§ 1. The Duty Of Maintenance Of Parents During Life, And After Death At Their Tomb.

As the hearth was the centre of the sanctity and reverence of the family, so the word οἶκος was the customary term to signify the smaller group of the composite γένος, consisting of a man and his immediate descendants. In the first place, the individual was absolutely committed to sacrifice all his personal feelings for the sake of the continuity of his οἶκος, and this was his supreme duty. But whereas several οἶκοι traced their descent from a common ancestor, a group of gradually diverging lines of descent were formed, sharing mutually the responsibility of the maintenance of continuity, and the privilege of inheritance and protection.

Before examining how far these parallel lines remained within the reach of claims of kinship, or how soon the reverence for the more immediate predecessors [pg 018] absorbed the memory of the more remote ancestor, it will be well to have a clear understanding of what the claims of kindred were, and how they affected the member of the οἶκος, in respect of his duties thereto.

Plato30 declares that honour should be given to:—

1. Olympian Gods.

2. Gods of the State.

3. Gods below.

4. Demons and Spirits.

5. Heroes.

6. Ancestral Gods.

7. Living Parents, “to whom we have to pay the greatest and oldest of all debts: in property, in person, in soul; paying the debts due to them for the care and travail which they bestowed on us of old in the days of our infancy, and which we are now to pay back to them when they are old and in the extremity of their need.”

The candidates for the archonship were asked, among other things, whether they treated their parents properly.31 It was only in case of some indelible stain, such as wife-murder, that the debt of maintenance of the parent was cancelled.32 Yet even when the father had lost his right of maintenance by crime or foul treatment, the son was still bound to bury him when he died and to perform all the customary rites at his tomb.33

“Is it not,” says Isaeus, “a most unholy thing, if a man, without having done any of the customary rites due to the dead, yet expects to take the inheritance of the dead man's property?”34

The duty of maintenance of the parent thus extended even beyond the tomb, and this retrospective attitude of the individual gives us the clue to his position of responsibility also with regard to posterity.

The strongest representation possible of this attitude is given in the Ordinances of Manu, where it is stated that a man “goes to hell” who has no son to offer at his death the funeral cake.

“No world of heaven exists for one not possessed of a son.” The debt, owed by the living member of a family to his manes, was to provide a successor to perform the rites necessary to them after his own death.

i.e. one representative was sufficient as regards the duties to the manes in the house of the grandfather.

Plato expresses the same feeling in the Laws:36

The functions and duties of the individual towards his family and relations thus find their explanation in his position as link, between the past and the future, in the transmission to eternity of his family blood.

His duties to his ancestors began with the death of his father. He had at Athens to carry out the corpse, provide for the cremation, gather the remains of the burnt bones, with the assistance of the rest of the kindred,37 and show respect to the dead by the usual form of shaving the head, wearing mourning clothes, and so on. Nine days after the funeral he must perform certain sacrifices and periodically after that visit the tombs and altars of his family in the family burying-place.38 If he had occasion to perform military service, he must serve in the tribe and the deme of his parent (στρατεύειν ἐν τῇ φυλῇ καὶ ἐν τῷ δήμῳ).39 Before he can enter into his inheritance he must fulfil all the ordinances incumbent on one in his position, and in the Gortyn Laws it is [pg 021] stated that an adopted heir cannot partake of the property of his adoptive father unless he undertakes the sacred duties of the house of the deceased.40 Thus the right of ownership of the family estate rested always with the possession of the blood of the former owners; and such a representative demonstrated his right by stepping into his predecessor's shoes and by taking upon himself all responsibility for the fulfilment of the rites, thereafter to be performed to him also when he shall have been gathered to the majority of his family.

§ 2. The Duty Of Providing Male Succession.

But however piously and carefully he performed his many duties to his ancestors, his work was only transitory and incomplete, unless he provided a successor to continue them after him into further generations.

