Ancient Law Part 5

The greater allodial proprietors transformed themselves into feudal lords by conditional alienations of portions of their land to dependants; the smaller sought an escape from the oppressions of that terrible time by surrendering their property to some powerful chieftain, and receiving it back at his hands on condition of service in his wars. Meantime, that vast ma.s.s of the population of Western Europe whose condition was servile or semi-servile--the Roman and German personal slaves, the Roman _coloni_ and the German _lidi_--were concurrently absorbed by the feudal organisation, a few of them a.s.suming a menial relation to the lords, but the greater part receiving land on terms which in those centuries were considered degrading. The tenures created during this era of universal infeudation were as various as the conditions which the tenants made with their new chiefs or were forced to accept from them. As in the case of the benefices, the succession to some, but by no means to all, of the estates followed the rule of Primogeniture. No sooner, however, has the feudal system prevailed throughout the West, than it becomes evident that Primogeniture has some great advantage over every other mode of succession. It spread over Europe with remarkable rapidity, the princ.i.p.al instrument of diffusion being Family Settlements, the Pactes de Famille of France and Haus-Gesetze of Germany, which universally stipulated that lands held by knightly service should descend to the eldest son. Ultimately the law resigned itself to follow inveterate practice, and we find that in all the bodies of Customary Law, which were gradually built up, the eldest son and stock are preferred in the succession to estates of which the tenure is free and military. As to lands held by servile tenures (and originally all tenures were servile which bound the tenant to pay money or bestow manual labour), the system of succession prescribed by custom differed greatly in different countries and different provinces. The more general rule was that such lands were divided equally at death among all the children, but still in some instances the eldest son was preferred, in some the youngest. But Primogeniture usually governed the inheritance of that cla.s.s of estates, in some respects the most important of all, which were held by tenures that, like the English Socage, were of later origin than the rest, and were neither altogether free nor altogether servile.

The diffusion of Primogeniture is usually accounted for by a.s.signing what are called Feudal reasons for it. It is a.s.serted that the feudal superior had a better security for the military service he required when the fief descended to a single person, instead of being distributed among a number on the decease of the last holder. Without denying that this consideration may partially explain the favour gradually acquired by Primogeniture, I must point out that Primogeniture became a custom of Europe much more through its popularity with the tenants than through any advantage it conferred on the lords. For its origin, moreover, the reason given does not account at all. Nothing in law springs entirely from a sense of convenience.

There are always certain ideas existing antecedently on which the sense of convenience works, and of which it can do no more than form some new combination; and to find these ideas in the present case is exactly the problem.

A valuable hint is furnished to us from a quarter fruitful of such indications. Although in India the possessions of a parent are divisible at his death, and may be divisible during his life, among all his male children in equal shares, and though this principle of the equal distribution of _property_ extends to every part of the Hindoo inst.i.tutions, yet wherever _public office_ or _political power_ devolves at the decease of the last Inc.u.mbent, the succession is nearly universally according to the rules of Primogeniture.

Sovereignties descend therefore to the eldest son, and where the affairs of the Village Community, the corporate unit of Hindoo society, are confided to a single manager, it is generally the eldest son who takes up the administration at his parent's death. All offices, indeed, in India, tend to become hereditary, and, when their nature permits it, to vest in the eldest member of the oldest stock.

Comparing these Indian successions with some of the ruder social organisations which have survived in Europe almost to our own day, the conclusion suggests itself that, when Patriarchal power is not only _domestic_ but _political_, it is not distributed among all the issue at the parent's death, but is the birthright of the eldest son. The chieftainship of a Highland clan, for example, followed the order of Primogeniture. There seems, in truth, to be a form of family-dependency still more archaic than any of those which we know from the primitive records of organised civil societies. The Agnatic Union of the kindred in ancient Roman law, and a mult.i.tude of similar indications, point to a period at which all the ramifying branches of the family tree held together in one organic whole; and it is no presumptuous conjecture, that, when the corporation thus formed by the kindred was in itself an independent society, it was governed by the eldest male of the oldest line. It is true that we have no actual knowledge of any such society. Even in the most elementary communities, family-organisations, as we know them, are at most _imperia in imperio_. But the position of some of them, of the Celtic clans in particular, was sufficiently near independence within historical times to force on us the conviction that they were once separate _imperia_, and that Primogeniture regulated the succession to the chieftainship. It is, however, necessary to be on our guard against modern a.s.sociations with the term of law. We are speaking of a family-connection still closer and more stringent than any with which we are made acquainted by Hindoo society or ancient Roman law. If the Roman Paterfamilias was visibly steward of the family possessions, if the Hindoo father is only joint-sharer with his sons, still more emphatically must the true patriarchal chieftain be merely the administrator of a common fund.

The examples of succession by Primogeniture which were found among the Benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. Some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. But there is still the question, Why did Primogeniture gradually supersede every other principle of succession?

The answer, I think, is, that European society decidedly retrograded during the dissolution of the Carlovingian empire. It sank a point or two back even from the miserably low degree which it had marked during the early barbarian monarchies. The great characteristic of the period was the feebleness, or rather the abeyance, of kingly and therefore of civil authority; and hence it seems as if, civil society no longer cohering, men universally flung themselves back on a social organisation older than the beginnings of civil communities. The lord with his va.s.sals, during the ninth and tenth centuries, may be considered as a patriarchal household, recruited, not as in the primitive times by Adoption, but by Infeudation; and to such a confederacy, succession by Primogeniture was a source of strength and durability. So long as the land was kept together on which the entire organisation rested, it was powerful for defence and attack; to divide the land was to divide the little society, and voluntarily to invite aggression in an era of universal violence. We may be perfectly certain that into this preference for Primogeniture there entered no idea of disinheriting the bulk of the children in favour of one.

