In Germany, Puchta in his studies on the Roman law,⁽⁵⁾ had already pointed out numerous traces of the eminent domain of the state over individual property; and Heineccius, in his treatise on Natural Law, Elementa juris Naturae et Gentium, cap. ix. § 237, even enumerated populations living in common. Mommsen says, that, in primitive Italy, village communities owned collectively the territory in which they were settled.

"Since the arable land among the Romans was long cultivated upon the system of joint possession, and was not distributed until a comparatively late age, the idea of property was primarily associated not with immoveable estate, but with `estate in slaves and cattle' (familia pecuniaque⁽⁶⁾)." "The mancipatio, originally the universal form of purchase, dates from the time, when there was no property in land, for it is primarily applicable only to objects, which are acquired by grasping with the hand." "In the earliest times the arable land was cultivated in common, probably by the several clans; each of these tilled its own land, and thereafter distributed the produce among the several households belonging to it. There exists, in fact, an intimate connection between the system of common tillage and the clan form of society, and even subsequently in Rome, joint residence and joint husbandry were, in the case of co-proprietors of very frequent occurrence. Even the traditions of Roman law furnish the information that wealth consisted at first in cattle and the usufruct of the soil, and that it was not till later that land came to be distributed among the burgesses as their own special property.⁽⁷⁾ More reliable evidence that such was the case is afforded by the designation of wealth as "cattle-estate," or "slave and cattle-estate" (pecunia, familia pecuniaque), and of the special possessions of the children of the household, and of slaves as "lesser cattle" (peculium); also by the earliest form of acquiring property, the laying hold of it with the hand (mancipatio), which was only appropriate to the case of moveable articles; and above all by the oldest measure of land, the "lordship" (heredium, from herus, lord), consisting of two jugera (about an acre and a quarter), which can only have applied to garden-ground, and not to the hide. When and how the distribution of the arable land took place, can no longer be ascertained. This much only is certain, that the oldest form of the constitution was based not on freehold- tenure, but on clanship as a substitute for it, while the Servian constitution, again, presupposes the distribution of land."⁽⁸⁾

The heredium was somewhat larger than the private enclosure of the Germans, but two jugera not being sufficient to support a family, it was obliged to receive a portion of the common property of the tribe or state. This common property was the original ager publicus, enlarged from time to time by the conquests of the kings and the republic, and at a very early period usurped by the most powerful. We can understand how this usurpation gave rise to centuries of strife, which lasted to the time of the empire, between the patricians and plebeians. For the latter it was a question of existence. A group of families, forming the clan, inhabited a village, the vicus or pagus. The union of the clans formed the nation (populus) or State (civitas); the central point of the State was a fortified place or citadel (arx), nearly always situated on a height. Ancient citadels of Etruscan cities, built of Cyclopean blocks, are still standing.

At the time when Roman history begins, the proprietorship of the commune had already given way to the joint proprietorship of the family (gens). This is the second phase in the development of property. We may see further evidence of the primitive collectivity of the soil, in the fact, that cattle served so long, both in Rome and in Greece, as the medium of exchange. In the time of Cicero, fines were still reckoned in beads of oxen and sheep, according to the ancient practice.

This is another curious feature in the manners of the primitive societies of the Aryan race. It is well known that among the nations of Graeco-Latin antiquity, the sheep and ox were the medium of exchange and the common measure of value. In Homer, the value of things, of arms particularly, is estimated in heads of cattle. The etymology of the word pecunia, which signifies "riches", "money", and is obviously derived from pecus, leaves no doubt on the point. The first metallic coins bore the impress of an ox or sheep, of which they were a kind of representative symbol, just as the bank note now is of the coin currency. In northern languages we find similar etymologies and synonyms. The word fâ, fe, in Icelandic and Norwegian, denoted riches; in English the word denotes the reward of a service, honorarium. These words obviously come from vee, vieh, cattle. Cattle was, in fact, pre-eminently wealth, and afforded the best means of exchange. The Germans, who had settled near the frontiers of the empire, were acquainted with the use of money; those in the interior, Tacitus tells us, had recourse to barter for the exchange of their wares. Strabo says the same of the Dalmatians: "The use of money is unknown to them, which is peculiar to them alone of the nations in these parts; although they resemble many barbarous nations in this respect."⁽⁹⁾ These barbarians, however, had a medium of exchange; but, as it was not metallic coin, historians assert that they were not acquainted with money. The tribute which the Frankish conquerors demanded of the vanquished Frisons and Saxons, consisted of a certain number of oxen. It is beyond dispute that cattle did serve as a medium of exchange; we even know that the respective values were six sheep for one ox at Rome, and twelve sheep for an ox in Iceland, and probably in Germany as well. The fact, however, always seemed strange. Still it may be easily explained, when we remember the agrarian organization of village communities; but except in this way it cannot be explained. The essential quality of the instrument of exchange, is that it should be useful to all, accepted by all, and should, consequently, circulate from hand to hand without impediment. It is for this reason that furs have served as money in Siberia, codfish in Newfoundland, blocks of salt or strips of blue cotton in Africa, tobacco in America during the war of independence, and postage stamps often among ourselves at the present day. In primitive communities, every family owns and consumes cattle: it is, therefore, in a position to pay it away and satisfied to receive it. As it may make use of the common pasturage, it will be in no way incommoded, if sundry sheep or oxen are given by way of payment, it will send them on the waste with the rest of its herd. By the agency of the herdsman, whose duty it is to drive to the pasturage the common herd of all the inhabitants of the mark, payments in sheep or oxen can be effected by the banking operation known as "virement de parties," which the London clearing houses have brought to perfection. If A owes B £1,000, and they have the same banker, payment is effected by mere entrance in a book: the £1,000 are taken from A's credit, and carried to that of B. In the primitive community payment could be effected in the same way. If one man owed another ten oxen for a sword, he informed the herdsman, who took them from the debtor's herd and added them to the creditor's. The use of cattle as a medium of exchange, which seems general among Aryan nations, shews that before their dispersion they lived under the pastoral system; and economic history thus comes to corroborate the results at which comparative philology had already arrived.

