How, then, was an aristocracy, and, subsequently, despotism introduced into societies, in which the maintenance of equalitywas guaranteed by a measure so radical as the periodic partition of lands; in other words, how were primitive democraciesfeudalised? In many countries, such as England, France, India, or the Italian peninsula, inequality and an aristocracy were theresult of conquest: but how were they developed in such countries as Germany, which know nothing of conquerors comingto create a privileged caste above a vanquished and enslaved population? Originally we see in Germany associations of equaland independent peasants, like the inhabitants of Uri, Schwitz and Unterwalden at the present day. At the close of the middleage we find in the same country a feudal aristocracy resting more heavily on the soil and a rustic population more completelyenslaved than in England, Italy or France. In consequence of what changes in agrarian organization was this surprisingtransformation effected? This problem in social history deserves close attention.
Community of lands affords a very firm basis to primitive societies; it maintains equality, and establishes close union amongall the members of the clan. It ensures them perfect independence by ****** them all proprietors. This is what is necessarywith a warlike people. The Greek legislators, whose opinions Aristotle mentions, invariably held in view the maintenance ofequality among the citizens; but they thought to attain this end in Greece either by limiting the extent of property which asingle individual might hold, by regulating the portions given to young women, or by establishing common meals. Thecustoms of village communities attained this result with far greater certainty. But individual property and inequalitynevertheless invaded the equality of these associations in this way.
We have seen that in Java the inhabitant of the dessa , who reclaims a portion of the wood or waste, retains the enjoyment ofit during his life; and that, in certain provinces, he can even transmit it to his heirs as private property. The right of the firstoccupant is also recognized in Russia. "If a Russian peasant," says M. Haxthausen, "asks authority of the village to establishhimself in the forest, he almost always obtains it; and he acquires over the land so reclaimed, in his capacity of first occupant,a right of possession transmissible by succession and always recognized as valid by the commune. The same right existed inthe German mark. Whoever inclosed waste land or a portion of the common forest to cultivate it, became hereditaryproprietor of the same. Lands so reclaimed were not subject to partition; for this reason they were called exsortes in Latin,or bifang in the German, from .the verb bifâhan , which means to seize, to surround or inclose. The word porprisa , inFrench pourpris , pourprinse , has precisely the same sense. Many titles of the earliest times of the Middle Ages give as theorigin for the property, to which they relate, occupation in the desert or on unoccupied land, in eremo . In France, charters ofthe first two dynasties make frequent mention of it. The Customs speak of it as an ordinary mode of acquiring property. M.
Dareste de la Chavanne quotes the custom of Mount Jura, which assigns to the first occupant the free and independentownership of all reclaimed lands (1) but it was strictly forbidden to inclose any portion of the common land or to set up anyboundaries, except in presence of the other persons entitled, consortes , and with their consent. (2)Even in the time of Tacitus equality within the gens was not absolute; some families had more power, wealth, or slaves, andeven obtained a larger share in the partition. It was only such families that could create an isolated domain in the forest bythe labour of their dependents. This domain was free from communal authority and from the compulsory cultivation, or Flurzwang ; it was already a kind of separate sovereignty. On this limited and enclosed space, temporary annual and nomadiccultivation was impossible. It was therefore necessary to have recourse to a more intensive method of agriculture. It wasprobably on such land that the triennial rotation of crops was first introduced. The Frankish kings possessed many of thesedomains in different parts of the country. Several of Charlemagne's villas had this origin. By this title he was the proprietorof a domain ( curtis ) in the diocese of Salzburg, of great extent, comprising fifteen farms, vineyards, meadows, and woods.
In this manner there arose in all parts, side by side with and in addition to the common territory, which was subject topartition, private, independent properties, seigniories, or curtes nobilium . The enclosed land was called ager exsors , as beingfree from the assignment by lot. In Denmark these independent domains were called ornum : they were surrounded by a ditchand marked out by boundary-stones. They were regarded as privileged lands, being exempt from all communal payments,and escaping re-partition "by the cord." All the charges imposed on the commune were borne by the lands of the collectivedomain. The proprietor of the omium , having no right to the enjoyment of the pasturage and forests of the community, wasnaturally exempted from taking part in the payments in labour or in kind which the members of the commune had toperform. This immunity gave to independent domains a certain superiority, which, strengthened by time, grew into a kind ofsupremacy or suzerainty.
In the conquered Roman provinces, the Germans appropriated one-third or one-half of the lands; and as they were small innumbers, the share of each was frequently very large, and was composed of portions situated in different localities.
