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CHAPTER 3 INHERITANCE AND ALIENABILITY SUMMARY The Mark Thmy Agrarian Origins in Englalld Family Ownership Heritability oj Military Lond Heritability of Non-military Land The Relation ojHeritability 10 Alienability Family Restraints in GlanviJl Primogeniture Primogeniture and Free Alienation Some Illustrative Cate! Primogeniture becomes general Tenure and Alienability PAGl! 521 522 522 523 524 525 526 527 528 529 530 530 Numerous attempts have been made to discover the origin ofproperty in land, but unfortunately they have in many cases been prompted by political or economic prepossessions, with the result that the discussions upon this subject are by no means always good examples of scientific research. The age-long instinct ofthe human race which would imagine an ideal state of perfection in some remote age of the past has been very influential in directing men's studies to the early history of property. THE MARK THEORY Early in the nineteenth century a school of German historians, of whom von Maurer was one of the greatest, discovered something like an earthly paradise in the condition of the Germanic tribes in the days of Caesar. They were even prepared to assert that as late as the seventh century the Germanic peoples practised communism in land, and that the idea of private property in land did not prevail among them until they had been corrupted by the influence of Roman law. The ancient Germanic village community from this point of view consisted of a highly socialistic state, very small, but very compact, which held the title to all the land in the community, allowing individuals only a right of user. This hypothesis is known as the mark system.1 In 1887 a brilliant and searching criticism of this theory was made by one of the greatest of modern historians, Fustel de Coulanges, who demonstrated the falseness of this position. For some strange reason there has been great reluctance to accept the results of Fuste1; by an unfortunate fate 1 The theory is stated briefly in Stubbs, Constitutional HiJlory (1875), i. 49. 521 522 REAL PROPERTY his disinterested scholarship became entangled both with party politics in France, and with national historical tradition in Germany, with the result that it is only at the present moment that his work is beginning to receive the attention which it deserves.1 The results, howe'Ver, are beginning to be silently adopted even in Germany, where historians have long resisted his influence. AGRARIAN ORIGINS IN ENGLAND The older English historians, notably Stubbs, accepted the mark system in its entirety until Maitland demonst"ated in 1897 that it was inconsistent with the English documents. The results he reached are similar to those of Fustel de Coulanges although he differed from him on points of detail. Into the complicated controversy surrounding the village community we cannot enter.!! The most we will say is that the English sources show us individual ownership which as time goes on steadily becomes more intense. There was, however, a great deal of co-operation between neighbouring villagers, and then as now they would combine their resources in order to secure some particularly costly piece of agricultural equipment-the team of oxen which drew the heavy plough, for example-to arrange the rotation of crops and fallow, and other matters where united action was an advantage. This does not mean, of course, that there never was any communism in land at some remote period in England; but it does mean that we have no evidence of such a condition, and that as far as history is concerned the sources indicate individual ownership. The organisation ofthe village community in prehistoric times is an investigation which cannot be handled by the methods of the historian, and the theories which have been suggested on the subject must be taken subject to the reservations necessarily applicable to speculations in prehistory. FAMILY OWNERSHIP There is some historical reason for believing that in early times land was owned by families rather than by individuals, but the antiquity of this arrangement, its origins and its significance, have been much disputed; indeed, it has been suggested by Ficker and Maitland that this apparent family ownership is in fact only the product of the working of various rules of individual inheritance. This may very well be, for a similar process can be observed in other periods of legal history. The results produced by a strict settlement in the eighteenth century, for example, might easily produce the impression upon an historian of a thousand 1 Fustel de...

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