At the time when the Greeks and Romans make their first appearance in history, they have reached a more advanced and more modern stage of civilization than that of the Germans in Tacitus. They have long since abandoned the pastoral system; they cultivate corn and the vine, and live less on flesh: agriculture furnishes the chief part of their subsistence. There are still, however, very clear traces remaining of the primitive system of community. Thus cattle could not have been used as a medium of exchange, if the greater portion of the land had not been common pasturage, on to which every one was entitled to send his herds. The two customs are so closely connected, that we cannot conceive of one without the other. Given separate and limited property in land, and I can no longer accept oxen in payment; for how am I to keep them? If cattle serve as the medium of exchange, we may at once conclude that a great part of the soil is collective property. This system, accordingly, must have existed in primitive Greece and Italy.

Yet another proof of the existence of community in Greece and Italy is to be found in the universal tradition of a golden age, when private property was unknown. Generally nothing is seen in it but a mere poetic fiction; but, when once the incontestable facts of the economic history of mankind make us understand the necessity of this system, we are forced to admit that the ancient poets, in this as in many other points, were depicting a state of society, the recollection of which survived in their own time. We will quote some well-known passages from the Classics, which celebrate, in almost the same terms, the happy age when the earth, the common property of all, knew nothing of the limits traced and the boundaries set up by the quiritary law.

Listen to Tibullus, I. I., Eleg. 3:

Quam bene Saturno vivebant rege priusquam

Tellus in longas est patefacta vias!

Nondum caeruleas pinus contemserat undas;

Effusum ventis praebueratque sinum;

* * * * * *

Non domus ulla fores habuit; non fixus in agria,

Qui regeret certis finibus arva, lapsa.

Ovid (Metam. 1. 135) expresses himself in similar terms

Communemque prius, ceu lumina solis et auras,

Cautus humum longo signavit limite mensor.

Virgil, Georgics I 125, says

Ante Jovem nulli subigebant arva coloni,

Ne signare quidem ant partiri limite campum

Fas erat: in medium quaerebant; ipsaque tellus

Omnia liberius, nub poscente, ferebat.

"In the time of Saturn," writes the abbreviator of Trogus Pompeius, "was neither slavery nor private property: lands were common and undivided: and all men had, as it were, the same patrimony. This was the Golden Age so dear to poesy, the age of ease and happiness, and universal concord."

We evidently have here the popular tradition of a primitive epoch, anterior to the institution of private property.

Plato, in the third book of the Laws, describes well the characteristics of this primitive period, when the pastoral system prevailed exclusively. "Originally there was abundance of pasture from which men derived their chief means of existence. They thus wanted neither flesh nor milk." This is the exact image of the Germany of Tacitus' time, and the counterpart of Caesar's phrase: carne et lacte vivunt. Plato also speaks of the equality of the primitive partition of the land, and he expresses the idea, common to all the politics of antiquity, that equality of conditions is the indispensable foundation of purity of morals, of virtue and of liberty.

We also find in ancient historians passages which shew that, even in the world known to them and contemporary with them, the system of collective property had not entirely disappeared. Diodorus of Sicily tells how the inhabitants of Cnidus and Rhodes, flying from the tyranny of the Asiatic kings, arrived in Sicily about the fiftieth Olympiad. They joined the Selinuntians, who were at war with the Egesteans. They were conquered, and quitting Sicily landed in the Lipari Isles, where they established themselves with the consent of the inhabitants. In order to resist the Tyrrhenian, or Etruscan pirates, they constructed a fleet and adopted a social organization after this manner

"They divided themselves into two separate classes: one was charged with the cultivation of the soil of the islands, which was declared common property: to the other was entrusted the work of defence. Having thus put all their property into one lump, and eating together at public repasts, the inhabitants of the islands lived in common for some years ( µ , ); but subsequently they divided the soil of Lipari, where their chief town was; as for the other islands, they continued to be cultivated in common. Finally, they divided all the islands among them, in the same way, for twenty years; at the end of this term they again divided them by lot."⁽¹⁰⁾

Thus, at the time when Diodorus of Sicily wrote, that is to say, under the first Roman Emperor, private property in land was not yet completely established among the Greeks in the small Lipari islands: at the gates of Rome they practised the periodic partitions noticed in Germany by Caesar and Tacitus. A curious point to notice is that the Suevi, according to Caesar, acted in the same way as the people of Lipari: "Those who remain at home cultivate the soil for themselves and their absent countrymen; and themselves take arms in their turn the next year, while the others remain at home; for no one possesses land in separate ownership." M. Viollet thinks it beyond doubt that the system of collective property had left deep traces in Southern Italy, even in historic times. He says:--