Everybody would have suffered by the division of the fief. Everybody was a gainer by its consolidation. The Family grew stronger by the concentration of power in the same hands; nor is it likely that the lord who was invested with the inheritance had any advantage over his brethren and kinsfolk in occupations, interests, or indulgences. It would be a singular anachronism to estimate the privileges succeeded to by the heir of a fief, by the situation in which the eldest son is placed under an English strict settlement.

I have said that I regard the early feudal confederacies as descended from an archaic form of the Family, and as wearing a strong resemblance to it. But then in the ancient world, and in the societies which have not pa.s.sed through the crucible of feudalism, the Primogeniture which seems to have prevailed never transformed itself into the Primogeniture of the later feudal Europe. When the group of kinsmen ceased to be governed through a series of generations by a hereditary chief, the domain which had been managed for all appears to have been equally divided among all. Why did this not occur in the feudal world? If during the confusions of the first feudal period the eldest son held the land for the behoof of the whole family, why was it that when feudal Europe had consolidated itself, and regular communities were again established, the whole family did not resume that capacity for equal inheritance which had belonged to Roman and German alike? The key which unlocks this difficulty has rarely been seized by the writers who occupy themselves in tracing the genealogy of Feudalism. They perceive the materials of the feudal inst.i.tutions, but they miss the cement. The ideas and social forms which contributed to the formation of the system were unquestionably barbarian and archaic, but, as soon as Courts and lawyers were called in to interpret and define it, the principles of interpretation which they applied to it were those of the latest Roman jurisprudence, and were therefore excessively refined and matured. In a patriarchally governed society, the eldest son may succeed to the government of the Agnatic group, and to the absolute disposal of its property. But he is not therefore a true proprietor. He has correlative duties not involved in the conception of proprietorship, but quite undefined and quite incapable of definition. The later Roman jurisprudence, however, like our own law, looked upon uncontrolled power over property as equivalent to ownership, and did not, and, in fact, could not, take notice of liabilities of such a kind, that the very conception of them belonged to a period anterior to regular law. The contact of the refined and the barbarous notion had inevitably for its effect the conversion of the eldest son into legal proprietor of the inheritance.

The clerical and secular lawyers so defined his position from the first; but it was only by insensible degrees that the younger brother, from partic.i.p.ating on equal terms in all the dangers and enjoyments of his kinsman, sank into the priest, the soldier of fortune, or the hanger-on of the mansion. The legal revolution was identical with that which occurred on a smaller scale, and in quite recent times, through the greater part of the Highlands of Scotland. When called in to determine the legal powers of the chieftain over the domains which gave sustenance to the clan, Scottish jurisprudence had long since pa.s.sed the point at which it could take notice of the vague limitations on completeness of dominion imposed by the claims of the clansmen, and it was inevitable therefore that it should convert the patrimony of many into the estate of one.

For the sake of simplicity I have called the mode of succession Primogeniture whenever a single son or descendant succeeds to the authority over a household or society. It is remarkable, however, that in the few very ancient examples which remain to us of this sort of succession, it is not always the eldest son, in the sense familiar to us, who takes up the representation. The form of Primogeniture which has spread over Western Europe has also been perpetuated among the Hindoos, and there is every reason to believe that it is the normal form. Under it, not only the eldest son, but the eldest line is always preferred. If the eldest son fails, his eldest son has precedence not only over brothers but over uncles; and, if he too fails, the same rule is followed in the next generation. But when the succession is not merely to _civil_ but to _political_ power, a difficulty may present itself which will appear of greater magnitude according as the cohesion of society is less perfect. The chieftain who last exercised authority may have outlived his eldest son, and the grandson who is primarily ent.i.tled to succeed may be too young and immature to undertake the actual guidance of the community, and the administration of its affairs. In such an event, the expedient which suggests itself to the more settled societies is to place the infant heir under guardianship till he reaches the age of fitness for government. The guardianship is generally that of the male Agnates; but it is remarkable that the contingency supposed is one of the rare cases in which ancient societies have consented to the exercise of power by women, doubtless out of respect to the overshadowing claims of the mother. In India, the widow of a Hindoo sovereign governs in the name of her infant son, and we cannot but remember that the custom regulating succession to the throne of France--which, whatever be its origin, is doubtless of the highest antiquity--preferred the queen-mother to all other claimants for the Regency, at the same time that it rigorously excluded all females from the throne. There is, however, another mode of obviating the inconvenience attending the devolution of sovereignty on an infant heir, and it is one which would doubtless occur spontaneously to rudely organised communities. This is to set aside the infant heir altogether, and confer the chieftainship on the eldest surviving male of the first generation. The Celtic clan-a.s.sociations, among the many phenomena which they have preserved of an age in which civil and political society were not yet even rudimentarily separated, have brought down this rule of succession to historical times. With them, it seems to have existed in the form of a positive canon, that, failing the eldest son, his next brother succeeds in priority to all grandsons, whatever be their age at the moment when the sovereignty devolves. Some writers have explained the principle by a.s.suming that the Celtic customs took the last chieftain as a sort of root or stock, and then gave the succession to the descendant who should be least remote from him; the uncle thus being preferred to the grandson as being nearer to the common root. No objection can be taken to this statement if it be merely intended as a description of the system of succession; but it would be a serious error to conceive the men who first adopted the rule as applying a course of reasoning which evidently dates from the time when feudal schemes of succession begun to be debated among lawyers. The true origin of the preference of the uncle to the grandson is doubtless a simple calculation on the part of rude men in a rude society that it is better to be governed by a grown chieftain than by a child, and that the younger son is more likely to have come to maturity than any of the eldest son's descendants. At the same time, we have some evidence that the form of Primogeniture with which we are best acquainted is the primary form, in the tradition that the a.s.sent of the clan was asked when an infant heir was pa.s.sed over in favour of his uncle. There is a tolerably well authenticated instance of this ceremony in the annals of the Macdonalds.

Under Mahometan law, which has probably preserved an ancient Arabian custom, inheritances of property are divided equally among sons, the daughters taking a half share; but if any of the children die before the division of the inheritance, leaving issue behind, these grandchildren are entirely excluded by their uncles and aunts.

