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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).



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


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


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


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.


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


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 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


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).


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 conse

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