There can be no better security for the stability of the institutions of a country than by enlisting a large number of the people in their support, by giving them a stake in the prosperity of the soil. It is the highest public interest that landed property should easily get into those hands by which it can be turned to the best account; that the title to property in land should be sure and incontestable; and that there should be no legal obstacle to the subdivision of land, when the natural economy tends to it, so that the number of small land-owners shall not be artificially reduced by imperfection in the law. The larger the number of land-owners in a country, the more who have an interest in the soil they till, the more free and independent citizens there are interested in maintenance of public order. There is no ballast for a man like that of having a little earth, his own, about his feet. Cultivating his own field, growing a part of his food-supply, lodged under his own roof,—these make life pleasanter and labor lighter. The thoughts, feelings, lives of those who live under these conditions are of a higher order than the thoughts, the feelings, the lives of those who do not. Property is the essential complement of liberty. Without property man is not truly free. Whatever rights the political constitution may confer upon him, so long as he is a mere tenant he remains a dependent being; a free man politically, he is socially but a bondsman. There is no country in Europe where land possesses the great independence, and where there is so wide a distribution of land-ownership, as in Switzerland. The 5,378,122 acres devoted to agriculture are divided among 258,639 proprietors, the average size of the farms throughout the whole country being not more than twenty-one acres.63 The facilities for the acquisition of land have produced small holders, with security of tenure, representing two-thirds of the entire population. There are no primogeniture, copyhold, customary tenures, and manorial rights, or other artificial obstacles to discourage land transfer and dispersion. No entails aggregating lands and tying them up, so that no living person shall be full owner, but a mere tenant for some unborn child. No family settlements with “tenants in common in tail,” with “cross-remainders in tail,” till some tenant-in-tail reaches the age of twenty-one years, when he may be able with the consent of his father, who is tenant for life, to bar the entail with all the remainders. There is no belief, in Switzerland, that land was made to minister to the perpetual elevation of a privileged class; but a wide-spread and positive sentiment, as Turgot puts it, that “the earth belongs to the living, not to the dead;” nor, it may be added, to the unborn. The natural forces of accumulation and dispersion are not hampered by ninety-nine years building leases, perpetual and irredeemable rent, or heavy expense of conveyance; but are in every way encouraged, simplified, and facilitated by the laws federal and cantonal. The wars of the fifteenth and sixteenth centuries exercised, indirectly, considerable influence on Swiss land tenure, by breaking up the large properties—monastic, conventual, and private—which had for some time been steadily augmented; and produced a reaction in favor of gradual redistribution. This wider dissemination of land among the people was carried on without rudely shocking or violating proprietary rights, as far as the few recalcitrant owners permitted it to be done; certainly with not a tithe of the legislative injustice or coercion, with which a greater part of these accumulations had been made. It is from this period that the existing system of land tenure in Switzerland may be said really to date. The feudal rights asserted by certain Cantons over others, which took the form of landed charges, were all swept away at the time of the setting up of the Helvetian Republic, in 1798. Since the commencement of this century, and especially since the constitutions of 1830 were framed, the land throughout the whole of Switzerland has been completely emancipated,—the system of peasant proprietorship working side by side with that of small tenant farmers. The survival of the Commune, intact with its various property rights in fee-simple and usufruct, does not conflict with or impede the general tendency to discourage the centralization of landed property in the hands of the few. For it has come to be axiomatic with the Swiss that the effort to acquire land is the mainspring of the life of the peasant, the root of his industry, of his painstaking, frugal, and saving life. The solid, sterling elements of the Swiss peasant’s character are traced by all the native writers to their source in the educative power of property,—property in land.