Consistently with this principle, the succession, when political authority devolves, is according to the form of Primogeniture which appears to have obtained among the Celtic societies. In the two great Mahometan families of the West, the rule is believed to be, that the uncle succeeds to the throne in preference to the nephew, though the latter be the son of an elder brother; but though this rule has been followed quite recently in Egypt, I am informed that there is some doubt as to its governing the devolution of the Turkish sovereignty.

The policy of the Sultans has in fact hitherto prevented cases for its application from occurring, and it is possible that their wholesale ma.s.sacres of their younger brothers may have been perpetuated quite as much in the interest of their children as for the sake of making away with dangerous compet.i.tors for the throne. It is evident, however, that in polygamous societies the form of Primogeniture will always tend to vary. Many considerations may const.i.tute a claim on the succession, the rank of the mother, for example, or her degree in the affections of the father. Accordingly, some of the Indian Mahometan sovereigns, without pretending to any distinct testamentary power, claim the right of nominating the son who is to succeed. The _blessing_ mentioned in the Scriptural history of Isaac and his sons has sometimes been spoken of as a will, but it seems rather to have been a mode of naming an eldest son.

CHAPTER VIII

THE EARLY HISTORY OF PROPERTY

The Roman Inst.i.tutional Treatises, after giving their definition of the various forms and modifications of ownership, proceed to discuss the Natural Modes of Acquiring Property. Those who are unfamiliar with the history of jurisprudence are not likely to look upon these "natural modes" of acquisition as possessing, at first sight, either much speculative or much practical interest. The wild animal which is snared or killed by the hunter, the soil which is added to our field by the imperceptible deposits of a river, the tree which strikes its roots into our ground, are each said by the Roman lawyers to be acquired by us _naturally_. The older jurisconsults had doubtless observed that such acquisitions were universally sanctioned by the usages of the little societies around them, and thus the lawyers of a later age, finding them cla.s.sed in the ancient Jus Gentium, and perceiving them to be of the simplest description, allotted them a place among the ordinances of Nature. The dignity with which they were invested has gone on increasing in modern times till it is quite out of proportion to their original importance. Theory has made them its favourite food, and has enabled them to exercise the most serious influence on practice.

It will be necessary for us to attend to one only among these "natural modes of acquisition," Occupatio or Occupancy. Occupancy is the advisedly taking possession of that which at the moment is the property of no man, with the view (adds the technical definition) of acquiring property in it for yourself. The objects which the Roman lawyers called _res nullius_--things which have not or have never had an owner--can only be ascertained by enumerating them. Among things which _never had_ an owner are wild animals, fishes, wild fowl, jewels disinterred for the first time, and lands newly discovered or never before cultivated. Among things which _have not_ an owner are moveables which have been abandoned, lands which have been deserted, and (an anomalous but most formidable item) the property of an enemy.

In all these objects the full rights of dominion were acquired by the _Occupant_ who first took possession of them with the intention of keeping them as his own--an intention which, in certain cases, had to be manifested by specific acts. It is not difficult, I think, to understand the universality which caused the practice of Occupancy to be placed by one generation of Roman lawyers in the Law common to all Nations, and the simplicity which occasioned its being attributed by another to the Law of Nature. But for its fortunes in modern legal history we are less prepared by _a priori_ considerations. The Roman principle of Occupancy, and the rules into which the jurisconsults expanded it, are the source of all modern International Law on the subject of Capture in War and of the acquisition of sovereign rights in newly discovered countries. They have also supplied a theory of the Origin of Property, which is at once the popular theory, and the theory which, in one form or another, is acquiesced in by the great majority of speculative jurists.

I have said that the Roman principle of Occupancy has determined the tenor of that chapter of International Law which is concerned with Capture in War. The Law of Warlike Capture derives its rules from the a.s.sumption that communities are remitted to a state of nature by the outbreak of hostilities, and that, in the artificial natural condition thus produced, the inst.i.tution of private property falls into abeyance so far as concerns the belligerents. As the later writers on the Law of Nature have always been anxious to maintain that private property was in some sense sanctioned by the system which they were expounding, the hypothesis that an enemy's property is _res nullius_ has seemed to them perverse and shocking, and they are careful to stigmatise it as a mere fiction of jurisprudence. But, as soon as the Law of Nature is traced to its source in the Jus Gentium, we see at once how the goods of an enemy came to be looked upon as n.o.body's property, and therefore as capable of being acquired by the first occupant. The idea would occur spontaneously to persons practising the ancient forms of Warfare, when victory dissolved the organisation of the conquering army and dismissed the soldiers to indiscriminate plunder. It is probable, however, that originally it was only moveable property which was thus permitted to be acquired by the Captor. We know on independent authority that a very different rule prevailed in ancient Italy as to the acquisition of ownership in the soil of a conquered country, and we may therefore suspect that the application of the principle of occupancy to land (always a matter of difficulty) dates from the period when the Jus Gentium was becoming the Code of Nature, and that it is the result of a generalisation effected by the jurisconsults of the golden age. Their dogmas on the point are preserved in the Pandects of Justinian, and amount to an unqualified a.s.sertion that enemy's property of every sort is _res nullius_ to the other belligerent, and that Occupancy, by which the Captor makes them his own, is an inst.i.tution of Natural Law. The rules which International jurisprudence derives from these positions have sometimes been stigmatised as needlessly indulgent to the ferocity and cupidity of combatants, but the charge has been made, I think, by persons who are unacquainted with the history of wars, and who are consequently ignorant how great an exploit it is to command obedience for a rule of any kind. The Roman principle of Occupancy, when it was admitted into the modern law of Capture in War, drew with it a number of subordinate canons, limiting and giving precision to its operation, and if the contests which have been waged since the treatise of Grotius became an authority, are compared with those of an earlier date, it will be seen that, as soon as the Roman maxims were received, Warfare instantly a.s.sumed a more tolerable complexion. If the Roman law of Occupancy is to be taxed with having had pernicious influence on any part of the modern Law of Nations, there is another chapter in it which may be said, with some reason, to have been injuriously affected. In applying to the discovery of new countries the same principles which the Romans had applied to the finding of a jewel, the Publicists forced into their service a doctrine altogether unequal to the task expected from it. Elevated into extreme importance by the discoveries of the great navigators of the fifteenth and sixteenth centuries, it raised more disputes than it solved. The greatest uncertainty was very shortly found to exist on the very two points on which certainty was most required, the extent of the territory which was acquired for his sovereign by the discoverer, and the nature of the acts which were necessary to complete the _adprehensio_ or a.s.sumption of sovereign possession. Moreover, the principle itself, conferring as it did such enormous advantages as the consequence of a piece of good luck, was instinctively mutinied against by some of the most adventurous nations in Europe, the Dutch, the English, and the Portuguese. Our own countrymen, without expressly denying the rule of International Law, never did, in practice, admit the claim of the Spaniards to engross the whole of America south of the Gulf of Mexico, or that of the King of France to monopolise the valleys of the Ohio and the Mississippi. From the accession of Elizabeth to the accession of Charles the Second, it cannot be said that there was at any time thorough peace in the American waters, and the encroachments of the New England Colonists on the territory of the French King continued for almost a century longer. Bentham was so struck with the confusion attending the application of the legal principle, that he went out of his way to eulogise the famous Bull of Pope Alexander the Sixth, dividing the undiscovered countries of the world between the Spaniards and Portuguese by a line drawn one hundred leagues West of the Azores; and, grotesque as his praises may appear at first sight, it may be doubted whether the arrangement of Pope Alexander is absurder in principle than the rule of Public law, which gave half a continent to the monarch whose servants had fulfilled the conditions required by Roman jurisprudence for the acquisition of property in a valuable object which could be covered by the hand.

