It is only after a series of progressive evolutions and at a comparatively recent period that individual ownership, as appliedto land, is constituted. (3)
So long as primitive man lived by the chase, by fishing or gathering wild fruits, he never thought of appropriating the soil;and considered nothing as his own but what he had taken or contrived with his own hands. Under the pastoral system, thenotion of property in the soil begins to spring up. It is however always limited to the portion of land, which the herds of eachtribe are accustomed to graze on, and frequent quarrels break out with regard to the limits of these pastures. The idea that asingle individual could claim a part of the soil as exclusively his own never yet occurs to any one; the conditions of thepastoral life are in direct opposition to it.
Gradually, a portion of the soil was put temporarily under cultivation, and the agricultural system was established; but theterritory, which the clan or tribe occupies, remains its undivided property. The arable, the pasturage and the forest arefarmed in common. Subsequently, the cultivated land is divided into parcels which are distributed by lot among the severalfamilies, a mere temporary right of occupation being thus allowed to the individual. The soil still remains the collectiveproperty of the clan, to whom it returns from time to time, that a new partition may be effected. This is the system still inforce in the Russian commune; and was, in the time of Tacitus, that of the German tribe.
By a new step of individualization, the parcels remain in the hands of groups of patriarchal families dwelling in the samehouse and working together for the benefit of the association, as in Italy or France in the middle ages, and in Servia at thepresent time.
Finally individual hereditary property appears. It is, however, still tied down by the thousand fetters of seignorial rights, fideicommissa, retraits-lignagers , hereditary leases, Flurzwang or compulsory system of rotation, etc. It is not till after a lastevolution, sometimes very long in taking effect, that it is definitely constituted and becomes the absolute, sovereign, personalright, which is defined by the Civil Code, and which alone is familiar to us in the present day.
The method of cultivation is modified in proportion as property is evolved from community. From being extensive,cultivation becomes intensive, that is to say capital contributes to the production of what was formerly derived from theextent of the territory.
At first, the cultivation is temporary and intermittent. The natural vegetation is burned on the surface, and grain is sown inthe ashes; after this the soil rests for eighteen or twenty years. In this way, the Tartars cultivate buckwheat, and theinhabitants of the Ardennes rye, on the high-lying heaths, to which they apply the system of "essartage." This mode ofcultivation is not incompatible with the pastoral system and a nomadic life. Later on, a small portion of the land issuccessively put into cultivation, according to the triennial rotation, the greater part remaining common pasturage for theherds of the village. This is the system of Russia and Ancient Germany. Afterwards the cattle are better tended, the manureis collected, and the fields are enclosed. Roads and ditches are marked out, and the land is permanently improved by labour.
Then the fallow is curtailed, powerful manures are purchased in the towns or devised by industry; capital is sunk in the soiland increases its productiveness. This is the modern agriculture, the system of Italy and Flanders since the middle ages;never coming into action until the individual ownership of the land is completely established. This concurrent progress ofproperty and of agriculture is the important fact which the most recent researches place in strong relief. Nevertheless, thefacts established as regards Peru formerly, or in the Allmends of Switzerland or Germany at the present time, shew that thecollective ownership of the soil is not antagonistic to intensive cultivation, so long as the right of individual occupation issecured for a sufficiently long term.
The marvellous discoveries recently made in Comparative Philology and Mythology are due to the employment of thehistoric method. Sir Henry Maine believes that the same method, if applied to the origin of Law, would throw entirely newlight on the primitive phases of the development of civilization. We should see clearly that laws are not the arbitrary productof human wishes, but the result of certain economic necessities on the one hand, and of certain ideas of justice on the other,derived from the moral and religious sentiment. These necessities, these ideas, these sentiments, have been very similar andhave acted in the same manner in all societies, at a certain period in their development, directing the establishment ofinstitutions everywhere the same. All races have not, however, advanced at the same pace. While some had already passedout of the primitive community at the commencement of their historical existence, others still continue to practise, in ourday, a system which dates from the very beginning of civilization.