There exists no federal land code in Switzerland. Contracts relating to the sale and purchase of lands, easements, and mortgages are governed by the law of each Canton. In general, all questions as to the devolution of property, by will or upon intestacy, are regulated by the Cantons, and not within the competence of the Confederation. There is an official survey containing a plan of each Commune, with the parcels of land, their areas, annual values, and peculiarities indicated, of which any one may have a copy under a fixed schedule of charges. The federal code of obligations, adopted in 1861, contains twenty-five articles relating to leases of land. It was claimed at the time of the passage of this law, by some of the ablest lawyers, to be an assumption by the government of a very doubtful power, an interference with the ownership of the soil, and the infringement of an exclusive right guaranteed to the Cantons. The friends of the measure contended that its provisions did not involve the title or ownership of realty, but only had to do with the rights of persons, which clearly fell within the competency of the Federal Assembly. This view obtained. While it is difficult to examine this elaborate act and its far-reaching provisions, without a conviction that it bears a very close and strong relation to the ownership of soil, in the popular apprehension of that term, still its satisfactory operation has silenced all opposition, and it is now believed to be accomplishing desirable ends that could not otherwise be so efficiently done. It may be of interest to note some of the leading provisions of this law. All contracts for leases are required to be written. If the farm be delivered to the tenant in a condition unsuitable for the purpose for which it was rented, the tenant may renounce the lease. If deteriorations or restrictions not mentioned in the covenant take place, without the tenant’s fault, he may demand proportionate reduction of rent or renounce the lease, if proper restitution is not made within a reasonable time. Urgent repairs of any kind, required during the lease, are to be made by the tenant. The lessor has the right to retain all the movables belonging to the farm, as security for the payment of his rent, for the past current year. This, however, does not include effects, which, under the laws relating to debt and bankruptcy, are exempt from execution. The lessor has the right to appeal to the authorities to compel a tenant, who threatens to abandon the farm before paying the rent, to leave property behind him on the place in value sufficient to cover the amount due. A tenant cannot be relieved from rent when, through his own fault or even from any accident in which he was directly concerned, he is unable to enjoy the use or benefit of the lease. If implements, stock, etc., are included in the lease, each party must furnish the other with a specific inventory duly subscribed, with an estimate of their value. The lessor must bear the expense of any repairs, on a large scale, which may become necessary during the lease, as soon as he receives notice of such from the tenant. The tenant must make a conscientious use of the land, according to the stipulations of the lease, and especially to keep it in a good state of cultivation. The tenant cannot alter the existing mode of cultivation or cropping to the damage of the land or the prejudice of a subsequent lease. He must conform with all local laws and customs as to paths, foot-bridges, ditches, dikes, hedges, roofs, aqueducts, etc., and must replace all implements and tools of small value which may have become worn out. The tenant cannot underlet without consent of landlord, regardless of duration of lease. In absence of special agreement as to payment of rent, it must be paid according to the local custom, and in event of extraordinary accident by which he loses a considerable portion of his year’s product, if in no way due to any fault on his part, and if not covered by insurance, or taken into consideration in fixing the rent, he may demand a proportionate reduction. In the absence of agreement or well-defined custom, each party has the right to give the other notice, which as to the land must be at least six months before the 11th of November. With this notice in cases of long leases, where circumstances arise to render its continuance intolerable to either party, it may be terminated, with an equitable indemnity to the other party; this indemnity, even when referred to the courts for adjustment, must not be less than one year’s rent. If, on the expiration of the lease, the tenant remains in possession with the landlord’s knowledge and without his objection, the lease will continue in force from year to year, until the six months’ notice is given by one of the parties. When a tenant fails to pay his rent at the time it falls due, the lessor may give him notice that if not paid within sixty days the lease will be cancelled; in that event the tenant loses his right to the growing crops, but he must be reimbursed for the expenses incurred in their cultivation, to be credited on arrears of rent. The lessor has the right to cancel a lease when the tenant neglects to keep the farm in good order; or if, after receiving notice, he fails to execute any necessary repairs within the period designated by the landlord. In event of a tenant’s bankruptcy, the lease expires ipso facto, when such bankruptcy is declared. At the expiration of a lease the tenant must hand over the farm and everything specified in the inventory, just as they are at the time of delivery, with indemnity for any injury resulting from want of proper care on his part; and no compensation is due him for improvements merely the result of ordinary care. The tenant must leave on the land the straw and manure of the preceding year; if, however, it exceeds what he received when taking possession, he can claim compensation for the difference. The outgoing tenant, at the expiration of the lease, has the right to compensation for any increase on the original valuation of the farm which is the fruit of his labor and outlay; this is sometimes ascertained to a nicety by means of a system of chemical testing of the soil.

