第81章

But, in some societies, the trammels in which Property is tied upare much too complicated and stringent to be relaxed in so easy amanner. Whenever male children have been born to a Hindoo, thelaw of India, as I have stated, gives them all an interest in hisproperty, and makes their consent a necessary condition of itsalienation. In the same spirit, the general usage of the oldGermanic peoples -- it is remarkable that the Anglo-Saxon customsseem to have been an exception forbade alienations without theconsent of the male children; and the primitive law of theSclavonians even prohibited them altogether. It is evident thatsuch impediments as these cannot be overcome by a distinctionbetween kinds of property, inasmuch as the difficulty extends tocommodities of all sorts; and accordingly, Ancient Law, when oncelaunched on a course of improvement, encounters them with adistinction of another character, a distinction classifyingproperty, not according to its nature but according to itsorigin. In India, where there are traces of both systems ofclassification, the one which we are considering is exemplifiedin the difference which Hindoo law establishes betweenInheritances and Acquisitions. The inherited property of thefather is shared by the children as soon as they are born; butaccording to the custom of most provinces, the acquisitions madeby him during his lifetime are wholly his own, and can betransferred by him at pleasure. A similar distinction was notunknown to Roman law, in which the earliest innovation on theParental Powers took the form of a permission given to the son tokeep for himself whatever he might have acquired in militaryservice. But the most extensive use ever made of this mode ofclassification appears to have been among the Germans, I haverepeatedly stated that the allod, though not inalienable, wascommonly transferable with the greatest difficulty. and moreover,it descended exclusively to the agnatic kindred. Hence anextraordinary variety of distinctions came to be recognised, allintended to diminish the inconveniences inseparable from allodialproperty. The wehrgeld, for example, or composition for thehomicide of a relative, which occupies so large a space in Germanjurisprudence, formed no part of the family domain, and descendedaccording to rules of succession altogether different. Similarly,the reipus, or fine leviable on the re-marriage of a widow, didnot enter into the allod of the person to whom it was paid, andfollowed a line of devolution in which the privileges of theagnates were neglected. The law, too, as among the Hindoos,distinguished the Acquisitions of the chief of the household fromhis Inherited property, and permitted him to deal with them undermuch more liberal conditions. Classifications of the other sortwere also admitted, and the familiar distinction drawn betweenland and moveables; but moveable property was divided intoseveral subordinate categories, to each of which different rulesapplied. This exuberance of classification, which may strike usas strange in so rude a people as the German conquerors of theEmpire, is doubtless to be explained by the presence in theirsystems of a considerable element of Roman law, absorbed by themduring their long sojourn on the confines of the Roman dominion.

It is not difficult to trace a great number of the rulesgoverning the transfer and devolution of the commodities whichlay outside the allod, to their source in Roman jurisprudence,from which they were probably borrowed at widely distant epochs,and in fragmentary importations. How far the obstacles to thefree circulation of property were surmounted by suchcontrivances, we have not the means even of conjecturing, for thedistinctions adverted to have no modern history. As I beforeexplained, the allodial form of property was entirely lost in thefeudal, and when the consolidation of feudalism was oncecompleted, there was practically but one distinction leftstanding of all those which had been known to the western world-- the distinction between land and goods, immoveables andmoveables. Externally this distinction was the same with thatwhich Roman law had finally accepted, but the law of the middleages differed from that of Rome in distinctly consideringimmoveable property to be more dignified than moveable. Yet thisone sample is enough to show the importance of the class ofexpedients to which it belongs. In all the countries governed bysystems based on the French codes, that is, through much thegreatest part of the Continent of Europe, the law of moveables,which was always Roman law, has superseded and annulled thefeudal law of land. England is the only country of importance inwhich this transmutation, though it has gone some way, is notnearly accomplished. Our own, too, it may be added, is the onlyconsiderable European country in which the separation ofmoveables from immoveables has been somewhat disturbed by thesame influences which caused the ancient classifications todepart from the only one which is countenanced by nature. In themain, the English distinction has been between land and goods;but a certain class of goods have gone as heir-looms with theland, and a certain description of interests in land have fromhistorical causes been ranked with personalty This is not theonly instance in which English jurisprudence, standing apart fromthe main current of legal modification, has reproduced phenomenaof archaic law.