"Might we not assert as much of some of the first settlers in Magna Graecia? It is a pure conjecture that we shall now offer, but conjectures should not always be neglected. Let us transport ourselves for a moment to Magna Graecia, and consult the biographies of Pythagoras, handed down to us from antiquity. We know that Pythagoras gathered together a number of disciples, who practised the system of community of goods. It is not to these small assemblages of persons that we would direct attention, for surely we may accept the testimony of biographers on this point, who regard the institution as the work of the philosophers, and as in no way connected with the historic origin of Magna Graecia. But there is another fact attributed to Pythagoras, which is more general, more important, and more difficult to understand. At the bidding of this eloquent personage, says a writer, more than two thousand persons adopted the system of community and organized a political order in Magna Graecia. More than this; if we consider the expressions of the historian, we may conclude that he is speaking of the actual origin of several cities of Magna Graecia.⁽¹¹⁾ Thus, according to the text, subsequently to the foundation of Rome, one, or even several towns in the South of Italy, was founded and established on the system of joint undivided property. This is a social fact of great importance, attributed to a remote era which would have left but feeble traces in history. May we not, then, enquire whether an ancient tradition, concerning the origin of certain towns in Magna Graecia, may not have taken form in the later, half-legendary accounts of the life of Pythagoras? Under the name and protection of Pythagoras a very valuable historical tradition may thus have come down to us. A fact in confirmation of this idea, is that the passage of Nicomachus, quoted by Porphyrus, stands quite alone in the biographies of Pythagoras; everywhere else the disciples merely of the philosopher are mentioned, that is to say, an inconsiderable body of men, amounting at most to some six hundred persons. In an entirely different source we find a point, which is probably connected with what we are speaking of. It is with regard to the inhabitants of Tarentum, where the citizens seem to have retained something of the ancient community of the soil until the time of Aristotle. `At Tarentum the common use of the soil is allowed to the poor; and by this means the allegiance of the mob is secured,' we read in the Politics.⁽¹²⁾ Thus the town of Tarentum practised, for the benefit of the poor, a custom which recalls the periodic partition of land in the Lipari Isles. The custom is much better explained by history than by philanthropy; and we probably see in it a relic of remote antiquity."

Aristotle seems to have been acquainted with the two primitive forms of community; that where the produce is gathered in common, and that in which the land is divided among the members. Thus, he says, "the fields would be separate property, while the harvest would be the common property of all. This custom is in force among some nations. Or else the soil might be common property, while the harvests were divided among all in several ownership. This kind of community is found among several barbarian nations."⁽¹³⁾ Aristotle does not indicate very clearly the characteristics of the two systems which he is describing: but the first seems to belong to certain Greek cities, where the produce of individual lands was consumed in common at public repasts, while the second would be that of periodic partition of the common soil, such as we find it descnbed in several ancient writers.

Diodorus of Sicily says that the Vacaeans, a Celt-Iberian tribe, "annually divide the land among them for cultivation, and then, bringing the produce together, give every one his share. The penalty of death is established against any cultivator infringing these dispositions."⁽¹⁴⁾

Diodorus of Sicily⁽¹⁵⁾ further relates, that, among the islands in the Arabian Ocean, along the coast of Arabia Felix, there are several worthy of mention. One is the island of Panchaia. In Chapter 45 of Book v. he explains the political and social organization of this island. He there says, among other things, that the population is divided into three orders (µ): the priests and the artisans () form the first, the cultivators form the second, the soldiers and shepherds the third. The priests are chiefs and judges of the inhabitants. "The cultivators till the soil, and afterwards bring the produce together in common. Whichever of them is adjudged to have tilled his portion the best, receives a choice part in the distribution of the harvest; the first, the second, and so on to the number of ten, being proclaimed by the priests to serve as examples." "No one, in short, is allowed to own anything as separate property, except a dwelling-house and garden." This agrees with the agrarian system of Russia, of ancient Germany, and India.⁽¹⁶⁾

Strabo, speaking of the Dalmatians, says: "The Dalmatians have a custom, peculiar to themselves, of making a new division of lands every eight years."⁽¹⁷⁾

M. Viollet sees in the custom of common repasts, sussitia, so general among all ancient nations, a remnant of the primitive community, and his conclusion seems to be correct. In fact, even now we find common repasts and common property, as we have seen, in Switzerland. The passage in which M. Viollet expresses his opinion on this point is so important that we will give it, as it stands.

"If the produce of the earth is consumed in common, it is because originally the soil was not regarded as the domain of an individual, but as the foster-mother of all mankind. `They bring all their possessions into a single lump, and eat together in public repasts,' writes Diodorus of Sicily when speaking of the inhabitants of the little Lipari Isles. In my opinion, these valuable lines reveal the origin of the public repasts to us. The custom springs from the community of lands; it is closely connected with it as effect with cause, and it even enables us to go further back still, beyond the establishment of the earliest fixed communities, to the wandering life of patriarchal families. The practice of public repasts was general in Greece and Italy. According to Aristotle, the Oenotrians, at the time when they abandoned the nomadic life for agriculture, received from their king Italus the institution of common repasts. The philosopher would have been more correct, had he told us that the Oenotrians, on becoming settled, preserved, instead of adopted, the institution of common repasts. For it is, in all probability, a relic of the nomadic life. The Opici, living on the Tyrrhenian coast, also ate at a common table; and, in the time of Aristotle (some four hundred years, that is to say, after the foundation of Rome), the Chonisna on the coast of Iapygia, and the inhabitants of some districts of Bruttium and Lucania, remained faithful to the old tradition.⁽¹⁸⁾ And every one knows how long this practice was maintained in the island of Crete.⁽¹⁹⁾

"Among the Spartans the ancient public repasts left a double trace, alike on their laws and their manners. On the one hand, the legislator took hold of the old custom; he sanctioned and perpetuated it by formal commands, obliging all the citizens, including the kings themselves, to sit down at the same table; and on the other hand, the people retained a religious remembrance of these primitive customs; and, side by side with the Sussitia, or legal repasts, they had other meetings, entirely spontaneous, which preserved the old tradition in even greater purity. This popular repast of the Spartans, which is far less known than the official banquet, was called Copis. Athenaeus has preserved the description given by Polemon, a writer of the second century before our era:--

