6. See Lex Angl , tit. vi. 5; Canciani, Barbar. Leges aut . t. III, p. 50, note I; Lex Franc. Charnav . in the Revue hist. du droitfranç. et étr . 2, I. (1855), p. 442.
7. Sir James Ware, Antiquities , c. xix.: "By this custom among the Irish, the inheritance of the deceased (below the degreeof Thanist) was equally divided among the sons both lawfully and unlawfully begotten, females being wholly excluded."8. Lex Burg ., tit. 14, ?1.
9. Lex Alam ., tit. 51, ?2.
10. Hist. du droit de succession en France an moyen-âge , Trad. de L. D. de Loménie, p. 61, 1846.
11. See Hist. du droit franç ., 1836, 2, I. 6, 199.
12. Lanthenas, Inconvénients du droit d'ainesse , p. 15.
13. Gide, Étude sur la condition privée de La femme , p. 44, and Laboulaye, Droit de succession des femmes .
14. See the interesting work of M. Albert Dumont, Souvenirs de l'Adriatique , Revue des Deux Mondes , 1 er Nov. 1872.
15. Hinaux, Hist. de Liége , p. 127 (Third Edit.).
16. The Mirror of the Saxons (18th century) says (i. 52, 34): "If any one has sold or granted an immoveable or a serfwithout obtaining the consent of the agnates, they may claim the property alienated without being obliged to repay thepurchase-money. Even with this consent and the intervention of justice, no one may alienate all his immoveahies; he mustretain half-an-acre of land, or at least a space of sufficient size to form a court in which one can turn a carriage." This is theinalienable heredium of Sparta and Rome. See Zachariae, Geist der deutsehen territorial verfassung , p. 226. The vendor'skinsmen and even the co-occupiers of the mark had a right of pre-emption (Maurer, Gesch. der Markenverfas ., p. 184; Gesch. der Dorfverf ., I. p. 320; Gesch. der Fronhöfe , III, p. 74).
CHAPTER XVII.
THE ORIGIN OF INEQUALITY IN LANDED PROPERTY.
Primitive societies, at the moment of passing from the pastoral system to the agricultural system, are composed, as has justbeen shewn, of groups of men united by the bonds of a common descent. All are proprietors of an equal undivided share inthe common territory; all are equal and free; they are their own administrators, their own judges, and the electors of theirown chiefs. The different groups, speaking the same dialect and having a common origin, lend one another assistance againstan enemy, and deliberate from time to time on the common interests of attack and defence. No authority is exercised, exceptby delegation; no decision taken, except after discussion by a majority of votes. No functionary has any peculiar power byvirtue of birth or divine right. There is nothing resembling supreme power imposing its wishes on its subjects. The State, asdeveloped in the West or at Rome, exists neither in fact nor name. The individual is sovereign, subject only to thesovereignty of juridical customs and religious ideas. The nation is thus composed of a large number of small autonomicrepublics united by a federal bond. Such was the organization of Germany, in the time of Tacitus, and such is that of theUnited States in our own days. It has hardly been modified in its course; individual ownership has simply replaced agrariancommunity. In America, as also in Germany, the elementary molecule of the social body is the commune, or township. Thevery name is preserved town is the zaun , the tun , the inclosure or village. In the township also the citizens assemble to electfunctionaries, to vote taxes, to determine the necessary labours, and to frame regulations. There is no hierarchy offunctionaries imposing administrative decisions. The townships enjoy complete autonomy, under the empire of general laws,to which the judges insure respect; their federation forms States, and the federation of States the Union. In the Americandemocracy we find all the characteristics of primitive democracies:individual independence, equality of conditions, electivepowers, direct government by the assembly of inhabitants, and trial by jury.
Montesquieu was not mistaken in saying that the English constitution came from the forests of Germany. At their startingpoint, patriarchal democracies have universally the same characteristics, whether in India, Greece, Italy, Asia, or the NewWorld; but almost universally also the primitive equality has disappeared; an aristocracy springs up, feudalism is created, andthen the royal power gains strength and subjects everything to its absolute empire. The mark , in primitive times, formed thepolitical and economic unit; it was the origin of the independent and autonomic commune, Feudalism, and royalty later on,could not suffer its independence, and succeeded almost everywhere in taking away its ancient privileges. Only a fewisolated countries, such, for example, as Servia, Frisia, Switzerland, the district of Ditmarsch, and the valley of Andorre,have preserved the ancient free institutions.
