WATERFORD, November 3, 1875.
I do not propose to enter upon the system of landholding in Scotland or
Ireland, which appears to me to bear the stamp of the Celtic origin
of the people, and which was preserved in Ireland long after it had
disappeared in other European countries formerly inhabited by the Celts.
That ancient race may be regarded as the original settlers of a large
portion of the European continent, and its land system possesses a
remarkable affinity to that of the Slavonic, the Hindoo, and even the
New Zealand races. It was originally Patriarchal, and then Tribal, and
was communistic in its character.
I do not pretend to great originality in my views. My efforts have been
to collect the scattered rays of light, and to bring them to bear upon
one interesting topic. The present is the child of the past. The ideas
of bygone races affect the practices of living people. We form but parts
of a whole; we are influenced by those who preceded us, and we shall
influence those who come after us. Men cannot disassociate themselves
either from the past or the future.
In looking at this question there is, I think, a vast difference which
has not been sufficiently recognized. It is the broad distinction
between the system arising out of the original occupation of land, and
that proceeding out of the necessities of conquest; perhaps I should add
a third--the complex system proceeding from an amalgamation, or from the
existence of both systems in the same nation. Some countries have been
so repeatedly swept over by the tide of conquest that but little of
the aboriginal ideas or systems have survived the flood. Others have
submitted to a change of governors and preserved their customary laws;
while in some there has been such a fusion of the two systems that
we cannot decide which of the ingredients was the older, except by a
process of analysis and a comparison of the several products of the
alembic with the recognized institutions of the class of original or of
invading peoples.
Efforts have been made, and not with very great success, to define
the principle which governed the more ancient races with regard to the
possession of land. While unoccupied or unappropriated, it was common
to every settler. It existed for the use of the whole human race. The
process by which that which was common to all became the possession of
the individual has not been clearly stated. The earlier settlers were
either individuals, families, tribes, or nations. In some cases they
were nomadic, and used the natural products without taking possession
of the land; in others they occupied districts differently defined. The
individual was the unit of the family, the patriarch of the tribe. The
commune was formed to afford mutual protection. Each sept or tribe in
the early enjoyment of the products of the district it selected was
governed by its own customary laws. The cohesion of these tribes
into states was a slow process; the adoption of a general system of
government still slower. The disintegration of the tribal system, and
dissolution of the commune, was not evolved out of the original elements
of the system itself, but was the effect of conquest; and, as far as I
can discover, the appropriation to individuals of land which was common
to all, was mainly brought about by conquest, and was guided by impulse
rather than regulated by principle.
Mr. Locke thinks that an individual became sole owner of a part of the
common heritage by mixing his labor with the land, in fencing it, making
wells, or building; and he illustrates his position by the appropriation
of wild animals, which are common to all sportsmen, but become the
property of him who captures or kills them. This acute thinker seems
to me to have fallen into a mistake by confounding land with labor. The
improvements were the property of the man who made them, but it by no
means follows that the expenditure of labor on land gave any greater
right than to the labor itself or its representative.
It may not be out of place here to allude to the use of the word
property with reference to land; property--from proprium, my own--is
something pertaining to man. I have a property in myself. I have
the right to be free. All that proceeds from myself, my thoughts, my
writings, my works, are property; but no man made land, and therefore
it is not property. This incorrect application of the word is the more
striking in England, where the largest title a man can have is "tenancy
in fee," and a tenant holds but does not own.
Sir William Blackstone places the possession of land upon a different
principle. He says that, as society became formed, its instinct was to
preserve the peace; and as a man who had taken possession of land could
not be disturbed without using force, each man continued to enjoy the
use of that which he had taken out of the common stock; but, he adds,
that right only lasted as long as the man lived. Death put him out of
possession, and he could not give to another that which he ceased to
possess himself.
Vattel (book i., chap, vii.) tells us that "the whole earth is destined
to feed its inhabitants; but this it would be incapable of doing if it
were uncultivated. Every nation is then obliged by the law of nature to
cultivate the land that has fallen to its share, and it has no right
to enlarge its boundaries or have recourse to the assistance of other
nations, but in proportion as the land in its possession is incapable of
furnishing it with necessaries." He adds (chap. xx.), "When a nation
in a body takes possession of a country, everything that is not divided
among its members remains common to the whole nation, and is called
public property."
An ancient Irish tract, which forms part of the Senchus Mor, and is
supposed to be a portion of the Brehon code, and traceable to the time
of St. Patrick, speaks of land in a poetically symbolic, but actually
realistic manner, and says, "Land is perpetual man." All the ingredients
of our physical frame come from the soil. The food we require and enjoy,
the clothing which enwraps us, the fire which warms us, all save
the vital spark that constitutes life, is of the land, hence it is
"perpetual man." Selden ("Titles of Honor," p. 27), when treating of
the title "King of Kings," refers to the eastern custom of homage, which
consisted not in offering the person, but the elements which composed
the person, EARTH and WATER--"the perpetual man" of the Brehons--to the
conqueror. He says:
"So that both titles, those of King of Kings and Great King, were common
to those emperors of the two first empires; as also (if we believe the
story of Judith) that ceremonies of receiving an acknowledgment of regal
supremacy (which, by the way, I note here, because it was as homage
received by kings in that time from such princes or people as should
acknowledge themselves under their subjection) by acceptance upon their
demand of EARTH and WATER. This demand is often spoken of as used by the
Persian, and a special example of it is in Darius' letters to Induthyr,
King of the Scythians, when he first invites him to the field; but if
he would not, then bringing to your sovereign as gifts earth and water,
come to a parley. And one of Xerxes' ambassadors that came to demand
earth and water from the state of Lacedaemon, to satisfy him, was thrust
into a well and earth cast upon him."
