Fustel de Coulanges

“ 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”? ”

“ 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. ”

“ 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. [Pg 129] 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. ”

“ When you bring together the Scotch township which is nothing more than an association of tenants, the Russian mir which seems to have long been only an association of serfs, the Servian village which, on the other hand, is a household community, and the allmend or 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. ”

“ One cannot conclude from the mir that 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. ”

“ This has never yet been proved, and all that has hitherto been ascertained about commons is that they are an appendage of private property.
On these conditions alone can the work be done scientifically; short of this the only result will be a confused picture of the fancy. If any one, after taking all these precautions against gross error, discovers a body of facts and evidence in support of a theory of communism, he will have settled the question historically. ”

“ 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 is [Pg 113] 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. ”

“ If he sees in another place that a man who is unable to pay a fine must swear “that he possesses nothing upon the earth or under the earth;” this is so much proof that land is not an object of private ownership. The word facultas occurs frequently in documents of this period, and it always signifies a man’s entire property, real and personal without distinction; [197] but, as the theory requires that real property should not be too prominent in Salic law, Professor Lamprecht supposes that the word applies only to personal property. ”

“ Wolfin is a landowner; the lands he grants are his property; even more than that, they are his by inheritance; they have descended to him from his father. Here then we have a deed which from its first word to the last proves the existence of private property, and shows the very opposite of common ownership.
How has Maurer managed to find in this a confirmation of his theory? We have here a striking example of the light-hearted way in which he works. The donor, in making a list according to custom of the lands he is giving, writes terræ anales, prata, vineæ, pascua. ”

“ 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 ”

“ 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. ”

“ It seems reasonable to argue: “If men eat the fruits of the earth in common, it is because in primitive times the earth itself was common;” but we think that M. Viollet ought to have distrusted this apparently logical process of reasoning. If he had studied this institution of common meals at Sparta in the original writers, he could not have failed to notice four circumstances: 1. It does not date from the earliest period of the city; and far from being connected with a time when land may have been common, it is later than the institution at Sparta of private property. ”

“ These commons, which are the property of a single owner, cannot be common to others except so far as the enjoyment of them is concerned, and that only with the goodwill of the owner. As far as we can see, they were that part of the domain which, not being fit for cultivation, was not let out to individual tenants, but left to the tenants to use in common to pasture their animals upon, or for getting wood. But they did not for that reason cease to be the private property of the owner of the estate, who sells them or gives them away precisely like any other part. ”

“ What strikes one with astonishment in the writings of Maurer and his disciples is that they omit and leave altogether out of sight a fact which is of vital importance and rests on abundant evidence: the existence of great estates in the early centuries of the Middle Ages. They disregard also the existence of coloni and of slaves. But these were to be found not only in Gaul, but even in Germany. Tacitus himself describes the cultivation of the soil in Germany by serfs. ”

“ M. Viollet has not brought forward a single piece of evidence which proves that the Greek cities ever practised agrarian communism. M. de Jubainville has not brought forward one which proves communism in Gaul. Maurer and Lamprecht have not produced one which shows that the mark was common land. As to the comparative method, which has been somewhat ostentatiously called into service, we are presented under its name with a strangely assorted mass of isolated facts, gathered from every quarter, and often not understood; every fact not in harmony with the theory has been left on one side. ”

“ In this mir he recognises an association with common ownership of the soil. “The mir alone,” 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 Russian mir is only a village and a small village, the population rarely exceeding two hundred [Pg 109] souls; 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. The mir by no means represents a “tribal community,” still less a “national community.” ”

“ 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 [Pg 98] 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. ”

“ It must be some strange illusion which makes M. Viollet suppose that this passage describes men as cultivating the land in common. Plato says that they did not cultivate it at all. Where does he see that the land belonged to the people? Plato says that at this time there did not even exist a people. Where does he see that men were associated for purposes of cultivation? Plato says that each family lived apart, “without troubling itself about its neighbours.” M. Viollet then has taken this passage in precisely the opposite sense to the right one. ”

“ The Salic law is a much less complete code than those we have been considering. It makes no mention of sale; but it contains the rule of hereditary succession. Land passes from father to son. [85] We also find enclosed corn fields and meadows,—a state of things hardly to be reconciled with community of land; [86] there are even forests which are one man’s property, and where no one has the right of getting wood. [87]
The Ripuarian law indicates the use of hedges and enclosures; it recognises the right of hereditary succession to land, and also the power of disposing of it by sale. ”

“ 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, which [Pg 128] must not be confused. To be owners in common is very different from being tenants in common under a landlord. ”

“ Here is the mark, says Maurer. Yes, but not the mark of the village community. It is precisely the opposite, the march or boundary of a private property. We have here to do with a villa, a domain which has been the private property of the king and is now becoming the property of a convent. There is not a thought here of common ownership, or of a common mark, or of a village association. There is not even a village. It is a domain, cultivated, says the charter, by slaves. Cum terminis et marchis suis are both words meaning the boundaries of the domain ”

“ 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 ”

“ Lamprecht, however, vicini stands for associates; neighbourhood and common mark are with him one and the same thing. You have neighbours; therefore you form with them part of an association; therefore the land is common to you and to them: such is his process of reasoning. It would greatly surprise one of our peasants of to-day; they are by no means accustomed to identify neighbourhood and corporate union. But a scholar with a theory does not stoop to such small considerations as this. ”

“ A right of use, limited besides to dead wood, is not the same thing as common ownership. It will be noticed also that the term used in the code for a country domain is villa, with its boundaries, termini villæ. [80] Even the lands given by the king to his servants are marked off by definite boundaries. [81] These boundaries are sacred; the Burgundian law-giver lays down that any one who removes a boundary shall lose his hand. It never for a moment entered into the minds of the Burgundians to establish agrarian communism. ”

“ 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 gift [Pg 123] or 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 ”

“ The dominicum is the land that the proprietor has not entrusted to tenants. [172] Wherever we find the dominicum, it is an unmistakable sign of a large private estate. A dominicum necessarily implies a lord and his serfs or coloni. With time the interior organisation of the villa is modified; it is split up as a consequence of inheritance and sale, and so we see proprietors owning not more than four or two mansi, or perhaps only one. Many of the peasants may also have become free men. ”

“ In a word, the system of agriculture was, in the beginning, an agrarian communism.
This theory is not, strictly speaking, a new one. Long before the present century, there were thinkers who loved to picture to themselves mankind living together, when society was first formed, in a fraternal communism. What is new in this, what is peculiar to our own times, is the attempt to rest this theory on a foundation of historical fact, to support it with quotations [Pg 3] from historical documents, to deck it out, so to speak, in a learned dress. ”

“ What I have impressed upon them is not to believe everything easy, and never to pass by problems without seeing them. The one truth of which I have persistently endeavoured to convince them is that history is the most difficult of sciences. ”

“ The settlement of these Cnidians and Rhodians differs from other instances only in this, that it was necessary, for reasons which Diodorus indicates, to postpone the partition for some years. This is what the historian wished to tell us; he never says that these people thought of establishing common ownership: they had no more disposition for it than other Greeks. Whatever communism they may have practised was not an institution, but a temporary condition of things, lasting for a brief period, with no past and no future. ”