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of lands {laoTrjTa nva) 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.

1 Diodorus. v. 84. * j)i,„l„rns. v. SI. S3. ^ Dimloins. v. L".

* See Thirlwall, History of (ircecc; (irote, HUiurij of (In'ccc; Duiickcr,
Ocuoliiihte des Altertliunif.


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

To return to M. Viullet :

"Aristotle mentions sovei'al countries, Locri in Magna Grtecia',
Thebes', Leucadia^, 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 pro-
bable, 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*, who mentions the
usurpation of the lands by a small number of patricians in spite
(){' the law forbidding such acquisitions ; the other, that of Diodorus,
who relates the early tradition of such a distribution ^ This primi-
tive tradition evidently explains the legislation to which Aristotle
alludes. In Sparta, the tradition which we find presents a remark-
;ible feature. Here there is not a mere division, but a division into
equal shares, or at least, a distribution which involves a certain
degree of equality {laoTrjTa rwâ).

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

" According to Dionysius of Halicarnassus, Romiilus divided each

1 Aristotle, Politics. 2 Politics, 11. 9.

3 Politics, II. 4. As represented to us by Aristotle, these Gi-eek laAvs as to
the iDreservatiou of the original parcels seem to be connected with an aristo-
cratic 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 tliat 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, lauded
proj)erty became, in consequence, an aristocratic privilege, aud 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.

^ Politics, V. 6. Here the j^rohibition 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
alreadj' had property, while elsewhere the i^roletarians were purchasers. Thus
the same primitive law may become, in one case, an aristocratic guarantee
against democracy, aud, in another, a security against the development of an

•'■ Diodiirus, XII. 11.


of the three tribes which composed the po[)uhitioii into ten curies,
iiiid divided the territory into tliirty parts. He distributed one of
thes3 parts to eacli cu)-la by lot, a i)orti()u of the territory being
reserved for the expenses of religion and public domain'. Varro
twice gives the same tradition : ' Ager llomauus ])rimum divisus
in partes très a quo tribus appellata Tatiensium, Raninimn, Luce-
rum ^' — 'Bina jugera quod a Ivomulo primum divisa (dicebantur)
viritim qua^ (quod) ha3redem sequereutur, hferedium a])pcllaruntV

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

M. Viollet also sees a proof of the previous existence of the
community of the soil in a practice, wliicli 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 ])lace, of
relatives, of neighbours, of shareholders, and of heirs ^ 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. Every-

^ Dionysius of Halicarnassus, Ant, Rom. ii. 3.

■•* Varro, De Linçiua Latiita, v. 55. '■^ Varro, De re rustica, i. 10,

■ * Pliuy, Natural History, xviii. 2.

5 " Land is conveyed by six formalities, by the assent of townsmen, of
kindred, of neighbours, and of heirs, and by the delivery of gold and of water."
(Golebrooke, A Digest of Hindu Laiu, ii. IGl, Art. xxxiii.). Conf. Orianne,
Traité original des successions d'après le droit hindou; extrait du Mitacshara
de Vijnyaêswara, Paris, 1814, p. 49. — Pross'onno Coomar Tagore, A succinct
Commentary of the Hindo) Law prevalent in Mithila, from the original Sdnicrit
o/ Vachaspati Misra. Calcutta, 18(33, p. 310. — See Caract. collect, des premières
propriétés immobilières, by Viollet, p. 30. " According to Mr George Camjibell,
the alienation of landed property is very rare. The village community has a
right of veto, and would not allow tbo entry of any stranger who migbt bo
obnoxious." " The seizure and sale of laud for the jiayment of a debt is an idea
unknown to the Hindoos." lSystem< of Land Tenure in vuriiius Ci>untries, p. IdC».


thing in the system is simple and logical, the moment we refer it to
this liistorical idea."

In Greece the neighbours take part in the act of sale, either
as witnesses or as guarantees. Sometimes, as at Thurium, 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 civihan
Puchta^ the ancient mode of acquisition by a fictitious vindi-
catio 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 ^, and Java. The retrait by the townsmen was still in
force in Illyria and Italy under the emperors ; for a constitution
of the year 391, concerning these provinces, abolished the cus-
tom. We have seen that it exists in Russia. It is also to be
found among the Southern Slavs, and in primitive times was
common among the German tribes.

In Switzerland it still exists for the All mends. In France,
this primitive custom survived nntil a very recent period. In
the district of Angle (Saint-Omer), and at Fillièvre (Hesdin)^
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\ 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 inhabit-
ants 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

' Pucbta, Cursus der Institut.

- Sir William Hay Macnagbteu, Principles of Hindu and Mahommedan Law,
c. IV. pp. 204, 205.

