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Lacomblet, No. 4.

Meichelbeck, p. 27, document of the 8th century: "Tradidi territorium, prata, pascua, aquarum decursibus, silvis, virgultis, omne cultum aut non cultum, in possessionem perpetuam." Lacomblet, No. 4, anno 794: "Terram proprii juris mei ... cum silvis, pratis, pascuis, perviis, aquis."

Not unduly to prolong this discussion we will leave on one side the documents of the 14th and 15th century. It will be enough to examine those of an earlier date.

See especially the charters of the Abbey of St. Gall, Nos. 185, 186, 187, etc.

See for example a charter of the 8th century, where we read: "Ego Oda dono in Pingumarca quidquid proprietatis habeo, id est, terris, vineis, pratis, silvis, totum et integrum." --Neugart, i. p. 301, an exchange of 858: "Dedit 105 juchos de terra arabili et de silva 140 juchos, et accepit a Willelmo in eadem marcha quidquid ex paterno jure habebat, id est 105 juchos de terra arabili cum omnibus appenditiis, silvis, viis, alpibus, aquis."

Lacomblet, No. 7: "Hovam integram et scara in silva juxta formam hovae plenae ... jure hereditario."

Deed of exchange of the year 871 in Neugart, No. 461, vol. i. p. 377: "Dedimus illi in proprietatem jugera 105 et de communi silva quantum ad portionem nostram pertinet.... Et de silva juxta estimationem nostrae portionis in communi silva."

Lacomblet, No. 22, document of 801: "Tradidi particulam hereditatis meae in villa Englandi ... et duodecimam partem in silva Braclog."

Neugart, No. 624, vol. i. p. 511, acte de 896: "Curtilia quae sunt sex et inter arvam terram et prata juchos 378, cum omnibus usibus ad ipsa curtilia in eadem marcha pertinentibus."

Example in Lacomblet, vol. ii., p. 42.

"Silvae quoque adjacentis eidem fundo, quae vulgari lingua almenda nominatur, quam rustici frequentant, quae juris nostri sicut et illorum esse dinoscitur communione ad omnem utilitatem...."

"Jura etiam civilia eidem fundo competentia, a progenitoribus nostris tradita, huic cartae dignum duximus inserenda, ne forte succedente tempore excidant a memoria."

See, for example, a document of 797 in Lacomblet, No. 9: "Dono ... unam hovam quam proserviunt liti mei; No. 4: terram quam Landulfus litus meus incolebat et proserviebat."

Pertz, i. 226; Behrend, p. 115, art. 9.

"De eo qui villam alterius occupaverit."

"Si infra 12 menses nullus testatus fuerit, securus sicut et alii vicini maneat."

"De hoc capitulo judicaverunt ut nullus villam aut res alterius migrandi gratia per annos tenere possit, sed in quacumque die invasor illarum rerum interpellatus fuerit, aut easdem res quaerenti reddat aut eas si potest juxta legem se defendendo sibi vindicet."

M. Viollet is a disciple of Maurer who copies and exaggerates his master. The system that Maurer was able with some show of probability to build up in relation to the Germanic peoples, M. Viollet supposes he can extend to all nations ancient or modern. What is quite fresh in his writings and exclusively his own, is, that he attributes to the ancient Greeks a system of community in land which the most profound students of Greek history had, up to this time, failed to discover. We must not suppose that in laying down such a proposition, he is speaking of some primitive age when the Greeks may be supposed to have been ignorant of agriculture, and consequently of landed property. He is speaking of the times when the Greeks were agriculturists, when they lived in organised societies; he is speaking of Greek cities; and he declares that the soil was for a long time cultivated by the city in common, without its occurring to the family or the individual to appropriate it. All the land, according to him, for a long time belonged not to the individual, not to the family, but to the city.

He states that "his theory is supported by authorities of considerable weight" ; and he refers to eleven passages taken from Plato, Virgil, Justin, Tibullus, Diodorus on the Lipari Isles, Diogenes Laertius on Pythagoras, Aristotle on the town of Tarentum, Athenaeus on Spartan meals, Diodorus on the "kl?rouchia," and lastly, Theophrastus on the sale of real property. Let us look at the originals. Let us see at any rate whether M. Viollet's references are altogether exact.

