community in land that you are anxious to prove.
It is needful to come to an understanding as to what the “comparative method” really is. I have observed that, during the last fifteen years or so, there has been a strange misapprehension on this point. Some writers maintain that to compare anyfacts, no matter what, is to apply the comparative method. They search all over the world for peculiar usages; they cite the legend of the golden age amongst the ancients as if it were an historical fact; they seize upon a trifling circumstance which occurred in the Lipari Isles as if it related to the entire Greek world; they seize upon some custom, such as public repasts or the festivals of the curia; thence they pass to the Russianmirand talk of it as if they knew all about it; then they describe a township or anallmend; and, in short, whenever they find an instance of anything that is done in common, at once they suppose that they have discovered community in land. They pretend they have discovered the most widespread institutions of the human race by the help of some few instances that they have sought for far and wide, and that they do not take the trouble to observe accurately. And, what is a more serious matter, they omit and leave out of their consideration facts which are constant, normal, well-authenticated, which are engraven in the laws of all peoples, and which have made up their historical life. They give us a few isolated facts and turn our thoughts away from permanent institutions. This is not the comparative method.
If you wished to employ the comparative method it would first of all be needful to study each nation in itself, to study it throughout its history, and above allin its law. Should you wish to know if the ancient Greek cities held their land in common, you must study Greek law. For the Romans, you must go over the whole history of Rome; for the Germans, you must take German law. M. Viollet and M. de Laveleye make frequent references to ancient India; why do they not mention that in all the ancient Hindoo law that has come down to us the rights of private property are sanctioned, although, of course, the holding of property in common by co-heirs is also recognised? Why has no one quoted the old maxim: “The land belongs to the man who first clears it, as the deer belongs to the man who first wounds it”? They prefer to quote certain customs, whose importance they enormously exaggerate, rather than present to us the rules which were constant and normal. The comparative method does not consist in discovering amongst fifteen different nations fifteen little facts, which, if interpreted in a certain manner, unite in the construction of a system; it consists in studying a number of nations in regard to their law, their ideas, all the circumstances of their social life, and in discovering what they have in common and wherein they differ. I greatly fear that this comparative method, when it shall be seriously applied, will give very different results than those that MM. Viollet and de Laveleye believe they have obtained from the comparative method as they understand it.
[227]M. de Laveleye,De la propriété collective du sol, in theRevue de Belgique, 1886,p.50 of the reprint.
[228]Ibidem,p.49.
[229]Ibidem,p.65.
[230]Strabo, xv., 1., 66,edit.Didot,p.610:παρ’ ἄλλοις δὲ κατὰ συγγένειαν κοινῇ τοὺς καρποὺς ὲργασαμένονς, ἐπὰν συγκομίσωσιν, αἴρεσθαι ἔκαστον εἰς διατροφὴν τοῦ ἔτους. If one reads the whole chapter, one sees that Nearchus, who distinguishes between general and exceptional institutions,νόμους, τούς μὲν κοινοὺς, τούς δὲ ἰδίους,includes this among the exceptional.
[231]See the work of M. Eug. Robe,Origines de la propriété immobilière en Algérie, 1883—a volume which is full of facts.
[232]Em. de Laveleye,De la propriété,p.105.
[233]Id.,La propriété collective, in theRevue de Belgique, 1886,pp.2-24 of the reprint.
[234]Em. de Laveleye,De la propriété,p.152.
[235]Ibidem,p.161.
[236]Save in the exceptional case described by Diodorus in the Lipari islands.
[237]This is shewn by Heraclides of Pontus in theFragmenta hist. græc., of Didot,vol.II.,p.211; and by Plutarch,Life of Agis, 5. To this can be added the other texts cited in myÉtude sur la propriété à Sparte, 1880. See also the work of M. Claudio Jannet.
[238]In the same way he cites Ælian, V. 9, as saying that the inhabitants of Locri and Rhegium cultivated the land in common. What Ælian says is that “the cities of Locri and Rhegium have made a treaty which permits the inhabitants of the one town to settle on the territory of the other.” Of common cultivation there is not a word. These authorities are given in the article by M. de Laveleye, inRevue de Belgique, 1886,pp.9et seq.of the reprint.