To all who pursue the inquiries which are the subject of this volume, Occupancy is pre-eminently interesting on the score of the service it has been made to perform for speculative jurisprudence, in furnishing a supposed explanation of the origin of private property. It was once universally believed that the proceeding implied in Occupancy was identical with the process by which the earth and its fruits, which were at first in common, became the allowed property of individuals.

The course of thought which led to this a.s.sumption is not difficult to understand, if we seize the shade of difference which separates the ancient from the modern conception of Natural Law. The Roman lawyers had laid down that Occupancy was one of the Natural modes of acquiring property, and they undoubtedly believed that, were mankind living under the inst.i.tutions of Nature, Occupancy would be one of their practices. How far they persuaded themselves that such a condition of the race had ever existed, is a point, as I have already stated, which their language leaves in much uncertainty; but they certainly do seem to have made the conjecture, which has at all times possessed much plausibility, that the inst.i.tution of property was not so old as the existence of mankind. Modern jurisprudence, accepting all their dogmas without reservation, went far beyond them in the eager curiosity with which it dwelt on the supposed state of Nature. Since then it had received the position that the earth and its fruits were once _res nullius_, and since its peculiar view of Nature led it to a.s.sume without hesitation that the human race had actually practised the Occupancy of _res nullius_ long before the organisation of civil societies, the inference immediately suggested itself that Occupancy was the process by which the "no man's goods" of the primitive world became the private property of individuals in the world of history. It would be wearisome to enumerate the jurists who have subscribed to this theory in one shape or another, and it is the less necessary to attempt it because Blackstone, who is always a faithful index of the average opinions of his day, has summed them up in his 2nd book and 1st chapter.

"The earth," he writes, "and all things therein were the general property of mankind from the immediate gift of the Creator. Not that the communion of goods seems ever to have been applicable, even in the earliest ages, to aught but the substance of the thing; nor could be extended to the use of it. For, 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 greater 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 of it, 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 him by force, but the instant that he quitted the use of occupation of it, another might seize it without injustice." He then proceeds to argue that "when mankind increased in number, it became necessary to entertain conceptions of more permanent dominion, and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used."

Some ambiguities of expression in this pa.s.sage lead to the suspicion that Blackstone did not quite understand the meaning of the proposition which he found in his authorities, that property in the earth's surface was first acquired, under the law of Nature, by the _occupant_; but the limitation which designedly or through misapprehension he has imposed on the theory brings it into a form which it has not infrequently a.s.sumed. Many writers more famous than Blackstone for precision of language have laid down that, in the beginning of things, Occupancy first gave a right against the world to an exclusive but temporary enjoyment, and that afterwards this right, while it remained exclusive, became perpetual. Their object in so stating their theory was to reconcile the doctrine that in the state of Nature _res nullius_ became property through Occupancy, with the inference which they drew from the Scriptural history that the Patriarchs did not at first permanently appropriate the soil which had been grazed over by their flocks and herds.

The only criticism which could be directly applied to the theory of Blackstone would consist in inquiring whether the circ.u.mstances which make up his picture of a primitive society are more or less probable than other incidents which could be imagined with equal readiness.

Pursuing this method of examination, we might fairly ask whether the man who had _occupied_ (Blackstone evidently uses this word with its ordinary English meaning) a particular spot of ground for rest or shade would be permitted to retain it without disturbance. The chances surely are that his right to possession would be exactly coextensive with his power to keep it, and that he would be constantly liable to disturbance by the first comer who coveted the spot and thought himself strong enough to drive away the possessor. But the truth is that all such cavil at these positions is perfectly idle from the very baselessness of the positions themselves. What mankind did in the primitive state may not be a hopeless subject of inquiry, but of their motives for doing it it is impossible to know anything. These sketches of the plight of human beings in the first ages of the world are effected by first supposing mankind to be divested of a great part of the circ.u.mstances by which they are now surrounded, and by then a.s.suming that, in the condition thus imagined, they would preserve the same sentiments and prejudices by which they are now actuated,--although, in fact, these sentiments may have been created and engendered by those very circ.u.mstances of which, by the hypothesis, they are to be stripped.

