Chapter V

The Family and the State

The direct influence of the State upon the Family through its marriage laws is so simple, and changes so slowly, as to leave little to be said; but it has other less obvious ways of making its influence felt. In this chapter we are concerned with the indirect influence which it has exercised by legislation affecting the family property and its transmission from one generation to another.

Before proceeding to describe some of the more important interventions of the State in this respect, I will indicate an interesting feature about the theories upon which such interventions are sometimes based. I have already pointed out that in one of the oldest conceptions of the Family known to us the property is considered as inalienable from it, and as belonging to the whole Family as such, the Head of the Family being merely the user for the time being. And not only is his use of it temporary, but in so far as it belongs to all members of the Family his use of it is not for his benefit alone, but for theirs also. This belief that the patrimony belongs to the Family is to be found amongst many peoples at many stages of development, and the modern French law of equal partition is explicitly based upon it. It is based, that is, upon the assumption that the father has no right to exclude any member of the Family from his due share in the family property, and that in the interests of justice the State must, if necessary, intervene to prevent his doing so. But the same view of the relation of the Family to its property may lead to an entirely opposite theory of inheritance. Le Play, for instance, pleaded keenly against the law of enforced partition, and in favour of freedom of bequest; but he based his plea not upon the crude dogma that "a man may do what he likes with his own," but upon the ground that the father's power to choose his successor is in the best interests of the Family as a whole. And from the point of view of the choice of the best successor to carry on the family business, there is no doubt that freedom of bequest comes far nearer to the old tradition of the Family and its property than does a compulsory partition. Primogeniture itself, in so far as it is merely customary, is due mainly to the fact that, other things being equal, the oldest son would also be the strongest and most experienced, and therefore the best fitted to manage the affairs of the Family.

Now these two theories of the relation of the Family to its property run through the whole history of the people in relation to the land. On the one hand, we have the view that the interests of the Family are best served when its property is held and administered by the strongest member on behalf of the others; the view, that is, which considers the Family as a whole with inseparable interests. On the other hand, there is the view which holds that the interests of each member of the Family are largely independent of the interests of other members, and can only be properly safeguarded by a division of the family property, which puts his share under his separate and complete control. We find a similar antithesis in the different theories as to a nation and its property; there are some who hold that it is well that the property of a people, and more especially its land, should rest in the hands of those who can best administer it in the interests of the whole people; while others maintain that this trust is certain to be abused, and that the only safeguard is a division which will give each individual the direct control over his own share, no matter whether he is competent to administer it or not.

With the wider question, which to some extent coincides with the question of aristocracy v. democracy, we are not directly concerned here, though, as we shall see, it has been largely influential in determining the attitude of the State in various countries towards questions of family organisation and inheritance. But in reference to the no less important relation of the Family to its property, it must be noted that neither view can claim to meet all the needs of the case, nor to ensure the welfare of all members of the Family. On the one hand, not only must there be taken into account the innumerable cases in which the "Head of the Family" thinks more of his rights than his responsibilities, and becomes a petty tyrant;¹ but also it must be borne in mind in how many times and places the view that the family property must be administered by one in the interests of all, has degenerated into the commonplace view of Primogeniture that the property belongs to one alone, and is to be administered by him purely in his own interest-a degeneration which may give rise to a proletariat class, a people without property, as surely as the opposite view. For, on the other hand, and as we have noted already, under a theory which regards the different members of a Family as having hostile interests, and accepts "division" as the only means of securing justice, it is inevitable that some at least of the weakly and incompetent will succumb in the struggle; that they will prove unequal to the task of administering their "share," and that here again we shall get a helplessly poverty-stricken class perpetuating itself in the community.

One more point remains to be noted before passing to actual history. In speaking of primogeniture and equal division of property amongst the children, it must be borne in mind that we are not dealing with two simple and opposed systems, but that either form of inheritance may be encouraged, or the reverse, by the State and by custom in very various degrees. There may be absolute freedom of bequest so far as the law is concerned, in which case it will be mainly a matter of local custom what system prevails. It may be the eldest son who is preferred, or it may be the youngest, or it may be the eldest daughter; or, again, it may be that the system of equal division is customary. Finally, it may be the very frequent compromise by which the property devolves upon the eldest son as representative of the other members of the Family.