It seems almost incredible that a federal law should be so circumstantial, rather than lay down the general principles upon a question of the lease of land and leaving it to the Cantons or Communes to supply the details, in conformity with the varying local elements that must enter into it, from the great diversity of soil, products, and customs. This law is but another illustration of that patient and minute exactness which distinguishes all Swiss federal legislation, aiming to cover every possible contingency that may arise of construction or enforcement.

It is to the cantonal civil codes we must turn for the body of the land laws. These codes appear to be derived from three distinct sources, corresponding with the ethnical division of the people,—the Roman, the Old Germanic, and the Napoleonic codes. The Cantons of Geneva, Neuchâtel, and the western portion of the Canton of Bern, known as the Jura-Bernois, have the code Napoleon almost in its entirety. The codes of Vaud, Freiburg, Valais, and Ticino are based on the old Roman law, harmonized in some features with the code Napoleon. The Cantons of St. Gallen, Appenzell, Uri, Schwyz, Obwald, Glarus, and Basel-Stadt are still governed by ancient statutes or customs, without any defined codes. The remaining Cantons, constituting what is known as German Switzerland, have their land laws framed on the old Germanic code, with an admixture of the code Napoleon. There were no cantonal land codes previous to 1819; the oldest one, that of Vaud, dates from that year. A summary of the law, in a few of the representative Cantons, will be sufficient.

Bern has two separate codes; the western or Jura district having adopted the code Napoleon, while the other portion of the Canton still adheres to the old Germanic code, with some alterations and improvements grafted on to it. The sale of land is absolutely free and unrestricted; the only formality consisting of a contract drawn up and signed by both parties and deposited at the cantonal registry office, for which there is a small registration fee, divided between the Canton and Commune. The ordinary duration of an original lease is from five to ten years. The lessee is in no way bound to any particular rotation of crops, and any attempt to exhaust the soil unfairly is very unusual. The outgoing tenant must deliver to his successor the farm in no worse condition than that in which he found it; and if the requisite amount of manure, etc., is not forthcoming, he must replace the deficiency. Only one-third of the landed property is at the absolute disposal of the testator, the remaining two-thirds must be divided in equal portions among the children. The only way a testator may favor a child is to bequeath to him that portion (one-third) which the law allows him to dispose of ad libitum, as an addition to his distributable share. Should, however, the wife survive her husband, she enjoys the absolute use of all of his property for her life, with no power to alienate or deal with it in any way, save with the consent of the Committee of Wards, a body to be found in every Bernese Commune. Failing of wife or children, the property is divided equally among the heirs at law, should there be no will disposing of the available one-third. There is an exception, not embodied in the code, but founded in an immemorial custom, which prevails in the extensive valley of the Emmenthal, where the youngest son inherits by right all the landed property at the decease of both parents, subject to an annual indemnity paid to his brothers and sisters, who in this way hold a preferred lien on the land. The origin of this custom is thus explained: Motives of safety formerly induced the proprietors of land to live within the walls of Bern, where they had their house and establishment, which passed to the eldest son, instead of land. The custom has held together the exceptionally large farms in this valley, some running up to a hundred and fifty acres each.

In the Canton of Vaud the sale and acquisition of landed property are as unrestricted as in that of Bern. One-half of it is at the disposal of the testator, the other half must go to the children in equal proportions. Failing of issue, and if the deceased dies intestate, and be unmarried or a widower, his brothers and sisters succeed to half of the property and his parents to the other half. If none of these members of the family survive, the property is divided equally among the ascendants in the paternal and maternal line. In this Canton, where the breeding of cattle forms so important an industry, certain legislation closely allied to the occupation of the soil is worthy of a passing notice. This is known as Cheptel,—the contract by which one party undertakes to supply another with a certain number of cattle to tend and feed under specified conditions. The Cheptel is of several kinds. In one, the hirer has the right to the milk, work, and manure of the cattle, the increase and loss being equally divided. It is illegal for the two parties to enter into any contract by which the hirer undertakes to bear all losses. Then there is Cheptel à moitié,—where two owners of cattle, who do not possess a sufficient number to lease them, each on his own account, join together and lease their stock to a third party, sharing the profit and loss with him on the same condition and terms as in the case first described. The third class of Cheptel is where the tenant farmer rents the landlord’s cattle in conjunction with the farm, on the condition of his taking all risks, and that when the lease expires he shall leave behind a herd of cattle of the same value as that at which the original herd was estimated; all the profits from these cattle go to the farmer until the lease expires; the manure, however, belongs to the farm, and must be used for its exclusive benefit.

