CHAPTER XVI.

FAMILY COMMUNITIES IN ITALY, IN GERMANY,

AND AMONG THE ESQUIMAUX AND OTHER NATIONS.

The system of family communities was, also, formerly very general in Italy, and has left many traces in the various provinces. M. Jacini in his excellent work on Lombardy, has described those which are to be met with in the hill-district of that country. They exist in combination with metayage, and greatly facilitate the maintenance of the system. The proprietor regards associated cultivators as more desirable tenants than isolated householders. For the resources of the association are larger; and it offers better security for the payment of rents in kind, and for the faithful execution of contracts. It is better able to carry on large cultivation, and to support the losses of bad years and all the inevitable accidents of agricultural undertakings.

The communities as a rule enjoy a comparative competence, and are remarkable for what are known as patriarchal virtues. These associations are usually composed of four or five couples living in common in a large farmstead. They recognise the authority of a chief or reggitore, and of a housewife or massara. The reggitore regulates labour, manages all buying and selling, and invests the savings, subject however to the advice of his associates. The massara has charge of all household matters. The head of the stables is called the bifolco; he is the chief overseer of the labour. These ancient institutions are yielding to the passion for independence, the desire of growing rich, and, in a word, to the spirit of modern times, just as they are yielding on the banks of the Danube, or as they yielded in France in times past. M. Jacini has thoroughly analysed the various sentiments which tend to produce their final annihilation. Men begin to ask: "Why should we and all our belongings remain in subjection to a master? It were far better for each to work and think for himself." As the profits derived from any handicraft form a sort of private peculium, the associates are tempted to enlarge this at the expense of the common revenue, and self-interest begets dissensions and quarrels to disturb the fraternal concord. The women especially seem to incite their husbands to insubordination. The authority of the massara is burdensome to them, and they demand a home of their own. Every one sees clearly the advantages of the patriarchal association, that his living and lodging are more secure, that there is more support and less disastrous results in case of illness, and that agricultural operations are more easily carried on; yet, in spite of all, the craving to live independently carries him away, and he quits the community.

Among a race in the extreme north, and under physical conditions entirely different from those of Italy, we find family communities with identically the same characteristics; a manifest proof that habits are not fashioned by climate. The Esquimaux of North America and of Greenland live in very large buildings which contain several families,often as many as ten. Each individual is absolute owner of his arms and .implements, but even the quantity of them is limited by custom; while the boats, sledges, dogs and provisions belong to the whole community, as also does the hunting-ground; generally, too, the produce of fishing is divided among all.⁽¹⁾

Family communities also existed in Germany under the name of cognationes, magechaften, konne, geschlechter, and were long maintained there.⁽²⁾ They cultivated their domain for the common profit, formed an association for common defence (qesammt-gewere), and lived at the common expense, in einer cost ungetheilt,à un pot et à un pain.The right of inheritance was based not upon ties of blood, but upon the life in common, and only applied to relations living in community (kinder in der were), whether collaterals or even strangers admitted by adoption. These communities were maintained under the feudal system, and did not disappear till after the Thirty Years War. A remnant of them survived in the custom which forbade the head of a family to alienate its property, or even to change the nature of the land by clearing, planting or otherwise, without the consent of the kinsmen. In Chapter IX. we saw that these family communities existed alike among the tribes of America and the Semitic races in Africa, and that they still survive in Russia, although since the abolition of serfage the spirit of individualism has been rapidly destroying them.

The more or less absolute exclusion of females from the inheritance is a proof of the existence of family communities, which afford the best explanation of the fact. M. Fustel de Coulanges (La cité antique, Liv. II,. c. vii. § 2) thinks that the reason for this exclusion is the incapacity of females to perform the sacrifices. But among the Germans, under the feudal law, and also among the Mussulmans, females only succeed in a more or less limited degree; and among these nations the ancient sacrifice did not exist. Everywhere where we find family communities, alike in France in the middle ages or in Modem Servia, the daughters are excluded from the succession. As in the Laws of Manu,⁽³⁾ and as at Athens, they are only entitled to a marriage portion. The reason of this exclusion is manifest. The whole social order is based on the families, which have to preserve intact the patrimony from which they derive their support. if females inherited, seeing that by marriage they pass into another family, they would, by claiming their share, effect the dismemberment of the joint domain, and the consequent destruction of the family corporation. When we find the same custom, the exclusion of females from the succession, existing in Slavonic countries, in German countries within the pale of Christianity, and also in India, and pagan Greece and Rome, we are bound to seek its origin in some motive economic rather than religious; and this motive is the preservation of the gens, the patriarchal family, based upon the indivisibility of the family property, a system which everywhere succeeded that of the village community.

