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The result of English law has been to take landed property
out of the hands of those who cultivate it, and to accumulate
it in vast latifundia, for the benefit of a small number of
families of princely opulence. The object of French law, on
the contrary, is to secure the possession of the soil to the
greatest number, by means of the equal division of inheritances.
But this result is only attained by an excessive subdivision,
which often cuts the fields into strips that are almost too small
for cultivation, and which is therefore opposed to any sound
system of agriculture. The Servian laws, by maintaining the
family community, make every man co-owner of the land which
he cultivates, at the same time preserving to the holdings their
suitable extent. By means of this association, the advantages
of small properties are united with those of agriculture on a
large scale. The cultivators may employ the farming imple-
ments and distribution of crops customary on large farms, while
the produce is divided among the labourers, the same as in
countries where the soil is subdivided among a multitude of
small owners.

Civil taxes and the accidents of life are much less burden-
some to the family community than Avhere each couple has a
separate establishment. Should one of its members be sum-
moned to the army, attacked with illness, or temporarily pre-
vented from working, the others perform his task, and the
community provides for his wants, the same offices being ex-
pected of him should occasion arise. Let the isolated individual,
under other systems, fail, from any cause whatever, to win his
daily bread, and he and his are at once reduced to live on
public charity. Among the Southern Slavs, with their zadniga
system, no bureau de bienfaisance is required, as on the con-
tinent, nor any poor-rate, as with us. Official charity is re-
placed by family ties and duties. Labour is not a commodity,
which, like all others, has to present itself in the market, and
submit to the rigorous laws of supply and demand. Very few


hands seek employment, for there is hardly any paid labour.
Each is co-owner of a portion of the soil, and devotes himself
accordingly to the cultivation of his own land. Endemic
pauperism, and even accidental distress, is, in consequence, un-

The family community also admits of the application of
the principle of division of labour to agriculture, which en-
sures economy alike of time and of work. In three separate
families there must be three women to manage household
affairs, three men to go to market and buy and sell the produce,
and three children to watch the cattle. But if these three
families are united in the form of a zadruga, one woman,
one man, and one child will sufifice, while the others may
devote themselves to productive labour. The associates, too,
will work more cheerfull}'' and take greater pains than hired
farm-servants, for they will be animated by self-interest, inas-
much as they participate directly in the produce of their labour.
This agrarian system has the great advantage of allowing the
use of machinery for the advantage not only of one individual
but of all. The zadruga occupies a considerable extent of land ;
it can therefore employ an elaborate system of agriculture as
well as a large proprietor, and all benefit by it just as in small

The union in the same hands of capital and labour,
which we endeavour to attain in the West bj'- means of co-
operative societies, exists here in full vigour, with the additional
advantage, that the foundation of the society is not mere self-
interest, but the affection and confidence created by ties of
blood. Co-operative societies hitherto have, with rare excep-
tions, had but an ephemeral existence ; while the family-
communities, which are nothing but co-operative societies
applied to the cultivation of land, have existed from time
immemorial, and are the real basis of economic being in a
powerful group of nations full of vigour and promise for the

The number of crimes and offences is less among the
Southern Slavs than in the other provinces of the Austro-
Hungarian empire, a result apparently due to the favourable
influence exercised by the rural organization of zadrurjas. Two


causes coutribute to this result. In the first place, nearly every-
one has sufficient to satisfy his essential wants, and distress,
the great source of crime, contributes but a slight contingent
to the tables of criminality. In the second place, as each
individual lives in the midst of a numerous family, under the
eye of his relatives, he is restrained by this involuntary super-
intendence of those about him ; he has, moreover, a dignity
to preserve ; he has a position and a name, like the nobles of
the West, and the proverb "noblesse oblige'' is not without its
application to him. It is evident that this family life must
exercise a healthy moral influence, in that it developes socia-
bility. At night to pass the evening, and in the day for work
and for their meals, all the members of the family assemble
in the large common room. They converse and interchange
ideas; and one or another sings or narrates a legend. Hence
there is no occasion for a visit to the wine-shop in search of
distraction, as in the case of the individual living alone, who
takes this means of escaping the monotony and silence of his