In the Canton of Basel the testator can only dispose of that part of his estate which falls to his heirs. If those heirs be children, he may by will deprive them of at most one child’s interest or share, not in any case to exceed the fourth part of the entire estate. If the heirs be parents, he can dispose of one-half of the estate, or more by the assent of the latter, written and properly authenticated. If the wife survives, she is entitled, in the absence of a marriage settlement, to two-thirds of the estate. A marriage settlement may entirely annul the operation of the community of property which otherwise prevails. In this case the entire estate of the deceased husband or wife falls to the heirs. Sons and daughters share alike. Brothers and sisters are regarded alike whether both or only one of the parents are the same. In the absence of descendants, parents share equally as heirs; if one of the latter is deceased, the survivor takes the whole. Descendants of a deceased heir, who are within the fifth degree of consanguinity, share equally the part which would have fallen to their ancestors. Illegitimate children inherit from the mother, but not from the father, unless legitimated by marriage of the parents.

In the Canton of St. Gallen a testator, in case he leaves but one child, can dispose, by a will or otherwise, of one-half of the property; if two children, only one-third; and if three or more, not more than one-fourth. In event of having no legal heirs, he may dispose of three-fourths of his property, the remaining one-fourth passing to the Canton. If the heirs be father, mother, or other near relations, he is not permitted to dispose by will of more than one-half. If there are relations beyond that degree, and within the tenth degree, he may dispose of two-thirds. If the wife survives, she is entitled to one-half the estate; however, if there be children also, then the wife takes only a child’s part. Sons and daughters share alike, with this modification: the sons have the preference of the real estate; tools and implements, if they are mechanics; books or libraries, if they are professional men; for which, however, they must pay a fair price to the other heirs. Two per cent. of all property disposed of by will goes to the Canton. Any person eighteen years old and of disposing mind may make a will. Every will must be attested by three witnesses, two of whom must be able to write their names. A woman’s property brought into the marriage remains her property; the interest only to be appropriated by the husband for the benefit of the family.

In the Canton of Zurich there is no limitation as to right of testator to dispose of his property by will, except as to interest of surviving wife. When the wife survives she is first entitled to withdraw the property she brought into the marriage, also the household furniture, in case it does not exceed one-fourth of the net estate; and if there be children, she takes the usufruct of one-half of the estate, or the fee-simple of one-eighth; if there be no children, but parents of the deceased living, she takes the usufruct of the whole estate, or fee-simple of one-fourth; if only grand-parents living, the fee-simple of one-half and the usufruct of the other half. If the wife marries, the usufruct is reduced one-half. As to sons and daughters,—in the father’s estate the sons have a preferred right to take the real estate, with the appurtenances, against payment of a moderate valuation; sons also have a preferred right to take the property pertaining to the paternal industry, such as tools, professional implements, cattle, etc., without, however, any deduction from the actual value thereof; sons take without compensation the paternal wardrobe, arms, outfit, and seal. Family records go to the oldest son without charge. The common paternal inheritance is divided equally among sons and daughters. In the maternal estate the clothing, house linen, and washing utensils go to the daughters without charge; also the jewelry, valuables, and savings of the mother, if they do not exceed in value five-one-hundredths of the estate, any excess over that must be paid for by them. The common maternal inheritance is divided equally, but the sons have the preference of the real estate, against payment of its full value.

In the Canton of Geneva the code Napoleon, or Code Civil Français, substantially exists, that Canton having been a part of the French Département du Léman from 1798 to 1814.