[239]De la propriété et de ses formes primitives,p.201.
[240]La propriété collective du sol, in theRevue de Belgique, 1886. He repeats the argument in theRevue socialiste, 1888,p.452, and in theRevue d’économie politique, July, 1888.
[241]Isaac Taylor, in theContemporary Review, Dec., 1886, referred to by M. de Laveleye.
[242]E.g., M. P. Viollet in all the latter part of the article already referred to.
On community of land amongst the Gauls.
It would be indeed surprising had the supporters of this theory not applied it to the ancient Gauls. So little is known about them, that it is very tempting and not very difficult to introduce community in land into their history.
One single fact, however, ought to stand in the way; it is that Cæsar, whose book is the only authority which has historical value, nowhere tells us that land was common amongst the Gauls. His silence on this point is not a thing which can be passed over. It is, indeed, in the eyes of every one accustomed to historical research, a very significant fact. It is true that Cæsar does not expressly state that private property was the custom amongst the Gauls. For a writer who is only speaking in passing of Gallic institutions, to omit to call attention to a law of property which was in conformity with what he was accustomed to, is not the same thing as to omit to mention a communism which would be the opposite of what he was accustomed to, and which would strike him by its very strangeness. It must be noticed that Cæsar is not describing the entire social condition ofthe Gauls; he contents himself with mentioning those customs which have struck him as being very different from those he saw in Italy. We have only to read the ten paragraphs which he devotes to this subject, to recognise this. After describing in three paragraphs what was peculiar in their political organisation, and in three more what was peculiar in their religion, he passes on to what was peculiar in their private life, and he begins as follows—“As to the institutions of private life, the following are those wherein they differ from other nations.” By “other nations” Cæsar clearly means the nations that he knew that is, primarily, the Italians and Greeks. This opening sentence makes it plain that Cæsar intended only to tell us of characteristics which were peculiar to the Gauls. He is going to mention differences, not resemblances. If private property is the custom there as it is in Rome, it will not be necessary to say so; but if it is not the custom, he will say so. His absolute silence on this point is a proof that the Gauls did not sensibly differ from the Italians in the matter; his silence implies that they were not ignorant of private property. We must remember that the entire absence of private property would have appeared so strange to a Roman that it could not have escaped Cæsar’s notice. He observed it in Germany where he passed only eighteen days; he would certainly have discovered it in Gaul where he passed eight summers. If he does notmention community in land, it is obviously because it did not exist.
But we have evidence even more convincing. Going on to speak of the Germans, he remarks that he will explain “in what they differ from the Gauls,quo differant hae nationes inter sese” (vi., 11); and further on: “The Germans differ much from this manner of life of the Gauls,Germani multum ab hac consuetudine differunt.” He then draws the following contrast between the two nations: 1, the Germans have no Druids; 2, the Germans have not the same gods as the Gauls; 3, and lastly, the Germans have not private property. Is not this remark as to the difference between the two nations almost the same thing as if Cæsar had said that the Gauls recognised private property and held their land in individual ownership?
This is not all. Cæsar uses an expression in which he indirectly and almost unconsciously bears witness to the existence of property in land amongst the Gauls. In Book VI., Chapter 13, he says that the Druids act as judges in almost all suits, criminal as well as civil.[243]He then gives a list of the disputes brought before them, and amongst criminal offences he instances murder; amongst civil suits he mentions “those concerning inheritance or boundaries,”si de hereditate, si de finibus controversia est. If there were in Gaul suits concerning inheritance or boundaries, it must have meant that the Gauls had a system of inheritance and made use of boundaries;i.e., that land was private and hereditary property. Cæsar says elsewhere that the Germans have nofines; he says here that the Gauls have them.
