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Lecture V
The Chief and His Order
Nothing seems to me to have been more clearly shown by recent
researches than the necessity of keeping apart the Tribe and the
Tribal Chief as distinct sources of positive institutions。 The
lines of descent are constantly entwined； but each of them is
found to run up in the end to an independent origin。 If I were to
apply this assertion to political history； I should be only
repeating much of what has been said by Mr Freeman in his
excellent work on 'Comparative Politics。' Confining myself to the
history of private institutions； let me observe that the
distinction which I have drawn should be carefully borne in mind
by those who desire to penetrate to the beginnings of Property in
Land。 The subject has been greatly obscured by the practice； now
brought home to the early writers on feudal law； of
systematically passing over or misconstruing all forms of
proprietary enjoyment which they could not explain on their own
principles； and hitherto the truth has only been directly seen
through some of the rules of tenure。 It may now； however； be laid
down without rashness that Property in Land； as known to
communities of the Aryan race； has had a twofold origin。 It has
arisen partly from the disentanglement of the individual rights
of the kindred or tribesmen from the collective rights of the
Family or Tribe； and partly from the growth and transmutation of
the sovereignty of the Tribal Chief。 The phenomena attributable
to the double process seem to me easily distinguishable from one
another。 Both the sovereignty of the Chief and the ownership of
land by the Family or Tribe were in most of Western Europe passed
through the crucible of feudalism； but the first reappeared in
some well…marked characteristics of military or knightly tenures；
and the last in the principal rules of non…noble holdings； and
among them of Socage； the distinctive tenure of the free farmer。
The status of the Chief has thus left us one bequest in the rule
of Primogeniture； which； however； has long lost its most ancient
form； another in the right to receive certain dues and to enforce
certain monopolies； and a third in a specially absolute form of
property which was once exclusively enjoyed by the Chief； and
after him by the Lord； in the portion of the tribal territory
which formed his own domain。 On the other hand； several systems
of succession after death； and among them the equal division of
the land between the children； have sprung out of tribal
ownership in various stages of decay； and it has left another set
of traces （not quite so widely extended）； in a number of minute
customary rules which govern tillage and occasionally regulate
the distribution of the produce。
The fate of this double set of institutions in England and in
France appears to me most instructive。 I have frequently dwelt in
this place on the erroneousness of the vulgar opinion which dates
the extreme subdivision of the soil of France from the first
French Revolution； and from the sale of the Church lands and of
the estates of the emigrant nobility。 A writer I was going to
say as commonly read as Arthur Young； but certainly as often
mentioned as if he were commonly read notices this
morcellement； on the very eve of the French Revolution； and
immediately after it； as the great feature which distinguished
France from England。 'From what we see in England；' he says；
（'Travels in 1787； '88； and； '89' p。 407） ' we cannot form an
idea of the abundance in France of small properties； that is；
little farms belonging to those who cultivate them。' He estimates
that more than a third of the kingdom was occupied by them a
very large proportion； when the extent of Church land in France
is taken into account； but recent French investigations have
shown reasons for thinking that the true proportion was still
larger； and that it was rather growing than diminishing； through
that extravagance of the nobles which Court life fostered； and
which compelled them to sell their domains to peasants in small
parcels。 Young clearly saw that this subdivision of the soil was
the result of some legal rule； and strongly dissenting from the
Revolutionary leaders who wished to carry it farther； he declared
that 'a law ought to be passed to render all division below a
certain number of arpents illegal。'
It seems to have very generally escaped notice that the law
of equal or nearly equal division after death was the general law
of France。 The rule of primogeniture was of exceptional
application； and was for the most part confined to lands held by
knightly tenure； indeed； in the South of France； where the custom
of equal division was strengthened by the identical rule of the
Roman jurisprudence； the privileges of the eldest son were only
secured by calling in the exceptional rules of which the Roman
Law gives the benefit to milites （or soldiers on service） when
making their wills or regulating their successions； and by laying
down that every chevalier； and every noble of higher degree； was
a miles within the meaning of the Roman juridical writers。 The
two systems of succession and the two forms of property lay side
by side； and there were men alive quite recently who could
remember the bitter animosities caused by their co…existence and
antagonism。 A very great part of the land held by laymen belonged
to the peasantry； and descended according to the rule of equal
division； but eldest son after eldest son succeeded to the
signory。 Yet it was not the rule of primogeniture followed in
noble descents which was the true grievance； at most it became a
grievance under the influence of the peculiar vein of sentiment
introduced by Rousseau。 The legacy from tribal sovereignty to
signorial privilege； which was really resented； was that which I
placed second in order。 The right to receive feudal dues and to
enforce petty monopolies； now almost extinguished in England by
the measures to which the Copyhold Commission has given effect；
had ceased long before the end of the last century to be of any
considerable importance to the class which was invested with it；
but M。 de Tocqueville has explained； in his 'Ancien R間ime' （i。
18）； that it made up almost the entire means of living which the
majority of the French nobility possessed。 A certain number of
noblemen； besides their feudal rights； had their terres； or
domain； belonging to them in absolute property； and sometimes of
enormous extent； and the wealthiest members of this limited
class； the grands； who so frequently appear in French Court
history； but who； away from the Court； were much the most
respected and beloved of their order； formed the counterpart；
from the legal point of view； of the English landed proprietary。
The rest of the nobles lived mainly； not on rent； but on their
feudal dues； and eked out a meagre subsistence by serving the
King in arms。 The sense of property in the soil was thus not in
the lord but in the peasantry； and the peasantry viewed the
exercise of signorial rights with a feeling closely akin to that
which is inspired by a highly oppressive tax。 The condition of
sentiment produced by it is even now a political force of some
moment in France； and a similar； though a far weaker； repulsion
is known to have been caused in this country by the taking of
tithes in kind。 It is a significant fact that； where the
ownership is acknowledged to reside in the superior holder； the
exaction of even an extreme rent from the tenants below has very
rarely been regarded with the same bitterness of resentment。
The change； therefore； which took place in France at the
first Revolution was this： the land…law of the people superseded