When the State does intervene, the mildest form of intervention is in the case of intestacy, i.e. where the father dies without a formal and recognised statement of his will. Then the law may prescribe either that the whole or principal share falls to the eldest son, or that the property is divided, according to which theory of inheritance is upheld by the State. At first sight the amount of interference involved in this may seem to be insignificant and not likely to have any effect upon the actual course of inheritance, for if the passing owner does not acquiesce in the ruling of the law, he has only to make a will in order to avoid it. But in reality such a law proves to have very considerable influence upon the actual course of inheritance, and legislators are able to rely with some confidence upon it as an instrument for bringing about the state of things they desire. There are two main reasons for this. In the first place, where custom is strong, as in most agricultural countries, the disinclination to make a will is often strong also ; and the expectation that the property will continue to descend in the Family in the same way as for countless generations takes long to break down, even in the face of contrary legislation. And in the second place, where custom is weaker, the action of those who do make wills can hardly fail to be affected by the attitude of the State. If the law assigns the property to the eldest son, then to make a will depriving him of his pre-eminence is so far a slight upon him and an injury to his expectations; while if the law prescribes equal division, then to leave the property to one is to incur the blame of showing favouritism towards one at the expense of the others. In short, whichever course the State favours, it emphasises the aspect of injustice involved in the other course, and so exerts a steady pressure in the desired direction.

But the State may go much further in its intervention than by merely distributing the property of the man who has made no will. It may limit his freedom of bequest to any extent and in any direction, from enacting that the property must go to the eldest son, as in feudal times, to insisting upon division, as in France of to-day. And if now we turn to consider the actual history of a few such instances of intervention, we shall do well to begin with France, for the French peasant-proprietor, in his relation to the land, has long been held up as an object - lesson to social students. The story as generally told and accepted has been subject to revision of late years, but in its familiar form it runs somewhat as follows: Before the French Revolution custom and law had encouraged a system of inheritance under which estates, both large and small, tended to be preserved intact and were passed on from generation to generation in the same Families. Amongst the noble or wealthy this was effected by a system of primogeniture and entail; amongst the smaller proprietors by the custom of the famille-souche, as described above. This state of affairs was reversed after the Revolution by the laws enforcing a partition of the family property amongst all the children of the Family. The evil results of this are stated to have been twofold; on the one hand, the over-division of the land (morcellement) into portions too small to afford a subsistence to the owners, leading to a poverty-stricken peasantry and a retrograde state of agriculture; on the other hand, and in order to avoid the first evil, the deliberate limitation of the peasant-family which has led to the stationary condition of the French population.

This view has been subjected to searching criticism by Lujo Brentano in his book on Erbrechtspolitik . His two main contentions are, in the first place, that the new laws merely confirmed a procedure which was previously customary amongst by far the greater part of the people, and, in the second place, that the evil results so freely predicted and asserted are not borne out by the facts.

What was the actual state of affairs before the Revolution? So far as legislation was concerned we find a law of intestacy which distinguishes between two kinds of property, noble and not noble, and prescribes that noble land shall descend by primogeniture to the eldest son, while not noble land is subject at the death of the owner to equal division Brentano estimates that three-quarters of the land in France was thus already subject to equal division, and only one quarter to primogeniture.

This does not of course imply that inheritance actually took place in these proportions. The law applying only in case of intestacy, freedom of bequest remained intact and was exercised mainly in accordance with local customs. These customs varied greatly in different parts of the country. In the South of France the preference of the eldest born was common; but for the most part the preference was probably of the kind so strongly advocated by Le Play, which made the heir the representative of the Family acting in its interests, rather than the preference of primogeniture.²

In the middle and northern provinces many and various customs were in force, which differed for noble and non-noble estates, for movable and immovable property, for inherited and acquired property. But behind all the different customs was the law of intestacy exerting a steady pressure in favour of equal division of the greater part of the land; so that the French people were thoroughly habituated to the idea, if not to the practice, long before the change which followed upon the Revolution.

The preference of the eldest-born as a matter of custom differs of course essentially from the right of the eldest-born, which constitutes primogeniture in the fullest sense, and as it was embodied in the feudal system. But both as customary and as legal it has behind it a long history of policy and statecraft; 1

a history which is essentially a history of the Family in its relation to the State. The desire of States to strengthen themselves by founding great Families, and then to break down the overweening power of the great Families they have fostered, has led in most countries at one time or another to legislative interference with family customs; while the counter desire of the great Families to maintain their strength against attacks by the State has been one of the most fruitful sources of devices for keeping the Family and its property intact.

