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C.D. Warner, et al., comp. The Library of the World’s Best Literature.
An Anthology in Thirty Volumes. 1917.

The Beginnings of the Modern Laws of Real Property

By Sir Henry Sumner Maine (1822–1888)

From Essay on ‘The Effects of Observation of India on Modern European Thought,’ in ‘Village Communities in the East and West’

WHENEVER a corner is lifted up of the veil which hides from us the primitive condition of mankind, even of such parts of it as we know to have been destined to civilization, there are two positions, now very familiar to us, which seem to be signally falsified by all we are permitted to see: All men are brothers, and All men are equal. The scene before us is rather that which the animal world presents to the mental eye of those who have the courage to bring home to themselves the facts answering to the memorable theory of Natural Selection. Each fierce little community is perpetually at war with its neighbor, tribe with tribe, village with village. The never-ceasing attacks of the strong on the weak end in the manner expressed by the monotonous formula which so often recurs in the pages of Thucydides,—“They put the men to the sword; the women and children they sold into slavery.” Yet even amid all this cruelty and carnage, we find the germs of ideas which have spread over the world. There is still a place and a sense in which men are brothers and equals. The universal belligerency is the belligerency of one total group, tribe, or village, with another; but in the interior of the groups the regimen is one not of conflict and confusion, but rather of ultra-legality. The men who composed the primitive communities believed themselves to be kinsmen in the most literal sense of the word; and surprising as it may seem, there are a multitude of indications that in one stage of thought they must have regarded themselves as equals. When these primitive bodies first make their appearance as land-owners, as claiming an exclusive enjoyment in a definite area of land, not only do their shares of the soil appear to have been originally equal, but a number of contrivances survive for preserving the equality, of which the most frequent is the periodical redistribution of the tribal domain. The facts collected suggest one conclusion, which may be now considered as almost proved to demonstration. Property in land, as we understand it,—that is, several ownership, ownership by individuals or by groups not larger than families,—is a more modern institution than joint property or co-ownership; that is, ownership in common by large groups of men originally kinsmen, and still, wherever they are found (and they are still found over a great part of the world), believing or assuming themselves to be, in some sense, of kin to one another. Gradually, and probably under the influence of a great variety of causes, the institution familiar to us, individual property in land, has arisen from the dissolution of the ancient co-ownership.

There are other conclusions from modern inquiry which ought to be stated less confidently, and several of them only in negative form. Thus, wherever we can observe the primitive groups still surviving to our day, we find that competition has very feeble play in their domestic transactions; competition, that is, in exchange and in the acquisition of property. This phenomenon, with several others, suggests that competition, that prodigious social force of which the action is measured by political economy, is of relatively modern origin. Just as the conceptions of human brotherhood, and in a less degree of human equality, appear to have passed beyond the limits of the primitive communities and to have spread themselves in a highly diluted form over the mass of mankind,—so, on the other hand, competition in exchange seems to be the universal belligerency of the ancient world which has penetrated into the interior of the ancient groups of blood relatives. It is the regulated private war of ancient society gradually broken up into indistinguishable atoms. So far as property in land is concerned, unrestricted competition in purchase and exchange has a far more limited field of action, even at this moment, than an Englishman or an American would suppose. The view of land as merchantable property, exchangeable like a horse or an ox, seems to be not only modern but even now distinctively Western. It is most unreservedly accepted in the United States; with little less reserve in England and France; but as we proceed through Eastern Europe it fades gradually away, until in Asia it is wholly lost.

I cannot do more than hint at other conclusions which are suggested by recent investigation. We may lay down, I think at least provisionally, that in the beginning of the history of ownership there was no such broad distinction as we now commonly draw between political and proprietary power,—between the power which gives the right to tax and the power which confers the right to exact rent. It would seem as if the greater forms of landed property now existing represented political sovereignty in a condition of decay, while the small property of most of the world has grown—not exclusively, as has been vulgarly supposed hitherto, out of the precarious possessions of servile classes, but—out of the indissoluble association of the status of freeman with a share in the land of the community to which he belonged. I think, again, that it is possible we may have to revise our ideas of the relative antiquity of the objects of enjoyment which we call movables and immovables, real property and personal property. Doubtless the great bulk of movables came into existence after land had begun to be appropriated by groups of men; but there is now much reason for suspecting that some of these commodities were severally owned before this appropriation, and that they exercised great influence in dissolving the primitive collective ownership.

It is unavoidable that positions like these, stated as they can only be stated here, should appear to some paradoxical, to others unimportant. There are a few, perhaps, who may conceive a suspicion that if property as we now understand it—that is, several property—be shown to be more modern not only than the human race (which was long ago assumed), but than ownership in common (which is only beginning to be suspected), some advantage may be gained by those assailants of the institution itself whose doctrines from time to time cause a panic in modern Continental society. I do not myself think so. It is not the business of the scientific historical inquirer to assert good or evil of any particular institution. He deals with its existence and development, not with its expediency. But one conclusion he may properly draw from the facts bearing on the subject before us. Nobody is at liberty to attack several property and to say at the same time that he values civilization. The history of the two cannot be disentangled. Civilization is nothing more than a name for the old order of the Aryan world, dissolved but perpetually reconstituting itself under a vast variety of solvent influences, of which infinitely the most powerful have been those which have slowly, and in some parts of the world much less perfectly than others, substituted several property for collective ownership.