We cannot say whether the institution of private property in Gaul was exactly similar to that of private property in Rome; whether it had the same legal guarantees; whether its boundaries had the same inviolable character. We do not even know if property still belonged to the family or was already in the hands of individual owners. Cæsar only tells us one thing, and that is, that it existed; for “inheritance and boundaries” are unmistakable signs of private ownership, and as clearly disprove a system of corporate land-holding.[244]
This is the conclusion to which we are brought by a simple and unbiased perusal of Cæsar’s account. But preconceptions have great force; and if a writer starts with the idea that community in land was once universal, the result will be that, in the face of all evidence, and yet in perfect good faith, he will think he finds it amongst the Gauls. One of the first scholars of the day, M. d’Arbois de Jubainville, whose works on the Middle Ages and on Irish literature have been so highly appreciated, thinks that the Gauls of the time of Cæsar were not far enough advanced in civilisation to hold private property; and setting out with this idea, the offspring of imagination, he supposes that he can see evidence of undivided tenure. The fact that Cæsar never mentions this troubles him very little. That Cæsar does mention, as a point of difference between the Germans and Gauls, that the former do not hold private property, he omits to notice. And lastly, when Cæsar refers in so many words to inheritance and boundaries amongst the Gauls, he disposes of this somewhat embarrassing statement by interpreting it in a most unexpected fashion.
In his opinion, when Cæsar mentions suits concerning inheritance,de hereditate, it is impossible that the inheritances of private persons should be in question, as the custom of inheritance did not exist. Then what was the inheritance referred to by Cæsar? According to M. de Jubainville, he was speaking of succession to the crown. Sovereignty existed; the sons of kings wished to succeed their fathers; and if a dispute arose, the Druids acted as judges. M. de Jubainville has omitted to notice that Cæsar gives at least ten instances of sons who wished to be kings like their fathers; and that in not one of these instances was the dispute carried before the Druids. It is a grave error to suppose that the Druids were accustomed to meddle in affairs of State; we have not a single example of their doing so. And yet M. de Jubainville maintains that in Cæsarde hereditatemeans the succession to the throne; and for this he gives the following reason,—that in anotherbook, speaking of the Egyptians, Cæsar uses the expressionhereditas regni.[245]The argument is a strange one. I reply that if Cæsar elsewhere wrotehereditas regni, it was because the wordhereditascould not, when used alone, bear the meaning of the inheritance of sovereignty. It is quite certain that if Cæsar had meant to say that the Gauls brought beforethe Druids their disputes as to succession to the crown, he would have saidde hereditate regnum.
With regard to the expression,de finibus, M. de Jubainville will have it mean “frontiers between nations.” In this he is doubly wrong, both historically and philologically. To begin with the historical error, Cæsar tells us of numerous quarrels amongst Gallic tribes; and these quarrels are never carried before the Druids. Are we to think that Cæsar said that the Druids settled disputes about frontiers, when he knew perfectly well that Druids did not decide them? It is absolutely incorrect to say that the Druids had the right of judging between tribes.[246]Moreover, when Cæsar enumerates the principal matters which had to be tried, he mentions murder as well as inheritance and boundaries; and it is impossible to doubt that he is thinking of the murder of a single person, the inheritance of a single owner, the boundaries of a single estate.
Philologically, M. de Jubainville maintains that the wordfinesmay be used for the boundaries of a nationas well as for those of an estate. No doubt. The word is even used in a philosophical sense, and Cicero wrote a treatise,De finibus bonorum et malorum. In every language there are words of wide application; but the student is not misled by this. In philosophy he understandsfinesin a philosophical sense. If a general at the head of an army is crossing the territory of several nations, he understandsfinesin the sense of frontiers. If it is a question of private law, he will not doubt thatfinesis connected with individual rights; that it means the boundaries of an estate or a field. Now the passage in which Cæsar speaks of “suits concerning inheritance and boundaries” is one which deals entirely with law and justice.
M. de Jubainville has taken the trouble to count the number of times thatfinesoccurs in theDe Bello Gallicoas applied to national or tribal frontiers, and finds they are seventy-seven. This is one of those arguments based on statistics which impress most people by an appearance of matter-of-fact appropriateness. But look at it more closely. Is theDe Bello Gallicoa book of private law? It is a history of military campaigns, and of negotiations between nations; and it is very natural that the author should frequently speak of the frontiers or the territory of these nations. If he had written a work on law, of which he was quite capable, he would have spoken throughout of the boundaries of private estates.Ought one to be surprised at this? Read Thiers’ thirty volumes; make the same calculation that M. de Jubainville did for theDe Bello Gallico; and, if you follow the same method of reasoning, you will come to the conclusion that the French are unacquainted with boundaries to private property.
