CHAPTER XIII.
FAMILY COMMUNITIES SUCCEED
TO VILLAGE COMMUNITIES.
With the progress of what we are accustomed to call civilization, family sentiments and family ties axe weakened and exercise less influence over the actions of mankind. This fact is so general that we can see in it a law of social development. Compare the constitution of the family among the Romans in time past, or among the rural classes of Russia, who have not yet emerged from the patriarchal period, with that which we meet with among the Anglo-Saxons of the United States, who have pushed the modern principle of individuality to its extreme limits. Mark the contrast. In Russia and in Rome, alike, the father of a family, or patriarch, exercises a despotic authority over those who are subject to him. He regulates the order of labour, and apportions its fruits; he marries his sons and his daughters without regard to their inclination; he is the arbiter of their lot, and, one may say, their sovereign. In the United States, on the contrary, paternal authority is almost a nullity. Young lads of fourteen or fifteen years of age choose their own career, and act in a manner completely independent. Young girls are allowed to go out free from all restraint, to travel alone, to receive alone whom they like, and to select their husband without consulting any of their friends. The new generation disperses at an early day to the four corners of the world. Thus the individual is developed in all his energy; but the family group plays no part socially: it has only to shelter the children until the moment, never very late in coming, when they take their flight. These domestic habits of the Americans are one of their most striking features to strangers.
In primitive societies all social order is centred in the family. The family has its worship, its particular gods, its laws, its tribunals, its government. It is the family which possesses the land. It is a true, perpetual corporation, which transmits its patrimony from generation to generation. Every nation is composed of a union of independent families, feebly held together by a lax federal bond. Except in such groups of families the state has no existence.
Not only among the several races of Aryan origin, but among nearly all nations, the family in its origin presents the same characteristics. It is the in Greece,(1) the gens at Rome, the clan of the Celts, the cognatio (to borrow Caesar's word) of the Germans. As M. Fustel de Coulanges has very clearly shewn in his work La Cité Antique,(2) the Roman gens, which played a great part so late as the first days of the republic, has descent from a common ancestor as its basis. The ancient Roman law considered members of the same gens mutually capable of inheriting. By the law of the XII. Tables, in default of children and agnates, the gentilis is the natural heir. The gens had, accordingly, a kind of eminent domain over the possessions of the family. Family communities are found among all nations with similar characteristics, alike among the Indians of North America, and the Irish Celts in the time of the Brehons or in the joint family of modern India. In Scotland, among the highlanders, the clan is regarded as a large family, all whose members are connected through an ancient common ancestor. In Wales they still count eighteen degrees of relationship. Cousinship among the Bretons is proverbial: and in Lower Brittany it extends indefinitely, the fifteenth of August, when all the inhabitants of a parish assemble together, being called the Feast of Cousins. Among any people, whose isolation has excluded it from the influence of modern ideas and modem sentiments, we may still form an estimate of the power formerly possessed by the ancient organization of the family.
In remote times, when as yet the state with its essential attributes had no existence, individual man would have had no means of subsistence or of self-defence if he lived in isolation. It was in the family that he found the protection and assistance indispensable to him. The "oneness" of all the members of the family was, consequently, complete. The vendetta is not peculiar to Corsica; it is found among all primitive nations, being the primordial form of justice. The family takes upon itself to avenge wrongs of which one of its members has been the victim: and this is the only means of repression possible. Without it crime would go unpunished, and the certain impunity would multiply misdeeds to such a degree as to put an end to social life. Among the Germans, it was the family which received or paid the Wehrgeld, or compensation for crime; and there is exactly the same practice among the Albanians at the present day, and among all Indian tribes.