"When the Spartans celebrate the , they begin by setting up tents near to a certain temple; they then make beds of grass, on which they stretch carpets, and there hold the banquet, all lying down. They entertain not only people of our country, but also travellers who are staying there. In these copis banquets they sacrifice kids, and no other animal. They give every one a portion of the meat, and also what is called the physicillon, that is, a small piece of bread like an encridon, but more spherical in form. They also give to every one present a fresh cheese, a slice of the paunch and fat intestine of the victim, and dessert of dried figs and beans. Every Spartan may give a copis when he pleases; but in the town they are ouly given at the feast called Tithenidia, celebrated for the preservation of infants. At this time the nurses bring the male children into the country to present them at the temple of Diana Coruthallis, situated near the river Tiassa, by the side of the grace Cleta. There they celebrate the copis, as we have just described it. They sacrifice on this occasion sucking pigs; and ipnetes, or balked bread, is served at the banquet."⁽²⁰⁾

"Everything here is primitive; and we see the common repast in its ancient simplicity.

"In other countries also this tradition can long be recognized, though subject to much alteration. At Athens for instance, and in several Greek cities, the magistrates, and those who are distinguished for especial services, take their meals in the common hall, or Prytaneum:⁽²¹⁾ and when a young man is newly admitted into the tribe, all the members partake of the sacred food with him.⁽²²⁾ At Rome, too, every curia had its banqueting-ball, aud all the curiae have a common hall, very like the Prytanea of the Greeks, says Dionysius of Halicarnassus.⁽²³⁾ May we not naturally refer all these recollections to the primitive custom of common repasts? Aristotle, struck with the great antiquity of the custom in Italy, concludes that it originated in this country, and thence passed to Greece.⁽²⁴⁾ Dionysius of Hallcarnassus, on the other hand, after mentioning the public repasts of the Roman curiae, recalls the Lacedaemonians, and concludes that Romulus borrowed them from the legislation of Lycurgus. Not so, however: Romulus borrowed nothing from Lycurgus, as Dionysins supposes, nor did Greece copy Italy, as Aristotle would affirm. Alike in Greece and Italy, the custom of common repasts was established quite naturally,or rather was maintained. In both countries it remained, as a lingering evidence of the old nomadsc life,⁽²⁵⁾ and the primitive community of the soil: in both countries religion and custom preserved the memento."

Aristotle eulogizes the common repasts as a means of maintaining equality:"In Sparta and all Greece the legislator had the wisdom to base the community on the custom of public repasts." (Lib. II c. 2.) "The common repasts of the Carthaginian Hetairies resemble the Lacedaemonian phidities." (Lib. II. c. 8.) "The establishment of these common repasts is generally regarded as applicable to every well constituted state. I am of this opinion myself, but it is necessary that every citizen, without exception, should take part in them. The expenses of divine worship are still a common burden of the state. The land, therefore, should be divided into two portions: the one for the public, the other for private individuals. The first portion will then be subdivided to meet the expenses of religion and of the common repasts." (Lib. IX. c. 9.) "The establishment of common repasts is quite as ancient: in Greece it goes back to the reign of Minos, and in Italy it can be traced to a still more remote period." (Lib. iv. c. 9.)

Not only is the primitive community preserved to us in traditions concerning the golden age and in certain radically communistic institutions, such as that of the common repasts; but it has also left its impress on the constitution, the laws, the manners and the ideas of antiquity. In Greece the individual is always sacrificed to the State, and political writers, like Aristotle and Plato, have continually in view the maintenance of equality of conditions, by imposing certain limits on individual activity, and especially on the accumulation of landed property in the hands of a certain number of persons. Great legislators, such as Lycurgus and Minos, are said to have based the constitutions attributed to them on a new division of property. The idea of regulating the distribution of wealth, so as to check excessive inequality, recurs at every moment in the writings of the ancients, and it is from them that Montesquieu and Rousseau have derived it. As M. Viollet correctly remarks, the origin of individual property is nearly always referred to an original division, effected on the footing of equality, which makes us suppose, that before this distribution the soil was collective property, or that it was at least thought to be so by those who related these facts. M. Viollet quotes a great number of these distributions noticed by ancient authors.

"The tradition of this distribution is common among the Greeks: we meet it among the inhabitants of the Cyclades,⁽²⁶⁾ of Tenedos, Lesbos and the neighbouring islands.⁽²⁷⁾ It also exists in Sardinia;⁽²⁸⁾ and it is to be found in the Peloponnese when overrun by the Dorians."

We may here remark that minute discussions have been raised with regard to the division of the soil by the Dorians:⁽²⁹⁾

it seems that we can separate history and legend on this point with considerable certainty. There was a nearly equal division of lands ( ) at the time of the Dorian invasion. This is the history of the matter, and we have evidence of the facts in Plato's Laws.

But this distribution of lands has been attributed to Lycurgus, which is the legendary part of the account. Lycurgus, a semi-traditional personage, would thus have absorbed an anterior fact. This supposition is corroborated by the existence of a tradition, in other respects erroneous, which makes Lycurgus contemporary with the Heracleidae, and by a critical conjecture of Timaeus, who is compelled to assume the existence of two Lycurgi.