The procreation of children was held to be of such importance at Sparta41 that if a wife had no children, with the full knowledge of her husband she admitted some other citizen to her, and children born from such a union were reckoned as born to the continuation of her husband's family, without breach of the former relations of husband and wife.42 This is the exact custom stated in the Ordinances of Manu [pg 022] (ix. 59), where it is laid down that a wife can be “commissioned” by her husband to bear him a son, but she must only take a kinsman within certain degrees, whose connection with her ceases on the birth of one son.43 Otherwise it was a man's duty to divorce a barren wife and take another. But he must divorce the first, and could not have two hearths or two wives.44

A curious instance of how this sentiment worked in practice in directly the opposite direction to our modern ideas, is mentioned in Herodotus. Leaders of forlorn hopes nowadays would be inclined to pick out as comrades the unmarried men, as having least to sacrifice and fewest duties to forego. Whereas Leonidas, in choosing the 300 men to make their famous and fatal stand at Thermopylae, is stated to have selected all fathers with sons living.45

Hector is made to use this idea in somewhat similar manner. He encourages his soldiers with:—

If the enemy are driven out, though he be killed himself, yet if he leave children behind, his household and their property will remain unharmed.

All about to die, says Isaeus, take thought not to leave their οἶκος desolate (ἔρημος),47 but that there shall be some one to carry the name of their house [pg 023] down to posterity, who shall perform all the customary rites at the tomb due to them also when they shall have joined the ranks of ancestors.48

Where children were reckoned of the tribe of their father and not of their mother, and where a woman was incapable of performing sacred rites, a male heir was necessary for the direct transmission of blood and property. Sons entered upon their inheritance immediately on the death of their father, nor had he the power to dispossess them in favour of others, whilst brothers, cousins, legatees, had always to prove their title and procure judgment from the court in their favour.49

Failing sons however, the next descent lay through a daughter. Nor were her qualifications in herself complete or sufficient in theory to form the necessary link in the chain of succession. The next of kin male had to marry her with the property of which she was ἐπίκληρος;50 but neither she nor he really possessed the property, and the sons born from the marriage succeeded thereto directly on attaining a certain age. The next of kin had in the meantime of course to represent his wife's father in all the religious observances, and was said to have power to live with the woman (κύριος συνοικῆσαι τῇ γυναικί), but not to dispose of the property (κύριος τῶν χρημάτων);51 the sons becoming κύριοι τῶν χρημάτων at sixteen years old, and owing thence only maintenance (τρέφειν) to their mother from [pg 024] the property.52 The heiress was compelled to marry at a certain age and was adjudicated by law to the proper kinsman.53

Again an exact parallel is to be found in the Ordinances of Manu:—

The whole property of a man is taken by this daughter's son,54 and, by her bearing a son, her father “becomes possessed of a son, who should give the funeral cake and take the property.”55

If she die without a son, her husband would take (presumably by a sort of adoption).56 But this would be perfectly natural, if, as in Greece, her husband was bound to be the next of kin and therefore heir failing issue from her.

At Athens it was part of the office of the archon to see that no οἶκος failed for want of representatives, to constrain a reluctant heiress to marry or to compel the next of kin to perform his duty. Plato57 asks pardon for his imaginary legislator, if he shall be found to give the daughter of a man in marriage having regard only to the two conditions—nearness of kin, and the preservation of the property; disregarding, in his zeal for these, the further considerations, which the father himself might be expected [pg 025] to have had, with regard to the suitability of the match.58

A certain leniency was however allowed to the heiress who was unwilling to marry an obnoxious kinsman, and to the kinsman who had counterclaims upon him in his own house. Nevertheless the rules remained very strict. Isaeus states emphatically,59 “Often have men been compelled by law to give up their properly wedded wives, owing to their becoming ἐπίκληροι through the death of their brother to their father's property and having to marry the next of kin (τοῖς ἐγγυτάτα γένους),” to prevent the extinction of their father's house.

