"We also find this recollection of equality among the Romans. Dionysius of Halicarnassus, Varro, Festus and Pliny, allfurnish us with evidence, with regard to this people, of great interest and of indisputable historic value.
"According to Dionysius of Halicarnassus, Romulus divided each of the three tribes which composed the population into tencuries, and divided the territory into thirty parts. He distributed one of these parts to each curia by lot, a portion of theterritory being reserved for the expenses of religion and public domain. (35) Varro twice gives the same tradition: `AgerRoinanus primum divisus in panes tres a quo tnibus appellata Tatiensium, Ramnium, Lucerum.' (36) ' Bina jugera quod aRomulo primum divisa (dicebantur) viritim quae (quod) haeredem sequerentur, haeredium appellarunt.' (37)"We also find in Festus and the Elder Pliny mention of the original survey of the Roman domain: `Centuriatus ager inducenta jugera definitus. Quia Romulus centenis civibus ducenta jugera tribuit.' (Festus)'Bina tunc jugera populo Romanosatis erant, nullique majorem modum attribuit' (Pliny)." (38)M. Viollet also sees a proof of the previous existence of the community of the soil in a practice, which is very common inantiquity, and is found in early times among all modern nations, and is, in fact, derived from the joint possession of the soiLAccording to this custom the alienation of land to any one, who is a stranger to the village, is not allowed without theconsent of the inhabitants, who have even the right of purchasing the land on tendering the price offered. First, we maynotice the ancient Hindoo custom:
"At a very remote period the alienation of land in India was not valid without the consent of the inhabitants of the place, ofrelatives, of neighbours, of shareholders, and of heirs. (39) The texts are very precise, and leave no room for doubt on thepoint. We here find ourselves in presence of the village community pointed out by Nearchus, on the authority of Strabo, ofwhich we have spoken above. The neighbours have certain rights over the land. It cannot be alienated without theirauthority, and their consent is necessary for the admission of a new possessor. These are the natural consequences of the oldjoint-ownership of the tribe. Everything in the system is ****** and logical, the moment we refer it to this historical idea."In Greece the neighbours take part in the act of sale, either as witnesses or as guarantees. Sometimes, as at Thunium, theyreceived a small coin, Theophrastus tells us, which seemed to be the price of their assent, or the acknowledgment of certainrights of joint-ownership. According to the German civilian Puchta, (40) the ancient mode of acquisition by a fictitiousvindicatio before a magistrate, called in jure cessio , can only be explained by the State's right of eminent domain over allmoveable and immoveable property.
The retrait , or right of claiming land, in case of sale to a stranger, recognized in the inhabitants of the village, is foundeverywhere. It exists in most Mussulman countries, in Algeria, in India, (41) and Java. The retrait by the townsmen was still inforce in Illynia and Italy under the emperors; for a constitution of the year 391, concerning these provinces, abolished thecustorn. We have seen that it exists in Russia. It is also to be found among the Southern Slays, and in primitive times wascommon among the German tribes.
In Switzerland it still exists for the Allmends . In France, this primitive custom survived until a very recent period. In thedistrict of Angle (Saint-Omen), and at Fillièvre (Hesdin), (42) the inhabitants had the right of retrait against every strangerpurchasing lands in its territory. Traces of it are also to be found in the Libri feudorum . (43) We may, therefore, assert that theright of retrait formerly existed everywhere as a remnant of the previous collective property.
When the right of alienating land was introduced among the Germans, the transfer of property continued to be a public act,which could only be effected in the assembly of the inhabitants of the district. According to title LIX. of the law of theRipuarian Franks, sales had to be performed in the Mallum . Gifts, also, were authenticated in this assembly.
In England, during the Saxon period, the transfer of landed property was effected in the general assembly, after publicproclamation. (44)
In the provinces of the Low Countries, in the middle ages, sale of land preserves the character of a public transaction. It wascarried out in the presence of the sheriff of the commune, and an official report was kept in the Hôtel-de-Ville. (45)I regard the fact that immoveables, even when they have become individual property, are originally in every case incapableof being sold or devised, as an additional proof of the primitive community of the soil. M. Fustel de Coulanges, from whomwe borrow further on the passage in proof of this fact, attributes it to the influence of primitive religion. This explanation isinsufficient, as there was no sale or devise of lands in Germany, nor is there at the present time in Russia, or the Swiss Allmands . For a fact of such universality we must seek an equally general rule. Its origin seems to have been this. Originallythe right of possessing a portion of the soil is a natural right, inherent in a man's person. The land is divided among all,according to an unalterable custom, which no one can modify at pleasure. The individual attains to possession of the soil,not by virtue of a contract of sale or testamentary devise, but by reason of his character as a member of the human race, andhis inalienable right of living by labour applied to the soil, the common foster-mother of his kind. An agrarian organization,founded on such a conception of property, obviously allows of no alienation of immoveables, whether by sale or testament.