To return to M. Viollet:

"Aristotle mentions several countries, Loon in Magna Graecia,⁽³⁰⁾ Thebes,⁽³¹⁾ Leucadia,⁽³²⁾ in which the original number of properties were carefully maintained. This idea hardly admits of any explanation, but that of a primitive division: an explanation all the more probable, inasmuch as it can be verified with certainty, for a town that we have not yet mentioned,Thurium. Here we have two distinct evidences: one, that of Aristotle,⁽³³⁾ who mentions the usurpation of the lands by a small number of patricians in spite of the law forbidding such acquisitions; the other, that of Diodorus, who relates the early tradition of such a distribution.⁽³⁴⁾ This primitive tradition evidently explains the legislation to which Aristotle alludes. In Sparta, the tradition which we find presents a remarkable feature. Here there is not a mere division, hut a division into equal shares, or at least, a distribution which involves a certain degree of equality ( ).

"We also find this recollection of equality among the Romans. Dionysius of Halicarnassus, Varro, Festus and Pliny, all furnish us with evidence, with regard to this people, of great interest and of indisputable historic value.

"According to Dionysius of Halicarnassus, Romulus divided each of the three tribes which composed the population into ten curies, and divided the territory into thirty parts. He distributed one of these parts to each curia by lot, a portion of the territory being reserved for the expenses of religion and public domain.⁽³⁵⁾ Varro twice gives the same tradition: `Ager Roinanus primum divisus in panes tres a quo tnibus appellata Tatiensium, Ramnium, Lucerum.'⁽³⁶⁾' Bina jugera quod a Romulo primum divisa (dicebantur) viritim quae (quod) haeredem sequerentur, haeredium appellarunt.'⁽³⁷⁾

"We also find in Festus and the Elder Pliny mention of the original survey of the Roman domain: `Centuriatus ager in ducenta jugera definitus. Quia Romulus centenis civibus ducenta jugera tribuit.' (Festus)'Bina tunc jugera populo Romano satis erant, nullique majorem modum attribuit' (Pliny)."⁽³⁸⁾

M. Viollet also sees a proof of the previous existence of the community of the soil in a practice, which is very common in antiquity, and is found in early times among all modern nations, and is, in fact, derived from the joint possession of the soiL According to this custom the alienation of land to any one, who is a stranger to the village, is not allowed without the consent of the inhabitants, who have even the right of purchasing the land on tendering the price offered. First, we may notice the ancient Hindoo custom:

"At a very remote period the alienation of land in India was not valid without the consent of the inhabitants of the place, of relatives, of neighbours, of shareholders, and of heirs.⁽³⁹⁾ The texts are very precise, and leave no room for doubt on the point. We here find ourselves in presence of the village community pointed out by Nearchus, on the authority of Strabo, of which we have spoken above. The neighbours have certain rights over the land. It cannot be alienated without their authority, and their consent is necessary for the admission of a new possessor. These are the natural consequences of the old joint-ownership of the tribe. Everything in the system is simple and logical, the moment we refer it to this historical idea."

In Greece the neighbours take part in the act of sale, either as witnesses or as guarantees. Sometimes, as at Thunium, they received a small coin, Theophrastus tells us, which seemed to be the price of their assent, or the acknowledgment of certain rights of joint-ownership. According to the German civilian Puchta,⁽⁴⁰⁾ the ancient mode of acquisition by a fictitious vindicatio before a magistrate, called in jure cessio, can only be explained by the State's right of eminent domain over all moveable and immoveable property.

The retrait, or right of claiming land, in case of sale to a stranger, recognized in the inhabitants of the village, is found everywhere. It exists in most Mussulman countries, in Algeria, in India,⁽⁴¹⁾ and Java. The retrait by the townsmen was still in force in Illynia and Italy under the emperors; for a constitution of the year 391, concerning these provinces, abolished the custorn. We have seen that it exists in Russia. It is also to be found among the Southern Slays, and in primitive times was common among the German tribes.

In Switzerland it still exists for the Allmends. In France, this primitive custom survived until a very recent period. In the district of Angle (Saint-Omen), and at Fillièvre (Hesdin),⁽⁴²⁾ the inhabitants had the right of retrait against every stranger purchasing lands in its territory. Traces of it are also to be found in the Libri feudorum.⁽⁴³⁾ We may, therefore, assert that the right of retrait formerly existed everywhere as a remnant of the previous collective property.

When the right of alienating land was introduced among the Germans, the transfer of property continued to be a public act, which could only be effected in the assembly of the inhabitants of the district. According to title LIX. of the law of the Ripuarian Franks, sales had to be performed in the Mallum. Gifts, also, were authenticated in this assembly.

In England, during the Saxon period, the transfer of landed property was effected in the general assembly, after public proclamation.⁽⁴⁴⁾

In the provinces of the Low Countries, in the middle ages, sale of land preserves the character of a public transaction. It was carried out in the presence of the sheriff of the commune, and an official report was kept in the Hôtel-de-Ville.⁽⁴⁵⁾

I regard the fact that immoveables, even when they have become individual property, are originally in every case incapable of being sold or devised, as an additional proof of the primitive community of the soil. M. Fustel de Coulanges, from whom we borrow further on the passage in proof of this fact, attributes it to the influence of primitive religion. This explanation is insufficient, as there was no sale or devise of lands in Germany, nor is there at the present time in Russia, or the Swiss Allmands. For a fact of such universality we must seek an equally general rule. Its origin seems to have been this. Originally the right of possessing a portion of the soil is a natural right, inherent in a man's person. The land is divided among all, according to an unalterable custom, which no one can modify at pleasure. The individual attains to possession of the soil, not by virtue of a contract of sale or testamentary devise, but by reason of his character as a member of the human race, and his inalienable right of living by labour applied to the soil, the common foster-mother of his kind. An agrarian organization, founded on such a conception of property, obviously allows of no alienation of immoveables, whether by sale or testament. It is not human caprice, but a principle of public order, which controls property.