There is an aphorism of Savigny which has been sometimes thought to countenance a view of the origin of property somewhat similar to the theories epitomised by Blackstone. The great German jurist has laid down that all Property is founded on Adverse Possession ripened by Prescription. It is only with respect to Roman law that Savigny makes this statement, and before it can fully be appreciated much labour must be expended in explaining and defining the expressions employed.

His meaning will, however, be indicated with sufficient accuracy if we consider him to a.s.sert that, how far soever we carry our inquiry into the ideas of property received among the Romans, however closely we approach in tracing them to the infancy of law, we can get no farther than a conception of ownership involving the three elements in the canon--Possession, Adverseness of Possession, that is a holding not permissive or subordinate, but exclusive against the world, and Prescription, or a period of time during which the Adverse Possession has uninterruptedly continued. It is exceedingly probable that this maxim might be enunciated with more generality than was allowed to it by its author, and that no sound or safe conclusion can be looked for from investigations into any system of laws which are pushed farther back than the point at which these combined ideas const.i.tute the notion of proprietary right. Meantime, so far from bearing out the popular theory of the origin of property, Savigny's canon is particularly valuable as directing our attention to its weakest point.

In the view of Blackstone and those whom he follows, it was the mode of a.s.suming the exclusive enjoyment which mysteriously affected the minds of the fathers of our race. But the mystery does not reside here. It is not wonderful that property began in adverse possession.

It is not surprising that the first proprietor should have been the strong man armed who kept his goods in peace. But why it was that lapse of time created a sentiment of respect for his possession--which is the exact source of the universal reverence of mankind for that which has for a long period _de facto_ existed--are questions really deserving the profoundest examination, but lying far beyond the boundary of our present inquiries.

Before pointing out the quarter in which we may hope to glean some information, scanty and uncertain at best, concerning the early history of proprietary right, I venture to state my opinion that the popular impression in reference to the part played by Occupancy in the first stages of civilisation directly reverses the truth. Occupancy is the advised a.s.sumption of physical possession; and the notion that an act of this description confers a t.i.tle to "res nullius," so far from being characteristic of very early societies, is in all probability the growth of a refined jurisprudence and of a settled condition of the laws. It is only when the rights of property have gained a sanction from long practical inviolability and when the vast majority of the objects of enjoyment have been subjected to private ownership, that mere possession is allowed to invest the first possessor with dominion over commodities in which no prior proprietorship has been a.s.serted. The sentiment in which this doctrine originated is absolutely irreconcilable with that infrequency and uncertainty of proprietary rights which distinguish the beginnings of civilisation.

Its true basis seems to be, not an instinctive bias towards the inst.i.tution of Property, but a presumption arising out of the long continuance of that inst.i.tution, that _everything ought to have an owner_. When possession is taken of a "res nullius," that is, of an object which _is_ not, or has _never_ been, reduced to dominion, the possessor is permitted to become proprietor from a feeling that all valuable things are naturally the subjects of an exclusive enjoyment, and that in the given case there is no one to invest with the right of property except the Occupant. The Occupant in short, becomes the owner, because all things are presumed to be somebody's property and because no one can be pointed out as having a better right than he to the proprietorship of this particular thing.

Even were there no other objection to the descriptions of mankind in their natural state which we have been discussing, there is one particular in which they are fatally at variance with the authentic evidence possessed by us. It will be observed that the acts and motives which these theories suppose are the acts and motives of Individuals. It is each Individual who for himself subscribes the Social Compact. It is some shifting sandbank in which the grains are Individual men, that according to the theory of Hobbes is hardened into the social rock by the wholesome discipline of force. It is an Individual who, in the picture drawn by Blackstone, "is in the occupation of a determined spot of ground for rest, for shade, or the like." The vice is one which necessarily afflicts all the theories descended from the Natural Law of the Romans, which differed princ.i.p.ally from their Civil Law in the account which it took of Individuals, and which has rendered precisely its greatest service to civilisation in enfranchising the individual from the authority of archaic society. But Ancient Law, it must again be repeated, knows next to nothing of Individuals. It is concerned not with Individuals, but with Families, not with single human beings, but groups. Even when the law of the State has succeeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of Individuals is curiously different from that taken by jurisprudence in its maturest stage. The life of each citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants.

The Roman distinction between the Law of Persons and the Law of Things, which though extremely convenient is entirely artificial, has evidently done much to divert inquiry on the subject before us from the true direction. The lessons learned in discussing the Jus Personarum have been forgotten where the Jus Rerum is reached, and Property, Contract, and Delict, have been considered as if no hints concerning their original nature were to be gained from the facts ascertained respecting the original condition of Persons. The futility of this method would be manifest if a system of pure archaic law could be brought before us, and if the experiment could be tried of applying to it the Roman cla.s.sifications. It would soon be seen that the separation of the Law of Persons from that of Things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. From what has been said in the earlier portions of this treatise, it will be gathered that there is a strong _a priori_ improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. It is more than likely that joint-ownership, and not separate ownership, is the really archaic inst.i.tution, and that the forms of property which will afford us instruction will be those which are a.s.sociated with the rights of families and of groups of kindred. The Roman jurisprudence will not here a.s.sist in enlightening us, for it is exactly the Roman jurisprudence which, transformed by the theory of Natural Law, has bequeathed to the moderns the impression that individual ownership is the normal state of proprietary right, and that ownership in common by groups of men is only the exception to a general rule. There is, however, one community which will always be carefully examined by the inquirer who is in quest of any lost inst.i.tution of primeval society.