The most striking, and probably the first, utilisation of a compulsory system of Primogeniture to strengthen the State, was when it was introduced into England by the Normans in connection with the feudal system. "Before that time Primogeniture was unknown to the English, as to other German peoples; but the need of a strong organisation against the conquered Saxons led the King to assign the feudal lands in such a way that they could only be inherited undivided. As the Family receiving the fief was represented by its eldest member, he was delegated by the Family to take it over; and out of this function of the eldest as principal administrator of the family estate there grew up an exclusive right, that of primogeniture. Thus inheritance by Primogeniture came from Normandy to England, was further developed upon English soil, then reacted upon France, until it became the regular system peculiar to feudal property."³

It was in this way that the sovereigns gathered around them a body of wealthy and noble Families, eager to preserve the existing order, and able by their wealth and strength to provide fighting men and money in time of war. And for the Families themselves, especially in a hostile land, a system which preserved the property intact under the firm rule of the eldest born, was probably the strongest form of organisation.

Then came the time when the great Families became too strong for the safety of the monarchs, and the aim of the latter became to break down by executions and confiscations the power of the organisation which they had built up. To meet this danger the Families strengthened themselves still further by using the devices of "fideicommissae" and entails. The sovereign might indeed execute the head of the family if he could get hold of him, but could not confiscate his property if it had only been held by him in trust for future generations. And while the property remained in the hands of the Family, its power would be at best but checked for one generation by the loss of its chief.

The history of these devices for keeping the connection between the Family and its property unbroken, for guarding it in times of civil strife against confiscation, and in more modern times against the wastefulness of any particular representative, is a long and complicated one. Curiously enough, though in their later developments they have operated entirely to the exclusion of female heirs, they seem to have had their origin in attempts to frustrate the Roman law against inheritance by women. A testator desirous of leaving his property to a woman, and prevented by the Roman law from doing so directly, would attain his end by making a will nominally in favour of some person capable of inheriting, who then became in the eyes of the law the only heir and proprietor. But a request would be added to the will that the nominal heir (fiduciarius) should transfer the property to the person who was incapable of inheriting direct (fideicommissarius). Sometimes the heir would fulfil the trust, sometimes not; and abuses of trust in time became frequent to such an extent that the law was gradually brought, first to recognise the trusts and then to protect them.

Sometimes the property would be left to the fiduciary heir for life, under condition of passing it on to a certain specified person or persons at his death; and it was this form of trust, known as "substitution," which the French people utilised to create perpetual entails.⁴ Combining the system with that of primogeniture, the founder of such an entail would leave his property to the eldest male of all future generations. "The nobles, who were in constant danger of trial for high treason, made use of fideicommissae, to preserve at least their property to their family in case they should be condemned. But it was just this security against confiscation which made the crown see in the fideicommissae a check to the royal power.".⁵ Hence at the rise of the absolute monarchy we find the Crown resolutely opposing them, and finally legislating against their permanency. In France the validity of such entails was limited in 1560 to two generations.

When the power of the Crown was firmly established its attitude changed again, and it once more encouraged the great Families, which by their wealth and magnificence added so much to the splendour of the Court. Then the desire to "found Families" by means of entails seems to have spread through all classes of society; for in 1629 it was found necessary to prohibit them to personnes rustiques, a term afterwards interpreted to mean peasant proprietors and agricultural labourers, but not tradespeople nor artisans in the towns.

Then came the time when it was evident that the fideicommissae were becoming the occasion of great social evils. In the eighteenth century not only did their excessive multiplication give rise to incessant litigation; but it often happened that the very families for whose preservation they had been instituted were ruined by the inability of the life-owner to deal freely with the land. Thus the time was ripe for their abolition; a process which began with the Revolution and terminated in the Code Civil.

The principle of the Code Civil is the free divisibility of land by the living as well as at death. The possessor is free to buy or sell as he likes, and if he has no descendants he can dispose of his property freely by will. If he has descendants, then in the case of intestacy the law ensures absolutely equal division between all the children, male and female; but if the possessor choose to make a will, then he may dispose freely of a part only of the property, the rest must be divided amongst the members of the family. This free part varies in amount with the number of children: if he has only one child, then that child must inherit half, and the father may leave the other half as he will; if he has two children, then he may dispose freely of one-third; if three or more children, then of one-fourth only. Thus if he wishes to "make an eldest son," he can do it only to the limited extent of adding the free share to the portion of the eldest son. From this point of view, therefore, the Revolution was the victory of the "younger sons"; and it is a strange paradox that their victory has largely resulted in making a nation of "only sons," with all the weakening privileges and none of the strengthening responsibilities of the true "eldest son."

