The history of land commences with the division of men into tribes, for the division of tribes involves distinction of territory. The earliest age, when men lived solely on wild fruits or on the produce of the chase, may still be pictured to us in the habits of the North American Indians, while the second or pastoral stage is represented in modern times by the life of the Tartars of the Asian steppes. In both these conditions an immense tract of country is absorbed in the support of a small population, but the hardships of existence, aided sometimes by organized systems of child-murder, serve to keep the inhabitants within the limits of subsistence. Under such circumstances each tribe jealously guards its own territory from intrusion by others, but within its range all members of the community have equal and unrestricted rights of use. Among civilized nations the principle still survives. Each modern nation claims a special ownership in the fisheries within a certain distance of its coasts; but among the inhabitants of these coasts there is a common right to fish in the waters thus reserved. So also each modern state recognizes the shores as far as high water mark, and the estuaries with their harvests of wild fowl, as the common property of its subjects. Even inland game is still not individual property, and in countries where legal rights are so ancient or so modern as in the Channel Islands and the United States of America, the local law is alike liberal in allowing to every one the right of sporting over his neighbour’s ground, except in so far as modified by express and recent legislation.

But the higher races very early discovered an ampler means of industrial existence than the natural produce of the earth affords. At what period in human history the artificial cultivation of plants was discovered it is impossible to say. We know that it was posterior to the division of the Aryan currents that flowed towards Hindustan and towards Europe, but before the subdivision of the latter; for the words denoting a field, a plough, and some species of grain have a common root in the Greek, the Latin, and the Germanic dialects, but not in the Sanskrit. But so soon as agriculture began it involved of necessity an approach to more settled habits. This change in the manner of life would combine with the fuller and more regular supply of food to promote a rapid increase of population. So long, however, as this did not exceed the resources of the territory belonging to the tribe, it would not of itself involve any change in the idea that its use was common to all. A certain portion of ground would be devoted to tillage, a certain number of the tribe would be appointed to perform the acts of cultivation, and the produce would be stored in the general barn. We have at the present day examples of such a system in some of the allmends of the Swiss canton of Valais, where a portion of the lands of the village is cultivated by joint labour, and the produce devoted to joint feasting. But it appears that in general this stage rapidly progressed to one of apportionment of the land in separate and smaller districts. The tribe, augmenting in numbers and perhaps in extent of territory, subdivided itself into villages, and each village exercised a tolerably independent rule over its own district. Within this range it still maintained a community of the forest and pasture, but the special skill and toil demanded by husbandry in most cases soon led to the appropriation to each family of a portion of the arable land in exclusive property. Still, however, the principle of common right prevailed so far that the village rulers changed every year the lots assigned for culture, so that one year of crop, followed by a relapse into natural growth for a succession of years, was the normal rotation. It is one which modern science cannot condemn, for where space is ample and the use of manure is unknown, there is no sounder method of cultivation. It is still, according to M. Laveleye, exemplified in the Ardennes region of Belgium.

It is at this stage that contemporary observers first describe the tenure of laud in ancient times, and illustrations of its survival in modern periods grow abundant. These will be hereafter pointed out. But except in special circumstances it is obvious that progress could not stop here. As population increased in each district, the available hunting grounds would diminish, and at the same time the necessity of more extensive and more frequent cultivation of crops would increase. By this process, in the absence of manure, the land would inevitably become less productive. But just as it demanded more labour it would become more definitely appropriated to a single family, for those who laboured most would not willingly give place to those who had been less active. A stage would then be reached in which community of possession would be limited to the pasture lands of the village, and the arable lands would be possessed in permanence by each family. There generally was, indeed, while the territory still sufficed, a recognition of the right of each individual to an allotment from the common land. But at last the period would come in which this could be no longer afforded, and when either the tribe must migrate in a body, or cast off a swarm to seek its fortunes elsewhere, or leave a certain number of its members without the privilege of landed possession, to obtain subsistence in services to the rest, or in trades. When the two former alternatives become impracticable, the third is the inevitable course. Private property in land becomes then established, and we have thenceforward a new system, involving consequences for good and evil which legislation seeks to regulate.

With this general notion of the course of development it will now be convenient to trace, in some instances which have most affected the world’s progress, the history and the results of the use and appropriation of land.

