FRASER'S

THE

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THE question of the Land is looming in the immediate future, and men are to-day gathering_up from the various countries of Europe those materials from which be obtained a more perfect grasp of the constituents to be considered. In its first view the problem appears complex to the extreme of complexity; for Common Law and Roman Law, Feudal Law and Ecclesiastical Law, are so interwoven that the highest legal intellects have expressed their sense of the enormous difficulties in which the matter is involved, and have from time to time indicated their desire to find a remedy.

But far more important, because more profound, passionate, and growing, is that phase of the question which is discussed in all the great manufacturing centres of our country; and which does not enquire what are the legal technicalities or difficulties, but asks, whence came the original possession of the land, and what constitutes the right of holding? These questions are asked with a feverish intensity which has a significance more powerful than words. They are debated from one end of our land to the other, and they occasionally rise broadly upward in the face of great meetings; rousing to temporary madness the whole mass of the audience, and shutting out all else in the excitement of the one question of the Land.

VOL. IN.-NO. XVIII. NEW SERIES.

None recognise these truths more absolutely than those who know the under- current of life most thoroughly; and the greater the certainty of these facts, the greater is the necessity that the problem should be reduced into its simpler elements, so that all minds may grasp the difficulty with which we have to deal. It is from this point of view that the present state of land tenure in Europe affords us a great lesson and a great opportunity. On some parts of its surface may be seen the earlier forms of tenure re-awakening into full force and activity, whilst at other points there still remain the stagnating records of the past, slowly dying out. In Rome ecclesiastical law lately held its sway; in Prussia modified feudalism still insists upon the divine right of kings; whilst in Russia the old form of communism re-appears, heralded in with shouts of jubilation, and credited with the power to revivify society. These forms of land occupancy exhibit the widest possible divergencies; for despite the apparent uniformity impressed upon them by the outside trappings of modern life, such as religion, war, or commerce, they yet in reality contain differences of condition that are separated by centuries of civilisation.

At the present time in Europe we have four influences in greater or lesser activity. The earliest, the widest spread, the most permanent,

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and, in one sense, the most import ant, is the old law of communism; for, when closely viewed and carefully traced through its various modifications, it will be found to underlie the entire structure of European land tenure. Arising out of it, extending over it, and having had in the past almost as wide a range of activity, is that of feudal law; its influence having ever been directed to the abrogation of common holdings and the building up of manorial rights. This power of feudalism grew but slowly, rising into full development at the time of our own Norman Conquest, and retaining, even to the present hour, some of its most marked privileges in their entirety. Against this law of feudal tenure-against the assumption of superior right-against the line of demarcation that separated class from class-against the pretension of being above or below the salt-the whole power of modern thought and modern progress has struggled, and in that struggle has ever achieved its victory. It has been enabled, step by step and little by little, to break down the successive barriers; how this has been achieved, by what efforts and through what processes, is best told by that series of enactments that appears in our statute books. But these three great influences-that of the law of common tenure, the law of feudal tenure, and the law of modern thought—are each modified by another influence, the conditions of population as represented by the greater or lesser density of life. So long as a population is sparse, so long as large tracts of country remain uncultivated, so long will the law of common holding and the law of feudal tenure have a more or less direct vitality: but when life becomes dense, when each foot of land acquires a value, and when the struggle for the means of life deepens in intensity, then the law of feudal tenure must struggle with or yield to

Such a

that of modern thought. special condition is the condition of our own land to-day, and the signs are not wanting that the time approaches when a more or less definite solution will have to be found.