In these provisions of the Code Civil as to inheritance Brentano finds a recognition of the true relation of the Family to its property: "like the ancient law, the Code regards children and grandchildren as persons who, even during the life of the testator, are quasi co-proprietors of his possessions. It is based upon the fundamental idea that the inheritance is family property, and therefore no member must be deprived of his full share hence its careful exclusion of primogeniture, i.e. the robbing >of the majority of the Family for the benefit of one."⁶

Against Montesquieu's argument that children have no natural right to succeed to the property of their father, who is absolute owner, he replies :⁷ "But originally the father was never this. The original economic unit was never the individual, but the house: the father was only the director and representative of the community, while even during his lifetime the children, or at least the sons, were co-proprietors in the property of the household, the Family. Greek custom regarded the house - father only as the natural guardian and administrator of the common property, and the succession of heirs amongst the Romans is described by the jurist Paulus as not strictly inheritance, but as a development of their relation to the property; by succession they only received the free control over that which they already possessed as co-proprietors during the father's life. But in France it was not only in the beginning, as everywhere else, that Families were the economic units. Troplong writes of the Middle Ages: 'The association of all members of the Family under one roof, upon one property, for the purpose of common work and common gain, is the universal characteristic phenomenon from the South of France to its furthest ends."

As a justification of the rights of all members of the Family to partake in the use of the property this appeal to the past is forcible. But it does not seem to afford any argument in support of the division of that property, and its appropriation to individuals. On the contrary, the relation between the Family as a unit and the property which it holds in common is even more completely shattered by its distribution amongst its several members than by its appropriation by one member only.

The new law of inheritance was generally regarded in France as one of the most emphatic signs of the triumph of republican over monarchical principles. In Napoleon's hands, however, it was no question of principle, but part of a deliberate policy designed to break down effectually the power of the great Families who would be likely to oppose his progress. Thus it was no change in principle, but a mere continuation of the same policy of self-aggrandisement which led him between 1808-12 to re-institute hereditary titles and estates which should descend by primogeniture under the new name of "majorats." As a monarch he felt the necessity of strengthening his position by creating great Families whose interests should be identical with his own, and no fear of inconsistency withheld him. By 1830 no less than 440 entails had been thus created.⁸

The same device for breaking down the power of the great Families was used by the Tzars in Russia when they introduced the equal division of both titles and estates; and by the English statesmen when they enforced equal division upon the great Catholic families in Ireland, while permitting primogeniture to continue amongst the Protestants (1703).

The importance of the Family in the statesman's eyes as a political instrument was once more emphasised when the Bourbons returned with the emigrant aristocrats. For a time the King held the balance between noble and citizen; but with the accession of the Comte d'Artois, the aristocratic principle received the support of the Crown, and the struggle to reintroduce the ancien régime began--a struggle which was largely for the re-introduction of privileged Families, of primogeniture and feudalism against younger sons and the bourgeoisie.

The first reactionary proposal in 1828 was to make "majorats" legal for every one. This was not, it was said, to impose upon the people a new privileged class, but rather to make it competent for every one to enter a privileged class. Moreover, it was urged, the land had now been subdivided as far as it could be done with profit; landed proprietors were getting poorer and more numerous, while the bourgeoisie was getting richer and more powerful. The time had come to check the division of property, and this must be done by the creation of indivisible estates, which should confer electoral rights upon the owners and be inherited by primogeniture. The proposal was referred without discussion to a commission which never reported. It was renewed next year with no more success, but one of the arguments then brought forward to support it is full of interest from the point of view of our modern urban problems. Small holdings, it was urged, were a pest. It was due to them that out of the thirty millions of the French population, twenty-four millions inhabited the country. The depopulated towns sought in vain for consumers of their products, the small owners in the country were in no position to purchase, for their only industry consisted in consuming what they produced. ⁹

In 1826 an attempt was made to approach the desired end by another way. The Code Civil had left it open to fathers to dispose freely of a certain specified fraction of their property. It was now suggested that when the father failed to dispose of this fraction it should go by law to the eldest son, and that it might be entailed upon two successive persons.

