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IV PROPERTY LAW

On several occasions, in the preceding pages, property law has been discussed, and that from unavoidable necessity, since all three divisions of the triple law closely interact. Here the earlier remarks must be amplified, chiefly in order to make clear why I insist that from the beginning property was individual, despite the often-quoted four “communisms” — hunting, pastoral, sub-polar and negro. They are to be met with in every text-book; denial of their reality calls for explanation. None of the five varieties of the clan system was communistic. How inaccurate is therefore the widespread confusion of the property law of the clan with communism! With this prefatory comment, I pass to the four “communisms”.

A hunting form of existence leads to stagnation, as we have had occasion to show; thus if the huntsman’s conception of property had originally been communist, it would have been petrified in the hunting way of life. We know that when the Indians hunted bison collectively, they shared the meat according to where each man’s arrow hit it — and that it was only with firearms that the carcases became collective property. A large animal is usually hunted by a group, and even when the animal is small, it needs collective effort to get the most out of a given area, otherwise the animals escape. Today a huntsman cannot well manage alone, and it should be borne in mind that conditions were then such that the inhabitants of a certain area were obliged to satisfy their hunger with what they hunted; would the hunter succeed in feeding himself on his own? The most skilled occasionally return from the chase with nothing, the more often the longer a certain area is hunted. Partnership prevents hunger. Those who hunt together decide to treat the catch as common property, regardless of who hit the target and who missed; all share the carcase. Here is the beginning of so-called hunting “communism”. Fishermen are exposed to even greater risk, since fish fail often and unexpectedly. So fishermen everywhere, whether in Spain or in Poland,319 or other parts of the world, enter into partnerships.

In a given hunting or fishing settlement there may be more or fewer of these partnerships, or the entire settlement, particularly if not very numerous, may make up a single partnership, in which case everybody would have the right to draw on anybody else’s catch. Thus every Tunguz may take part in a feast arranged by a successful hunter, but on the significant condition that he gives notice of his intention to be present. Thus some record was kept of who took how much and when, which is only to be explained in terms of partnership; we should say that an account was kept for each partner. Similarly among the Aino, in a settlement described by Sieroszewski, each fisherman catches fish for the whole settlement. When a group of fishermen returns from sea, they immediately make a division.320 Another instance, therefore, of a partnership split into groups, which in this case take turns to go out fishing. There is no communism here.

So-called sub-polar and negro communism is the result of a certain ethical outlook which — by a singular chance — reigns in these opposed spheres. According to this view, the individual should have only as much as he needs, and what he has above his needs he ought to distribute to those poorer than himself; in certain communities it is permissible to take such surplus for oneself if it is not voluntarily given. He who has more must give to others otherwise they will “steal” it from him, as the Christian missionary says.321 The same source also informs us of the effects of this ethical-property system. Thus on the Mulungussi, every African sows and plants as little as possible.

In the frozen north, among the Yakuts, he who sells hay has his allotment reduced by the clan authorities at the next allocation of meadows, the argument being that since he sells, he evidently has more than he needs.322 But opposition to such views is growing, and the prosperous “rich” are even beginning to give their daughters dowries in land. In Greenland they avoid an “excess” of the means of production. Anyone possessing tent or boat as his own property cannot inherit a second such object.323 In both cases, therefore, private property is fully acknowledged, only its growth is restricted in the interest of other, smaller property, also private.

Among the African Negroes, the principle is the same. Communism affects fire and water — and tobacco. “Among the Wadzhgan fire, water and tobacco are regarded as the immediate gift of the heavens, and so are treated as common property, and nobody may refuse these gifts when a stranger asks for them”.324 (And do we refuse fire or water? Or tobacco among work-fellows and neighbours? Is this communism?) And in Terra del Fuego “a piece of material given to one is torn into rags and distributed”.325 This economic system is also known among Asiatics. We in Poland had ample opportunity to become acquainted with it when the Bolshevik hordes cut up into strips furniture-covers, curtains, carpets, etc. in order to share them “justly”. What was received from the shareout became personal property; there was absolutely no question of any kind of communism. It is the same in Central and Southern Africa. When a crowd of negroes surrounds a European, and one of them receives a present, it is immediately shared among his companions. Normally these are not objects of necessity (according to their ideas) but luxuries, and so possessions beyond their needs, or rather not needed. So that all this “sharing out” always concerns something which does not constitute property, according to the law of the clan, and is indeed restricted to the sector of casual gains outside the clan.

Even in the clan community enjoying reciprocal property rights the tradition of partnership was alive, for on request it was possible to have allocated what belonged to one “from one’s fathers”. It was permissible to leave the community and to withdraw one’s share, so that the principle of private property was never excluded. In the community the individual owner’s rights were not exercised until the owner requested it.

There often emerges a special property law designed to suit working conditions. It may include completely contrary factors. For example the Turanian and Slav-Turanian peoples keep cattle on the steppes, and trees may not be planted there, not even round a house: but the Indians hunt in the forests, and so protect against nomadism. In such conditions, would private ownership of relatively small areas of steppe or forest be feasible? It would be harmful. Ownership of nomadic territory lies with the whole nomadic tribe, and it is only between tribes that boundaries exist. But the herds and flocks are the property of the clans, and within the clans the property of the elder, or of the clan partners, and so strictly personal.

