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NIVERGIfY OF
CALIFORNIA

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PRIMITIVE PROPERTY.



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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



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