3 M. Viollet borrows these facts from BourJot de rvicliebourg, Vol. i. p. 306 '
and H 47.

* Libri feudorum. lib. v, tit. xiii. xiv.


property was effected in tlie general assembly, after puLlic
proclamation \

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^

I regard the fact that immoveables, even when they have
become individual property, are originally in every case inca-
pable 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 w^as no sale or devise of
lands in Germany, nor is there at the present time in Russia,
or the Swiss AUmends. For a fact of such universality we
must seek an equally general rule. Its origin seems to liave
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 pos-
session of the soil, not by virtue of a contract of sale or testa-
mentary 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 ad-
vancing a new rule when lie foi'bade the proprietor to sell his laud ;
he was only x-eviving an old law. Everything leads us to su])poso
that ill ancient times property was iiialienaVjle. It is well known

* Giardon, On Courts Baron, and Kelham, Domesday Book, p. 242.

* For the towns of Amiens and Lille, see the sources quoted by M. Viollot,
Ancient Custoinn of Aviienx (first half of the thirteenth century), Art. (i in
A. Thierry, Recueil des Mon. inédits du Tiers-Ettit, district of the North, Vol. 1,
p. 129. Second custom previous to 1202, ibid. pp. 16li, 1(>4. Conf. a sale
effected in 1170 hefore the commune of Amiens; a gift in ll'Jô of the same kind,
ihid. pp. 01, 0.5-118, 110.


that iu Sparta a citizen was formally forbidden to sell his lot of
laud '. The same prohibition was inclvided in Locrian and Leuca-
dian laws*. Pliido of Corinth, a legislator of the ninth century,
ordained that the number of families and of properties should remain
fixed^ 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, but it subjected the seller
to a severe penalty, the loss of all the rights of citizenship ^ Finally,
Aristotle informs us in genei'al 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 iu Greece."

In ancient India the sale of immoveables was unknown^ and
is still rare in tlie 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'', does not mention land among the things that may be
sold ; and the revised text, promulgated later, adds the word
"lands." Sive mancipia seu quodlihet animaliam genus ven-
ditm% said the original text : sive terrce, adds the more recent
one. Several German laws seem to concede the power of
selling land as a- new right \ 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 hsereditatem suam neces-
sitate coactus vendere voluerit, offerat eam primo proximo
suo, ...V

^ Plutarch, Lycurgus, Agis. Ai-istotle, Polities, ii. p. 10.

2 Aristotle, Politics, ii. 4, 4. '^ Id. n. 3, 7.

4 yEschines, Contra Timarchum. ^ Mitacshara, trad. Orinnve, p. 50,

G Bliune, Die tcestgotldsche Antiqua odcr das Gesetzhueh Reccared des Ersten,
1847, ch. 294, p. 18, 20.

!■ See Law of the Thuringians, tit. xiii. : "Libero honiini liceat lirereclitatem
siiam cui voluerit tradere." Cauciani, Bar. leg. antiq., v, m. pp. ill — 36, and
Walter, Corpus jur. Germ., v. i. p. 380.

Law of tlie Saxons, tit. xv., " Traditiones et venditiones omnes legitimœ,
stabiles permaueant," and the followiug with Canciaiii's commentary, v. iii.
p. 51. Cf. Lex. Burg. t. i., aud tit. lxxxiv. § 1, iu Pertz, Mon. Germ. Leg.,
tit. ni. pp. 532— 568.— Lex Alemauuorum, iu Pcrtz, Mon. Lejes, t. iii. p. 45.
(borrowed from M. Viollet).

8 Cauciaui, Barb. leg. ant., t. ni. p. 50.


And in Scotland [Leges Burr/orum, cap. cxxxviii.), "Et
testabuntur quod vendons vcndidit illani terram ratioue pau-
perpatis, et illa paupertas fuit probata, ante venditionem, per
duodecim legatos et iideles homines \"

By the customary law of the island of Gothland (cap.
XXXVlil. § 1), " Landeigenthum mag niemand verkaufen ohne
Noth. Treibt ihn die Noth dazu, so soil er zusagen seinen
nœchsten Vervvandten im Beiseyn seiner Kirchspielgenossen
und der librigen Familienglieder, und diese sollen untersnchen,
welche Noth ihn dazu treibt"."

And in the custom of Bibnitz (Mecklenburg-Gustrovv),
" Wird allhie einem jeden, der dazu qualificirt, und deme es im
Rechten nicht sonderlich verbothen, ^eine Glither in Notli-
fgellen zu verœussern, zu verpfœnden, oder zu verkauffen er-
stattet, yedoch ober also das, ...^."

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 periodi-
cally 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 Slavs 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 under-
stands the reason why the testament could not be admitted in
the system where property belongs to the patriarchal family.

