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 advancing a new rule when he forbade the proprietor to sell his land;he was only reviving an old law. Everything leads us to suppose that in ancient times property was inalienable. It is wellknown that in Sparta a citizen was formally forbidden to sell his lot of land. (46) The same prohibition was included in Locrianand Leucadian laws. (47) Phido of Corinth, a legislator of the ninth century, ordained that the number of families and ofproperties should remain fixed. (48) This ordinance could not be observed unless the sale and even the division of lands hadbeen prohibited. The law of Solon, later by seven or eight generations than that of Phido of Corinth, no longer forbade thesale of property, hut it subjected the seller to a severe penalty, the loss of all the rights of citizenship. (49) Finally, Aristotleinforms us in general terms, that, in many towns, the early legislation prohibited the sale of lands. Our knowledge of theRoman law only begins from the XII Tables; at this period it is clear that the sale of property was permitted. But there isreason to suppose, that in the early times of Rome, and in Italy before the existence of Rome, the soil was inalienable, just asin Greece."
In ancient India the sale of immoveables was unknown, (50) and is still rare in the districts not yet "anglicized." The same wasthe case in ancient Germany. The sale of land does not appear till the barbarians were acquainted with the principles of theRoman Law. The first law of the Visigoths, published by Blume, (51) does not mention land among the things that may besold; and the revised text, promulgated later, adds the word "lands." Sive mancipict seu quodlibet animalium genusvenditur , said the original text: sive terrae , adds the more recent one. Several German laws seem to concede the power ofselling land as a new right. (52) 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 jamin exilium missus est, si haereditatem suam necessitate coactus vendere voluerit, offerat earn primo proximo suo,..." (53)And in Scotland ( Leges Burgorum , cap. cxxxvm.), "Et testabuntur quod vendens vendidit illam terrain ratione pauperpatis,et illa paupertas fuit probata, ante venditionem, per duodecim legatos et fideles homines." (54)By the customary law of the island of Gothiand (cap. XXXVIII. ?1), "Landeigenthum mag niemand verkaufen ohne Noth.
Treibt ihn die Noth dazu, so soil er zusagen seinen naechsten Verwandten im Beiseyn seiner Kirchspielgenossen und denlibrigen Familienglieder, und diese sollen untersuchen, welche Noth ihn dazu treibt ." (55)And in the custom of Ribnitz (Mecklenbung-Gustrow), "Wird alihie einem jeden, der dazu qualificirt, und deme es urnRechten nicht sonderlich verbothen, seine Güther in Kothfaellen zu vermussern, zu verpfaenden, oder zu verkauffenenstattet, yedoch ober also das..." (56)
Primitive law is as intolerant of testamentary devise as it is of sale, because the transmission of land is a matter of publicinterest, 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 periodicallyre-distributed among the families, according to fixed traditional rules. In the second period the soil belongs to the patriarchalfamily, such as we see it in France in the middle ages or among the Southern Slays in our own day. In neither of these twosystems is the individual allowed, during his span of life, to interfere with the natural order of the hereditary transmission ofthe soil.
In an agrarian organization so conceived the notion of a testament cannot even arise. Plato again accurately understands thereason why the testament could not be admitted in the system where property belongs to the patriarchal family.
"Ye Gods, says the man on the point of death, is it not hard that I may not dispose of my property as I desire, and in favourof whom I please, leaving more to one, less to another, according to my regard for them?" But the legislator replies, "Thoucanst not promise thyself more than a single day; thou art but a sojourner here below; and is it for thee to control suchmatters? Thou art neither master of thy goods nor of thyself; thou and thy property alike belong to thy family to thyancestors and thy descendants." (57)
This primitive idea seems far superior to the modern idea of the freedom of testamentary disposition. The principlegoverning the transmission of property forms the very basis of social order. For a certain period, at least, it is a rule which isbetter than any other. It is the most conformable to justice and the best guarantee of general happiness. This rule is forjuridical science to discover and for the lawgiver to publish; it should not be lawful for individual desires, often dictated bycaprice 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 unknown. Itwas only introduced as the judges, deriving their inspiration from the English law, admitted it. (58) "The Athenian law, beforeSolon, absolutely forbade all testamentary disposition; and Solon himself only allowed it to those who left no children. (59) The testament was long prohibited or unknown in Sparta, and was only authorized subsequently to the Peloponnesian war.
