Page:EB1911 - Volume 26.djvu/20

Rh During three generations the offspring of father, grandfather and great-grandfather held together in regard to land. The consequence was that, although separate plots and houses were commonly reserved for the uses of the smaller families included within the larger unit, the death of the principal brought about an equalization of shares first per stirpes and ultimately per capita until the final break-up of the community when it reached the stage of the great-grandsons of the original founder. But the most elaborate system of family ownership is to be observed in the history of the latest comers among the Aryan races the Slavs. In the backward mountain regions which they occupied in the Balkan Peninsula and in the wilderness of the forests and moors of Eastern Europe they developed many characteristic tribal institutions and, among these, the joint family, the Zadruga, inokoshtina. The huge family communities of the southern Slavs have been described at length by recent observers, and there can be no doubt that their roots go back to a distant past (see ). There is no room in them for succession proper: what has to be provided for is the continuity of business management by elders and the repartition of rights of usage and maintenance, a repartition largely dependent on varying customs and on the policy of the above-mentioned elders. In Russia the so-called large family appears as a much less extensive application of the same idea. It extends rarely over more than three generations, but even as a cluster of members gathering around a grandfather or a great-uncle it presents an arrangement which hampers greatly private enterprise and staves off succession until the moment when the great household breaks up between the descendants of a great-grandfather.

In Germanic law we catch a glimpse of a state of things in which side relations were not admitted to succession at all. The Frankish Edict of Chilperic ( 571) tells us that if somebody died without leaving sons or daughters, his brother was to succeed him and not his neighbours (non vicini). This has to be construed as a modification of the older rule according to which the neighbours succeeded and not the brother. Under “neighbours” we cannot understand merely people connected with a person by proximity of settlement, but rather his kinsmen in their usual capacity of neighbours. The fact that kinsmen forming a settlement have precedence of such near relations as the brothers is characteristic enough, especially, as even the succession of sons and daughters is mentioned in a way which shows that there was still some doubt whether neighbouring kinsmen should not take inheritance instead of the latter. These are systems of a very archaic arrangement based on a close tribal community between the members of a kindred. Such a community is not apparent in later legal custom, but there are many signs of a close union between members of the same family. The law of Scania, a province of southern Sweden, shows us a group settled around a grandfather. His sons even when married hold part of the property under him and it is with some difficulty that they and their wives succeed in separating some of the goods acquired by personal work or brought in by marriage from the rest of the household property (Scanian Law, Danish Text i. 5). The same arrangement appears in Lombard law as regards brothers who remain settled in a common house (Edict of Rothari c. 167). Of course, in all such cases, there could be no real inheritance and succession, but merely the stepping in of the next generation into the rights and duties of the representative of an older generation on the latter’s demise. In legal terminology it is a case of accretion and not of succession.

The next stage in the development of succession is presented by an arrangement which was common in Germany, viz. by the management of property under the rule of so-called Ganerbschaft. Ganerben is the same as the Latin coheredes, comparticipes, consortes. A capitulary of 818 mentions such communities of heirs holding in common (cf. Boretius Capitularia, i. 282). While the community lasted none of the shareholders could dispose of any part of the property by his single will. Legally and economically all transactions had to proceed from common consent and common resolve. This did not preclude the possibility of any one among the shareholders claiming his own portion, in which case part of the property had to be meted out to him according to fair computation (swascara). There was no legal constraint over the shareholders to remain in common: division could be brought about either by common consent or by claims of individuals, and yet the constant occurrence of these settlements of co-heirs shows that as a matter of fact it was more profitable to keep together and not to break up the unit of property by division. The customary union of co-heirs appears in this way as a corrective of the strict legal principle of equal rights between heirs of the same degree. In English practice the joint management of co-heirs is not so fully described, but there can be no doubt that under the older Saxon rule admitting heirs of the same degree to equal rights in succession the interests of economic efficiency were commonly preserved by the carrying on of common husbandry without any realization of the concurrent claims which would have broken up the object of succession. This accounts for the fact that notwithstanding the prevalence among the early English of the rule admitting all the sons or heirs in the same position to equal shares in the inheritance, the organic units of hides, yardlands, &c. are kept up in the course of centuries. In the management of so-called gavelkind succession in Kent partition was legally possible and came sometimes to be effected, but there was the customary reaction against it in the shape of keeping up the “yokes” and “sulungs.” A trace of the same kind of union between co-heirs appears in the so-called parage communities so often mentioned in Domesday Book.

In all these cases the principle of union and joint management is kept up by purely economic means and considerations. The legal possibility of partition is admitted by the side of it. It is interesting to watch two divergent lines of further development springing from this common source; on the one side we see the full realization of individual right resulting in frequent divisions; on the other side we watch the rise of legal restraints on subdivision resulting in the establishment, in respect of certain categories of property, of rules excluding the plurality of heirs for the sake of preserving the unity of the household. The first system is, of course, most easily carried out in countries where individualistic types of husbandry prevail. In Europe it is especially prevalent in the south with its intense cultivation of the arable and its habits of wine and olive growing. We shall not wonder, therefore, that the unrestricted subdivision among heirs is represented most completely by Roman law. Not to speak of the fact that already in the XII. Tables the principal mode of inheritance was considered to be inheritance by will while intestate succession came in as a subsidiary expedient, we have to notice that there is no check on the dispersion of property among heirs of the same degree. The only survival of a regime of family community may be found in the distinction between heredes sui (heirs of their own) and heredes extranei (outside heirs of the deceased). The first entered by their own right and took possession of property which had belonged to them potentially even during their ancestor’s life. The latter drew their claims from their relationship to the deceased and this did not give them a direct hold on the property in question. Apart from that the civil law of ancient Rome favoured complete division and the same principle is represented in all European legislation derived from Roman law or strongly influenced by it. Sometimes, as in the French Code Civil, even the wish of the owner cannot alter the course of such succession as no person can make a will depriving any of his children of their legal share.

In full contrast with this mode of succession prevailing in romanized countries we find the nations proceeding from Germanic stock and strongly influenced by feudalism developing two different kinds of restraints on subdivision. In Scandinavian law this point of view is expressed by the Norwegian customs as to Odal. The principal estates of the country, which, according to the law of the Gulathing have descended through five generations in the same family, cannot be dispersed