In these family-communities attachment to ancient tradi-
tions is handed down from generation to generation ; and they
are a powerful element for the preservation of social order.
It is well known what extraordinary power the ffens imparted
to the Roman republic. As Mommsen remarks, the greatness
of Rome rose on the solid foundation of its families of peasant
proprietors. So long as the soil remains in the hands of family-
communities, no social revolution can be apprehended, for there
exists no leaven of disorder.

These associations also play a very useful part in the politi-
cal organization. They are intermediate between individualism
and communism, and so serve as an initiation into the practice
of local government. The administration of the zadruga re-
sembles that of a commune or joint-stock company in miniature.
The gospodar discharges functions similar to those of a man-
ager : he submits a report of his management to the deliberation
and discussion of those subject to him. It is like an inchoate
parliamentary system, being trained for the practice of public
liberty. If the Servians, just emancipated, accommodate them-
selves so admirably to an almost republican constitution, and a
M. 13


system of government, which many western states would find a
difficulty in maintaining, it is due to the Servians having
passed, in the bosom of these communities, an apprenticeship
in the qualities necessary for independence and self-govern-
ment. It is surprising, says M. Ivitch, to see the good sense
displayed by the Croatian peasants in the public deliberations
in which they take part.

Another effect of the common life in the zadruga is to
develop certain private virtues, such as affection among rela-
tions, mutual support, voluntary submission to discipline, and
the habit of acting together for the same object. It has been
asserted that the family is a mere method of succession. Un-
doubtedly the right of succession, which is ordinarily incident on
the death of a relation, rouses evil sentiments, which are often
placed in relief by the playwright, the novelist, or the artist.
In the zadruga there is no succession. Every one having a
personal right to a share in the produce, cupidity is never at
variance with family affection, and the thought of an inherit-
ance to be received never comes to intrude itself on the grief
caused by the death of a father or an uncle. The pursuit of
money does not inflame their minds, and there is, consequently,
more scope for natural feeling.

I believe I have not exaggerated the merits of these family-
communities, or drawn a flattering picture of the patriarchal
life passed in them. A visit to the Slav districts lying to the
south of the Danube will suffice to disclose the social organiza-
tion exactly as I have described it. The flourshing appearance
of Bulgaria, the best cultivated of all Eastern countries, shews
decisively that the system is not antagonistic to good cultiva-
tion of the soil. And yet this organization, in spite of its
many advantages, is falling to ruin, and disappearing every-
where that it comes into contact with modern ideas \ The
reason is, that these institutions are suited to the stationary
condition of a primitive age ; but cannot easily Avithstand the
conditions of a society, in which men are striving to improve

1 Thus iu 1869 the Servian minister of interior lamented in the Skuptchina
the dissolution of a great number of Zadnigas. In the last few years 1700 have
ceased to exist owing to imrtition. See Kanitz, Serbien, p. 592. In Croatia — •
strange to say — the diet in which the national party was predominant, recently
(187-1) voted a law forbidding the formation of new communities.


their own lot as well as the political and social organization
under which they live. This craving to rise and to continually
increase one's means of enjoyment, by which the present age is
excited, is incompatible with the existence of family associa-
tions, in which the destiny of each is fixed, and can vary but
little from that of other men. Once the desire of self-aggran-
disement awakened, man can no longer support the yoke of the
zadruga, light though it be ; he craves for movement, for action,
for enterprise, at his own risk and his own peril. So long as
disinterestedness, brotherly affection, submission to the family
chief, and mutual toleration for the faults of others, proserve
their empire, community of life is possible and agreeable even
for the women; but, when these sentiments disajipear, living
together becomes a purgatory, and each couple seeks to possess
an independent home, to escape the community. The advan-
tages of the zadruga, whatever they may be, henceforth are out
of consideration. To live according to his own will, to work for
himself alone, to drink from his own cup, is now the end pre-
eminently sought by every one.