How far soever any such inst.i.tution may have undergone change among the branch of the Indo-European family which has been settled for ages in India, it will seldom be found to have entirely cast aside the sh.e.l.l in which it was originally reared. It happens that, among the Hindoos, we do find a form of ownership which ought at once to rivet our attention from its exactly fitting in with the ideas which our studies in the Law of Persons would lead us to entertain respecting the original condition of property. The Village Community of India is at once an organised patriarchal society and an a.s.semblage of co-proprietors. The personal relations to each other of the men who compose it are indistinguishably confounded with their proprietary rights, and to the attempts of English functionaries to separate the two may be a.s.signed some of the most formidable miscarriages of Anglo-Indian administration. The Village Community is known to be of immense antiquity. In whatever direction research has been pushed into Indian history, general or local, it has always found the Community in existence at the farthest point of its progress. A great number of intelligent and observant writers, most of whom had no theory of any sort to support concerning its nature and origin, agree in considering it the least destructible inst.i.tution of a society which never willingly surrenders any one of its usages to innovation. Conquests and revolutions seem to have swept over it without disturbing or displacing it, and the most beneficent systems of government in India have always been those which have recognised it as the basis of administration.

The mature Roman law, and modern jurisprudence following in its wake, look upon co-ownership as an exceptional and momentary condition of the rights of property. This view is clearly indicated in the maxim which obtains universally in Western Europe, _Nemo in communione potest invitus detineri_ ("No one can be kept in co-proprietorship against his will"). But in India this order of ideas is reversed, and it may be said that separate proprietorship is always on its way to become proprietorship in common. The process has been adverted to already. As soon as a son is born, he acquires a vested interest in his father's substance, and on attaining years of discretion he is even, in certain contingencies, permitted by the letter of the law to call for a part.i.tion of the family estate. As a fact, however, a division rarely takes place even at the death of the father, and the property constantly remains undivided for several generations, though every member of every generation has a legal right to an undivided share in it. The domain thus held in common is sometimes administered by an elected manager, but more generally, and in some provinces always, it is managed by the eldest agnate, by the eldest representative of the eldest line of the stock. Such an a.s.semblage of joint proprietors, a body of kindred holding a domain in common, is the simplest form of an Indian Village Community, but the Community is more than a brotherhood of relatives and more than an a.s.sociation of partners. It is an organised society, and besides providing for the management of the common fund, it seldom fails to provide, by a complete staff of functionaries, for internal government, for police, for the administration of justice, and for the apportionment of taxes and public duties.

The process which I have described as that under which a Village Community is formed, may be regarded as typical. Yet it is not to be supposed that every Village Community in India drew together in so simple a manner. Although, in the North of India, the archives, as I am informed, almost invariably show that the Community was founded by a single a.s.semblage of blood-relations, they also supply information that men of alien extraction have always, from time to time, been engrafted on it, and a mere purchaser of a share may generally, under certain conditions, be admitted to the brotherhood. In the South of the Peninsula there are often Communities which appear to have sprung not from one but from two or more families; and there are some whose composition is known to be entirely artificial; indeed, the occasional aggregation of men of different castes in the same society is fatal to the hypothesis of a common descent. Yet in all these brotherhoods either the tradition is preserved, or the a.s.sumption made, of an original common parentage. Mountstuart Elphinstone, who writes more particularly of the Southern Village Communities, observes of them (_History of India_, i. 126): "The popular notion is that the Village landholders are all descended from one or more individuals who settled the village; and that the only exceptions are formed by persons who have derived their rights by purchase or otherwise from members of the original stock. The supposition is confirmed by the fact that, to this day, there are only single families of landholders in small villages and not many in large ones; but each has branched out into so many members that it is not uncommon for the whole agricultural labour to be done by the landholders, without the aid either of tenants or of labourers. The rights of the landholders are theirs collectively and, though they almost always have a more or less perfect part.i.tion of them, they never have an entire separation. A landholder, for instance, can sell or mortgage his rights; but he must first have the consent of the Village, and the purchaser steps exactly into his place and takes up all his obligations. If a family becomes extinct, its share returns to the common stock."

Some considerations which have been offered in the fifth chapter of this volume will a.s.sist the reader, I trust, in appreciating the significance of Elphinstone's language. No inst.i.tution of the primitive world is likely to have been preserved to our day, unless it has acquired an elasticity foreign to its original nature through some vivifying legal fiction. The Village Community then is not necessarily an a.s.semblage of blood-relations, but it is _either_ such an a.s.semblage _or_ a body of co-proprietors formed on the model of an a.s.sociation of kinsmen. The type with which it should be compared is evidently not the Roman Family, but the Roman Gens or House. The Gens was also a group on the model of the family; it was the family extended by a variety of fictions of which the exact nature was lost in antiquity. In historical times, its leading characteristics were the very two which Elphinstone remarks in the Village Community. There was always the a.s.sumption of a common origin, an a.s.sumption sometimes notoriously at variance with fact; and, to repeat the historian's words, "if a family became extinct, its share returned to the common stock." In old Roman law, unclaimed inheritances escheated to the Gentiles. It is further suspected by all who have examined their history that the Communities, like the Gentes, have been very generally adulterated by the admission of strangers, but the exact mode of absorption cannot now be ascertained. At present, they are recruited, as Elphinstone tells us, by the admission of purchasers, with the consent of the brotherhood. The acquisition of the adopted member is, however, of the nature of a universal succession; together with the share he has bought, he succeeds to the liabilities which the vendor had incurred towards the aggregate group. He is an Emptor Familiae, and inherits the legal clothing of the person whose place he begins to fill. The consent of the whole brotherhood required for his admission may remind us of the consent which the Comitia Curiata, the Parliament of that larger brotherhood of self-styled kinsmen, the ancient Roman commonwealth, so strenuously insisted on as essential to the legalisation of an Adoption or the confirmation of a Will.

The tokens of an extreme antiquity are discoverable in almost every single feature of the Indian Village Communities. We have so many independent reasons for suspecting that the infancy of law is distinguished by the prevalence of co-ownership by the intermixture of personal with proprietary rights, and by the confusion of public with private duties, that we should be justified in deducing many important conclusions from our observation of these proprietary brotherhoods, even if no similarly compounded societies could be detected in any other part of the world. It happens, however, that much earnest curiosity has been very recently attracted to a similar set of phenomena in those parts of Europe which have been most slightly affected by the feudal transformation of property, and which in many important particulars have as close an affinity with the Eastern as with the Western world. The researches of M. de Haxthausen, M.

