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Home -> Henry Sumner Maine, Sir -> Ancient Law -> CHAPTER VIII

Ancient Law - CHAPTER VIII






6. CHAPTER V continue


8. CHAPTER VI continue



11. CHAPTER VIII continue


13. CHAPTER IX continue




THE Roman Institutional Treatises, after giving
their definition of the various forms and modifi-
cations of ownership, proceed to discuss the
Natural Modes of Acquiring Property. Those
who are unfamiliar with the history of juris-
prudence 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 root 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 classed in the ancient Jus Gentium,
and perceiving them to be of the simplest de-
scription, allotted them a place among the ordi-
nances 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/ 1
Occupatio or Occupancy. Occupancy is the ad-
visedly taking possession of that which at the
moment is the property of no man, with the view
(adds the technical definition) of acquiring pro-
perty 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 movables which have been abandoned,
lands which have been deserted, and (an anoma-
lous 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 ohe form or another,
is acquiesced in by the great majority of specula-
tive 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 assumption
that communities are remitted to a state of nature
by the outbreak of hostilities, and that, in the
artificial natural condition thus produced, the
institution 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 nobody's property, and therefore as capable
of being acquired by the first occupant. The
idea would occur spontaneously to persons prac-
tising 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 movable 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 assertion that enemy's
property of every sort is res mtllius to the other
belligerent, and that Occupancy, by which the
Captor makes it his own, is an institution 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 sub-
ordinate 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
assumed 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 prin-
ciples 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 import-
ance 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 assumption of sovereign pos-
session. Moreover, the principle itself, conferring
as it did such enormous advantages as the
consequence of a piece of good luck, was instinc-
tively mutinied against by some of the most
adventurous nations in Europe, the Dutch, the
English, and the Portuguese. Our own country-
men, without expressly denying the rule of Inter-
national 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 undis-
covered 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 assumption
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 pro-


perty, and they undoubtedly believed that, were
mankind living under the institutions of Nature,
Occupancy would be one of their practices. How
far they persuaded themselves that such a con-
dition 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 institution 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 assume
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
ist 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 pos-
session 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 or 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 in-
dividuals not the immediate use only, but the very
substance of the thing to be used."

Some ambiguities of expression in this passage
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 misappre-
hension he has imposed on the theory brings it
into a form which it has not infrequently assumed.
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 per-
manently 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 circumstances which
make up his picture of a primitive society are
more or less probable than other incidents which
could be imagined with equal readiness. Pur-
suing 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 co-extensive with
his power to keep it, and that he would be con-
stantly 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 circumstances
by which they are now surrounded, and by then
assuming 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 circum-
stances 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 Pre-
scription. 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 expres-
sions employed. His meaning will, however, be
indicated with sufficient accuracy if we consider
him to assert 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, Ad-
verseness 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 unin-


terruptedly 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 constitute 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 assuming 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 senti-
ment 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 assumption of physical possession ;


and the notion that an act of this description
confers a title 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 asserted. The sentiment
in which this doctrine originated is absolutely
irreconcilable with that infrequency and uncer-
tainty of proprietary rights which distinguish the
beginnings of civilisation. Its true basis seems to
be, not an instinctive bias towards the institution
of Property, but a presumption, arising out of the
long continuance of that institution, 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 par-
ticular 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 Indi-
vidual 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 occu-
pation 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
principally from their Civil Law in the account
which it took of Individuals, and which has ren-
dered 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 Indi-
viduals. It is concerned not with Individuals, but
with Families, not with single human beings, but
groups. Even when the law of the State has suc-
ceeded in penetrating the small circles of kindred
into which it had originally no means of penetrat-
ing, 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 j it is but
a continuation of the existence of his forefathers,
and it will be prolonged in the existence of his


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 classifications.
It would soon be seen that the separation of the
Law of Persons from that of Things has no meaning
in the infancy of the 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 jurispru-
dence. 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 institution, and that the forms of
property which will afford us instruction will
be those which are associated with the rights of
families and of groups of kindred. The Roman
jurisprudence will not here assist 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 pro-
prietary 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 institution of primeval
society. How far soever any such institution 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 shell in which it was origin-
ally 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 Com-
munity of India is at once an organised patriarchal
society and an assemblage 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
assigned 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
institution of a society which never willingly sur-
renders 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 recog-
nised it as the basis of administration.

The mature Roman law, and modern jurispru-
dence 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 partition 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 genera-
tions, 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 re-
presentative of the eldest line of the stock. Such


an assemblage of joint proprietors, a body of
kindred holding 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 association 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 function-
aries, for internal government, for police, for the
administration of justice, and for the apportion-
ment 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 sup-
posed 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 assemblage 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 ad-
mitted 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 com-
position 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 brother-
hoods either the tradition is preserved, or the
assumption made, of an original common parent-
age. Mountstuart Elphinstone, who writes more


particulaily of the Southern Village Communities,
observes of them (History of India,p.7i, 1905 edn.):
"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 partition 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 assist the
reader, I trust, in appreciating the significance
of Elphinstone's language. No institution 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 vivify-
ing legal fiction. The Village Community then is
not necessarily an assemblage of blood-relations,
but it is either such an assemblage or a body of
co-proprietors formed on the model of an asso-


elation 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 assumption of a common origin, an assumption
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 inherit-
ances 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 re-
quired 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 dis-
coverable in almost every single feature of the
Indian Village Communities. We have so many
independent reasons for suspecting that the in-
fancy 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 brother-
hoods, 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. Tengo-
borski, and others, have shown us that the Russian
villages are not fortuitous assemblages 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 noble 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 assumption of an
agnatic connection between the villagers, in the
blending of personal rights with privileges of
ownership, and in a variety of spontaneous pro-
visions for internal administration, the Russian
village appears to be a nearly exact repetition of
the Indian Community ; but there is one im-
portant 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 sever-
ance 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 mass, and then it is redistributed among
the families composing the community, according
to their number. This repartition 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 debatable 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 j
but there the internal arrangements of the com-
munity 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 asserted to be found in
the earliest Sclavonian laws, the principle that
the property of families cannot be divided for a

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 Com-
munities 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 partition 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 repre-
sent distinct stages in a process of transmutation
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 pro-
perty, 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 analogous
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 an 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 passage in the
history of Private Property is its gradual separa-
tion 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, unassisted 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 circumstance 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
associations, 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 com-
panies 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 patri-
mony of the family is absolutely inalienable, as
was the case with the Sclavonians, and still oftener,
though alienations may not be entirely illegiti-
mate, 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 con-
veyance 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, how-
ever superfluous may be his testimony. The
entire solemnities must be scrupulously completed
by persons legally entitled to take part in it,


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 classify 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 class of valuable objects is communi-
cated to the classes which stand conventionally
higher. The history of Roman Property Law is
the history of the assimilation of Res Mancipi to
Res Nee Mancipi. The history of Property on the
European continent is the history of the subver-
sion of the feudalised law of land by the Romanised
law of movables ; 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 classification of the objects


of enjoyment, the only classification which corre-
sponds with an essential difference in the subject-
matter, is that which divides them into Movables
and Immovables. Familiar as is this classifica-
tion 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
classifications of Ancient Law have sometimes a
superficial resemblance to this. They occasionally
divide property into categories, and place im-
movables in one of them ; but then it is found
that they either class along with immovables 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 class of securities, and
Hindoo law associates 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 classifications of Ancient Law are
classifications implying superiority and inferiority ;
while the distinction between movables and im-
movables, 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 Nee 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 classifications 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 philo-
sophy, 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 designa-
tion 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.

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