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.[242] 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.
M. de Laveleye puts forward an hypothesis; he supposes that there was an earlier period in which the township belonged to the peasants themselves, and the lord, whom we find in later times, did not exist. But this is a mere hypothesis unsupported by a single document or a single fact. He goes further and maintains that this system of village communities was in force throughout the whole of England in the Saxon period. But there is no evidence for this in the Anglo-Saxon laws; they give not the slightest indication of it. The tuncipesmot is not community in land; nor is the folcland. 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. 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.
To come back to the comparative method. I believe that it is infinitely fruitful; but only on condition that the facts which are compared have a real resemblance to one another, and that things which are widely different are not confused. 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.
It is needful to come to an understanding as to what the “comparative method” really is. I have observed that, during the last fifteen years or so, there has been a strange misapprehension on this point. Some writers maintain that to compare any facts, no matter what, is to apply the comparative method. They search all over the world for peculiar usages; they cite the legend of the golden age amongst the ancients as if it were an historical fact; they seize upon a trifling circumstance which occurred in the Lipari Isles as if it related to the entire Greek world; they seize upon some custom, such as public repasts or the festivals of the curia; thence they pass to the Russian mir and talk of it as if they knew all about it; then they describe a township or an allmend; and, in short, whenever they find an instance of anything that is done in common, at once they suppose that they have discovered community in land. They pretend they have discovered the most widespread institutions of the human race by the help of some few instances that they have sought for far and wide, and that they do not take the trouble to observe accurately. And, what is a more serious matter, they omit and leave out of their consideration facts which are constant, normal, well-authenticated, which are engraven in the laws of all peoples, and which have made up their historical life. They give us a few isolated facts and turn our thoughts away from permanent institutions. This is not the comparative method.
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.
[227] M. de Laveleye, De la propriété collective du sol, in the Revue de Belgique, 1886, p. 50 of the reprint.
[228] Ibidem, p. 49.
[229] Ibidem, p. 65.
[230] Strabo, xv., 1., 66, edit. Didot, p. 610: παρ’ ἄλλοις δὲ κατὰ συγγένειαν κοινῇ τοὺς καρποὺς ὲργασαμένονς, ἐπὰν συγκομίσωσιν, αἴρεσθαι ἔκαστον εἰς διατροφὴν τοῦ ἔτους. If one reads the whole chapter, one sees that Nearchus, who distinguishes between general and exceptional institutions, νόμους, τούς μὲν κοινοὺς, τούς δὲ ἰδίους, includes this among the exceptional.
[231] See the work of M. Eug. Robe, Origines de la propriété immobilière en Algérie, 1883—a volume which is full of facts.