The Child and Childhood in Folk-Thought, Alexander F. Chamberlain [first color ebook reader .TXT] 📗

the United States great testamentary freedom prevails, and the laws of inheritance belong to the province of the various States.

Among the nations of antiquity,—Egyptians, Persians, Assyrians, Chinese,—according to Deneus (215. 2), the patria potestas probably prevented any considerable diffusion of the family estates. By the time of Moses, the Hebrews had come to favour the first-born, and to him was given a double share of the inheritance. With the ancient Hindus but a slight favouring—of the eldest son seems to have been in vogue, the principle of co-proprietorship of parent and children being recognized in the laws of Manu. In Sparta, the constitution was inimical to a reserve for all the children; in Athens, the code of Solon forbade a man to benefit a stranger at the expense of his legitimate male children; he had, however, the right to make particular legacies, probably up to one-half of the property. Deneus considers that the penchant of the Athenians for equality was not favourable to a cast-iron system of primogeniture, although the father may have been able to favour his oldest child to the extent of one-half of his possessions. In ancient Rome (215. 4-16), at first, a will was an exception, made valid only by the vote of a lex curiata; but afterwards the absolute freedom of testamentary disposition, which was approved in 450 B.C. by the Law of the Twelve Tables,—_Uti legassit super pecunia tutelage suce rei, ita jus esto,_—appears, and the father could even pass by his children in silence and call upon an utter stranger to enjoy his estate and possessions. By 153 B.C., however, the father was called upon to nominally disinherit his children, and not merely pass them over in silence, if he wished to leave his property to a stranger. For some time this provision had little effect, but a breach in the patria potestas has really been made, and by the time of Pliny the Younger (61-115 A.D.), who describes the procedure in detail, the disinherited children were given the right of the querula inoffidosi testamenti, by which the father was presumed to have died intestate, and his property fell in equal shares to all his children. Thus it was that the right of children in the property of the father was first really recognized at Rome, and the pars legitima, the reserve of which made it impossible for the children to attack the will of the father, came into practice. In the last years of the Republic, this share was at least one-fourth of what the legitimate heir would have received in the absence of a will; under Justinian, it was one-third of the part ab intestate, if this was at least one-fourth of the estate; otherwise, one-half. The father always retained the right to disinherit, for certain reasons, in law. With this diminution of his rights over property went also a lessening of his powers over the bodies of his children. Diocletian forbade the selling of children, Constantine decreed that the father who exposed his newborn child should lose the patria potestas, and Valentinian punished such action with death. Among the ancient Gauls, in spite of the father’s power of life and death over his offspring, he could not disinherit them, for the theory of co-proprietorship obtained with these western tribes (215. 16). With the ancient Germans, the father appears to have been rather the protector of his children than their owner or keeper; the child is recognized, somewhat rudely, as a being with some rights of his own. Michelet has aptly observed, as Deneus remarks, that “the Hindus saw in the son the reproduction of the father’s soul; the Romans, a servant of the father; the Germans, a child” (215. 17). At first wills were unknown among them, for the system of co-proprietorship,—_hoeredes successoresgue sui cuique liberi et nullum testamentum,_—and the solidarity of the family and all its members, did not feel the need of any. The inroad of Roman ideas, and especially, Deneus thinks, the fervour of converts to Christianity, introduced testamentary legacies.

The Goths and Burgundians, in their Roman laws, allowed the parent to dispose of three-fourths, the Visigoths one-third or one-fifth, according as the testator disposed of his property in favour of a child or a stranger. The national law of the Burgundians allowed to the father the absolute disposal of his acquisitions, but prescribed the equal sharing of the property among all the children. The ripuarian law of the Franks left the children a reserve of twelve sons, practically admitting absolute freedom of disposition by will (215. 18). The course of law in respect to the inheritance of children during the Middle Ages can be read in the pages of Deneus and the wider comparative aspect of the subject studied in the volumes of Post, Dargun, Engels, etc., where the various effects of mother-right and father-right are discussed and interpreted.

 

Subdivisions of Land.

In some cases, as in Wurtemburg, Switzerland, Hanover, Thuringia, Hesse, certain parts of Sweden, France, and Russia, the subdivision of property has been carried out to an extent which has produced truly Lilliputian holdings. In Switzerland there is a certain commune where the custom obtains of transmitting by will to each child its proportional share of each parcel; so that a single walnut-tree has no fewer than sixty proprietors. This reminds us of the Maoris of New Zealand, with whom “a portion of the ground is allotted to the use of each family, and this portion is again subdivided into individual parts on the birth of each child.” It is of these same people that the story is told that, after selling certain of their lands to the English authorities, they came back in less than a year and demanded payment also for the shares of the children born since the sale, whose rights they declared had not been disposed of. On the islands of the Loire there are holdings “so small that it is impossible to reduce them any less, so their owners have them each in turn a year”; in the commune of Murs, in Anjou, there is “a strip of nine hectares, subdivided into no fewer than thirtyone separate parcels.” The limit, however, seems to be reached in Laon, where “it is not rare to find fields scarce a metre (3 ft. 3.37 in.) wide; here an apple-tree or a walnut-tree covers with its branches four or five lots, and the proprietor can only take in his crop in the presence of his neighbours, to whom he has also to leave one-half of the fruit fallen on their lots.” No wonder many disputes and lawsuits arise from such a state of affairs. It puts us in mind at once of the story of the sand-pile and the McDonogh farm. The exchange or purchase of contiguous parcels sometimes brings temporary or permanent relief (215.