In primitive Rome each household formed an absolute despotism, of which the father was the despot; households were united into gentes by derivation from a common ancestor, and the state consisted in a combination of gentes. To each household there was originally assigned a small portion (2 jugera, 1∣ acres) of land to be held in perpetuity as private property (heredium), and it may be assumed that on the death of a paterfamilias each son would be entitled to a like amount from the common lands of the gens. These common lands formed the main possession of the gentes, and it appears that they were to some degree cultivated in common, as well as used for pasturage. The state, however, also held common lands, partly original, partly derived from cession by each conquered neighbour, and these were let for rent (vectigal) in so far as not partitioned out. Cicero (De Rep., ii. 9, 14) says that Numa was the first who divided the conquered lands into private shares, but it is certain that the example was only partially followed. But by the time of Servius Tullius the original private portion of many households must have been greatly but unequally enlarged, for his new military organization was based on the obligation of service imposed on the freeholders (assidui) as distinguished from the mere labourers and breeders of children (proletarii). The “classes” of the assidui were five, those who possessed 20 jugera (12 j acres), and who were specially denominated classici, and those who possessed respectively 15, 10, 5, and 2∣ jugera. The first class, or classici, were about the half of the whole number of assidui, the second, third, and fourth classes comprised each about one-eighth of the entire number, and the fifth class was slightly more numerous. The equites formed a separate order, based on the possession of a still larger extent of land. At the same time a register of land was established, in which each owner was required to enter his property, and which was revised every four years, and sales were directed to be made before two witnesses. These arrangements show that even at this epoch the system of separate private property was in full operation, and that the difference of wealth which it engenders had already reached an advanced stage.

The progress of conquest, which at once enlarged the territory, brought in tribute, and furnished slaves, rapidly increased such inequalities. Trade, which followed conquest, and in which capitalists made large fortunes, tended in the same direction. Very early in Roman legal history we come upon tenancy-at-will, under the name of precarium, which of itself showed that there must have been large estates capable of subdivision. But besides tenants, each extensive landowner had a household of retainers, clients, freedmen, and latterly slaves, who tilled his ground for his personal profit. Thus there would be little demand for free labour, and the petty husbandman, whose small inheritance was inadequate for a growing family, fell necessarily into debt. His land would then be seized under the strict Roman law of bankruptcy, and he himself would sink into slavery, or at best into the already overcrowded class of labourers for insufficient hire. At the same time the conquered lands, which by theory were the property of the state, and to which every citizen had an equal right, were largely portioned out to the existing landowners, who held the chief posts and influence in the government. The revenues drawn from tribute were also farmed out to capitalists, and the taxes on the public were augmented in consequence of the permitted frauds of the collectors. At last came the crisis. The army, no longer representing the wealth of the state, but rather the proletariat, mutinied, and from the Mons Sacer menaced the city. It was the commencement of the long struggle of which the successive Agrabian Laws fø.w.) were the landmark and remedies.

The object of these laws was well illustrated by the Licinian proposal(387 A.U.C.), nearly one hundred years after the first outbreak of discontent. It enacted that no citizen should hold more than 500 jugera of the public lands, that no one should graze more than one hundred oxen and five hundred sheep on the common lands, and that every landowner should be obliged to employ a number of free labourers proportioned to that of his slaves. But this, as all other laws proposed on behalf of the people, was coupled with political changes of which the main object was to open up new fields of ambition to those of the plebeians who were already opulent. When that object was attained, the agrarian remedies were suffered to fall into desuetude. The successful wars waged in the 6th and 7th centuries A.u.c. gave a temporary outlet to labour in the formation of agricultural colonies. But it at the same time immensely increased the number of slaves, who were treated as mere beasts of toil, to be worked out or sold off when no longer profitable. The free population, on the testimony of Cato and Polybius, diminished; the slave population increased, and became in many districts an organized danger to public safety. A century later the Gracchi again endeavoured to restore health to the body politic by a distribution of the state lands among the proletariat. The attempt was stifled in blood, but the necessity of the measure was proved by the fact that a full generation later Caius Julius Caesar carried out the same reform.

The time for remedy was, however, past. The great estates (latifundia) had already been created; they were respected by the reformers, alike popular and imperial; and their inevitable growth swallowed up the small farms of new creation, and ultimately destroyed Rome. For its manhood was gone; the wealth of millionaires could not purchase back honesty or courage; and the defence of mercenaries failed to form any barrier against the wars of hardy northern invaders. Pliny’s words “latifundia perdidere Italiam” embrace the truth, yet more fully made clear in many a generation after he wrote.

We shall now examine the systems prevalent in the nations by which the Roman empire was overthrown. Two great Roman writers, Caesar and Tacitus, have given us a vivid picture of the German customs showing us the tenure of land in its earliest forms. Caesar (De Bell. Gall., vi.) says of the Germans of his time :—

“They are not much given to agriculture, but live chiefly on milk, cheese, and flesh. No one has a fixed quantity of land or boundaries of his property, but the magistrates and chiefs every year assign to the communities and families who live together as much land and in such spots as they think suitable, and require them in the following year to remove to another allotment. Many reasons for this custom are suggested: one is that they should not be led by permanence of residence to renounce the pursuits of war for agriculture, another that the desire of extensive possession should not induce the more powerful to seize the land of the weaker, another that they should not construct their houses with greater care to keep out heat and cold, another that the love of money should not create parties and disputes, and lastly that the mass of the people might remain contented with the justice of an arrangement under which every one saw his position as comfortable as that of the most powerful. As to the tribes themselves, their chief glory is to have their territory surrounded with as wide a belt as possible of desolated waste. They deem it not only a special mark of valour that every neighbouring tribe should be driven to a distance, and no stranger should dare to reside in their vicinity, but at the same time they view it as a measure of precaution against the risk of sudden attacks.”