We will now borrow from M. Fustel de Coulanges some proofs of the original inalienability of the soil:

"Plato, in his treatise on the Laws, did not claim to be advancing a new rule when he forbade the proprietor to sell his land; he was only reviving an old law. Everything leads us to suppose that in ancient times property was inalienable. It is well known that in Sparta a citizen was formally forbidden to sell his lot of land.⁽⁴⁶⁾ The same prohibition was included in Locrian and Leucadian laws.⁽⁴⁷⁾ Phido of Corinth, a legislator of the ninth century, ordained that the number of families and of properties should remain fixed.⁽⁴⁸⁾ This ordinance could not be observed unless the sale and even the division of lands had been prohibited. The law of Solon, later by seven or eight generations than that of Phido of Corinth, no longer forbade the sale of property, hut it subjected the seller to a severe penalty, the loss of all the rights of citizenship.⁽⁴⁹⁾ Finally, Aristotle informs us in general terms, that, in many towns, the early legislation prohibited the sale of lands. Our knowledge of the Roman law only begins from the XII Tables; at this period it is clear that the sale of property was permitted. But there is reason to suppose, that in the early times of Rome, and in Italy before the existence of Rome, the soil was inalienable, just as in Greece."

In ancient India the sale of immoveables was unknown,⁽⁵⁰⁾ and is still rare in the districts not yet "anglicized." The same was the case in ancient Germany. The sale of land does not appear till the barbarians were acquainted with the principles of the Roman Law. The first law of the Visigoths, published by Blume,⁽⁵¹⁾ does not mention land among the things that may be sold; and the revised text, promulgated later, adds the word "lands." Sive mancipict seu quodlibet animalium genus venditur, said the original text: sive terrae, adds the more recent one. Several German laws seem to concede the power of selling land as a new right.⁽⁵²⁾ Others even put considerable restraint upon the right. If the necessity of the sale is not proved, immoveables cannot be alienated. Thus in the law of the Saxons: "Liber homo qui sub tutela nobilis cujuslibet erat, qui jam in exilium missus est, si haereditatem suam necessitate coactus vendere voluerit, offerat earn primo proximo suo,..."⁽⁵³⁾

And in Scotland (Leges Burgorum, cap. cxxxvm.), "Et testabuntur quod vendens vendidit illam terrain ratione pauperpatis, et illa paupertas fuit probata, ante venditionem, per duodecim legatos et fideles homines."⁽⁵⁴⁾

By the customary law of the island of Gothiand (cap. XXXVIII. § 1), "Landeigenthum mag niemand verkaufen ohne Noth. Treibt ihn die Noth dazu, so soil er zusagen seinen naechsten Verwandten im Beiseyn seiner Kirchspielgenossen und den librigen Familienglieder, und diese sollen untersuchen, welche Noth ihn dazu treibt ."⁽⁵⁵⁾

And in the custom of Ribnitz (Mecklenbung-Gustrow), "Wird alihie einem jeden, der dazu qualificirt, und deme es urn Rechten nicht sonderlich verbothen, seine Güther in Kothfaellen zu vermussern, zu verpfaenden, oder zu verkauffen enstattet, yedoch ober also das..."⁽⁵⁶⁾

Primitive law is as intolerant of testamentary devise as it is of sale, because the transmission of land is a matter of public interest, the regulation of which must not be left to the decision of individual caprice.

In the earliest period, as in Germany formerly, or in Russia at the present day, the soil belongs to the tribe, and is periodically re-distributed among the families, according to fixed traditional rules. In the second period the soil belongs to the patriarchal family, such as we see it in France in the middle ages or among the Southern Slays in our own day. In neither of these two systems is the individual allowed, during his span of life, to interfere with the natural order of the hereditary transmission of the soil.

In an agrarian organization so conceived the notion of a testament cannot even arise. Plato again accurately understands the reason why the testament could not be admitted in the system where property belongs to the patriarchal family.

"Ye Gods, says the man on the point of death, is it not hard that I may not dispose of my property as I desire, and in favour of whom I please, leaving more to one, less to another, according to my regard for them?" But the legislator replies, "Thou canst not promise thyself more than a single day; thou art but a sojourner here below; and is it for thee to control such matters? Thou art neither master of thy goods nor of thyself; thou and thy property alike belong to thy family to thy ancestors and thy descendants."⁽⁵⁷⁾

This primitive idea seems far superior to the modern idea of the freedom of testamentary disposition. The principle governing the transmission of property forms the very basis of social order. For a certain period, at least, it is a rule which is better than any other. It is the most conformable to justice and the best guarantee of general happiness. This rule is for juridical science to discover and for the lawgiver to publish; it should not be lawful for individual desires, often dictated by caprice or folly, to infringe it.

The ancient Hindoo law did not recognise any testament; and until the arrival of the English even the idea was unknown. It was only introduced as the judges, deriving their inspiration from the English law, admitted it.⁽⁵⁸⁾ "The Athenian law, before Solon, absolutely forbade all testamentary disposition; and Solon himself only allowed it to those who left no children.⁽⁵⁹⁾ The testament was long prohibited or unknown in Sparta, and was only authorized subsequently to the Peloponnesian war. The memory has been preserved of a time when the same was the case in Corinth and Thebes. It is certain that the power of absolutely devising property was not originally recognized as a natural right." "Before the law of the XII Tables we have no legal text either forbidding or allowing testamentary disposition, but the language preserves the remembrance of a time when it was not known; for it calls the son lueres suus et necessarius."⁽⁶⁰⁾ Even after testamentary disposition was allowed, the wish of the testator had to be ratified by the sovereign authority, that is, by the people assembled in the curies, under the presidency of the pontiff. The most ancient form of testament is that comitiis calatis. In Germany the testament was unknown, nullum testamentum;⁽⁶¹⁾ and the barbarians only made use of it after the conquest, under the influence of Roman ideas and of the church, which found in it an abundant source of wealth.⁽⁶²⁾ "The best authorities," says Sir H. Maine, "agree that there is no trace of it in those parts of their written codes which comprise the customs practised by them in their original seats, and in their subsequent settlements on the edge of the Roman Empire." ⁽⁶³⁾

Originally the clan, or village, is the collective body owning the soil; later on, it is the family, which has all the characteristics of a perpetual corporation. The, father of the family is merely the administrator of the patrimony: when he dies, he is replaced by another administrator. There is no place for the testament, nor even for individual succession. We shall see presently that this is still the case among the family communities of modern Servia. Such was also the law everywhere where these communities have existed; and, probably, every nation has passed through the system.