What is more important to remark is, that in the whole work, in the midst of the history of wars, there occur only seven paragraphs on the customs of the Gauls and their institutions in times of peace (VI., 11, 13, 15, 18, 19, 21, 22). Now, in these seven chapters you will find the wordfinesused three times in the unmistakable sense of boundaries of fields.[247]And so we see that, when Cæsar is speaking of wars, he usesfinesin the sense of the frontiers of a country, and, when he is speaking of law, he uses it in the sense of the boundaries of private property. And, if we are partial to figures, we may notice that while M. de Jubainville has counted up seventy-sevenfinesin three hundred and forty chapters, I have counted three in seven chapters. The proportion is well kept.
But instead of making this calculation it would have been better to have noticed something which is of far more importance; in every instance where the word signifies a frontier, its meaning is unmistakably indicated by the addition of the name ofthe people in question. Thus Cæsar says,fines Helvetiorum,fines Sequanorum,fines Santonum,fines Æduorum,fines Lingonum,fines Ambianorum, and so on without exception.[248]Take the seventy-seven examples collected by M. de Jubainville, and you will see that the wordfines, when it means frontiers, is always followed by the word “people,” or by the name of a people. If Cæsar had wished to speak of trials about national boundaries, he would have saidcontroversiæ de finibus populorum. If he did not so express himself, it was because he was speaking of boundaries in the most restricted sense of the word.
M. de Jubainville might have found this very same phrase, which he has twisted so strangely,si de finibus controversia est, in Cicero. We have it there word for word;si de finibus controversia estin Chapter X. of theTopics. Let us see whether in this case it can apply to the frontiers of a people. Cicero, giving an example of a definition, writes: “When you saysi de finibus controversia est, the boundaries of private estates are clearly meant.”[249]
And so the passage from Cæsar cannot be explained away as M. de Jubainville would wish. He cannot get rid of the fact that Cæsar records in so many words that inheritance and boundaries were to be found amongst the Gauls; the very opposite, that is, of community in land. He gets together from other sources a variety of arguments which appear to him to show that the Gauls held their land in common. They are as follows: 1, Polybius says (II. 17) that the Gauls of Italy did not cultivate the land; 2, in Cæsar’s time the Helvetii wished to leave their country in order to settle in a more fruitful one; 3, the Ædui admitted into their country ten thousand Boii and gave them land; 4, there was in Gallic law a custom according to which a husband and wife threw into a common stock an equal portion of the possessions of each, and allowed the income arising from this property to accumulate, so that the whole, principal and interest, might belong to the survivor. These four circumstances are supposed to prove that private property in land did not exist.[250]
Not one of the four appears to me to bear with it this consequence. Examine them one by one. I. The passage from Polybius refers, not to the Gauls of his own time, but to the Gauls who invaded Italy five centuries before, and who drove out the Etruscansfrom the district of the Po. The historian says that these invaders, being inclined to pursue their conquests, did not at first settle down and cultivate the soil, but lived on the produce of their herds. His information bears upon the Gauls at one particular moment in their history, at the time when they were planning an attack upon central Italy. It proves nothing at all about the Gauls in general, and certainly nothing about the Gauls of the time of Cæsar.
II. That the Helvetii wished to emigrate does not imply that they lived under a system of community in land. It merely implies that they preferred the soft climate and fertile plains of the south-west of Gaul to their own rugged and mountainous country. Is it an unknown thing for peasant proprietors to emigrate for the sake of seeking a more productive soil elsewhere?
III. Because the Ædui invited ten thousand Boii to settle in their country, does that prove that private property was unknown to them? Not at all. Thecivitas Æduorum, which covered a considerable area and included five of our departments, might very probably have had so large an extent of public domain, or been able to find enough unoccupied land, to admit ten thousand new cultivators. Such a circumstance, following, as it does, immediately after the ravages of Ariovistus, can easily be explained, and is not the slightest evidence of communism in land.
