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قراءة كتاب Landholding in England

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Landholding in England

Landholding in England

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دار النشر: Project Gutenberg
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place here to allude to the use of the word property with reference to land; property—from proprium, my own—is something pertaining to man. I have a property in myself. I have the right to be free. All that proceeds from myself, my thoughts, my writings, my works, are property; but no man made land, and therefore it is not property. This incorrect application of the word is the more striking in England, where the largest title a man can have is "tenancy in fee," and a tenant holds but does not own.

Sir William Blackstone places the possession of land upon a different principle. He says that, as society became formed, its instinct was to preserve the peace; and as a man who had taken possession of land could not be disturbed without using force, each man continued to enjoy the use of that which he had taken out of the common stock; but, he adds, that right only lasted as long as the man lived. Death put him out of possession, and he could not give to another that which he ceased to possess himself.

Vattel (book i., chap, vii.) tells us that "the whole earth is destined to feed its inhabitants; but this it would be incapable of doing if it were uncultivated. Every nation is then obliged by the law of nature to cultivate the land that has fallen to its share, and it has no right to enlarge its boundaries or have recourse to the assistance of other nations, but in proportion as the land in its possession is incapable of furnishing it with necessaries." He adds (chap. xx.), "When a nation in a body takes possession of a country, everything that is not divided among its members remains common to the whole nation, and is called public property."

An ancient Irish tract, which forms part of the Senchus Mor, and is supposed to be a portion of the Brehon code, and traceable to the time of St. Patrick, speaks of land in a poetically symbolic, but actually realistic manner, and says, "Land is perpetual man." All the ingredients of our physical frame come from the soil. The food we require and enjoy, the clothing which enwraps us, the fire which warms us, all save the vital spark that constitutes life, is of the land, hence it is "perpetual man." Selden ("Titles of Honor," p. 27), when treating of the title "King of Kings," refers to the eastern custom of homage, which consisted not in offering the person, but the elements which composed the person, EARTH and WATER—"the perpetual man" of the Brehons—to the conqueror. He says:

"So that both titles, those of King of Kings and Great King, were common to those emperors of the two first empires; as also (if we believe the story of Judith) that ceremonies of receiving an acknowledgment of regal supremacy (which, by the way, I note here, because it was as homage received by kings in that time from such princes or people as should acknowledge themselves under their subjection) by acceptance upon their demand of EARTH and WATER. This demand is often spoken of as used by the Persian, and a special example of it is in Darius' letters to Induthyr, King of the Scythians, when he first invites him to the field; but if he would not, then bringing to your sovereign as gifts earth and water, come to a parley. And one of Xerxes' ambassadors that came to demand earth and water from the state of Lacedaemon, to satisfy him, was thrust into a well and earth cast upon him."

The earlier races seem to me, either by reasoning or by instinct, to have arrived at the conclusion that every man was, in right of his being, entitled to food; that food was a product of the land, and therefore every man was entitled to the possession of land, otherwise his life depended upon the will of another. The Romans acted on a different principle, which was "the spoil to the victors." He who could not defend and retain his possessions became the slave of the conqueror, all the rights of the vanquished passed to the victor, who took and enjoyed as ample rights to land as those naturally possessed by the aborigines.

The system of landholding varies in different countries, and we cannot discover any idea of abstract right underlying the various differing systems; they are the outcome of law, the will of the sovereign power, which is liable to change with circumstances. The word LAW appears to be used to express two distinct sentiments; one, the will of the sovereign power, which being accompanied with a penalty, bears on its face the idea that it may be broken by the individual who pays the penalty: "Thou shalt not eat of the fruit of the tree, for on the day thou eatest thereof thou shalt die," was a law. All laws, whether emanating from an absolute monarch or from the representatives of the majority of a state, are mere expressions of the will of the sovereign power, which may be exacted by force. The second use of the word LAW is a record of our experience—e.g., we see the tides ebb and flow, and conclude it is done in obedience to the will of a sovereign power; but the word in that sense does not imply any violation or any punishment. A distinction must also be drawn between laws and codes; the former existed before the latter. The lex non scripta prevailed before letters were invented. Every command of the Decalogue was issued, and punishment followed for its breach, before the existence of the engraved tables. The Brehon code, the Justinian code, the Draconian code, were compilations of existing laws; and the same may be said of the common or customary law of England, of France, and of Germany.

I am aware that recent analytical writers have sought to associate LAW with FORCE, and to hold that law is a command, and must have behind it sufficient force to compel submission. These writers find at the outset of their examination, that customary law, the "Lex non scripta," existed before force, and that the nomination to sovereign power was the outcome of the more ancient customary law. These laws appear based upon the idea of common good, and to have been supported by the "posse comitatus" before standing armies or state constabularies were formed. Vattel says (book i., chap. ii.), "It is evident that men form a political society, and submit to laws solely for their own advantage and safety. The sovereign authority is then established only for the common good of all the citizens. The sovereign thus clothed with the public authority, with everything that constitutes the moral personality of the nation, of course becomes bound by the moral obligations of that nation and invested with its rights." It appears evident, that customary law was the will of small communities, when they were sovereign; that the cohesion of such communities was a confirmation of such customs of each, that the election of a monarch or a parliament was a recognition of these customs, and that the moral and material FORCE or power of the sovereign was the outcome of existing laws, and a confirmation thereof. The application of the united force of the nation could be rightfully directed to the requirements of ancient, though unwritten customary law, and it could only be displaced by legislation, in which those concerned took part.

The duty of the sovereign (which in the United Kingdom means the Crown and the two branches of the legislature) with regard to land, is thus described by Vattel:

"Of all arts, tillage or agriculture is doubtless the most useful and necessary, as being the source whence the nation derives its subsistence. The cultivation of the soil causes it to produce an infinite increase. It forms the surest resource, and the most solid fund of riches and commerce for a nation that enjoys a happy climate. The sovereign ought to neglect no means of rendering the land under his jurisdiction as well cultivated as possible.... Notwithstanding the introduction of private property among the citizens, the nation has still the right to take the most effectual measures to cause the aggregate soil of the country to produce the greatest and most advantageous revenue possible. The cultivation of the soil deserves the attention of the Government, not only on account of the invaluable advantages that flow

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