"Without faith, religious communities could not survive. So,
too, if family feeling is weakened, the zadruga must disappear.
I know not whether the nations, who have lived tranquilly
under the shelter of these patriarchal institutions, will ever
arrive at a happier or more brilliant destiny ; but this much
appears inevitable, that they will desire, with Adam in Para-
dise Lost, to enter on a new career, and to taste the charm of
independent life, despite its perils and responsibilities. In my
opinion, the economist will not see thes3 institutions disappear
without regret.




Cheonicles, charters, chartularies of abbeys, customs, all shew
us that in t^:e middle ages there existed in France, in every pro-
vince, family communities exactly similar to those which are
found at the present day among the southern Slavs. Until the
fifteenth century we find no circumstantial details concerning
these institutions ; but, as M. Dareste de la Chavanne remarks,
there is no period in the history of France at which there is
not some text, revealing, in one phase or another, the existence
of these communities.

We have no documents to tell us how they were formed,
and opinions' vary on this point. M. Doniol maintains in his
Histoire des Classes rurales en France, that they were " created
at one stroke as correlative to the fief," and adds that " this in-
terpretation is the one given by the majority of authors whose
study of law has been enlightened by a knowledge of history,"
and especially by M. Troplong in his book on Louage. M. Eu-
gène Bonnemère, who devotes considerable attention to these
communities in his Histoire des Paysans, is of opinion tliat they
were developed under the influence of Christian ideas and on
the model of religious communities. "Prompted by weak-
ness and despair, the serfs formed themselves into groups,
and thus associating themselves obtained possession of the
soil, no longer in isolated independent ownership, but con-
nected in aggregations of families." These explanations are
manifestly erroneous. They rest on the evidence of the com-
mentators of the fifteenth and sixteenth centuries, who were the
first to notice these communities in France, but never suspected
the remote antiquity of the primitive institution.


We must not look to circumstances peculiar to France and
the middle ages for the origin of these associations, as they are
found among all Slavonic nations, as well as among the Hindoos
and nations of Semitic origin, and may be traced back to the ear-
liest forms of civilization. Formerlj^ when all the territory still
remained the common property of the village, the lots were peri-
odically distributed, not among the individual members, but
among the family groups, as is the custom in Russia at the pre-
sent time, and was, according to Cassar, the custom among the
Germans. " No one holds lands as his private property, but the
magistrates and chiefs distribute them annually among the clans
and families who live in community \" These cognationes homi-
niim qui una coierunt are manifestly family associations similar to
those of Servia. German jurists are generally agreed that there
did exist among the ancient Germans collective property of the
family, a condominium in soUdum based on the active and pas-
sive solidarity of the kindred. It was shewn, in the first place,
by the obligation of the faida or vendetta : — suscipere inimicitias
sen patris, sen propinqiii necesse est, says Tacitus [Germ., c. 21) ;
secondly, it was shewn by the joint obligation to pay the com-
position, the Wehrgeld or Blidgeld, in which all the kinsfolk of
the victim also participated : recepitque satisfactionem universa
domus, Tacitus again tells us ; thirdly, by the guardianship ex-
ercised by the head of the family, or munduald, whose position
was similar to that of the Slav gospodar and the Russian sta-
rosta; fourthly, by the hereditary seisin which gave rise to the
maxim of the middle ages : le mort saisit le vif son hoir. As
Zacchariai says {Droit civil, § 588), there was no individual pro-
perty ; but it w^as collective and constituted a community in
solidum. All the kinsmen were proprietors ; there was, there-
fore, no acquisition by right of inheritance as at Rome. There
was rather a continuity of possession. " On the death of the ,
munduald," says M. Wlirtli^ " those who had been under his

1 It may be of use to give the text of this important passage : " Nee quis-
qiiam agri modum certain aut fines habet proprios, sed maçjistratus ac principes,
in annos singulos, gentibus cognationibusque hominum qui una coierunt, qxmntum
lis et quo loco visum est, agri attribuant atque anno post alio transire cogunt."
CusAR, De Bello Gallico, vi. 22.