The notion of family co-proprietorship prevails extensively in the German Cantons, and testamentary power is much limited. In 1865 the Canton of Appenzell relaxed so far as to decree that it was an anomaly in this day of advanced civilization that a free citizen who enacted laws for himself (referring to the Landsgemeinde of the Canton) should be fettered, as in the benighted times of the past, in his testamentary powers, and that, therefore, he should thenceforward have the right to dispose by will of one-fiftieth of his property, if he had children, and of one-twentieth if he had none. In the Canton of Zurich, previous to the Bluntschli’s code, those who had children were obliged to leave them all their property, and, failing of issue, the relations, of whatever degree, had a right to their legitimate share. In Glarus the consent of the heirs is necessary before the smallest legacy can be made by the testator. In the Canton of Nidwald the question of the validity of a legacy is submitted to a jury, who are empowered to decide whether such legacy is just and in conformity with the position of the testator, the testator’s children, and the legatee. The three Cantons of Schaffhausen, Thurgau, and the Grisons, which place restrictions on the free disposal of inherited property, are more liberal as to acquired property. In Southern Switzerland, except in the Cantons of Freiburg and Valais, the law goes so far as absolutely to forbid special contracts made with regard to successions,—except in the case of husband and wife,—so that the testamentary power may remain free and untrammelled as to all property at the disposal of the testator when he comes to die. There is a manifest tendency to facilitate the disposal by will of property in general, in view of the more extended movements of the population, and the consequent dispersion of family. The laws of enforced succession are being gradually modified or repealed. In point of fact, the Swiss laws make little or no distinction between real, personal, and mixed property in connection with testamentary power, and there is a vast dissimilarity in the legislation and practice of the several Cantons. Through all the varying degrees, in almost every Canton, there will be found some limitation to parental freedom of bequest intervening for the protection of the child. In some a distinction is made between inherited and acquired property, but it is the same principle asserting itself, the “légitime,” the portion secured by law to the heir,64 over which the testator is forbidden to exercise the power of disposition, and under the term “children,” by some cantonal codes, are included descendants of whatever degree, who, however, take together as representatives of the stock from which they spring. No such thing as a law of entail exists in any Canton. In reference to these restraints on the power of bequeathing property by will, which at one time existed in all the continental states, and in France restricted within the narrowest limits, Adam Smith wrote: “By interfering to so extreme an extent in the disposal of a man’s property, it lessens the motives to accumulation; while, by rendering the children in a great measure independent, it weakens the parental authority, and has the same mischievous operation over an entire family that the law of entail has over a single child. This, however, is not its worst effect. This and every similar system inevitably tends to occasion too great an increase of agricultural population, and to reduce landed property into portions so minute that they neither afford sufficient employment to the families occupying them nor allow of their being cultivated and improved in the best and most efficient manner.” A few Cantons have become alarmed at this infinitesimal subdivision of their soil, as prejudicial to agricultural enterprise and causing emigration to take place from the pastoral districts. The Cantons of Aargau, Thurgau, and Solothurn have passed laws fixing the limit to the subdivision of land at a minimum ranging from five thousand to twenty thousand square feet. The excess to which subdivision may run is illustrated in the Canton of Bern, where a case is reported of a cherry-tree in the Oberland found to belong to seven different proprietors; and it is also related that the people of that section are distinguished for being so stiff-necked in sticking for their rights that an article of furniture has been known to be sawed into so many parts that each member of a family might have his share. Notwithstanding the opinion of political economists, the Swiss know that this subdivision has worked as an efficient auxiliary in making their soil a source of national comfort and well-being, and a barrier against land accumulation to prop up a ruling class, so common in many of her neighbors. No sort of social distinction or political privilege is associated with land-ownership in Switzerland. The cultivator, who, as a rule, is the proprietor,—for it is rare to find a farm which is not worked by the owner,—is shorn by neither rent nor taxes. The land fulfils its duty and guarantees the tiller a fair enjoyment of the produce, a fair share in the sheaves he reaps. Poets, historians, and philosophers, who love to dwell on the simple virtues of the children of nature, find their Utopia in Switzerland, where the households, each with its little tract of land, represent a larger proportion of the population than can be found in any other country. This distribution of small properties among the peasantry forms a kind of rampart and safeguard for accumulated property in other forms. It may be called the lightning conductor that averts from society dangers which might otherwise lead to violent catastrophes. The concentration of land in large estates among a small number of families, is a sort of provocation of levelling legislative measures. There are no influences more conservative, or more conducive to the maintenance of order in society, than those which facilitate the acquirement of property in land by those who cultivate it,—“’Tis wonderful sweet to have something of one’s own.”

