They imagine they are injured in the exercise of their rights, and rise in rebellion."To prevent insurrections and resolutions it is therefore necessary, according to Aristotle, to maintain a certain equality. "Make even the poor owner of a small inheritance," he says. In the same chapter he comments the legislator Phaleas of Chalcedon for having taken measures to establish equality of fortune among the citizens. "The equalization of fortunes is the only method of presenting discord."He reproaches the constitution of Sparta for "imperfect legislation on the distribution of property." "Some own immense lands, while others have hardly any property at all, so that almost the whole country is the patrimony of a few individuals. This disorder is the fault of their laws.""A state, as nature intends it, should be composed of elements approaching as nearly as possible to equality." He goes on to shew that in a state composed of a rich class and a poor class, struggles are inevitable. "The conqueror regards government as the prize of victory," and turns it to account to oppress the vanquished.
The politicians of the eighteenth century, Montesquieu particularly, reiterate again and again the assertion that equality of property is the only basis of democracy. "It is not sufficient," says Montesquieu, "in a good democracy, that the portions of the soil should be equal: they must also be small, as at Rome." Esprit des Lois , v. 5.
8. We must not however forget the slave insurrections, which on several occasions endangered the state. See Karl Bücher's excellent study, Die Aufstände der unfreien Arbeiter , 1874.
9. Maine, Ancient Law , p. 3.
PRIMITIVE PROPERTY
Chapter 1
The Gradual and Universally Similar Evolution of Property in Land Until quite recently dolmens and druidic stones were regarded as peculiar to Celtic tribes. But the discovery of thesemonuments of the most remote ages in Holland, and in Germany, in Asia, America, and even in the Asiatic Archipelagoes,together with flint weapons and implements characteristic of the Stone age, has established the opinion that the human racehas everywhere passed through a state of civilization, or rather perhaps of barbarism, an image of which is presented to us,even now, in the life of the natives of New Zealand and Australia. In a work of the greatest interest M.L. Königswarter hasshewn that certain customs which were thought to be peculiar to the Germans, such as the composition for crimes, ordealsand trial by battle, were really to be met with among all nations, at the same stage of civilization. (1)Village communities, such as exist in Russia, were again thought to be exclusively characteristic of the Slavs, who were saidto have communistic instincts. Slavophils boast of these institutions as peculiar to their race, and assert that they must secureits supremacy, by preserving it from the social struggles, which are destined to prove fatal to all Western States. Nowhowever, it can he proved, -- and we shall here endeavour to prove, -- that these communities have existed among nationsmost distinct from one another, -- in Germany and ancient Italy, in Peru and China, in Mexico and India, among theScandinavians and the Arabs -- with precisely similar characteristics. When this institution is found among all nations, in allclimates, we can see in it a necessary phase of social development and a kind of universal law presiding over the evolution offorms of landed property. (2) Primitive nations everywhere used the same clumsy implements formed of flint, and regulatedthe ownership of the soil in the same fashion, under the existence of similar conditions.
Sir Henry Maine, who has held high judicial office in India, was struck by finding at the feet of the Himalayas or on thebanks of the Ganges, institutions similar to those of ancient Germany, and he has published these curious coincidences in abook entitled Village Communities in the East and West . He there brings into strong light the importance of the factsdescribed. It seems, as he says very truly, that from all sides new light is being shed to illustrate the most obscure pages ofthe history of law and of society. Those who were of opinion that individual ownership was evolved, by gradualtransformations, from primitive community, found evidence of the fact in the ancient villages of German and Scandinaviannations. They were more struck when England, always supposed to have been from the days of the Conquest subject to thefeudal regime, was recently shewn to contain as many traces of collective ownership and common cultivation as the northerncountries. They were further confirmed in their convictions, on learning that these primitive forms of ownership andcultivation of the soil are to be found in India, and direct the progress of the administration of that vast colony. Hence thesejuridical antiquities, which seemed as if they could only be of interest to a limited number of savants, are of real, practicalinterest. Not only do they throw new light on fundamental institutions and on the mode of life of primitive races; but, as Millremarked, they raise us above the narrow ideas, which make us regard that which is carried on around us, as the onlyscheme of social existence.
The history of property has still to be written. Roman law and modern law grew up in a period, when every recollection hadperished of the collective forms of landed property-forms which, for so long, were the only ones adopted. Hence we havegreat difficulty in conceiving of property otherwise than as it is constituted in the Institutes or in the Civil Code. When juristswant to account for the origin of such a right, they fly to what they call the State of Nature, and from it derive directlyabsolute, individual ownership -- or quiritary dominium. They thus ignore the law of gradual development, which is foundthroughout history, and contradict facts now well known and well established.