On the other hand, where there is no forest economy, although the forests grow, they may belong to nobody and as a result appear to be communistic property. For example Professor Talko-Hryncewicz, living on the Russian-Mongolian frontier, received wood for nothing, only paying for delivery and sawing-up.326

Joint control of pastureland for the whole community is extended to the land itself, the ground; it would have been strange for one to be distinguished from the other. Moreover, on the steppes individual ownership of land is not allowed. Among the pastoral Yakuts, permission from the clan authority is required to fence in ground round a dwelling. But among the same Yakuts, even families “jointly owning land, jointly gathering hay, living under a single roof, feed their cattle separately” (just as they separately “eat their food, make their clothes and other gear”).327 Amon the Todas wandering over the slopes of the Nilgiri Hills in India after their cattle, the herd is the property of the whole tribe, of all five of its clans, but the tents are the property of the fathers of families.328 There cannot, therefore, be any question of the absence of the idea of personal property.

And so there is no necessity to take refuge in the hypothetical survival of a primitive universal communism in order to explain present-day parish ownership of meadows, woods, etc. Mountain pastures are still owned jointly by the descendants of the old clan partners, and certain facts about communal property in the history of England and France are also to be explained by the old clanpastoral law. The matter is as simple as life: farmers keep a few cattle, and with a high density of population each man cannot own his own pasturage so they are communal, although every one of the cattle is somebody’s personal property. In Algeria farming imaziri (“men from the tilled fields”) are organised in karuba, with private ownership of the fields they till, but collective of grazings and pastures. Several karuba make up the taddert (village) which again owns certain lands communally.329

Unlike nomadic pastoralism, agriculture requires private ownership of land. Among all agricultural peoples the principle grew up that the owner of the ground is the man who first tills it: in the Koran, the man who first “sprinkles” and “feeds” it — that is introduces water. Thus actual work on the fields is also the farmer’s title to ownership. In Korea, where there is still ownerless land, the local primus possidens enjoys a three-year freedom from taxation, and after five years becomes legal owner of the land worked (on the coast after ten years).330

The law of agricultural property has for long centuries been adapted to the types of the clan system and to the relevant features of clan property law. It is known that in over-populated lands — in China, or in Tuscany — agricultural property may be reduced to very tiny holdings. But among the Kabyle also, “apparently a fruit- or an olive-tree sometimes has several owners, each of whom tends and crops the one branch he has inherited”.331

Ideas on the law of lease-hold may be regarded as a pointer to private property. In Korea, for example, there now obtains a system which in Polish could be called “smallholding”, that is where the landowners lease their property out in small parcels.332 It is the same with the Algerian Kabyle, who themselves gladly take leases from the Arabs.333

Peoples who were originally pastoral are long unable to accustom themselves to individual ownership of land, even although they become agricultural. Yakuts understand the right of prima occupatio only as a right to temporary use, always with a reservation on the rights of the clan to which the first farmer belongs. “Even fields which have been cleared out of forest become clan property.”334 And “kindred watch vigilantly to make sure that the land is not appropriated by separate families”, because “according to Yakut ideas, land can never become private property”.335 There is a sharp struggle going on for and against the emancipation of the family. They are also unwilling to recognise leases. Regarding letting of land as evidence that its owner does not need it, they believe that it should be taken from him.336 In the same way the Arab shepherds in Algeria are passing over to agriculture, but complete individual ownership of land is unacceptable to them, despite the strong pressure of the French authorities.337 They hold to clan ownership — which is certainly not communism.

Similarly in Palestine the Jews — originally nomadic herdsmen — only had the use of a limited area of agricultural ground. The Zionist Congress held in Vienna in 1925 resolved that the land regained in Palestine must be the property of the Keren Hayemet (national fund), while the owner of the land was to be only a user. But forthwith with utmost lack of logic, these users lease their land to Arabs!

The institution of boundaries and marks followed from the fact of property in land. Among the Chinese, frontier posts and stones carried the mark of the clan; if kept up by tradition, it became the historical mark of the clan. It could be a linear mark, of straight or crooked lines, or a stylised drawing signifying a plant or animal. And here lies the origin of the “totem”, one of learning’s worst mistakes. Weird indeed is the connection between a property mark and so-called totemistic religion. Similar signs are in use to this day, the arms not only of clans, but of countries and states and nations have been made from them. Clearly a sign common to an entire clan was respected by the clan, the tribal mark by all members of the tribe; just as in our time the national flag is everywhere surrounded with respect. Nobody argues from this for the existence of a “totemistic-religious” cult of the white eagle. In the chosen mark there often lies the source of a later surname, since the clan was called after the mark it used. In Poland there is a multitude of names from mammals and birds, fish and insects, fruit trees and ordinary trees, bushes, herbs and flowers, offering plenty of opportunity for totemists!338

Property law, adapted to family law, creates inheritance law. It enters so deeply into all relationships that of necessity it has already been discussed in all the earlier sections of this chapter, beginning with the remarks on the clan system. For ethnologists ignorant of the variety of clan institutions, often too having false ideas about it, even the simplest manifestations become incomprehensible, and hence the invention of theories into which the facts are fitted. Unfortunately, in the process it is rare for reference to be made to a certain mental category with which the scholar should constantly reckon, namely common sense.

The variety of inheritance laws is great because there are no uniform combinations of descendants, ancestors, parents and coevals, relations and relatives, apart from the quantity of combinations in the law of inheritance affecting the widowed. What great variety was until recently contained in German laws of inheritance, different in each Land! Were missionaries and travellers to interest themselves in inheritance law there might perhaps appear to be no little variety among the primitive peoples also. This sector is, however, ignored, to the great loss of learning. The norms of inheritance are, in fact, the most significant sector in the methods of a system of communal life and the most instructive, throwing into simultaneous relief issues of both family and inheritance law. If we knew the laws of inheritance, we should dispense with more than one hypothesis which cripples scientific investigation.339




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