Henry Maine’s theory of the evolution of private property.—Sir Henry Maine is of opinion that there is the strongest reason for thinking that property once belonged not lo individuals nor even to isolated families, but to larger societies composed on the parlriarchal model; but the mode of transition from ancient to modern ownership, obscure at best, would have been infinitely obscurer if several distinguishable forms of village communities had been discovered and examined. In the Slavonia villages, he observes, the entire land is the common property of the whole body of kinsmen and is not divisible even in theory.
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Preceding a step further, he observes that in Russian villages there is only a temporary division. Different holdings are, for agricultural convenience, allotted, for a temporary period, to different families composing the community, and as these holdings are redistributed after this period, no one regards any particular field as his private property.
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Advancing still further, he observes that in India everyone has distinct share in the common property and can claim partition at any moment. If a partition is made, the division is complete and permanent, but such partition seldom takes place, and the domain continues to be held in common for generations. But, however, it should be noted that even where the joint or undivided tenure is actually divided, the patter families is still not the individual owner.
He cannot sell nor will away his holding. He must share equally with his sons if he makes a partition, and on his death it will go to all sons equally or to all other heirs if there are no surviving sons. This is the stage when property is said to be vested in the family.
This stage evidently subsists to a great extent in most parts of India. Then comes the last stage when families break up and individual ownership, such as one sees it in Europe and in modern Bengal arises.
Though the evidence, continues to observe Maine, before us does not warrant our going so far as to say that the transition from ancient to modern ownership has everywhere been accomplished in the manner detailed above, yet it renders less presumptuous the conjecture that private property in the shape in which we have known it, was chiefly formed by gradual separation of the rights of individuals from the joint rights of the community.
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Family extended into the agnatic group of kinsmen, then the agnatic group dissolved into separate households; lastly, the household is supplanted by the individual. It has been suggested that each step in the change cores-pond’s to analogous alteration in the nature of ownership.
The problem which the theorists on the origin of property put before them was—what were the motives which first induced men to respect each other’s possession? Our enquiry, observes Maine, has led us only .one point ahead.
If it be true that by far the most important passage, in the history of Private Property is its gradual separation from the co-‘ownership of kinsmen, it may still be asked what led one composite group to keep aloof from the domain of another. It has not been possible, as a matter of jurisprudence, to find an answer to this question. The fact can only be noted.
The views of Blackstone also are nearly similar. He says: “The earth and all things therein were the general property of mankind from the immediate gift of the creator.
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By the law of nature and reason he, who first began to use it, acquired therein a kind of transient property that lasted so long as he was using it and no longer; or to speak with great precision the right of possession continued for the same time only that the act of possession lasted.
Thus, the ground was in common and no part was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust and contrary to the law of nature to have driven in by force but the instant he quitted the occupation of it, another might it without injustice.”
Sir Henry Maine Objects to This Popular Theory:
Firstly at the very outset we might fairly ask whether the man who had occupied a spot of ground for rest or shade would be permitted to retain it without disturbance. The chances surely are that the right to possession would be exactly co-extensive with his power to keep it and that he would be constantly liable to disturbance by the first comer who covered the spot ‘and thought himself strong enough to drive away the possessor.
Secondly, this and the like theories are based on a supposed state of nature that the acts and motives which these theories suppose are the acts and motives of the individual. But ancient law knows next to nothing of individuals.
It is concerned not with individuals, but with families, not with single human beings but with groups. It is more than that’ like joint ownership, and not separate ownership, which is the really archaic institution.
The Roman Family and the Indian Village Communities are instances of this form of ownership—ownership by groups—the family, the village or commune, the tribe or class.
Alter considering the position of these communities, Maine rightly comes to the conclusion, as has been discussed in the beginning, that in the stages of early society we do not find private ownership in the shape and form in which it exists today.
In the beginning it was collective ownership, in due course of time our sense of holding private property developed and what was once common or joint property began to be disentangled into separate property with the result that today we find highly complex” system of private ownership that by innumerable laws support this very institution of private property to have been formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community.