1 Houixrcl, Traités xiir les coutumes Ançilo-normandcs, t. ii. pp. 449, 450.

2 Scliildeuer's translation, Guta-LagJi, Greifswald, 1818, p. y'J, and compare
Mirror of Saj-nnij, 1. i. art. 34: — " Ohne des liicliters Urlaub, niag ein Mann
sein Eigeu wohl vergeben mit geuehm seiner Erbeu ; nur dass er eine balbe
Hufe davon bebalte uud ein Gehoeft, da man einen Wagen daraiif umwouden
mag." (Translation by Sachsse, SacJiscnspieijel oder Saechsisclws Landreclit,
Heidelberg, 1«48, p. 72.)

3 Codicillus juriuni civitntum megapolensium de an. 1850, in Westi)halcn :
Monumeuta iiiedita rerum geriiiauicaruiii prcecipue cimbricarum et viegapolcnsiuin,
II. LipsiiP, 173!), col, 2(mi'.


•' Ye Gods, says the man ou tlie 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 \"

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 un-
known. It was only introduced as the judges, deriving their
inspiration from the English law, admitted it^ "The Athenian
law, before Solon, absolutely forbade all testamentary dispo-
sition ; and Solon himself only allowed it to those who left
no children ^ The testament was long prohibited or unknown
in Sparta, and was only authorized subsequently to the Pelopon-
nesian 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 lucres suus et necessarius*." Even after testamentary
disposition was allowed, the wish of the testator had to be

^ Plato, Lava, \i.

^ See Sir George Campbell's Essay in the Cobdeu Club's volume, Si/ateins of
Land-te)iur(' in various Countries, p. 172.
•^ rintareh, Solon, 21.
* Fustel lie Coulanges, La cite antique, 3r(l edit., p. 89.


ratified by tlie sovereign authority, that is, by the peo])lo
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 testanientum ' ;
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^ "The best autho-
rities," 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 subse-
quent settlements on the edge of the Roman Empire ^."

Originally the clan, or village, is the collective body owning
the soil ; later on, it is the family, which has all the character-
istics 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 pre-
sently 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,
tlie Romans invented it. The testament was not at first con-
ceived 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 fun-
damental maxim of the customary law on this point is, Institu-
tion dliéritier na j^oint lieu. Legacies were but tolerated. The
indulgence of the law, says Bouijon, 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 loss limitation
on the right of testamentary disposition.

^ Tacitus, Germania, xx.

" Lalwulaye, D^ la roiidition civile et iwlitique des Fentmrs, \\ !'0.

■•* Ancient Leur, p. 17'2.



The Roman idea of a right of absolute property was alvva3^s
foreign to Greece. The territory of the state was regarded
as belonging to it alone; the citizens had merely an enjoy-
ment of it, subordinate to the general interest, hence the
frequent partitions of the soil and the constant intervention
of the law to regulate the distribution of property. The philo-
sophers, the politicians, and the legislators of antiquity, all
evinced the same desire, that every citizen should have a
portion of landed property, and that the law should prevent
excessive inequality. In the Republic of Plato the land is
divided in equal parts among all the citizens. In order that
all might be interested in the defence of the country, Aristotle
would have every one hold two plots of land, assigned by lot,
one near the city, the other near the frontier\ In the majority
of Greek states we find measures intended to maintain equa-
lity in landed property. In Leucadia thé sale of hereditary
property was absolutely forbidden ; among the Locrians it
was only allowed to meet a necessity on proof of such necessity.
At Corinth, the legislator Phidon, to maintain the equality of
the lots, endeavours to make the number of citizens invariable,
Philolaus, a Corinthian by birth, who gave laws to Thebes,
endeavoured to attain the same end by regulating adoptions,
and Phileas of Chalcedonia hoped to re-establish the equality
of property by enacting that the rich should give portions to

J Arist. rolitk!^, IV. 0, § 7.


their cUiugliters, but sliould not receive them ; while the poor
should receive them, but not give them \

Sparta, at the time when it appears in history, had already
discontinued the system of primitive community. It had,
apparently, arrived at the system of collective property in the
gens, or clan. The elementary unit of society was the yévof,
the same word as the Roman gens, and corresponding to the
lignées and geschlclcliter of the towns of the middle ages. It was
a group of families, connected by traditional descent from a
common ancestor, whom they worshipped in common, their
religious ceremonies being celebrated at the same altar. The
patrimony was inalienable. There, as among the Jews, the
object of all land legislation was the preservation of the familv.
When a daughter was the only heir of a famil}^, the nearest
relation was obliged to marry her, and even to divorce his
existing wife for the purpose. He might also claim her, even
against her will. In theory, every inheritor succeeded by
individual title ; but the community was generally maintained
between brothers. There was no partition. "All the children
remained grouped round the same hearth," M. Jannet tells us ;

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