'^ De la Saisine, by M. Wiirth, procureur général at Ghent. Ganil, 1873.
See also J. Simonnet, Hist, et théorie de la Saisine, and Lehiierou, bist. carol.,
p. 52.


control either became heads of houses themselves, Selhinunduald,
or else were placed under the authority of such chiefs. The
seisin of those who remained under the mundium was transmit-
ted with the same instantaneousness to the new munduald, the
successor to the authority of the deceased one."

As the family community was the unit for the periodical
partition, it naturally followed, when this partition fell into dis-
use, that the communities were owners of the soil, and they
continued to exist in obscurity, resisting all destruction, until
they attracted the attention of the jurists, about the end of the
middle ages\

Yet it is certain that the conditions of the feudal system
were singularly favourable to the preservation or the establish-
ment of communities, which were beneficial both to the peasants
and their lords. There was no right of succession for mainmort-
able serfs, Avhose property at every death returned to the lord.
On the other hand, when they lived in community, they suc-
ceeded to one another, or rather there was no opportunity for
succession to occur ; the community maintained an uninter-
rupted succession in its character of a perpetual civil person.
"As a general rule," says Le Fèvre de la Planche^, "the lord
was considered successor of all who died : he regarded his sub-
jects as serfs and ' mortaillahles' ; he only allowed them rights
when in societies or communities. When they were in this
community, they succeeded to one another rather by right of
accrual or jure non decrescendi than by hereditary title, and the
lord only inherited on the death of the last survivor of the com-
munity." Hence it was only in the association of the family
group that a serf family could obtain property, and find a means
of improving its condition by accumulating a definite capital.
By means of cooperation, it acquired sufficient strength and
consistency to withstand the oppression and incessant wars of
the feudal epoch.

On the other hand, the lords found it greatly to their ad-

1 Before this period we may from time to time snatch traces of the exist-
ence of communities. Thus we see, in the Pohjptique d'Irminon, on the
domains of the abbey of Saint-Germain-des-Près, an association of three
families of tenants cnltivating seventeen honniers of land ; but the commenta-
tors on customary law were the first to give precise details on this subject.

2 Traité du Domaine, Préface, p. 81. See La Commune agricole, par M.
Bonnemère, p. 32 et seq.


vanta£re to have for tenants communities rather tlian isolated
households : as they afforded much better security for the pay-
ment of rent and for the performance of the corvée^. As all
the members of the association were jointly answerable, if one
of them made default, the others were obliged to discharge the
payments to which he was liable. It is precisely this same
principle, the joint responsibility of the workmen, which made
possible the establishment of the popular banks to which the
name of M. Schulze-Delitsch is attached. The promissory notes
of an isolated artizan cannot be discounted, because the chances
of loss are too great ; but associate a group of workmen, esta-
blish a collective responsibility among them, based on capital
produced by economy, and the paper of the association will find
credit on the best terms, as it will offer full security.

Documents of the time shew us the lords universally favour-
able to the establishment or maintenance of the communities.
" The reason," says an old jurist, " which led to the establish-
ment of community among the mainmortahles is that the lands
of the seigniory are better cultivated and the subjects in a better
condition to pay the lord's dues, when they live in common
than if they formed so many separate establishments." In
many cases, the lords demand, as the condition of granting cer-
tain concessions, that the peasants should adopt the system.
Thus, in an act of 1188, the Count of Champagne only grants
the maintenance of the right of commonage on condition that
"the children live with their father and share his fare." In
1545, the clergy and nobility get an edict issued, which forbids
peasants, on escaping from mortmain, to become owners of land,
unless they constitute a community. Up to the seventeenth
century in la Marche, the landlords make indivisibility a con-
dition of their metayagcs\

1 " Mornac treats at great length of the communities of Auvergne and the
neighbonrhood," says Chabrol {Comment, sur la coutume (VAureri/nr, vol. ii.
p. 499) ; " he considers them of great advantage to the progress of agriculture
and for the assessment of public imposts."