The earlier races seem to me, either by reasoning or by instinct, to
have arrived at the conclusion that every man was, in right of his
being, entitled to food; that food was a product of the land, and
therefore every man was entitled to the possession of land, otherwise
his life depended upon the will of another. The Romans acted on a
different principle, which was "the spoil to the victors." He who could
not defend and retain his possessions became the slave of the conqueror,
all the rights of the vanquished passed to the victor, who took and
enjoyed as ample rights to land as those naturally possessed by the
aborigines.
The system of landholding varies in different countries, and we cannot
discover any idea of abstract right underlying the various differing
systems; they are the outcome of law, the will of the sovereign power,
which is liable to change with circumstances. The word LAW appears to be
used to express two distinct sentiments; one, the will of the sovereign
power, which being accompanied with a penalty, bears on its face the
idea that it may be broken by the individual who pays the penalty:
"Thou shalt not eat of the fruit of the tree, for on the day thou eatest
thereof thou shalt die," was a law. All laws, whether emanating from an
absolute monarch or from the representatives of the majority of a state,
are mere expressions of the will of the sovereign power, which may be
exacted by force. The second use of the word LAW is a record of our
experience--e.g., we see the tides ebb and flow, and conclude it is
done in obedience to the will of a sovereign power; but the word in that
sense does not imply any violation or any punishment. A distinction
must also be drawn between laws and codes; the former existed before
the latter. The lex non scripta prevailed before letters were invented.
Every command of the Decalogue was issued, and punishment followed for
its breach, before the existence of the engraved tables. The Brehon
code, the Justinian code, the Draconian code, were compilations of
existing laws; and the same may be said of the common or customary law
of England, of France, and of Germany.
I am aware that recent analytical writers have sought to associate LAW
with FORCE, and to hold that law is a command, and must have behind it
sufficient force to compel submission. These writers find at the outset
of their examination, that customary law, the "Lex non scripta," existed
before force, and that the nomination to sovereign power was the outcome
of the more ancient customary law. These laws appear based upon the
idea of common good, and to have been supported by the "posse comitatus"
before standing armies or state constabularies were formed. Vattel says
(book i., chap. ii.), "It is evident that men form a political society,
and submit to laws solely for their own advantage and safety. The
sovereign authority is then established only for the common good of all
the citizens. The sovereign thus clothed with the public authority,
with everything that constitutes the moral personality of the nation,
of course becomes bound by the moral obligations of that nation and
invested with its rights." It appears evident, that customary law
was the will of small communities, when they were sovereign; that the
cohesion of such communities was a confirmation of such customs of each,
that the election of a monarch or a parliament was a recognition of
these customs, and that the moral and material FORCE or power of the
sovereign was the outcome of existing laws, and a confirmation thereof.
The application of the united force of the nation could be rightfully
directed to the requirements of ancient, though unwritten customary law,
and it could only be displaced by legislation, in which those concerned
took part.
The duty of the sovereign (which in the United Kingdom means the Crown
and the two branches of the legislature) with regard to land, is thus
described by Vattel:
"Of all arts, tillage or agriculture is doubtless the most useful
and necessary, as being the source whence the nation derives its
subsistence. The cultivation of the soil causes it to produce an
infinite increase. It forms the surest resource, and the most solid fund
of riches and commerce for a nation that enjoys a happy climate. The
sovereign ought to neglect no means of rendering the land under his
jurisdiction as well cultivated as possible.... Notwithstanding the
introduction of private property among the citizens, the nation has
still the right to take the most effectual measures to cause the
aggregate soil of the country to produce the greatest and most
advantageous revenue possible. The cultivation of the soil deserves
the attention of the Government, not only on account of the invaluable
advantages that flow from it, but from its being an obligation imposed
by nature on mankind."
Sir Henry Maine thinks that there are traces in England of the commune
or MARK system in the village communities which are believed to have
existed, but these traces are very faint. The subsequent changes were
inherent in, and developed by, the various conquests that swept over
England; even that ancient class of holdings called "Borough English,"
are a development of a war-like system, under which each son, as he came
to manhood, entered upon the wars, and left the patrimonial lands to the
youngest son. The system of gavel-kind which prevailed in the kingdom of
Kent, survived the accession of William of Normandy, and was partially
effaced in the reign of Henry VII. It was not the aboriginal or
communistic system, but one of its many successors.
The various systems may have run one into the other, but I think there
are sufficiently distinct features to place them in the following order:
1st. The Aboriginal.
2d. The Roman, Population about 1,500,000.
3d. The Scandinavian under the ANGLO-SAXON and Danish kings--A.D. 450 to
A.D. 1066. The population in 1066 was 2,150,000.
4th. The Norman, from A.D. 1066 to A.D. 1154. The population in the
latter year was 3,350,000.
5th. The Plantagenet, from 1154 to 1485; in the latter the population
was 4,000,000.
6th. The Tudor, 1485 to 1603, when the population was 5,000,000.
7th. The Stuarts, 1603 to 1714, the population having risen to
5,750,000.
8th. The Present, from 1714. Down to 1820 the soil supported the
population; now about one half lives upon food produced in other
countries. In 1874 the population was 23,648,607.
Each of these periods has its own characteristic, but as I must compress
my remarks, you must excuse my passing rapidly from one to the other.