Pagina-afbeeldingen
PDF
ePub

LECT. V.

DOUBLE ORIGIN OF LANDED PROPERTY.

119

LECTURE V.

THE CHIEF AND HIS ORDER.

NOTHING seems to me to have been more clearly shown by recent researches than the necessity of keeping apart the Tribe and the Tribal Chief as distinct sources of positive institutions. The lines of descent are constantly entwined, but each of them is found to run up in the end to an independent origin. If I were to apply this assertion to political history, I should be only repeating much of what has been said by Mr. Freeman in his excellent work on 'Comparative Politics.' Confining myself to the history of private institutions, let me observe that the distinction which I have drawn should be carefully borne in mind by those who desire to penetrate to the beginnings of Property in Land. The subject has been greatly obscured by the practice, now brought home to the early writers on feudal law, of systematically passing over or misconstruing all forms of proprietary enjoyment which they could not explain on their own principles; and hitherto the truth has only been directly seen through some of the rules of

120

DOUBLE ORIGIN OF LANDED PROPERTY.

LECT. V.

tenure. It may now, however, be laid down without rashness that Property in Land, as known to communities of the Aryan race, has had a twofold origin. It has arisen partly from the disentanglement of the individual rights of the kindred or tribesmen from the collective rights of the Family or Tribe, and partly from the growth and transmutation of the sovereignty of the Tribal Chief. The phenomena attributable to the double process seem to me easily distinguishable from one another. Both the sovereignty of the Chief and the ownership of land by the Family or Tribe were in most of Western Europe passed through the crucible of feudalism; but the first reappeared in

some

well-marked characteristics of military or knightly tenures, and the last in the principal rules of non-noble holdings, and among them of Socage, the distinctive tenure of the free farmer. The status of the Chief has thus left us one bequest in the rule of Primogeniture, which, however, has long lost its most ancient form; another in the right to receive certain dues and to enforce certain monopolies; and a third in a specially absolute form of property which was once exclusively enjoyed by the Chief, and after him by the Lord, in the portion of the tribal territory which formed his own domain. On the other hand, several systems of succession after death, and among them the equal division of the land between the children, have sprung out of tribal ownership in various

LECT. V. TWO FORMS OF PROPERTY IN FRANCE.

121

stages of decay; and it has left another set of traces (not quite so widely extended), in a number of minute customary rules which govern tillage and occasionally regulate the distribution of the produce.

The fate of this double set of institutions in Engand and in France appears to me most instructive. I have frequently dwelt in this place on the erroneousness of the vulgar opinion which dates the extreme subdivision of the soil of France from the first French Revolution, and from the sale of the Church lands and of the estates of the emigrant nobility. A writer-I was going to say as commonly read as Arthur Young, but certainly as often mentioned as if he were commonly read-notices this morcellement, on the very eve of the French Revolution, and immediately after it, as the great feature which distinguished France from England. From what we see in England,' he says, ('Travels in 1787, '88, and '89,' p. 407) 'we cannot form an idea of the abundance in France of small properties, that is, little farms belonging to those who cultivate them.' He estimates that more than a third of the kingdom was occupied by them a very large proportion, when the extent of Church land in France is taken into account; but recent French investigations have shown reasons for thinking that the true proportion was still larger, and that it was rather growing than diminishing, through that extravagance of the nobles which Court life fostered, and which

122

PRIMOGENITURE AND EQUAL DIVISION. LECT. V.

compelled them to sell their domains to peasants in small parcels. Young clearly saw that this subdivision of the soil was the result of some legal rule; and strongly dissenting from the Revolutionary leaders who wished to carry it farther, he declared that 'a law ought to be passed to render all division below a certain number of arpents illegal.'

It seems to have very generally escaped notice that the law of equal or nearly equal division after death was the general law of France. The rule of primogeniture was of exceptional application, and was for the most part confined to lands held by knightly tenure; indeed, in the South of France, where the custom of equal division was strengthened by the identical rule of the Roman jurisprudence, the privileges of the eldest son were only secured by calling in the exceptional rules of which the Roman Law gives the benefit to milites (or soldiers on service) when making their wills or regulating their successions, and by laying down that every chevalier, and every noble of higher degree, was a miles within the meaning of the Roman juridical writers. The two systems of succession and the two forms of property lay side by side, and there were men alive quite recently who could remember the bitter animosities caused by their co-existence and antagonism. A very great part of the land held by laymen belonged to the peasantry, and descended

LECT. V.

SIGNORIAL DUES:

123

according to the rule of equal division, but eldest son after eldest son succeeded to the signory. Yet it was not the rule of primogeniture followed in noble descents which was the true grievance; at most it became a grievance under the influence of the peculiar vein of sentiment introduced by Rousseau. The legacy from tribal sovereignty to signorial privilege, which was really resented, was that which I placed second in order. The right to receive feudal dues and to enforce petty monopolies, now almost extinguished in England by the measures to which the Copyhold Commission has given effect, had ceased long before the end of the last century to be of any considerable importance to the class which was invested with it; but M. de Tocqueville has explained, in his 'Ancien Régime' (i. 18), that it made up almost the entire means of living which the majority of the French nobility possessed. A certain number of noblemen, besides their feudal rights, had their terres, or domain, belonging to them in absolute property, and sometimes of enormous extent; and the wealthiest members of this limited class, the grands, who so frequently appear in French Court history, but who, away from the Court, were much the most respected and beloved of their order, formed the counterpart, from the legal point of view, of the English landed proprietary. The rest of the nobles lived mainly, not on rent, but on their feudal dues, and eked out a

1

« VorigeDoorgaan »