So far from being a natural right, testamentary disposition is a novelty in the history of law. As Sir H. Maine remarks, the Romans invented it. The testament was not at first conceived of as a means of distributing wealth or effecting the division of property, but only for better regulating the interests of the family.

Customary law, and the great jurists, who have interpreted its spirit to us, are equally hostile to the testament. The fundamental maxim of the customary law on this point is, Institution d'héritier n'a point lieu. Legacies were but tolerated. The indulgence of the law, says Bourjon, allows a man at his death a sort of empire over his property; but the law is wiser than the individual. Therefore he shall not interfere with the order established by it. Human wishes should not trouble the divine order, says Domat. All customs impose more or less limitation on the right of testamentary disposition.

1. Römische Alterthümer (1856), I p. 108.

2. La Cité antique (new Edition), p. 67.

3. La Cité antique, p. 63. M. Fustel de Conlanges shews decisively that the dwelling-house and the land round it, containing the family tomb and altar, were private property; but this is also the case in Russia, Java, and the Germanic mark,everywhere, in fact, where there is community of the soil, this latter system being only applied to the arable, forest, and pasture land. The heredium, or domain transmissible by hereditary descent, prevailed to the same extent in Germany. At Rome, it is beyond dispute that private property was very limited in comparison with the common territory, or ager publicus. See Mainz, Cours de droit romain, I 119, 158.

4. The author has borrowed considerably from M. Viollet's excellent work published in the Bibliothèque de l'Ecole des Chartes. It may be well to transcribe the note at the beginning of this publication, as shewing how, working from different points of view, and independently, the author as an economist, and M. Violist as an archaeologist arrived at the same conclusions In this note, M. Viollet says

"A fortnight ago I handed to our editing committee the first two chapters of the book now offered to the public, when there appeared in the Revue des Deux-Mondes (July 1, 1872) the first part of a study by M. de Laveleye on Primitive Property. M. de Laveleye's views are identical with mine; and for a moment I hesitated whether I ought to carry out my intention of publishing.

"I decided in favour of doing so, because, although we agree in our conclusions, there in little chance of our always selecting the same proofs. This agreement, moreover, if it existed, would render the argument more striking. I will add, that the third chapter of this essay is probably quite without the outline which M. de Laveleye seems to have traced for himself."

M Viollet did collect a great many facts which had passed unnoticed, and which the author here reproduces in support of his position.

5. Cursus der Institut. (1841), I p. 129134, II p. 581.

6. Mommsen, History of Rome, Bk. I. c. xi. p. 160.

7. Cicero (de Rep. ii. 9, 14, comp. Plutarch, Q. .Rom. xv.) states: Tum (in the time of Romulus) erat res in pecore et locorum pssessionibus, ex quo pecuniosi et locupletes vocabantur.Numa primum agros, quos bello Romulus ceperat, divisit viritim civibus. In like manner Dionysius represents Romulus as dividing the land into thirty curial districts, and Numa as establishing boundary-stones, and introducing the festival of the Terminalia (i. 7, 2, 74; and thence Plutarch, Numa, 16).

8. Mommsen, History of Rome, Bk. I. c. xiii. p. 193195.

9. Strabo, I. vii. c. vi. § 7.

10. Diodorus, Bibl. histor. v. 9.

11. Porphyri Pythagorae vita, edit. Didot, Parisiis, 1850, p. 91.

12. Politics, 1. xv. c. 3.

13. Politics, 1. ii c. 3.

14. Bibl. Histor. 1. v. c. 44.

15. Bibl. Hist. v. 41.

16. Strabo and modem authors believe Panchaia to be a mere fabulous isle, and treat the subject as a fiction of Diodorus. This may be the case; but in describing the golden age, Diodorus was evidently describing the features of the agrarian system of the early ages. See Evhémère by B. de Block, p. 51.

17. Strabo, 1. vii. c. 6, § 7.

18. Aristotle, Politics, 1. VII, c. 9.

19. See especially Athenaeus, Banquet des Savants, éd. Dindorf, Vol. i. Lipsiae, 1827, pp. 822, 323.

20. Athenaeus, Vol I. pp. 314, 315, 1. iv. § 16.

21. Athenaeus, Vol. i. p. 402, l. v. § 2.

22. Demostli. Oratio adversus Macartatum. Parisiis, Didot, 1845, p. 565.

23. Dionysius of Halicarnassus, Roman Antiquities, 1. II, c. 23.

24. Aristotle, Politics, 1. vii. c. 9.

25. It is surprising that there is no chapter devoted to the common repasts in the work of Dorn Sciffen, Vestigia vitae Nonsadicae, tam in moribus quam legibus Romanorum conspicua

26. Diodorus. v. 84.

27. Diodorus, v. 81, 83.

28. Diodorus, v. 15.

29. See Thirlwall, History of Greece; Grote, History of Greece; Duncker, Geschichte des Alterthums.

30. Aristotle, Politics.

31. Politics, II. 9.

32. Politics, II, 4. As represented to us by Aristotle, these Greek laws as to the preservation of the original parcels seem to be connected with an aristocratic sentiment, and to have been generally intended to prevent the plebs from attaining to property, and so to magistracies and honours. Are we therefore to conclude that the lower classes were originally excluded from these distributions, or must we suppose, that, by the number of primitive parcels remaining invariable, and the population at the same time increasing, landed property became, in consequence, an aristocratic privilege, and the maintenance of the original parcels a safeguard for the higher classes? It is difficult to answer these questions with the aid of some few lines of Aristotle. We should, however, lean to the second solution.

