There are indications that at first the possession of allodial land was everywhere the distinctive privilege of the freeman. Down indeed to the first French Revolution the exceptional tenure of land in ‘franc-alleu,’ which here and there survived amid the general feudalisation, was held by Frenchmen in high honour. Nevertheless, the modern history of allodial land is essentially the history of the holding of land by servile or by very humble classes. It bequeathed its great characteristic, its divisibility at death between all the children or all the sons, to that lowest stratum of landed right upon which the feudal structure reposed, either because communities originally free had sunk on all sides into villenage, or because the was the type of all enjoyment of land, and was followed in colonies of serfs planted by a Roman or Teutonic lord. All peasant holdings in France were adjusted to this type till the Revolution, and so were German peasant estates down to a considerably later date. We have traces of its peculiar rules in the Gavelkind of Kent, and in much copyhold land; and a comparison of the treatises of Glanvill and Bracton enables us to fix the time when the most widely diffused of English tenures—socage—was just putting off the characteristics of the allod, and putting on those of the feud. But our current Real Property Law is coloured throughout by the feudal view of land, which is that, when held in individual enjoyment, it is primarily impartible or indivisible. The great system of land-law, resting on this feudal conception, though occasionally wrested into departure from it by sovereign authority, is essentially a system of rules regulating the tenure of land by noble classes. The allodial tenure, which is believed to have been originally the tenure of freemen, became in the Middle Ages the tenure of serfs. The feudal tenure, which was certainly at first the tenure of servants who, but for the dignity of their master, might have been called slaves, became in the Middle Ages the tenure of noblemen. It was by an exception, and a remarkable one, that in our country the land-law of the nobles became the land-law of the people.
The other theory which is now opposed to that long called Patriarchal is the theory of the origin of society, not in the Family but in the Horde. Aristotle and the writers who have followed him suppose that the larger groups of men discernible in the twilight of history have somehow grown out of isolated families like that of the Homeric Cyclops. As these larger groups first show themselves, it is impossible to believe that they are composed throughout of blood-relations, but the Patriarchal theory according to recent interpreters assumes that there is a real core of consanguinity in some or most of them, to which artificial additions have been made by a number of fictions of which Adoption is the type; and that others have been created by a process, not wholly extinct, of imitating a dominant or fashionable model. My own conclusion in my ‘Ancient Law’ was thus stated: ‘The conclusion which is suggested by the evidence is that all early societies were formed by descent from the same ancestor, but that all of them which had any permanence or solidity either were so descended or assumed that they were. An indefinite number of causes may have shattered the primitive groups, but where-ever their ingredients recombined, it was on the model or principle of an association of kindred. Whatever were the fact, all thought, language, and law adjusted themselves to the assumption.’ The theory, which deserves to be associated with the names of McLennan and Morgan, may be said in some sense to invert this account of the matter. It derives the smaller from the larger group, not the larger from the smaller. Founded, as was the Patriarchal theory, on observation, but on observation of the ideas and practices of the now savage races, it deduces all later social order from the miscellaneous, unorganised Horde. I must confess that I do not find it easy to bring home to myself the nature of the original groups as conceived either by McLennan or by Morgan. But I think I may lay down that these assemblages are regarded as companies of men and women, in which the relations of the sexes were wholly unregulated at first, but passed through various stages of limitation or restriction until the Family, Patriarchal or other, was reached. The modern social order is thus the result of a modified promiscuity. These two most original inquirers differ widely in their determination of the stages through which this course of development passed. Totemism (or the origin of the conception of kinship in the mark placed by savages on their bodies), the slaughter of female children, woman-stealing, polyandry (or a plurality of recognised husbands), and the well-known Levirate, play a great part in the system of Mr. McLennan. Consanguine Marriage, Punaluan Marriage (or the intermarriage of brothers as a group with sisters as a group), and Classificatory Relationship (or the confusion under the same general view and name of all members of the tribe belonging to the same generation) are all-important to Mr. Morgan’s theory. But both agree in considering human society as beginning in promiscuity, and as continually modified by its progressive regulation, as beginning in the Horde and as gradually lifting itself till the Family was reached. Both writers seem to me to hold that human society went everywhere through the same series of changes, and Mr. McLennan at any rate expresses himself as if all these stages could be clearly discriminated from one another, and the close of one and the commencement of another announced with the distinctness of the clock-bell, telling the end of the hour.
The truth is, that for Oriental systems of succession to Thrones, we have to go to usages, older perhaps than the great religious movements which have swept from time to time over the East, and having, at all events, a history independent of the institutions to which these movements give birth. The real or pretended doubts, the bitter disputes, and the sanguinary wars which the application of these customs occasioned were once among the chief scourges of mankind in the countries in which they prevailed, but the area of such troubles has been much contracted by the British Indian Empire. Yet the Empire itself was only the other day mixed up with one controversy of the kind which might be taken as a typical example of its class. One can never be very sure how long any Indian events survive in English memory, and yet some of us should recollect the perplexity caused by the names and claims of the various Chiefs or Princes who appeared during three or four years in the newspaper correspondence as pretenders to sovereign authority in Afghanistan. We heard of the unhappy Shere Ali Khan who, after the first British success, retired from Cabul, his capital, only to die—of Yakub Khan, now a State-prisoner in India, who ruled at Cabul as Shere Ali’s successor at the time of Sir Louis Cavagnari’s assassination—of Abdurrhaman Khan, long an exile in Russia, who now wears the most distinct badge of modern Afghan sovereignty by holding the three great cities of Cabul, Candahar, and Herat—of Ayub Khan, who, after inflicting on British Indian troops the first defeat in the open field which they had suffered for seventy-eight years, was utterly routed by the victorious General Roberts, and who, after another success against his rival Abdurrhaman, was finally defeated and compelled to take refuge in Persia. There were also the obscurer names of Abdulla Jan, now dead, who was a younger son of Shere Ali Khan, and who was long accepted by all except his elder brother as his father’s heir-apparent, and of Musa Khan, the son of Yakub, whom I have seen spoken of in the newspapers as the only legitimate claimant to the Afghan throne. All the princes I have named were in some sense pretenders to the throne, and they are all near kinsmen, being all descendants of Dost Mahomed Khan, against whom the British fought in the old Afghan war of forty-four years since, and in whose room they set up for a while a client of their own, Shah Suja. How was it that so many near relatives claimed to be the successors of the last reigning prince? Hardly one of them is entitled under the rules about succession to thrones to which we are accustomed. Shere Ali, after a hard struggle, succeeded his father, Dost Mahomed, but he was not his father’s eldest son. Yakub Khan was not Shere Ali’s eldest son, and he was all but supplanted by a much younger brother, Abdulla Jan, and was long imprisoned for questioning his claims. Abdurrhaman Khan, the now reigning Ameer, is not a son of Shere Ali at all, but the son of his elder brother, and yet not, it is thought, of his eldest brother. Ayub Khan, on the other hand, is a son of Shere Ali, but he is younger than his brother Yakub Khan, who has a son living, the Musa Khan who, as I said before, has been called the legitimate heir to the throne. How then come all these princes to be rivals of one another? How is it that there is no rule, as with us, to regulate (as we should say) the descent of the Crown?
For thousands of years the nations asserted their vital claims by the use of power. If in our time some other institution is to take the place of this power for the purpose or regulating relations between the peoples, then it must take account of natural vital claims and decide accordingly. It is the task of the League of Nations only to guarantee the existing state of the world and to safeguard it for all time, then we might just as well entrust it with the task of regulating the ebb and flow of the tides or directing the Gulf Stream into a definite course for the future.