We must not look to circumstances peculiar to France and the middle ages for the origin of these associations, as they arefound among all Slavonic nations, as well as among the Hindoos and nations of Semitic origin, and may be traced back tothe earliest forms of civilization. Formerly, when all the territory still remained the common property of the village, the lotswere periodically distributed, not among the individual members, but among the family groups, as is the custom in Russia atthe present time, and was, according to Caesar, the custom among the Germans. "No one holds lands as his privateproperty, but the magistrates and chiefs distribute them annually among the clans and families who live in community." (1) These cognationes hominum qui una cojerunt are manifestly family associations similar to those of Servia. German juristsare generally agreed that there did exist among the ancient Germans collective property of the family, a condominium insolidum based on the active and passive solidarity of the kindred. It was shewn, in the first place, by the obligation of the faida or vendetta: suscipere inimicitias seu patris, seu propinqui necesse est , says Tacitus ( Germ ., c. 21); secondly, it wasshewn by the joint obligation to pay the composition, the Wehrgeld or Blutgeld , in which all the kinsfolk of the victim alsoparticipated: recepitque satisfactionem universa domus , Tacitus again tells us; thirdly, by the guardianship exercised by thehead of the family, or munduald , whose position was similar to that of the Slav gospodar and the Russian starosta ; fourthly,by the hereditary seisin which gave rise to the maxim of the middle ages: le mod saisit le vif son hoir . As Zacchariae says( Droit civil , ?588), there was no individual property; but it was collective and constituted a community in solidum . All thekinsmen were proprietors; there was, therefore, no acquisition by right of inheritance as at Rome. There was rather acontinuity of possession. "On the death of the munduald ," says M. Würth, (2) "those who had been under his control eitherbecame heads of houses themselves, Selbmunduald , or else were placed under the authority of such chiefs. The seisin ofthose who remained under the mundium was transmitted with the same instantaneousness to the new munduald , thesuccessor 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 disuse,that the communities were owners of the soil, and they continued to exist in obscurity, resisting all destruction, until theyattracted the attention of the jurists, about the end of the middle ages. (3)Yet it is certain that the conditions of the feudal system were singularly favourable to the preservation or the establishmentof communities, which were beneficial both to the peasants and their lords. There was no right of succession formainmortable serfs, whose property at every death returned to the lord. On the other hand, when they lived in community,they succeeded to one another, or rather there was no opportunity for succession to occur; the community maintained anuninterrupted succession in its character of a perpetual civil person. "As a general rule," says Le Fèvre de la Planche, (4) "thelord was considered successor of all who died: he regarded his subjects as serfs and ` mortaillables'; he only allowed themrights when in societies or communities. When they were in this community, they succeeded to one another rather by rightof accrual or jure non decrescendi than by hereditary title, and the lord only inherited on the death of the last survivor of thecommunity." Hence it was only in the association of the family group that a serf family could obtain property, and find ameans of improving its condition by accumulating a definite capital. By means of cooperation, it acquired sufficient strengthand consistency to withstand the oppression and incessant wars of the feudal epoch.
On the other hand, the lords found it greatly to their advantage to have for tenants communities rather than isolatedhouseholds: as they afforded much better security for the payment of rent and for the performance of the corvée . (5) As all themembers of the association were jointly answerable, if one of them made default, the others were obliged to discharge thepayments to which he was liable. It is precisely this same principle, the joint responsibility of the workmen, which madepossible the establishment of the popular banks to which the name of M. Schulze-Delitsch is attached. The promissory notesof an isolated artisan cannot be discounted, because the chances of loss are too great; but associate a group of workmen,establish a collective responsibility among them, based on capital produced by economy, and the paper of the associationwill find credit on the best terms, as it will offer full security.
Documents of the time shew us the lords universally favourable to the establishment or maintenance of the communities.
"The reason," says an old jurist, "which led to the establishment of community among the mainmortables is that the lands ofthe seigniory are better cultivated and the subjects in a better condition to pay the lord's dues, -when they live in commonthan if they formed so many separate establishments." In many cases, the lords demand, as the condition of granting certainconcessions, that the peasants should adopt the system. Thus, in an act of 1188, the Count of Champagne only grants themaintenance of the right of commonage on condition that "the children live with their father and share his fare." In 1545, theclergy 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 conditionof their metayages. (6)