This proposal was supported quite frankly upon political grounds. A monarchy, it was said, must be strengthened and supported by a monarchical spirit amongst the people, and this could only be attained by founding the monarchy upon the Family instead of upon the individual. For the essence and aim of a monarchy is permanence, and this permanence the physical existence of the individual is too brief to ensure. It can only be based upon Families which include future as well as present generations. In Democracy the particular man, the man of a day, is the unit; but in a Monarchy it is the Family, the being which does not and will not change. Hence the task of a monarchy is to found Families, and this can only be done by checking the division of landed property. The concentration of land in the hands of one creates men who have an interest in maintaining the existing order; it upholds the Family in the social position to which it has attained; it institutes a monarchical arrangement in the Family itself; and thus it creates a people with a spirit in harmony with that of the monarchy.

It was, says Brentano, a reactionary attack upon equality in the very heart of the Family. “Der skandal war enorm"; it echoed throughout the whole of France, and petitions rained upon both Houses. All were against the proposal with few exceptions, and even these few begged that the new law should be supplemented by the erection, at the cost of the State, of cloisters and asylums for the younger sons and daughters, thus showing their appreciation of the consequences involved.

Notwithstanding the opposition of public feeling, the Ministry persisted in pressing the Bill. The first clause, attempting to reintroduce primogeniture ab intestato was rejected, and Paris was illuminated. The clause introducing entails was passed by both Chambers; but ministry and monarchy survived its success but a short time, and by 1849 "majorats," "substitutions," and entails of all kinds had been completely abolished, and the provisions of the Code Civil triumphantly vindicated.

Equal division of property at the death of the father amongst his children (with the noted exception of a given fraction) is thus enforced by law in France of to-day. Can it be said that this provision really carries out in practice the theory that the property belongs to the Family and not to the individual. In some respects it would seem to do just the con. trary, and to aim rather at enforcing the claim of the individual as against the Family. During his lifetime there is no restriction upon the power of the owner in dealing with his property; and when the time comes for dividing the inheritance the claims of individual members may be enforced in ways most injurious to the interests of the Family as a whole. Indeed, it may almost be said that the Family as a whole ceases to exist as soon as any question of inheritance comes into play. Any one of the co-heirs may insist on the property being divided in such a way as to reduce its value greatly-e.g. by breaking up the land, and the father has not even the power to prescribe such a division as may give a fair share to each without injuring the actual value of any part.

With regard to the actual working of the practice, Brentano maintains that it has been mainly, if not entirely, beneficial. He argues that the fall in the birth-rate cannot be due to the compulsory division of property, inasmuch as in Belgium, where the same law of inheritance prevails, and the land is still more subdivided, the population increases rapidly. Moreover, the small proprietor is already too low in the social scale to be deterred from increasing his family by the fear that his children will fall lower; and it is actually in those districts where the smallest peasant proprietorship prevails that there is still an increasing population. ¹⁰

Further, "it is not the case that equal division of the property of the testator generally leads to the ruin of all the children. It may happen now and again. . . But the rule is that the small inheritance left to each child forms the starting point from which he, like his father, works his way up by an industrious life to economic independence, and which enables him also to bring up his children in such a way as to be able in their turn to carry on the struggle for existence even without a large inheritance. In this way, as we see from the example of the French rural populations, they form the best anchor for the stability of Society and the State. The important thing is, not to have a few people, sleepy possessors of inherited estates, exalting themselves above their brothers who are thrust out at the death of their father into the proletariat, but to give to all the possibility of achieving freedom and life." ¹¹

In short, it is the equality of the "younger brother" which is at stake, and the best means of securing to him as good a life as that of the first-born; a problem which has troubled Europe for centuries, and led to many curious theories and arguments and hardly less curious practical results.

One thing seems clear, that the problem is not really solved if the solution merely takes the form of reducing all alike to a state of poverty, and this is what the opponents of equal division maintain. The position in France seems to require far more detailed study than it has yet received before Brentano's conclusion can either be maintained or refuted. Such a study has been initiated by M. Demolins and his school, and passages such as the following seem to throw a different light upon the situation. He is discussing the influence of the vine upon its cultivators: "No other form of culture can support so numerous a population upon so small a space. We need only look for proof to the île de Ré, where the population is as dense as that of the département du Nord. The attraction of the vine over the young people serves to keep them at home quarrelling over bits of land, rather than seek their fortune elsewhere. They are the more easily able to make a small living for themselves, because, under the régime of the unstable family, the birth-rate is generally lowered, through fear of further division of properties already so tiny. Hence there is no need to move away, and no one thinks of doing so." ¹²

