The mourning for the death of children is discussed in another part of this work. It may be mentioned here, however, that the death of a child often entails other, sometimes more serious, consequences. Among the Dyaks of Borneo, "when a father has lost his child, he kills the first man he meets as he goes out of his house; this is to him an act of duty" (100. 238).
Hereditary Bights.
The hereditary rights of children to share in the property of their parents have been made the subject of an interesting study by Clement Deneus (215), a lawyer of Ghent, who has treated in detail of the limitation of the patria potestas in respect to disposition of the patrimony, and the reservation to the children of a portion of the property of their parents—an almost inviolable right, of which they can be deprived only in consequence of the gravest offences. This reservation the author considers "a principle universally recognized among civilized nations," and an institution which marks a progress in the history of law and of civilization (215. 49), while testamentary freedom is unjust and inexpedient. The author discusses the subject from the points of view of history, statute and natural law, social economy, etc., devoting special attention to pointing out the defects of the system of the school of Le Play,—primogeniture, which still obtains in England, in several parts of Germany, in certain localities of the Pyrenees, and in the Basque provinces.
In the countries of modern Europe, the testamentary power of the father is limited as follows: Austria (Code of 1812): One-half of parents' property reserved for children. The law of 1889 makes exception in the case of rural patrimonies of moderate size with dwelling attached, where the father has the right to designate his heir. Denmark (Code of 1845): Father can dispose of but one-fourth of the property; nobles, however, are allowed to bestow upon one of their children the half of their fortune. Germany: No uniform civil legislation exists as yet for the whole empire. In the majority of the smaller states, in a part of Bavaria, Rügen, eastern Pomerania, Schleswig-Holstein, the Corpus Juris Civilis of Justinian is in force, while the Napoleonic code obtains in Rhenish Prussia, Hesse, and Bavaria, in Baden, Berg, Alsace-Lorraine. In Prussia, the reserve is one-third, if there are less than three children; one-half, if there are three or four. In Saxony, if there are five or more children, the reserve is one-half; if there are four or less, one-third. Greece: The Justinian novels are followed. Holland: The Napoleonic code is in force. Italy (Code of 1866): The reserve is one-half. Norway (Code of 1637, modified in 1800, 1811, 1825): The father is allowed free disposal of one-half of the patrimony, but for religious charities (fondationspieuses) only. Portugal: The legitimate is two-thirds. Roumania (Code of 1865): The same provision as in the Napoleonic code. Russia (Code of 1835): The father can dispose at pleasure of the personal property and property acquired, but the property itself must be divided equally. In Esthonia, this provision also applies to personal property acquired by inheritance. Spain (Code of 1889): The father can dispose of one-third of the patrimony to a stranger; to a child he can will two-thirds. He can also, in the case of farming, industry, or commerce, leave his entire property to one of his children, except that the legatee has to pecuniarily indemnify his brothers and sisters. Sweden (Code of 1734): In the towns, the father can dispose of but one-sixth of the patrimony; in the country, the patrimonial property must go to the children. The rest is at the will of the father, except that he must provide for the sustenance of his children. Switzerland: At Geneva, the Napoleonic code is in force; in the Canton of Uri, the younger son is sometimes specially favoured; in Zürich, the father can dispose of one-sixth in favour of strangers, or one-fifth in favour of a child; in Bâle, he is allowed no disposal; in the cantons of Neuchâtel and Vaud, the reserve is one-half, in Bern and Schaffhausen, two-thirds, and in Eriburg and Soleure, three-fourths. Turkey: The father can dispose of two-thirds by will, or of the whole by gift (215. 39-41).
In Prance, article 913 of the civil code forbids the father to dispose, by gift while living, or by will, of more than one-half of the property, if he leaves at his death but one legitimate child; more than one-third, if he leaves two children; more than one-fourth, if he leave three or more children. In 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 new-born 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 thirty-one 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:—