It has been said that the law of common holding underlies all land tenure in Europe, and the reasons why this is so are very evident. The system of common holding was the original type of land tenure, and existed alike amongst the early Romans, the early Teutons, and their still more early progenitors the Indo-Germanic tribes, and evidence of each of these points exists to the present time. In tracing them separately out, the more pronounced point is the distinct association of the people with the land; for not only was the land held in common and cultivated in common, but the possession of land was hedged round with distinct limitations in a clearly defined manner. These limitations retain their significance in many parts of Europe at the present time, but it is only when the broad fact stands out in its simple integrity that we are enabled to appreciate the full force of its teaching. Thus, for instance, as is the case in the common lands of England or the Mark lands of Germany, we find systems of land tenure in force that have existed from times long preceding the Norman Conquest or the downfall of the Roman Empire. It is only under such circumstances as these that we can recognise how unchanging are some forms of land tenure in Europe. But if this be true of the West, where our law of life is the law of change, how much more is it so of that earlier home of our forefathers, the land of the East, where the law of permanency is stamped on all forms of thought, and where, apart from the impress of European ideas, the conditions of life, even to trivialities, remain unbroken for centuries? We might,

therefore, anticipate to find in India to-day those prototypes of land tenure which have exercised and still exercise so large an influence on Europe, and it is found that they not only exist, but are exceedingly widely spread.

In India at the present time a large proportion of the whole empire is divided into communities, in which the land is held and cultivated in common, and the limitations by which the system is surrounded are thus given by a careful and painstaking writer: When I speak of a village community, I use this latter word in our ordinary English sense, and not to signify the actual holding of property in common. . . . It is true that in early times, before communities have settled down to fixed cultivation, the land is held to a great degree in common for grazing purposes, private property being in cattle, not in land... The bond, then, which keeps together a village community is rather municipal than a community of property. The cultivated land is held by individuals, and the common interest in common property is scarcely greater than that which exists amongst the commoners of an English manor. The waste land and grazing ground are held in common; certain common receipts are brought to a common fund; certain common charges are charged against the same fund, and distributed in a cess on individuals according to their holdings. There is a system of municipal management, and the community claims to exercise a certain limited control over its members, and to have a reversionary right to the land of members who cease to cultivate or fail to pay; but beyond this there is complete individual freedom. . . . The community is managed by a council of elders, who rule it so long as they retain the confidence of the people, and

who conduct all negotiations with the Government. In such a village, then, the body of the cultivators consider themselves to be the proprietors. They are united and very strong; they certainly exercise rights of property, and no one would dream of attempting to disturb them.'

The distinguishing mark of all early forms of proprietorship is the possession of land by the community as distinct from the possession of land by the individual; it is only as civilisation advances, and the value of individuality becomes more thoroughly recognised, that personal rights rise more and more distinctly into being. The reasons for this being so are very large. In the earlier stages of civilised life the relationship of family ties and kinship forms the great bond of union, and the tribe, the village, or the clan constitutes the rude, if effective, organisation by which the people are guided and controlled. This system has existed through all history; it appears in our earlier Biblical records, in the early history of Greece and Rome, in the early Germanic customs, and it has its root and its explanation in the natural growth of family life. It is thus we are enabled to understand how it is that, under such widely varying circumstances, the same phenomena repeat themselves -how, for instance, we meet the almost identical type of organisation alike in our Highland clans, the wild mountaineers of India, and the communal life of Russia. With what intensity these feelings maintain themselves, so far as common holding is concerned, is sometimes strangely illustrated. One instance may be given: 'The most curious proof that the natives do not necessarily prefer the separate to the joint system is found in the fact published in some of the official

papers of the Madras Presidency, that in that country villages were found which for half a century had submitted to the farce of a Government assessment on each individual, but had year by year lumped the individual assessment together and redivided the total in their own way among the members of the community. Nothing could more vividly illustrate the permanency of the feeling for communal life, and 'all the other facts that come to light indicate the extreme antiquity of the present system. So much is this the case that we may recognise in India to-day the same system of land tenure as that which existed when the outflowing of life from their tribes overran Europe; and it is by thus tracing the connection through that we are enabled to perceive how the original tenure of all land in Europe was that of 'common land.' The fact that this was so becomes all the more clear by noting how in some parts of Europe the old conditions still remain in their full integrity. In Westphalia we have the common use of forest and pasture; on the Weser, the Moselle, and the Elbe we have the system of close villages, which until lately retained all their ancient rights; whilst in some of those districts, such as Snarholzbach, so recently as 1863 the only private rights of property were the house and the garden attached to it: all other land of whatever kind, with the exception of a varying portion which remained for common use, was periodically divided by lots amongst the owners in common according to their rights, and thus changed ownership according to the results of the drawing. In other parts of Prussia the rights of common still remain over wood and forest. In Russia we have the re-creation of the old form of communism; and whether for good or for evil, by wisdom or by folly, the conditions of the past