Tengoborski, and others, have shown us that the Russian villages are not fortuitous a.s.semblages of men, nor are they unions founded on contract; they are naturally organised communities like those of India. It is true that these villages are always in theory the patrimony of some n.o.ble proprietor and the peasants have within historical times been converted into the predial, and to a great extent into the personal, serfs of the seignior. But the pressure of this superior ownership has never crushed the ancient organisation of the village, and it is probable that the enactment of the Czar of Russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from abandoning that co-operation without which the old social order could not long be maintained. In the a.s.sumption of an agnatic connection between the villagers, in the blending of personal rights with privileges of ownership, and in a variety of spontaneous provisions for internal administration, the Russian Village appears to be a nearly exact repet.i.tion of the Indian Community; but there is one important difference which we note with the greatest interest. The co-owners of an Indian village, though their property is blended, have their rights distinct, and this separation of rights is complete and continues indefinitely. The severance of rights is also theoretically complete in a Russian village, but there it is only temporary. After the expiration of a given, but not in all cases of the same, period separate ownerships are extinguished, the land of the village is thrown into a ma.s.s, and then it is re-distributed among the families composing the community, according to their number. This repart.i.tion having been effected, the rights of families and of individuals are again allowed to branch out into various lines, which they continue to follow till another period of division comes round. An even more curious variation from this type of ownership occurs in some of those countries which long formed a debateable land between the Turkish empire and the possessions of the House of Austria. In Servia, in Croatia, and the Austrian Sclavonia, the villages are also brotherhoods of persons who are at once co-owners and kinsmen; but there the internal arrangements of the community differ from those adverted to in the last two examples. The substance of the common property is in this case neither divided in practice nor considered in theory as divisible, but the entire land is cultivated by the combined labour of all the villagers, and the produce is annually distributed among the households, sometimes according to their supposed wants, sometimes according to rules which give to particular persons a fixed share of the usufruct. All these practices are traced by the jurists of the East of Europe to a principle which is a.s.serted to be found in the earliest Sclavonian laws, the principle that the property of families cannot be divided for a perpetuity.

The great interest of these phenomena in an inquiry like the present arises from the light they throw on the development of distinct proprietary rights _inside_ the groups by which property seems to have been originally held. We have the strongest reason for thinking that property once belonged not to individuals nor even to isolated families, but to larger societies composed on the patriarchal model; but the mode of transition from ancient to modern ownerships, obscure at best, would have been infinitely obscurer if several distinguishable forms of Village Communities had not been discovered and examined. It is worth while to attend to the varieties of internal arrangement within the patriarchal groups which are, or were till recently, observable among races of Indo-European blood. The chiefs of the ruder Highland clans used, it is said, to dole out food to the heads of the households under their jurisdiction at the very shortest intervals, and sometimes day by day. A periodical distribution is also made to the Sclavonian villagers of the Austrian and Turkish provinces by the elders of their body, but then it is a distribution once for all of the total produce of the year. In the Russian villages, however, the substance of the property ceases to be looked upon as indivisible, and separate proprietary claims are allowed freely to grow up, but then the progress of separation is peremptorily arrested after it has continued a certain time. In India, not only is there no indivisibility of the common fund, but separate proprietorship in parts of it may be indefinitely prolonged and may branch out into any number of derivative ownerships, the _de facto_ part.i.tion of the stock being, however, checked by inveterate usage, and by the rule against the admission of strangers without the consent of the brotherhood. It is not of course intended to insist that these different forms of the Village Community represent distinct stages in a process of trans.m.u.tation which has been everywhere accomplished in the same manner. But, though the evidence does not warrant our going so far as this, it renders less presumptuous the conjecture that private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community. Our studies in the Law of Persons seemed to show us the Family expanding into the Agnatic group of kinsmen, then the Agnatic group dissolving into separate households; lastly the household supplanted by the individual; and it is now suggested that each step in the change corresponds to an a.n.a.logous alteration in the nature of Ownership. If there be any truth in the suggestion, it is to be observed that it materially affects the problem which theorists on the origin of Property have generally proposed to themselves. The question--perhaps an insoluble one--which they have mostly agitated is, what were the motives which first induced men to respect each other's possessions? It may still be put, without much hope of finding an answer to it, in the form of any inquiry into the reasons which led one composite group to keep aloof from the domain of another. But, if it be true that far the most important pa.s.sage in the history of Private Property is its gradual elimination from the co-ownership of kinsmen, then the great point of inquiry is identical with that which lies on the threshold of all historical law--what were the motives which originally prompted men to hold together in the family union? To such a question, Jurisprudence, una.s.sisted by other sciences, is not competent to give a reply. The fact can only be noted.

The undivided state of property in ancient societies is consistent with a peculiar sharpness of division, which shows itself as soon as any single share is completely separated from the patrimony of the group. This phenomenon springs, doubtless, from the circ.u.mstance that the property is supposed to become the domain of a new group, so that any dealing with it, in its divided state, is a transaction between two highly complex bodies. I have already compared Ancient Law to Modern International Law, in respect of the size and complexity of the corporate a.s.sociations, whose rights and duties it settles. As the contracts and conveyances known to ancient law are contracts and conveyances to which not single individuals, but organised companies of men, are parties, they are in the highest degree ceremonious; they require a variety of symbolical acts and words intended to impress the business on the memory of all who take part in it; and they demand the presence of an inordinate number of witnesses. From these peculiarities, and others allied to them, springs the universally unmalleable character of the ancient forms of property. Sometimes the patrimony of the family is absolutely inalienable, as was the case with the Sclavonians, and still oftener, though alienations may not be entirely illegitimate, they are virtually impracticable, as among most of the Germanic tribes, from the necessity of having the consent of a large number of persons to the transfer. Where these impediments do not exist, or can be surmounted, the act of conveyance itself is generally burdened with a perfect load of ceremony, in which not one iota can be safely neglected. Ancient law uniformly refuses to dispense with a single gesture, however grotesque; with a single syllable, however its meaning may have been forgotten; with a single witness, however superfluous may be his testimony. The entire solemnities must be scrupulously completed by persons legally ent.i.tled to take part in them, or else the conveyance is null, and the seller is re-established in the rights of which he had vainly attempted to divest himself.