IV. As to the custom by which a husband and wife contributed equal shares to a common stock and allowed the income arising from it to accumulate, I cannot understand in what way this proves that there was no landed property. M. de Jubainville ingeniously explains that what was contributed could not have consisted of land “because its produce cannot be hoarded,” and that it must have consisted of herds of cattle, because cattle can much more easily be set aside for a particular object. In his long argument there is only one thing that he overlooks, and this is that it is possible to sell the crops and set aside the produce of the sale. Moreover, he gives an incorrect rendering of Cæsar, VI. 19:hujus omnia pecuniæ fructus servantur.Pecunia, in legal phraseology, is used not only of money, of not only personal property, but also of property of every kind, including land;[251]andfructusdoes not simply mean produce in the literal sense of the word, but revenues of every description. Cæsar, then, is speaking of possessions of every sort, of which the income may be set aside. These possessions may be an estate under cultivation, or a herd of cattle, or a stock in trade, ora sum of money placed out at interest (for this was not unknown to the Gauls); the income might be the produce of the sale of the crops, or the increase of the herd, or the profits of trade, or the interest on the loan. Whichever it may have been, Cæsar did not intend to imply that the Gauls were unacquainted with landed property.
I am anxious not to pass over a single argument brought forward by this learned and able writer. He observes that the names of private domains, such as we find them in the Roman and Merovingian periods, are all derived from Roman proper names. This is quite true, and I had myself made the same observation in an earlier essay; but what I had carefully abstained from saying, and what is maintained by M. de Jubainville, is that these Latin names of the Roman period prove the non-existence of domains in the Gallic period. The most they could prove is that, after the conquest, the names of domains were latinised as well as the names of individuals. Just as Gallic landowners adopted Roman names for themselves, they bestowed the same names on their estates; and consequently domains were called Pauliacus, Floriacus, Latiniacus, Avitacus, Victoriacus, etc. To conclude from this that there were no private estates before the conquest would indeed be a rash argument.
M. de Jubainville also alleges that Cæsar does not make use of the termsvillæandfundusin speakingof the Gauls; and he concludes from this that neither country estates,fundi, nor farms,villæ, were to be found in Gaul. “Before the conquest there were neitherfundinorvillæ, and the land was in common.”[252]This is another surprising statement. M. de Jubainville should not have overlooked the fact that even if these two words do not occur in Cæsar, we find terms which are precisely synonymous. The Romans had more than one word to designate a country estate,fundus, or a farm,villa. Instead offundusthey sometimes saidager; andageralways bears this sense in Cato, Varro, and Columella, and frequently in Cicero and Pliny. Instead ofvillathey saidædificium. When Varro or Columella are speaking of the buildings standing in the midst of an estate, they useædificiumas often asvilla. Turn to theDigest(Bk. L. SectionXVI.) and compare the three fragments 27, 60, and 211; and you will recognise that the Romans were in the habit of calling a domainagerand the buildings on itædificium. Now Cæsar, in speaking of the Gauls, often uses the wordagriand still more oftenædificia. Here are the domains and thevillæwhich M. de Jubainville was looking for. Theseædificiawere farms, not huts. They contained as a rule a somewhat numerous rural population; for Cæsar notes in one instance as something exceptional“that he found in theædificiaof the Bellovaci only a small number of men, as almost all had set out for the war” (viii. 7). They also included barns for the storing of crops; for the historian mentions “that the Tencteri, having invaded the country of the Menapii, supported themselves for several months on the corn that they found in theædificia” (iv. 4). The Roman general was well aware that if he wished to find forage for his cavalry he must look for it in these farms,pabulum ex ædificiis petere(vii. 4, and viii. 10). What Cæsar says about theædificiumof Ambiorix shows that it was a large enough building to lodge a numerous body of followers. And so the wordsagerandædificiumtake the place in Cæsar of the wordsfundusandvilla, and disprove the assertion that “the Gauls had neither domains nor farms before the conquest.”