But even Brentano himself confesses the superiority of a "family partnership," which, in its results at least, strongly resembles the famille - souche. "Equal division by itself is certainly not the ideal corresponding to the circumstances and needs of the day. We must strive to complete it by a co-operative association of the heirs for the purpose of carrying on the inherited business, such as I have found amongst certain advanced Families in Italy. Such a co-operative business, based upon blood-relationship, maintains the equal right of all the heirs, secures to the Family and the property whatever business capital it possesses, provides in the members of the Family the labour necessary for carrying on the business, and thus renews deliberately and upon a common basis the old household community, the ancient Family, so much lauded by Le Play." ¹³

The writer then cites several instances of such cooperative households amongst Italians, of which the most remarkable is one which he came across in Cortina in 1892. The landlord of the hotel in which he was staying belonged to a Family which formed a household community modernised to suit modern conditions. Next to the hotel stood a farm-house, the ancestral home of the Family, and there lived an unmarried sister, who cultivated the family land. One brother was a smith, another a carpenter, a third a baker and confectioner; the first two lived in their workshops, while the baker had his workshops and dwelling on the ground floor of a dépendance of the hotel. Another brother was a military doctor, and another Genieoffizier, both married, and living one in Trient and the other in Trieste. All six brothers and the sister lived in economic community, having one purse and sharing income and expenditure. It was from this common purse that the hotel, and later its dépendance, were built; both being managed by the head of the Family. The rooms of the hotel had been fitted by the carpenter and smith, and the farm and the baker supplied a great part of the provisions. The two brothers in Trieste and Trient contributed nothing to the common purse, "because military doctors and officers have nothing to spare," but they were regarded as having a full share in the family property.

France, then, has adopted a definite and determined policy in reference to the relation between the Family and its Property. The State takes the view that the property belongs to the individual members of the Family as individuals, and enforces the right of the individual against the Family as a community. In so far, then, as the law prevails, if the family tie continues to be strong in France, it will not be because the members are held together by their common relation to material property, but rather in despite of their power to cut themselves adrift from each other, each with his own share in his hand. From one point of view it is difficult not to regard this as a great source of weakness; it is as if a number of men supported by the same rope should each claim his right to the part he holds, and enforce his absolute possession by cutting it above and below. From another point of view it can no doubt be represented as a source of strength; if several men are starving upon an insufficient patrimony, it is well that they should take each his share and seek new fields.

But besides the question whether the policy is in the real interests of the people, there is the further question of how far the State has been able to enforce the policy. As a matter of fact, it seems clear that not even the power of the State has been able to break down the old custom in parts of the country where the family feeling is strong in favour of preserving the home intact, and where the particular form of industry is favourable to it. Throughout whole districts in France individuals continue deliberately and in defiance of the law to sacrifice their own fortunes to the welfare of the Family, or rather to find their own fortunes in the welfare of the Family. Of Auvergne, M. Demolins writes: "The family community is now reduced, as in the Pyrenees and the Causses, to its simplest expression; it comprises the ménage of the parents, that of the son who is the héritier-associé, and the unmarried brothers and sisters. In the greater part of Auvergne, as in the two preceding types, and still under the influence of the pastoral art, they continue to make an 'heir' who represents the community. old custom of giving more to that one of the children who carries on the Family survives in the mountains. 'Il faut que la maison fume,' it is said everywhere; that is, the home must be maintained in a certain degree of relative comfort, and for that purpose an 'eldest son' is made, an heir, to whom the house is left, together with its furniture, the beasts on the farm, and the fields or meadows which surround it or lie nearest to it as an appanage. The new ménage brings its contingent of labour, and lives in common with relations of all ages and all degrees. Thus several generations are united under one roof, recognising the authority of the head of the Family so long as he remains capable of ruling. Besides the children, the father, and the grandfather, there are always in the house unmarried uncles and aunts, working for the profit of the house, regarding the children who are born as their own, and almost always leaving to the heir their share in the inheritance from the grandparents and whatever savings they have been able to make. . . Many young men give up all idea of becoming heads of Families themselves, in order that they may add to the welfare of the home. Many girls courageously devote themselves to celibacy and remain at home, knowing that they will never be paid for their work, and that later on they will have to submit to the rule of children yet unborn. One of the material effects of the application of these ideas is, that the property is almost always preserved intact in the hands of one member in each Family. 'Morcellement' is a thing unknown in the mountains." ¹⁴

But though this type still continues in Auvergne, M. Demolins thinks that it shows signs of disappearing. "The fact is, there are two distinct types of Auvergnats. The one, represented by the old parents, by the heir, and by all the Auvergnats who remain in the country, continues to depend frankly upon the pastoral tradition of community of life; it is the type of the past, and tends to decline. The other, represented by the children who emigrate, has resolutely abandoned the old traditional supports; it is not jealous of the preference given to the heir, because it feels able by its industry alone to earn money more quickly than he can."