These various obstacles to the free circulation of the objects of use and enjoyment, begin of course to make themselves felt as soon as society has acquired even a slight degree of activity, and the expedients by which advancing communities endeavour to overcome them form the staple of the history of Property. Of such expedients there is one which takes precedence of the rest from its antiquity and universality. The idea seems to have spontaneously suggested itself to a great number of early societies, to cla.s.sify property into kinds.

One kind or sort of property is placed on a lower footing of dignity than the others, but at the same time is relieved from the fetters which antiquity has imposed on them. Subsequently, the superior convenience of the rules governing the transfer and descent of the lower order of property becomes generally recognised, and by a gradual course of innovation the plasticity of the less dignified cla.s.s of valuable objects is communicated to the cla.s.ses which stand conventionally higher. The history of Roman Property Law is the history of the a.s.similation of Res Mancipi to Res Nec Mancipi. The history of Property on the European Continent is the history of the subversion of the feudalised law of land by the Romanised law of moveables; and, though the history of ownership in England is not nearly completed, it is visibly the law of personalty which threatens to absorb and annihilate the law of realty.

The only _natural_ cla.s.sification of the objects of enjoyment, the only cla.s.sification which corresponds with an essential difference in the subject-matter, is that which divides them into Moveables and Immoveables. Familiar as is this cla.s.sification to jurisprudence, it was very slowly developed by Roman law, from which we inherit it, and was only finally adopted by it in its latest stage. The cla.s.sifications of Ancient Law have sometimes a superficial resemblance to this. They occasionally divide property into categories, and place immoveables in one of them; but then it is found that they either cla.s.s along with immoveables a number of objects which have no sort of relation with them, or else divorce them from various rights to which they have a close affinity. Thus, the Res Mancipi of Roman Law included not only land, but slaves, horses, and oxen. Scottish law ranks with land a certain cla.s.s of securities, and Hindoo law a.s.sociates it with slaves. English law, on the other hand, parts leases of land for years from other interests in the soil, and joins them to personalty under the name of chattels real. Moreover, the cla.s.sifications of Ancient Law are cla.s.sifications implying superiority and inferiority; while the distinction between moveables and immoveables, so long at least as it was confined to Roman jurisprudence, carried with it no suggestion whatever of a difference in dignity. The Res Mancipi, however, did certainly at first enjoy a precedence over the Res Nec Mancipi, as did heritable property in Scotland and realty in England, over the personalty to which they were opposed. The lawyers of all systems have spared no pains in striving to refer these cla.s.sifications to some intelligible principle; but the reasons of the severance must ever be vainly sought for in the philosophy of law: they belong not to its philosophy, but to its history. The explanation which appears to cover the greatest number of instances is, that the objects of enjoyment honoured above the rest were the forms of property known first and earliest to each particular community, and dignified therefore emphatically with the designation of _Property_. On the other hand, the articles not enumerated among the favoured objects seem to have been placed on a lower standing, because the knowledge of their value was posterior to the epoch at which the catalogue of superior property was settled. They were at first unknown, rare, limited in their uses, or else regarded as mere appendages to the privileged objects. Thus, though the Roman Res Mancipi included a number of moveable articles of great value, still the most costly jewels were never allowed to take rank as Res Mancipi, because they were unknown to the early Romans. In the same way chattels real in England are said to have been degraded to the footing of personalty, from the infrequency and valuelessness of such estates under the feudal land-law. But the grand point of interest is, the continued degradation of these commodities when their importance had increased and their number had multiplied. Why were they not successively included among the favoured objects of enjoyment? One reason is found in the stubbornness with which Ancient Law adheres to its cla.s.sifications. It is a characteristic both of uneducated minds and of early societies, that they are little able to conceive a general rule apart from the particular applications of it with which they are practically familiar. They cannot dissociate a general term or maxim from the special examples which meet them in daily experience; and in this way the designation covering the best-known forms of property is denied to articles which exactly resemble them in being objects of enjoyment and subjects of right. But to these influences, which exert peculiar force in a subject-matter so stable as that of law, are afterwards added others more consistent with progress in enlightenment and in the conceptions of general expediency. Courts and lawyers become at last alive to the inconvenience of the embarra.s.sing formalities required for the transfer, recovery, or devolution of the favoured commodities, and grow unwilling to fetter the newer descriptions of property with the technical trammels which characterised the infancy of law. Hence arises a disposition to keep these last on a lower grade in the arrangements of Jurisprudence, and to permit their transfer by simpler processes than those which, in archaic conveyances, serve as stumbling-blocks to good faith and stepping-stones to fraud. We are perhaps in some danger of underrating the inconveniences of the ancient modes of transfer. Our instruments of conveyance are written, so that their language, well pondered by the professional draftsman, is rarely defective in accuracy. But an ancient conveyance was not written, but _acted_. Gestures and words took the place of written technical phraseology, and any formula misp.r.o.nounced, or symbolical act omitted, would have vitiated the proceeding as fatally as a material mistake in stating the uses or setting out the remainders would, two hundred years ago, have vitiated an English deed. Indeed, the mischiefs of the archaic ceremonial are even thus only half stated. So long as elaborate conveyances, written or acted, are required for the alienation of _land_ alone, the chances of mistake are not considerable in the transfer of a description of property which is seldom got rid of with much precipitation. But the higher cla.s.s of property in the ancient world comprised not only land but several of the commonest and several of the most valuable moveables.

When once the wheels of society had begun to move quickly, there