LAND. 



365 



to the harvest. The idea of common property gra- 

 dually died away, especially when private property 

 grew up in particular cases, or in neighbouring tribes, 

 along with tiie annual division ; and the head of the 

 tribe, instead of remaining the manager of the com- 

 mon property, became its exclusive possessor. This 

 has been the state of things in most of the countries 

 iii the south of Asia; and we find traces of it till a 

 very late period, even in Europe, in which a patri- 

 archal government, but slightly modified by the 

 general constitution of the country, has obtained, till 

 modern times, in the Scottish Highlands. Every tribe 

 there viewed itself as a family, and the eldest member, 

 or laird, as the master. The territory of the clan 

 was his ; what was not retained for his own use, or 

 the public, he divided in large portions among his 

 nearer relations (tacksmen), who either cultivated it 

 themselves, or distributed it in smaller portions 

 among the people. But the grant to the tacksmen 

 was only transient: when the family increased in 

 numbers, tiiey were forced to give place to the nearer 

 relations of the laird. (See Highlands.) The condi- 

 tion of common property in the soil is very different, 

 when the family union gives place to a regular 

 community ; and this is a general consequence, 

 wherever a part of the race seek new habitations on 

 account of their increasing numbers, and where, to 

 overcome the opposition of the primitive settlers, 

 collections of emigrants from several families enter 

 into a political union. In the constitution of com- 

 munities, the property of the whole belongs to the 

 associates collectively (and commonly a portion to 

 the divinities of the country and the head of the 

 society) ; and on account of the military constitution 

 of most early communities, which are constantly in a 

 state of defence or of aggression, they are obliged to 

 take measures that there shall always be a competent 

 number of able-bodied warriors, and also that no one 

 shall be suffered to accumulate too much by purchase 

 or inheritance. Hence a number of lots are laid 

 out, each sufficient to support a family of freemen, 

 and laws are enacted to restrain the further division, 

 as well as the amalgamation of the divisions pre- 

 viously made. This was the case particularly in 

 Sparta, but the plan failed. In Rome, before the 

 laws of the twelve tables, there was a similar institu- 

 tion, and the consequence was, that the lot of a 

 Roman, or his family property, could not be taken 

 from him, or sold by him to another. As Rome 

 retained many relics of the patriarchal government, 

 and these had an important influence upon all their 

 civil institutions, it was impossible for the relations 

 of landed property to be free from it. The community 

 in general had a large landed property, which was 

 daily increased by successful wars (the conquered 

 being usually deprived of a part of their territory); 

 but the ruling patrician families were the only real 

 gainers by the addition. The soil was divided among 

 them ; and, in fact, it would have been of little use 

 to that class of citizens who subsisted on the income 

 of their original lot, because men were wanting for 

 the purposes of agriculture. This want of labourers 

 is shown by the fact, that the patricians forced a vast 

 number of their plebeian debtors to labour for them; 

 and these debtors were numerous ; for the constant 

 wars that harassed the Roman government reduced 

 multitudes to the necessity of borrowing. Hence it 

 was much for the advantage of this class of people 

 that, in the twelve tables, in the famous passage 

 which gave occasion for dispute even in the time of 

 the Antonines, and which has been understood as 

 referring to the division of the debtor's body, pro- 

 vision was made, in all probability, for the divisibility 

 and alienability of the landed property of the citizens. 

 At the same time, it is manifest, that the desire of 



the plebeians to establish a new and more just 

 division of land (by the agrarian Jaws), was founded 

 on the principles of right. But after this important 

 step was once taken, a more and more perfect free- 

 dom and divisibility of landed property found place 

 in the Roman law, which forms a characteristic 

 trait of their legislation. In the German states, 

 the dissolution of the ancient family unions by the 

 institution of societies, was the fundamental principle 

 which manifested itself first in the relation of leaders 

 and their personal retainers. In the new states 

 established by successive conquests, extremely com- 

 plicated relations grew up ; as the ancient inhabitants 

 were sometimes deprived of all their landed property, 

 as in England, for example, and sometimes surren- 

 dered only a part of it, as in Italy and the south of 

 France ; and this division also took place with many 

 diversities of form. In regard to the share in the 

 land which belonged to the conqueror, we find again 

 a general division : a certain portion of the whole 

 fell to the chief, who had to apply it to the support 

 of his immediate attendants ; another portion was 

 assigned to the attendants themselves, and, after 

 certain subdivisions and tithings, it was given up to 

 the community as common property. This common 

 property was enjoyed, not unrestrictedly, but on 

 condition of appearing to do military service. In a 

 few instances, it long retained its character of common 

 property. It was sometimes divided among the 

 people by the head of the community for cultivation; 

 and here and there was bestowed on individuals, on 

 condition of military service. This peculiarity is the 

 foundation of the indivisibility of land, which occurs 

 in some constitutions, and the exclusion of females 

 from the right of inheritance (in the terra Salica of 

 the Franks.) To this community of property, or 

 allodial possessions (in Saxon, folkland, or reeveland), 

 are opposed the infeoffments of princes, which were 

 often the means employed by them to collect from 

 the mass of the people, whether conquerors or con- 

 quered, a new retinue of more faithful personal 

 attendants (Latin, Jideles ; Spanish, hidalgos), to 

 whom they gave these lands in pay, instead of money. 

 Hence arose the thaneland, and the more extensive 

 grants by written contract, the lookland of the 

 Saxons, thefeh-od (land paid for services, instead of 

 money, from the Gothic faiha, cattle, wealth, money, 

 reward ; hence the English fee), or feudal possessions. 

 The intermixtures, substitutions, and modifications, 

 which these relations subsequently underwent, it is 

 not necessary for us to dwell upon. We need only 

 show how, in the modern states of Europe, private 

 property in the soil may be traced to common pro- 

 perty, and the clear evidence which it bears of such 

 an origin, in order to prove that it depends upon a 

 grant on the part of the community, and that hence 

 the owners of landed property have no right in the 

 soil, but what is permitted by the state. What they 

 receive from the state is not an acknowledgment and 

 confirmation of a right, which they before possessed 

 independently of such acknowledgment, but the right 

 itself. It is no arbitrary right, but it stands in close 

 connexion with certain duties, and its existence and 

 continuance are subject to the state legislation. The 

 owners of landed property do not constitute the 

 people, but only a single class, bound, like the rest, 

 to devote their all to the promotion of the public 

 good. 



5. History goes hand in hand with philosophy 

 thus far : while the former contradicts the supposi- 

 tion that landed property is perfectly unrestricted, to 

 be used at will, the latter rejects the idea of such a 

 grant as illegal, and even void. These philosophical 

 grounds, indeed, must not destroy any actually existing 

 rights ; but reason has no small voice in deciding 