We have seen that everywhere, in India or Java as in Peru or Mexico, alike among the negroes of Africa and the Aryans of Europe, the elementary social group was the village community, which was in possession of the land, and divided equally among all the families its temporary enjoyment. At a later period, when common ownership with periodical partition fell into disuse, the soil did not immediately become the private property of individual owners, but it was held as the hereditary and inalienable patrimony of separate families, who lived in common under the same roof, or within the same inclosure. We have no data to discover the exact moment of transition in the long economic evolution, by which enjoyment of the soil passed from the primitive form of community to that of quiritary dominium; but even at the present day we may study the system as actually at work among the southern Slavs of Austria and Turkey. We possess circumstantial details regarding the system in the middle ages, and, even after it disappeared, it left many traces in customs and laws. Thus there was generally a prohibition on the alienation of land without the consent of the family.
Originally, testamentary disposition was completely unknown: primitive nations did not understand how the mere wish of an individual, taking effect after his death, could decide the ownership of property, the transmission of which, in the patriarchal group, was regulated by the sacred authority of custom. Even later, when wills were introduced, the testator could only dispose of that which he had acquired, not of that which had come to him by descent. He was absolute master of all that his own industry and economy had created; but the land which he took as his patrimony was the hereditary product of the accumulated labours of the family, which he was bound to transmit just as he had received it.(3) So early as the Assize of Jerusalem, remarks Gans,(4) we see a distinction between those things which can be freely disposed of by will, and those which are not subject to the caprice of the testator, but become by force of law the property of his direct heirs. Property acquired by the testator can be transmitted just as he thinks good. The same distinction appears both in the old and new customary law of France between the héritage and the acquêts ainsi que les meubtes;(5) for the first kind of property the amount that may be disposed of never exceeds one-fifth; for the others it includes the whole. This limitation imposed on the right of testators, which was subsequently adopted to some extent by the Code Napoléon, is the expression of an idea essentially sound and equitable. It is the German principle of which Tacitus tells us; respect being paid alike to the freedom of individual intent and to the rigid and immutable rights of the family. Over all that he has acquired the testator has free power of disposition; but his power is checked the moment he attempts to touch the land of his inheritance, the family property which he has administered rather as a mandatory than as absolute owner. The sound reason for these provisions, which are found universally at a certain period, is that civil society is based on family groups regarded as perpetual corporations, whose preservation it is bound to secure. The same motive led to the exclusion of women from succession to land. It was necessary to prevent its passing by their marriage into the hands of a strange family. As we have seen in India, in primitive Greece and among the Germans, as also at the present day among the family communities of the southern Slavs, females cannot inherit. They have only a right to a share in the moveables, to a dowry.
Just as, under the system of village communities, no one could dispose of his private property, his house and enclosure, without the consent of the other inhabitants of the mark; so in later times he could not alienate land, except with the consent of the other members of the family. In default of such formality, the alienation was void, and the land could be claimed back. The retrait-lignager, which was maintained in Germany till the sixteenth century, and in Hungary almost till our own time, was based on the ancient principle which attributed the eminent domain to the family. If the members of the family could enforce the re-transfer of the land to themselves on re-paying the price, it was obviously because they had a superior right over it which had been disregarded.
Trusts and entails, which make the possessor a mere usufructuary, are the aristocratic form of the family community. The property still forms the inalienable and indivisible domain of the family, but the eldest alone enjoys it, and no longer all the descendants in common. We will first consider the family communities among the southern Slavs; and will then endeavour to construct them as they existed in the middle ages.
1. Plato in his day retained the early notions on this point. "In my capacity of lawgiver," he says, "I tell you that I regard neither you nor your goods as belonging to yourselves, but as belonging to your whole family, and your whole family with all its goods as belonging to the state." Plato, De Leg. I. v.
2. La Cité Antique, cap. X.
3. It is exactly the same in the Irish sept (Corus Becsna, Ancient Laws of Ireland, III. 5), and in the joint-family of Modern India. See Sir H. Maine Early History of Institutions, p. 111.
4. Hist. da droit de succession en France au moyen-âge, par Edouard Gans. Traduct. de Loménie, 1846, p. 204.
5. We find the same provision in an ancient English statute of Henry I. "Adquisitiones suas det cui magis velit; si bocland autem habeat, quam ei parentes sui dederint, non mittat earn extra cognationern suam."