SOCIAL GROUPS AND PRIVATE LAW

87 The survival of man depends on his belonging to, and being protected by, a social group whose members support one another and make their own individual contributions to the group.

The law of succession is one reflection of this social development, since devolution of the property of a deceased person has been governed by very diverse legal regimes. Primitive tribes had a relatively simple scheme: the moveable property was burned or buried with the corpse, while the real property (the land) remained in the possession of the familial clan. There was therefore no problem of fragmentation on succession. When this archaic situation changed, the question arose what should happen to the estate. In the early Middle Ages, the importance of the family was still such that the property of the deceased had to remain in its possession, and the estate was divided between the children. Testamentary succession was virtually unknown, although some special forms had developed, such as donations post obitum or pro anima in favour of the church.⁸ The church was disadvantaged by the exclusive devolution of estates to family members, and so encouraged a revival in the making of wills (which had been common in Roman law), at least in favour of church institutions.

The development of towns, which applied their own specific rules, also had an impact on the law of succession. Municipalities were anxious that the riches of their citizens should remain within the general economy of the town, and so they levied a special tax on property which left the town by inheritance, the droit d^,issue. It applied whenever a foreigner acquired the property of a citizen by way of succession or otherwise, and the rate of the levy ranged from 10 to 20 per cent.9 It was the part taken by the state which was to ^β P. Jobert, La notion de donation. Convergences: 630-750 (Paris, 1977; Publications de PUniversite de Dijon).

9 In Flanders it is found already in the thirteenth century, e.g. in an ordinance of Ghent dating from 1286. end up weighing most heavily on estates, yet apart from practices such as those of King John, who demanded exorbitant releυia from the successors of his vassals, it is only recently that rights of succession have become fiscally significant. This trend has become more marked in our day (partly for ideological reasons), so much so that succession to relatives in some degrees is tantamount to confisca­tion.

Freedom to dispose of personal landed property is another reveal­ing social indicator. Originally, collective landed property scarcely made sense, since many tribes led a nomadic existence and left their cultivated lands as soon as they were exhausted. Later, forms of family and even individual possession of land developed, but they were still subject to collective restrictions. So far as the family was concerned, this manifested itself in a prohibition on alienating landed property without the consent of the clan. The right of recovery {droit de retrait) is one of the collective restrictions which survived into the ancien regime, when a piece of land had been sold to a third party (that is, someone who was not a member of the family), members of the seller’s family had the opportunity to exercise their right of recovery and buy the property back, so reintegrating the family patrimony. Similarly, feudal lands were long considered inalienable, because they were thought to attach directly to the person (and the personal qualities) of the vassal. This principle was later attenuated, although alienation could still not take place without the consent of the feudal lord. Ultimately, fiefs became freely alienable.¹⁰ It is obvious that restrictions on the sale of land constituted an obstacle to the economic growth of cities, at a time when the need for credit and capitalization of rents demanded that land should be marketable. The towns therefore encouraged the individualism of entrepreneurs, to the detriment of ancient family control of land. Thus, article 19 of the Charter of Ghent of 1191 authorizes the free sale of land. The charter was promulgated by the

^,0 The English statute Quia emptores of 1290 expressly gave vassals the right to alienate: J. M. W. Bean, The decline of English feudalism (Manchester, 1968), 79-103.

In the Middle Ages and the ancien regime society was made up of orders and guilds. They had their own administration, rules and jurisdictions.¹² They also had their own legal status: the clergy and nobility not merely enjoyed the usual fiscal privileges, but also benefited from privileges in criminal law (such as an exemption from torture).¹³ This social organization under the ancien regime had its implications for private law: often only the great landowners had the right to sit in the courts (this was already the case for the Frankish mallus). Similarly, there was discrimination in favour of the landed proprietors or viri hereditarii of the towns; their evidence and their declarations before a court had greater weight than those of their fellow citizens. Privileges were the order of the day under oligarchic regimes, but the democratization of political institutions, especially in the Italian towns, brought about a development towards the other extreme: the evidence of a nobleman was then given less weight than that of another citizen. The privileged position of the viri hereditarii (whose words or oath were probative and prevailed over the evidence of any other person) none the less appears once more in an entirely different context: article 1781 of the 1804 Code civil makes a distinction between declarations by employer and by employee: â€?the master is believed on his affirmation’.¹+