2 For sources, we refer the reader especially to the three works already
quoted of MM. Dareste de la Ghavanue, Doniol, and Bonuemère, as wt'U as tlio
books of Troplong on Louaijc and the Contrat de Société. When a perpetual
metayage was granted to the metayers, a guarantee tliat they would live iu
community was exacted. Dalloz {Jurisprufl. nciicr.) quotes a title of 1025,
imposing the condition that tbo lessees should have but " one pot, one hearth,
and one morsel, and should live iu perpetual community."


The organization of these communities was based on the
same principles as the Servian zadruga. The association cul-
tivated a parcel of land in common, and inhabited the same
dwelling. This dwelling was of large extent or composed of
several buildings connected together, opposite which were built
the barns and cattle-sheds. It was called celle {cello), and the
name is preserved under different forms in a number of
villages, as La Celle-Saint-Cloud, Mavrissel, Courcelles, Vaucel.
The domain bore the name of the family, and even now
properties are distinguishable by the article, les, which custom
has retained before their name, as les Avrils, les Bollins, les
Segands, les Bayons, les Bernards, les Avins, les Gault. The
associated members were called " comjmins " {compani), because
they lived of the same bread, — " partçonnîers," because each
took his share of the produce, — or "frarescheux," because they
lived together as brothers. The community was called "com-
pagnie," "coterie^" "fraternité;" — domus fraternitatis, in the
Polyptique dirminon. Beaumanoir, the oldest author who
gives any information on the juridical constitution of these
communities, thus explains the term by which they ai'e often
designated: " Compagnie is constituted by our custom, by having
a single common dwellmg, the same bread, the same pot, for a
year and a day, when the property of the several members is
confused together."

In the Institutes coutumières by Antoine Loysel, published
in 1G08, several rules are still found relating to family com-
munities (I. LXXIV.) : " Serfs or mainmortahles cannot make
a will and have no right of succession, unless they live in
community" {Edition JDupin et Laboidaye, t. i. p. 122). The
lord succeeded to the serf, so that all agricultural work would
have had to be carried on without the stimulus of a succession
within the family group, if these agricultural communities had
not existed. The serfs, living in community, and having the
richt of succession one to another, could also make a will in
favour of one another, without impairing the rights of the lord.

1 "This is a ■word found in many customs, and applied to village societies
living together to hold of a lord some iuheritauce, which is said to be held in
cotterie. It is particularly prevalent among the gens de main-morte " [Dictionnaire
de Trévoux),


According to Lauriere, in his notes on Loyscl's work, the serfs
living in community have this right of succession, "because
they possess their property jointly, so that the portion of any
who die belongs to the survivors by a kind of right of acci'ual'."
When the co-partners cease to partake of the morsel or the
bread, that is to say, when they set up a separate establish-
ment, the community is at an end. The majority of customs
favourable to the communities do not apply these rules rigor-
ously. According to the custom of Nivernais (c. VIII. art. 13),
"persons in a state of mortmain are not regarded as having
separated until they have maintained, for a year and a day, a
hearth and home apart, separated and divided from one
another." In La Marche the separation was only effected by
the express declaration of the co-partners ; when once separated,
they could only constitute themselves into a new community
with the consent of the lord.

Living in this community had so much importance in
matters of succession, that at Paris in ancient times, Lauriere
tells us, the child who was in celle (cella, dwelling), and lived of
the bread and fare of his parents, succeeded to the exclusion of
the others. Article XXXIII. of Loysel says : " A single child,
being in celle, receives mortmain." The child in " celle " alone
inherited, and prevented the devolution on the lord by mort-
main; and, according to the custom of several districts, the
other children were enabled to succeed throuofh him.

Online LibraryEmile de LaveleyePrimitive property → online text (page 22 of 38)