A hundred years later the description of Tacitus shows that a certain modification of habit had been induced. Bringing together the leading particulars, we find he speaks of Germany as “covered with woods and morasses, the land fairly fertile but unsuited for fruit trees, well adapted for pasture, and carrying numerous herds of small sized polled cattle, in which the chief wealth of the natives consisted.” But they seem no longer to have changed their actual dwellings every year, but to have

“Built them with a certain rough solidity, and in villages, though the houses were not contiguous, but each was surrounded by a space of its own. The right of succession by children was recognized, and in default of children brothers and uncles took, but there was no right of making a will. They preferred to acquire property by war rather than by industry. Interest on loans was unknown. The land was apportioned (to villages apparently) according to the number of cultivators, and divided among them according to their rank, there being ample room for all. Every year they changed the arable land, which formed only a portion of the whole, not attempting to make labour vie with the natural fertility and abundance of the soil by planting orchards or setting out gardens and fields, but content with a single crop. Their food consisted chiefly of wild fruits, freshly killed game, and curds; their drink was a liquor prepared from barley or wheat, feι - mented like wine. Their slaves were not kept in the house, but each had a separate dwelling and an allowance of food, and they were treated with humanity, as servants or tenants.”

These institutions were then obviously based on the existence of an ample supply of unenclosed and common land. But the natural increase of population, combined with the pressure put on the Germanic tribes from the east by the Slavs, made their territories too small for their ambition, if not for their maintenance, and five or six succeeding centuries were marked in the history of Europe chiefly by successive Germanic conquest and occupation of western and southern territory. The enormous increase of power and possession made it impossible for the original tribal government to survive; the great generals developed into kings and emperors, and their lieutenants, more or less independent according to individual capacity and distance from the capital, became dukes and counts. Gradually military authority, embracing the old idea of the land being the property of the state, evolved the new notion of feudalism. The sovereign represented the state; to him in that capacity land conquered from the enemy, or forfeited by unsuccessful rebellion, became subject; and he granted it to his followers on condition of faithful service in war. They promised to be “his men,” and from their own tenants they exacted in turn the like promise on the like conditions. The general insecurity made even free owners willing to buy the support of the sovereign on similar term^. Thus by degrees, less by derivation from the ideas of Roman law, to which it is sometimes attributed, than by the mere necessity of the times, and as a consequence of the incessant state of warfare in which mankind existed, there came to be established the feudal doctrine that all land was held of the sovereign on condition of suit and service, and that each immediate tenant of the sovereign was entitled to sub-infeudate his possession on the same principles. Gradually the further attributes of property were added; service in war was commuted into , rent, and the peaceful service of tilling the lord’s reserved domain. The right of hereditary succession became grafted on the personal grant; the power of sale and devise followed. Local usages still had influence, but it may be said broadly that from about the 10th century private property, subject to feudal conditions, became the principle of the tenure of land in Europe.

There are, however, some nations in which feudalism has struck no root, or at least has not succeeded iu seriously modifying the original type of common possession. It will be best to advert to some of them before proceeding further with the history of feudalism in its modern development.

The Indian branch of the Aryan stock has preserved with great fidelity the original notion of the possession of land. The village, consisting of detached houses and surrounded with the district belonging to it, forms still a self-regulating community. It is a legal person, to which the state looks for its rights, but which when performing them is free from internal state interference. It holds the forest and pasture ground in common property, allowing their use to each person entitled to the village rights. To each family is further apportioned a measure of arable land, but the stage is in general passed at which this portion is changed in successive years, and it is therefore the hereditary property of the family. But it is not in strictness subject either to will, to mortgage, or to sale. It is divisible on the death of the head of the family among his children, any of whom may transfer their shares to another member of the village, but not, except with its leave, to a stranger. These ancient customs have to some extent been modified by the introduction of English law, which, among other things, has subjected the villagers to the grinding exactions of the money-lenders, by giving creditors the security of an English mortgage. It cannot but be regretted that the desire to act justly which has led to the change should have been misled by the idea that whatever institution exists in England is necessarily and everywhere else equally equitable and necessary.

In Europe the Slav peoples, the latest arrival of Aryan stock in Europe, have preserved best the ancient characteristics of land tenure. Checked in their advance to the south-east, they have formed a narrow borderland in Bulgaria, Servia, Croatia, and Dalmatia, between the Germans on the one side and the Turks...