Landholding In England | Page 6

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 from it, but from its being an obligation imposed by nature on mankind."
Sir Henry Maine thinks that there are traces in England of the commune or MARK system in the village communities which are believed to have existed, but these traces are very faint. The subsequent changes were inherent in, and developed by, the various conquests that swept over England; even that ancient class of holdings called "Borough English," are a development of a war-like system, under which each son, as he came to manhood, entered upon the wars, and left the patrimonial lands to the youngest son. The system of gavel-kind which prevailed in the kingdom of Kent, survived the accession of William of Normandy, and was partially effaced in