"After the death of the father, the sons shall divide the inheritance," says the code of Manu. At Athens daughters do not inherit.⁽⁴⁾ Solon decides "that division shall be made among the sons." (Isaeus, vi. 25.) At Rome the principle appeared, but in a modified form: the married daughter was excluded from the succession, and the unmarried woman could bequeath nothing except with the consent of the agnates, in whose guardianship she was. In the codes of German origin, females do not inherit land, except in default of male heirs: De terra salica in mulierem nulla portio haereditatis transit (Lex Salic, Tit. 62, c. 6). The oldest manuscripts do not contain the adjective salica. Females were therefore excluded absolutely from succession to land.⁽⁵⁾

There was the same principle among the Anglo-Saxons.⁽⁶⁾ In Northern Scandinavia, where ancient German traditions survived longer than anywhere else, females were excluded from the succession to land until half-way through the middle ages. Among the Anglo-Saxons they ultimately obtained a portion of the Bokland, but no Folkland. Among the Irish Celts females were excluded from the inheritance.⁽⁷⁾

Among the Burgundians, male children succeeded their parents, to the exclusion of female children.⁽⁸⁾ The cede of the Alamanni, like other laws of German origin, excluded daughters from the succession.⁽⁹⁾ Even the Ripuarian law, which is far the most favourable to the rights of females, excludes them from the succession, whenever there are any male heirs: Sed dum virilis sexus extiterit, femina in haereditatem aviaticam non succedat. In the formularies of Marculf we read: Diuturna sed impia consuetudo inter nos tenetur, ut de terra paterna sorores cumfratribus portionem non habeant. (Marc. Form. I. 8.) The spirit of the German laws, says Gans, is to favour the males to the exclusion of females.⁽¹⁰⁾ Laferrière tells us that the customs of Auvergne and the Bourbonnais excluded the daughters from succession to the father.⁽¹¹⁾ Even in the eighteenth century, in Provence, the daughters had not an equal share with the sons in succession ab intestato.⁽¹²⁾

The custom of Champagne, collected in 1509, still declares, m successions in noble families, the share of the eldest son is to be first deducted, and then the remainder divided among sons and daughters alike, except that a son takes twice as much as a daughter. (Tit. I. § 14.) The custom that prevailed in the South of France, of making the daughters, on their marriage, renounce all rights of succession, can only be explained by reference to the original exclusion.⁽¹³⁾

Among the Albanians, who have preserved intact their ancient customs, the daughters only succeed, when necessary to prevent the property passing from one family to another.⁽¹⁴⁾ In the Mussulman law, male children are the only true heirs, Aceb; females are only entitled to a share always very inferior to that of the sons, being a mere deduction made before division. In the district of Liége females did not at one time succeed to registered lands situated outside the towns: Censaria, extra oppida et francisias sita, pertinent ad filios tantum et non ad filias.⁽¹⁵⁾

Another trace of the family community is to be seen in the custom, which is found everywhere, by which the alienation of immoveables was not valid without the consent of the kinsmen,⁽¹⁶⁾ or was liable to "retrait."