have been made the standard to measure the exigencies of the present. In that seething of life which was evoked throughout the great Russian Empire at the close of the Crimean war, the one thought that rose uppermost, the one idea that bound together antagonistic systems, was that which based itself on the recognition that the law of communism was not only the original framework of Russian society, but was the one means by which Russia herself could be regenerated. With what passionate feeling this idea was worked out, and through what vast changes it was carried, is well shown in Eckardt's Modern Russia, in one part of which, when speaking of the struggles of parties, the author thus expresses himself: “The most important bond between these two factions who were destined to share the sway over the Russian youth, consisted in their common adherence to the old Russian law of communism, which excluded all personal possession of property and made the land of the community the possession of all its members.'

The identity of principle which characterises the various forms of existing communism in India, in Russia, in Germany, in Greece, and elsewhere, tends to support the idea that they all had a common origin in the East. This thought is aided by their general antiquity, and upheld alike by local tradition, historic facts, and the affinity of languages, and all these influences combine to give the idea the stamp of accuracy. Beyond this it is broadly and generally accepted that Europe was peopled from the high table-land of Asia, and the wave of population that poured forth was ever from the East towards the West. Under these circumstances it is natural to recognise that the migratory tribes would carry with them, not only the traditions of their early home, but the laws of life by which they had been

governed. It is thus that the old form of land tenure would take root throughout the whole of Europe, and it is thus that the various disjointed cases that exist have so minute and positive a resemblance, having sprung from the same source. Nothing is more certain than that land tenure is at all times slow to change, even under the most adverse conditions; but when it is in harmony with the conditions of life by which it is surrounded, it not only does not change, but it fructifies with a pregnant vitality. Such has been the case of land tenure in India; for though it bears on all its features the marks of an extreme antiquity, it has yet possessed sufficient innate force to retain its original form unimpaired by the lapse of ages, although placed in the midst of the very materials of change. Such a result is possible only when the system satisfies the requirements of the existing society; for it may be generally accepted, that although systems are difficult to change, they retain their permanency only when they are in harmony with the life they are supposed to represent.

But the conditions that separate Europe and the East are the conditions represented by the law of change. In the East life stagnates from age to age, whilst in the West the upwelling of thought is ceaseless in its craving for advance; and it is thus that although communism was the original condition of all land tenure in Europe, it belongs to and is a representative of the earlier forms of civilisation.

The force that rose into being to contest with communism the total possession of the land was the growth of feudalism, and the struggle between these two powers has extended over a thousand years, and is in full force today. Many of us are so accustomed to regard feudalism from the manifestations of its later develop

ment as it stands broadly out with its noble castles and its grand possessions, that we are scarcely prepared to recognise the form it assumed in its earlier aspects; yet it is quite clear that in the first forms of feudalism the chief and his retainers occupied the same level, the leader being elected out of the body on account of his superior prowess and superior sagacity. It is only as the principle became more complex, and the class that adopted fighting as its profession separated itself more and more broadly from the other elements of the community, that the distinction between baron and retainers became in any sense a marked one; and even then the footing on which they stood to one another was broadly different from what many imagine. The position of the baron with his followers was that of the leader of the military brotherhood, and sketches are not wanting which indicate a rough fellowship, in which the Bauer of the twelfth or thirteenth centuries is exhibited as a jovial, high-handed fellow, who holds his own with the folk of the castle, and is quick at retort both with cudgel and his tongue.'

Yet this element, which was destined to extend its sway over Europe, and which, with all its faults, has been the acting cause in the achievement of many of our greatest liberties, was itself a natural production of the then existing condition of life. The mere fact that feudalism has been developed in a more or less perfect form in Russia, India, and in England even previous to the Norman Conquest, tends to show that feudalism itself is the natural outgrowth of a special condition of civilisation-that condition which is the one step higher than that of communism. The development of the feudal system and the rise of life in towns are contemporaneous events; the one is a complement of the other,