Much might be said about this translation, but we wish to be brief. M. Viollet ought, in the first place, to have mentioned the date of this event, since Diodorus gives it: it happened in the fiftieth Olympiad, that is about the year 575. Now, long before this, Cnidus and Rhodes had had a system of private property, and had no trace of common ownership. So these Cnidians and Rhodians may, very likely, have made an experiment of this kind; but it is impossible that their action should illustrate a survival of primitive community as M. Viollet maintains.

The account of the Greek historian also plainly shows the motive which determined these men to leave the land for some time undivided: it was because the Tyrrhenian pirates ravaged the islands to such an extent that the Greeks were obliged to separate into two divisions, the one fighting, the other tilling the ground. But Diodorus goes on to say that this manner of life only lasted a few years. So soon as they had freed themselves from the pirates, the Greeks made a regular settlement in the island of Lipara, that is in the largest and most important island of the little group. They built a town there; and at the same time "they made a partition of the soil." Now, this partition was never made over again; it was a distribution of shares to be held in perpetuity, that is, as private property. M. Viollet passes over this too hastily; it is of the utmost importance, for it shows us that private property was established directly the Greeks were in anything like a settled condition. The fact that the other islets, more difficult to cultivate and less securely held, remained for some time longer undivided, does not imply that these people lived in a state of agrarian communism. Each of them was a landed proprietor in the main island, and enjoyed certain rights over one of the islets. But even this arrangement did not last long, and the small islands were parcelled out in their turn. There was, it is true, a provisional partition at first, to last for twenty years; there are several very likely explanations for this precautionary measure. Whatever the reason may have been, at the end of twenty years the partition was made over again, and this time it was permanent; for Diodorus never says that a division took place periodically down to his own time.

It is the greatest mistake to imagine all the Spartans eating of the same dishes at the same table. The so-called common meals were taken in small groups of fifteen members each, in separate houses. Every one was free to choose the group which he wished to join; but he was not admitted except by the unanimous vote of the members composing it. We also know that the meals were somewhat luxurious, and that the famous black broth, ????? ?????, was merely the prelude to them. It is, then, very evident that these common repasts, whose meaning or object we need not here try to discover, have not the slightest connection with a common life and certainly not with community in land.

In those cities, indeed, which date from very early times, there was no occasion for a division. We do not find it in Athens. Why? Because we know that Attica was at first occupied by some hundreds of independent families, ????; and that these families afterwards were grouped into phratries, and finally into a city. There is no partition here, for each family keeps the land which has belonged to it for centuries. But when it is a case of a colony, a body of people who emigrate and take possession of fresh territory, a division is quite needful. Only this division does not, as M. Viollet would suppose, come at the end of a period of non-division; it is the first step in the establishment of the colony. The practice is one of the most re-markable, and one of the best authenticated of those early times. It proves that the Greek city never cultivated its land in common; that it had no wish for a common ownership of the soil; that the very idea of such a system was unknown to it. If M. Viollet had studied the ????????? in all the authorities which refer to it, he would not have supposed for a moment that it could be a proof of community in land, and he would have taken care not to bring it forward in support of a theory of which it is in reality the refutation.

Such, then, are the eleven authorities by whose help M. Viollet tries to prove that the early Greek cities held their land in common during a period more or less protracted. M. Viollet does not give a single other reference. Now the first taken from Plato, the fifth from Diodorus, and the seventh about Tarentum are absolutely incorrect; the second, third and fourth from Virgil, Trogus Pompeius and Tibullus are beside the subject, since they apply to the tradition of a savage state which does not here concern us; the sixth, the one about Pythagoras, points to an exceptional episode, only lasting for a brief period, and clearly not in harmony with Greek habits; the eighth, about public meals, has been misunderstood; the ninth about the ??????????, and the tenth concerning the primitive inalienability of land belonging to the family, are absolutely opposed to M. Viollet's theory; the eleventh points to publicity of sale, not community in land. And so out of eleven quotations or arguments there is not a single one which on examination stands firm.