1. Tales and Traditions of the Eskimo, by Dr Hears Rink, director of the royal Greenland Board of Trade. London, Blackwood, 1875. See also the analysis of the work by Mr Cliffe Leslie, The Academy, January 17, 1876. Mr Leslie, speaking of these family communities, says: "In the society thus constituted we see, in the first place, besides some development of individual proprietorship, the agnatic and patriarchal family which appears in societies far advanced beyond the fishing and hunting state, with a custom of primogeniture which bestowed an inheritance of patriarchal authority and responsibility along with the chief family property. When a man died the eldest son inherited the boat and tent along with the duties of the provider. If no such grown-up eon existed, the nearest relative took his place and adopted the children of the deceased as his foster-children. The inheritance represented obligations and burdens rather than personal gain." The association of several families in one house is clearly analogous to the house-community with which Sir H. Maine and M. de Laveleye have made us familiar as still existing in parts of Eastern Europe, and formerly among the peasantry of France. Like the French house-community, that of the Eskimo has assumed the form of a voluntary copartnership; but we believe we may confidently say of the latter what Sir H. Maine does of the former (Early History of Institutions, p. 7), that originally "these associations were not really voluntary partnerships, but groups of kinsmen." Again, the Eskimo village is the analogue to the Indo-Germanic village-community, with the distinction that it is a fishing, not an agricultural or pastoral community, with rights of common user of the station and landing-place for whaling, seal-hunting and fishing, instead of common pasture and wood-rights. We might add, that the vestiges of a larger tribal community, analogous to the Teutonic pagus, seem traceable in Dr Rink's account of the customs of the Greenlanders, although he makes no such suggestion. Animals of great size, especially whales, and game captured in times of great scarcity, were the common property of all the inhabitants of neighbouring hamlets (p. 31); and Dr Rink's observation (p. 79), that the ancient principle of mutual assistance and semi-communism which still prevails among the Greenlanders may have sprang from a feeling of clanship, is obviously applicable to an original feeling of tribal consanguinity, or connexion by adoption, on the part of the inhabitants of a group of hamlets; although local connexion or neighbourhood has taken the place of the tie of a common ancestry. When we take into account, further, the periodical meetings of the inhabitants of neighbouring hamlets for both festive and judicial purposes, the analogy to the pages of the ancient Germans appears nearly complete."

2. Von Maurer., Geachichte der Frohnhöfe, B. xv. p. 291350.

3. "The law and customs of Hindoostan divide the inheritance between the sons and other agnates. Females only inherit on failure of all male heirs." Sir George Campbell, Essay before quoted, p. 175.

4. Demosthenes, in Baeotum; Lysias, in Mantith. 10; Isaeus, x. 4.

5. See Waltz, Das alte Recht der sal. Franken, 1846, p. 121...

6. See Lex Angl, tit. vi. 5; Canciani, Barbar. Leges aut. t. III, p. 50, note I; Lex Franc. Charnav. in the Revue hist. du droit franç. et étr. 2, I. (1855), p. 442.

7. Sir James Ware, Antiquities, c. xix.: "By this custom among the Irish, the inheritance of the deceased (below the degree of Thanist) was equally divided among the sons both lawfully and unlawfully begotten, females being wholly excluded."

8. Lex Burg., tit. 14, § 1.

9. Lex Alam., tit. 51, § 2.

10. Hist. du droit de succession en France an moyen-âge, Trad. de L. D. de Loménie, p. 61, 1846.

11. See Hist. du droit franç., 1836, 2, I. 6, 199.

12. Lanthenas, Inconvénients du droit d'ainesse, p. 15.

13. Gide, Étude sur la condition privée de La femme, p. 44, and Laboulaye, Droit de succession des femmes.

14. See the interesting work of M. Albert Dumont, Souvenirs de l'Adriatique, Revue des Deux Mondes, 1^er Nov. 1872.

15. Hinaux, Hist. de Liége, p. 127 (Third Edit.).

16. The Mirror of the Saxons (18th century) says (i. 52, 34): "If any one has sold or granted an immoveable or a serf without obtaining the consent of the agnates, they may claim the property alienated without being obliged to repay the purchase-money. Even with this consent and the intervention of justice, no one may alienate all his immoveahies; he must retain half-an-acre of land, or at least a space of sufficient size to form a court in which one can turn a carriage." This is the inalienable heredium of Sparta and Rome. See Zachariae, Geist der deutsehen territorial verfassung, p. 226. The vendor's kinsmen and even the co-occupiers of the mark had a right of pre-emption (Maurer, Gesch. der Markenverfas., p. 184; Gesch. der Dorfverf., I. p. 320; Gesch. der Fronhöfe, III, p. 74).