33. Politics, v. 6. Here the prohibition against acquisition seems to be regarded as a safeguard against oligarchy, which is always apt to be created by the purchase of land. There is no doubt that, in consequence of local circumstances, acquisitions were made at Thurium for the benefit of those who already had property, while elsewhere the proletarians were purchasers. Thus the same primitive law may become, in one case, an aristocratic guarantee against democracy, and, in another, a security against the development of an aristocracy.

34. Diodorus, XII, 11.

35. Dionysius of Halicarnassus, Ant. Rosa. II, 3.

36. Varro, De Lingua Latina, v. 55.

37. Varro, De re rustica, I, 10,

38. Pliny, Natural History, xviii. 2.

39. "Land is conveyed by sin formalities, by the assent of townsmen, of kindred, of neighbours, and of heirs, and by the delivery of gold and of water." (Colebrooke, A Digest of Hindu Law, II, 161, Art. XXXIII.). Conf. Orianne, Traité original des successions d'après le droit hindou; extrait du Mitacahara de Vijnyaéswara, Paris, 1844, p. 49.Pross'onno Coomar Tagore, A succinct Commentary of the Hindoo Law prevalent in Mithila, from the original Sanscrit of Viachaspati Misra. Calcutta, 1863, p. 310.See Caract. collect. des premières propriétés imrnobilières, by Viollet, p. 30. "According to Mr George Campbell, the alienation of landed property is very rare. The village community has a right of veto, and would not allow the entry of any stranger who might he obnoxious." "The seizure and sale of land for the payment of a debt is an idea unknown to the Hindoos." Systems of Land Tenure in various Countries, p. 166.

40. Puchta, Cursus der Institut.

41. Sir William Hay Macnaghten, Principles of Hindu and Mahammedan Law, c. iv. pp. 204, 205.

42. M. Viollet borrows these facts from Bourdot de Richebourg, Vol. i. p. 306 and 347.

43. Libri feudorum, lib. v. tit. XIII XIV.

44. Gurdon, On Courts Baron, and Kelham, Domesday Book, p. 242.

45. For the towns of Amiens and Lille, see the sources quoted by M. Viollet, Ancient Customs of Amiens (first half of the thirteenth century), Art. 6 in A. Thierry, Recueil des Mon. inédits du Tiers-Etat, district of the North, Vol. 1, p. 129. Second custom previous to 1292, ibid. pp. 163, 164. Conf. a sale effected in 1170 before the commune of Amiens; a gift in 1195 of the same kind, ibid. pp. 94, 95118, 119.

46. Plutarch, Lycurgus, Agis. Aristotle, Politics, II, p. 10.

47. Aristotle, Politics, II, 4, 4.

48. Id. II, 8, 7.

49. Æschines, Contra Timarchum.

50. Mitacshara, trad. Orianne, p. 50.

51. Blume, Die westgothische Antiqua oder des Gesetzbuch Reccared des Ersten, 1847, ch. 294, p. 18, 20.

52. See Law of the Thuringians, lit. xiii.: "Libero homini liceat hareditatem suam eui voluerit tradere." Canciani, Bar. leg. antiq., v. xii. pp. 3136, and Walter, Corpus jur. Germ., v. s. p. 380.

Law of the Saxons, lit. xv., "Traditiones et venditiones omnes legitimae, stabiles permaneant," and the following with Canciani's commentary, v. iii. p. 51. Cf. Lex. Burg. t. I., and tit. LXXXIV. § 1, in Pertz, Mon. Germ. Leg., tit. xii. pp. 532568.Lex Alemannorum, in Pertz, Mon. Leges, t. iii. p. 45. (borrowed from M. Viollet).

53. Canciani, Barb, leg. ant., t. iii. p. 59.

54. Honard, Traités sur les coutumes Anglo-normandes, t. II, pp. 449, 450.

55. Schildener's translation, Guta-Lagh, Greifswald, 1818, p. 59, and compare Mirror of Saxony, l. I. art. 34:"Ohne des Richters Urlaub, mag ein Mann sein Eigen wohl vergeben mit genehm seiner Erben; nur dass en eine halbe Hufe davon behalte und ein Gehoeft, da man einen Wagen darauf umwenden mag." (Translation by Sachase, Sachsenspiegel oder Saechsisches Landrecht, Heidelberg, 1848, p. 72.)

56. Codicillus jurium civitatum megapolensium de an. 1859, in Westphalen: Monumenta inedita rerum germanicarum praecipuè cimbricarum et megapolensium, II, Lipsiae, 1739, col. 2064.

57. Plato, Laws, xi.

58. See Sir George Campbell's Essay in the Cobden Club's volume, Systems of Land-tenure in various Countries, p. 172.

59. Plutarch, Solon, 21.

60. Fustel de Coulanges, La cité antique, 3rd edit., p. 89.

61. Tacitus, Germania, xx.

62. Laboulaye, De la condition civile et politique des Femmes, p. 90.

63. Ancient Law, p. 172.