May I add that I am sorry to find myself taken to task by M. Viollet? "M. Fustel," he says , "was unable to recognise this great historical fact , because he saw that every family had its own hearth, its own worship, its own ancestors." This is true. I willingly grant that the facts which I saw, and which I have completely proved, prevented me from seeing the imaginary facts that M. Viollet thought he descried in his eleven quotations. He further adds , that since I admitted the existence of property common to the family, it was an easy thing to go a little further and recognise, as he did, the common-ownership of the people. Here M. Viollet throws a little too much light upon his own method of proceeding. According to him, an historian who recognises one fact or institution ought to guess at another fact or institution, merely because there is an apparent analogy between them; in this way logic takes the place of evidence, and the imagination can construct all the systems it chooses. I am not bold enough for this; I do not find in history what I wish to find, but only what is there. I am careful not to insert anything I do not find. I saw in ancient law and ancient religion the co-proprietorship of the family, and I said so. I did not see the common ownership of the whole people, and I did not say I did. History is not a science of speculation; it is a science of observation.

No one, moreover, but M. Viollet, considers that the co-proprietorship of the family and the common ownership of the whole people "are two things which resemble one another." It is clear to every careful observer that they are essentially different, both in character and in results. The co-proprietorship of the family is an ownership which is complete, absolute, hereditary, independent even of the State. If it is undivided, it is because the family at this time is itself still undivided. It is, besides, legally in the hands of the head of the family, the real owner, who is absolute master of it, and does what he likes with it; but who can neither transfer it or bequeath it "because he owes it to his descendants such as he has received it from his ancestors." What resemblance is there between such a system and one under which the land would be common to all, and belong to a whole nation?

I shall not dwell at length on the second portion of M. Viollet's work, in which he gives a hasty and superficial glance at the Middle Ages. Here I have not been more fortunate than before in verifying his evidence. For example: he dwells at length upon the prior right of purchase which belonged to neighbours. Everyone knows of this custom, the meaning and reason of which are obvious enough. But in M. Viollet's eyes this right of the neighbours is a vestige of community in land. He does not notice that the preference given in case of sale to a neighbouring proprietor over a distant one has nothing to do with community. Under a system of common ownership this prior claim of the neighbour would not be found. The two things are incompatible. The right of the neighbour is a custom belonging essentially to private property; it is a grave error to convert it into a communistic practice.

We have italicised the words that are inexact. Diodorus does not say that these men were divided into two "classes;" he does not say that they "declared" the land "common property." ?????? ?????????? means that the islands were made common for a moment, it is the statement of a fact, not the announcement of a perpetual institution. In place of "they threw together all their possessions," the Greek tells us that they clubbed together their resources. However, the chief mistakes are in the last words of the translation.

Viollet, pp. 467-468.

The passage is in Diodorus v. 9, bipontine edit., iii. p. 267.

Thucydides explains this very well: "They lived on the island of Lipara, and went from thence to cultivate the other islands," iii. 88.

??? ?????? ??? ?????? ??? ??????????, ????? ???????????? ???? ? ?????? ????? ??????. The word ????? means a second time and not periodically. There is no expression such as ??? ??? which the historian would have used if he had meant to imply that it was still practised in his own time. The conjunction ???? indicates a single action; the historian has not written ??????. It is true he uses ??????????? in the present tense; whether copying an old document, or employing the "narrative present" so usual with historians. It is necessary, moreover, to notice the intrinsic meaning of the word ??????????; the term is usual enough in Greek for its meaning to be perfectly well ascertained. It is always used of a definitive division, a partition made for all time. We cannot suppose that Diodorus would have used ?????????? for a temporary and periodical division.

Diodorus, v. 53; v. 59; v. 81; v. 83 and 84; xii. 11; xv. 23.

See Strabo vi. 1.

????? ????????? ?? ??????? ???? ??????? ??? ??? ??????.

?????? ?????????????? ?? ??????.

Athenaeus, iv. 16.

We have elsewhere pointed to the evidence for private property in Sparta, and the rules concerning it. See, on the same subject, the excellent work of M. Claudio Jannet.

Viollet, p. 472.

We do not doubt that there were some exceptions. What Diodorus tells us of the Lipari Islands is one of them. It might occasionally sometimes happen, for some reason or other, that the partition was put off for a few years.

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 citizens as private property." 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.

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, the early 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.

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 to Scotland, 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 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 is certain 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 . 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.

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 is held 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.

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. 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." 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. Perhaps you 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?

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.

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.

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, which must 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. 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.

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 all in 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.

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