Nevertheless the family community is found to persist, not only among the pastoral peoples, but also among the olive-growers of Provence, and the vinegrowers of Armagnac.

"L'Armagnac," M. Laudet tell us, " is perhaps the region of France which struggles most persistently against the law of succession of the Code Civil. Ingenious ways are devised of avoiding equal partition. The institution of an heir, to whom is assigned the free share (la quotité disponible), is habitual in all classes of society. It is generally the eldest son who is preferred. But sometimes the choice of the testator falls upon the younger son, or even upon the daughter in preference to the son. Above all, the breaking up of the paternal domain must be avoided. . .The remaining brothers and sisters continue to live under the same roof. They like to live together. . .In many families it is no rare thing to find the old bachelor or old maid, the uncle or aunt, who has abandoned his rights almost entirely in order to promote the establishment of a brother or sister and guard against the family domain being broken up."

A similar resistance to the dispersion of the family community is found in Corsica and in Anjou. In the latter district especially, we are told that "to separate, to break the ties which bind them to each other, to renounce the life in common, causes them extraordinary distress. . . Parents keep their married children with them, by family arrangement or as salaried servants; at the death of one the survivor holds uncontested sway and maintains the common life. . .In the upper class great efforts are made to maintain the position of the family by artificial proceedings. The great proprietors have been established on their estates for generations by means of a system of integral transmission. The great problem for every family is to avoid the compulsory division and transmit the estate entire to the eldest son. To enable them to do so they dream of a rich marriage, by means of which the eldest son can compensate his brothers and sisters. It is hoped that the other brothers, generally in the army, may, thanks to their uniform, marry well enough to be moderate in their claims when the time for division comes. The girls are kept at home, for want of a dot to marry them, or are even sent to a convent." ¹⁵

That in the long run the law will prevail is possible, and the Family will cease to find its strength in relation to a common property in proportion as the individual members feel themselves capable of achieving an independent career through their own exertions. But it is not inconceivable that as France finds her rural population flocking into the cities, where every country youth first seeks his fortunes, she may reconsider her policy, and either attempt to throw the weight of legislation the other way, or leave the people free to handle their property as may seem best in the interests of the Family as a whole.

When we turn to Germany we find the State exercising its influence in an exactly opposite direction. In Prussia, after a long series of reforms designed to break down the feudal dependence of the peasantry upon the nobility, and to encourage an increase of free peasant proprietors, a reaction has set in which-as in France-takes the form of limiting the peasant's freedom in disposing of his property. But instead of enforcing equal division amongst the children, Prussian legislation favours a form of primogeniture under which the land and homestead must pass undivided to one heir (the eldest son by preference), and the remaining children can be provided for only from other sources or by a small charge upon the estate. It is true that this law of "Anerbenrecht" applies primarily only to a certain class of properties known as "Rentengüter," and not to freehold land; but there seems no doubt that the State desires to see it applied universally, and that the tendency is for its sphere of application to increase. The policy is variously ascribed to different motives. Herr Brunner, in his Grundzüge der deutschen Rechtsgeschichte, speaks of it as directed against the overburdening of the land with mortgages, and its overdivision into too small holdings. Brentano, on the other hand, regards it as the outcome of a reactionary movement on the part of the Junkerthum, and an attempt to reintroduce feudal conditions amongst a free peasantry. But it does not appear that the State has been influenced by considerations either of the type of Family to be favoured, or of justice towards the individual members of the Family, in pursuing its policy. Indeed, Brentano maintains that in introducing the law the State has been concerned merely for the maintenance in good condition of the land, and not at all for the people upon the land. He represents the argument of its main supporter, Dr. Miquel, as follows : "We reintroduce the feudal system by which the succeeding heir is favoured at the expense of his brothers and sisters; for when the State makes such sacrifices in order to found a new peasantry, it cannot, of course, be guided by a sentimental regard for persons, but only by regard for the productiveness of the newly-created farm. It is not man who is the object and aim of national economy; for the clear understanding of the Manchester School it was capital, and for the wise agrarian politician it can be nothing else than the farm."