112, 113).

 

The following figures show the extent to which this Lilliputian system obtained in France in 1884, according to the returns of the Minister of Finance:—

 

NATURE OF PROPERTY. ABSOLUTE PER TOTAL PER NUMBER OF CENT. HECTARES. CENT. HOLDINGS. Less than 20 ares (100 ares = one hectare) 4,115,463 29.00 Less than 50 ares 6,597,843 47.00 1,147,804 2.31 Less than 1 hectare ( =2-1/2 acres) 8,585,523 61.00 2,574,589 5.19 Less than 2 hectares 10,426,368 74.09 5,211,456 10.53 From 2 to 6 hectares 2,174,188 15.47 7,543,347 15.26 From 6 to 50 hectares 1,351,499 9.58 19,217,902 38.94 From 50 to 200 hectares 105,070 0.74 9,398,057 19.04 More than 200 hectares 17,676 0.12 8,017,542 16.23

Totals………………… 14,074,801 100.00 49,388,304 100.00

 

Deneus gives other interesting figures from Belgium and elsewhere, showing the extent of the system. Other statistics given indicate that this parcelling-out has reached its lowest point, and that the reaction has set in. It is a curious fact, noted by M. Deneus, that of the 1,173,724 tenant-farmers in the United Kingdom of Great Britain and Ireland in the year 1884, no fewer than 852,438 cultivated an acre or less.

 

Younger Son.

Mr. Sessions, in his interesting little pamphlet (351) calls attention to the important role assigned in legend and story to the “younger son,” “younger brother,” as well as the social customs and laws which have come into vogue on his account. Sir Henry Maine argued that “primogeniture cannot be the natural outgrowth of the family, but is a political institution, coming not from clansmen but from a chief.” Hence the youngest son, “who continues longest with the father, is naturally the heir of his house, the rest being already provided for.” Mr. Sessions observes (351. 2): “Among some primitive tribes, as those of Cape York [Australia] and the adjacent islands, the youngest son inherited a double portion of his deceased father’s goods. Among the Maoris of New Zealand he takes the whole. Among some hill tribes of India, such as the Todas of the Neilgherries, he takes the house and maintains the women of the family, whilst the cattle, which represent the chief personalities, are equally divided. The Mrus and Kolhs and Cotas have similar customs.” Somewhat similar to the code of the Todas was that of the Hindu Aryans, as embodied in the laws of Manu, for “the youngest son has, from time immemorial, as well as the eldest, a place in Hindu legislation.” The succession of the youngest prevails among the Mongolian Tartars, and “when in Russia the joint family may be broken up, the youngest takes the house.” The right of the youngest was known among the Welsh, Irish, and some other Celtic tribes; the old Welsh law gave the youngest son the house and eight acres, the rest of the land being divided equally between all the sons. Mr. Sessions calls attention to the fact that, while in Old Testament Palestine primogeniture was the rule, the line of ancestry of Christ exhibits some remarkable exceptions. And among primitive peoples the hero or demi-god is very often the younger son.

Under the name of “Borough English,” the law by which the father’s real property descends to the youngest son alone, survives in Gloucester and some few other places in England,—Lambeth, Hackney, part of Islington, Heston, Edmonton, etc.

Another interesting tenure is that of gavelkind, by which the land and property of the father was inherited in equal portions by all his sons, the youngest taking the house, the eldest the horse and arms, and so on. This mode of tenure, before the Conquest, was quite common in parts of England, especially Wales and Northumberland, still surviving especially in the county of Kent. Many things, indeed, testify of the care which was taken even in primitive times to secure that the youngest born, the child of old age, so frequently the best-loved, should not fare ill in the struggle for life.

 

Child-Nurses.

One important function of the child (still to be seen commonly among the lower classes of the civilized races of to-day) with primitive peoples is that of nurse and baby-carrier. Even of Japan, Mrs. Bramhall gives this picture (189. 33):—

“We shall see hundreds of small children, not more than five or six years of age, carrying, fast asleep on their shoulders, the baby of the household, its tiny smooth brown head swinging hither and thither with every movement of its small nurse, who walks, runs, sits, or jumps, flies kites, plays hop-scotch, and fishes for frogs in the gutter, totally oblivious of that infantile charge, whether sleeping or waking. If no young sister or brother be available, the husband, the uncle, the father, or grandfather hitches on his back the baby, preternaturally good and contented.”

The extent to which, in America, as well as in Europe, to-day, young children are entrusted with the care of infants of their family, has attracted not a little attention, and the “beyond their years” look of some of these little nurses and care-takers is often quite noticeable. The