There is no influence fraught with more danger than that which concentrates the ownership of the soil in the hands of the few, by impediments, legal or fiscal, to prevent lands freely passing from the hands of the idle into those of the industrious. Neither extreme poverty nor extreme opulence is the thing to be desired. Pauperism and plutocracy alike are the parents of vice in private and revolution in public life. The genius of revolution truly exclaims, “With wings twain do I fly;” of these wings one is discontented labor, the other is over-reaching wealth. The system of the subdivision of the soil among a multitude of small proprietors, for the most part energetic, industrious cultivators of their own holdings, is eminently conservative in its influence, and contributes in no small degree towards maintaining the national spirit of independence and self-reliance, the happy and contented condition of the Swiss peasant proprietors; at once the strength and the safety of the Confederation. This Swiss peasant has not only the responsibilities of a capitalist on a small scale, but also those qualities of foresight, thrift, and sobriety that such responsibility inspires. He has his home with the dignity, stimulus, and all the civilizing influence of ownership.

“A great proprietor is seldom a great improver.” Private appropriation of land is deemed to be beneficial; because the strongest interest which the community and the human race have in the land is that it should yield the largest amount of necessary or useful things required by the community. The spectre of “excessive subdivision” of the soil, once so potent an influence, has lost all its terror. It was Cobden who wished to remove all remonstrances to the easy and economical transfer of land, and to develop a process by which, under the natural operation of a free exchange, the laborer might be re-settled on the soil from which, in his energetic and suggestive phrase, the “laborer had been divorced.” It was Mill who, in his powerful chapters on peasant proprietors, clearly showed that “free trade in land” was the condition under which the economic good of man can be best effected; that a small or peasant proprietary is the most thriving, the most industrious, the most thrifty of cultivators, and that under small free holdings the capacities of the soil are developed to the fullest possible extent, and the rate of production raised to the very largest amount. Those who fancied that peasant proprietors must be wretched cultivators have seen that some of the best agriculture in the world is to be found in Switzerland, where such properties abound.65 These peasant proprietorships have neither bred over-population nor converted the country into a “pauper warren.” The existence of peasant properties has come to be regarded by philanthropists as eminently desirable, and the removal of all obstacles to it has become an aim of advanced politicians. Daniel Webster, in an address delivered before the Massachusetts Constitutional Convention in 1821, referring to the relation of civil liberty to property, as regards its security and distribution and that the degree of its distribution settles the form of government,—aristocratic, if the property is held by the few, and popular, if held by the many,—said in reference to France: “A most interesting experiment, on the effect of a subdivision of property, is now making in France. It is understood that the law regulating the transmission of property in that country now divides it, real and personal, among all the children equally, both sons and daughters; and that is, also, a very great restraint on the power of making dispositions of property by will. It has been supposed, that the effect of this might probably be, in time, to break up the soil into such small subdivisions, that the proprietors would be too poor to resist the encroachments of executive power. I think far otherwise. In respect to this recent law of succession in France, I would, presumptuously perhaps, hazard a conjecture, that if the government do not change the law, the law in half a century will change the government; and that this change will be, not in favor of the crown, as some European writers have supposed, but against it. These writers only reason upon what they think correct general principles in relation to this subject. They acknowledge a want of experience. Here we have had the experience; and we know that a multitude of small proprietors, acting with intelligence, and that enthusiasm which a common cause inspires, constitute not only a formidable, but an invincible power.”

Just fifty years from the date of Mr. Webster’s prophecy the present republic was set up,—the government not having changed the law, the law changed the government. It is this race of peasant proprietors that has given France her wonderful recuperative power, enabling her to emerge again and again per varios casus, per tot discrimina rerum. From them her national life receives a vigor and unity which no reverses seem to dominate and no blunders to ruin. Upon them she must rely for the maintenance of her liberties, so gloriously conquered in the past and embodied in her present institutions.

If men have but some share of comfort and property in the country, they will abide there, for that is really the place provided for them. “Towns, the haunt of pride, luxury, and inequality, foster the spirit of revolt: the country begets calm and concord, the spirit of order and tradition.” Under the old Roman system the city was the important unit; under the Teutonic element the land was brought into prominence and the possessor of it into power. The dominant member of society was the landowner and not the citizen. In ancient society the “citizen” need own no land; in the modern society of the feudal age the “gentleman” could not be such without owning land.