Although the State was not primarily interested in the Family, it could not of course be ignored that it was directly interfering in its management and organisation, and the justification offered took the line of Le Play's argument in defence of the famille-souche. It was necessary, it was said, that the younger brothers and sisters should be sacrificed for the sake of preserving the estate in the possession of the Family. Moreover, the apparent sacrifice was really a benefit, inasmuch as a shelter was preserved for the old age of the younger members, while the heir worked hard throughout his life in order to pay their annuities from the estate. In short, the attempt is made to represent the compulsory "Anerbenrecht" as parallel to the voluntary and customary community of property, to which, as we have seen, so many of the European peasants still cling.

But the parallel does not really hold. There is no community of property under the Prussian "Anerbenrecht"; the brothers and sisters are neither intended nor expected to stay on in the home; and their claim upon the estate-which at best is very small-expires after the lapse of thirty-three years, at the time, that is, when they are most likely to need a shelter. ¹⁶

And most important difference of all, the arrangement is a compulsory one, and forced upon a people whose traditions and customs are opposed to it. Nor is it possible for them to avoid the law by any mutual agreement amongst themselves, as the French peasant avoids his law; for the State, being for the most part landlord of the "Rentengüter," has a direct interest in seeing its provisions carried out. Brentano, who is strongly opposed to the policy, describes its effect in Polish Prussia as follows: "The 'Anerbenrecht' conflicts so strongly with the sense of justice of the Polish people that many are prevented by it from taking land. Again, it often happens that a father who holds land would stay at home to cultivate it while the sons went to the industrial districts of the west, where money wages are higher, where they would save money and send it home to be used towards the purchase of the land. Or if the estate were larger, the father would cultivate it with his grown children, and so save the wages of hired servants, and be able the sooner to extinguish his debt. Under 'Anerbenrecht' neither arrangement can survive, and in very many cases the existence of the holder of a 'Rentengut' would be endangered. Hence the Polish associations for acquiring land have reverted to purchasing land for capital instead of rent, and to self-help instead of State-help."

And as with the Prussian Poles, so also will it be, thinks Brentano, with the other peoples affected by the law. "I have no doubt that so soon as the peasants have practical experience of the change in the law of succession, the children will leave the homestead when they are old enough to seek work in the town, since their work upon the farm would profit the heir alone, and not themselves." Hence the probability that the peasants will avoid acquiring land under the conditions attaching to "Rentengüter." "Should this not be so if the law of succession of 'Rentengüter' becomes applicable without modification-then the excluded heirs must utilise their scanty allowance to hasten into the towns or to foreign countries, where they would have better prospects of success." ¹⁷

If Brentano's view of the situation is correct, we get the apparent paradox that the Prussian and French law of inheritance, though directly opposed in their policy, have the same result in breaking up the family life, and hastening the exodus from country to town. The truth would seem to be that any legislative interference with the relation between the Family and its property which does not accord with the customs and traditions of the people will, just so far as it is operative, break through the ties which hold the members of the Family together. And when the members of the Family have once been brought to regard their interests as conflicting, they have no choice but to separate. If circumstances permit of each acquiring sufficient land for his maintenance, they may still continue on the land; but in Western Europe this can rarely happen now, and nothing remains but for the majority to seek their fortunes in the towns or in emigration.

That the law will not always succeed at once in prevailing against tradition and immemorial custom we have already seen; and a striking instance is cited by Brentano in which a law attempting to regulate succession not only failed to take effect, but met with such determined opposition from the people that it had to be withdrawn. "About the same time that attempts were being made in France to reintroduce the droit d'aînesse, we find the Westphalian Provincial Assembly, which was dominated by the nobility, proposing to introduce a legal 'Anerbenrecht." In 1836 a law was passed, and in 1842, owing to the determined opposition of the people, it was repealed. The failure was the more curious in that "Anerbenrecht," the inheritance by one child, was already customary in many families, and the law was applicable only in cases of intestacy. But "as soon as it came into force a storm of discontent and vehement resistance arose among the peasantry, and the hostile feeling was so strong as to lead to all sorts of attempts to evade the law. Fictitious contracts were made to avert its application, and other similar measures devised; it was even reported that some of the peasants lived 'in wilder Ehe,' so as to have no legitimate children to whom the law could apply." The reason for this opposition lay "in the infinite variety of needs arising out of the particular circumstances of each family. No law, however framed, could satisfy all these; but must conflict with interests in one direction or another."

Notes