Manu warns those about to marry to be careful that their children shall not be required to continue their wives' father's family, to the desolation of their own.

Again Isaeus:—

In the laws of Gortyn very clear rules are laid [pg 026] down to be followed where there were difficulties in the way of the heiress marrying the next of kin.

There is also a statement made by Demosthenes63 that sounds as if it might have come from the Ordinances of Manu. It is there stated that if there were more than one heiress, only one need be dealt with in respect to providing succession, though all shared in the property.

The law of Gortyn goes on:—

Such pains were taken to find a representative [pg 027] for the deceased in his family, or at any rate in his tribe.64

The same questions seem to have arisen amongst the Israelites in the time of Moses.

§ 3. The Position Of The Widow Without Child And The Duties Of An Only Daughter.

The levirate, or marriage with deceased husband's brother, seems to have had no place in Greek family law. The wife was of no kin necessarily to the husband; and so it would not tend to strengthen the transmission of blood if the next of kin married the widow on taking the inheritance of his relative deceased without issue. The wife in Greek law could not inherit from her husband, whose property went to his father's or mother's relations; and only when it became a question of finding an heir to her son, and failing all near paternal kinsmen, could the [pg 028] inheritance pass through her, and then as the mother of her dead son, not as widow of her dead husband. Even then, being a woman, she had no right of enjoyment, only of transmission. She could only inherit on behalf of her issue by a second husband, and failing her issue the inheritance would pass to her brothers and so on. In Greece the claim upon the δαήρ (Latin levir) for marriage seems to have begun with his brother's daughter, not his brother's widow.

The childless widow on the death of her husband had to return to her own family or whoever of her kindred was guardian (κύριος) of her, and if she wished, be given again in marriage by him.65

The woman at Athens even after marriage always retained her κύριος or guardian,66 who was at once her protector and trustee. He was probably the head of the οἶκος to which she originally belonged—her next of kin—and had great power over her.67

A case there is68 where the heir to the property also takes the wife of the previous owner; but in this case the husband may have been κύριος of his own [pg 029] wife, and so could bequeath, or give her away to whomever he liked.69

In the Ordinances of Manu, the limitations of the levirate are very strictly defined.70 In the case of a man leaving a widow, she must not marry again, or she lost her place in heaven by his side.

But if she was childless, the next of kin of her husband must beget one son by her; he did not marry her, and his connection with her ceased on the birth of a son.

The laws of Manu otherwise are strict against the marriage of close relations; a restriction not found in Greece.

Isaeus71 mentions that it was thought quite natural for a man to marry his first cousin in order to concentrate the family blood, and prevent her dowry or whatever property might come to her from going outside his οἶκος, and we know that even marriage with a half-sister (not born of the same mother) was not forbidden.

There are more instances than one in Homer of a man marrying his aunt, or niece.

The nearest resemblance to the levirate in Greece is the occasional custom at Sparta, mentioned already, of a wife being “commissioned” to bear children by another man into the family of her husband. But this exists in Manu, side by side with the above-mentioned custom of levirate proper.

Among the Israelites, the levirate was in full force; the craving for continuance was the same as among the followers of Manu and the Greeks; and [pg 030] the custom with regard to heiresses is so vividly told that it is worth quoting at some length.

Such was the scorn felt for the man who refused to perform the duties of nearest kinsman. In the thirty-eighth chapter of Genesis is told the story of Tamar, the wife of Judah's eldest son who died childless. The second son's refusal to raise up seed to his brother because he knows that his own name will not be perpetuated thereby, but his brother's, meets with summary punishment. “And the thing that he did was evil in the sight of the Lord, and He slew him also.”72 Afterwards, when it was reported to her father-in-law that Tamar had a child by some one not of his family, he was exceedingly wroth, and said, “Bring her forth and let her be burnt.” Accordingly, after he had received his own “tokens” from her hand, [pg 031] his approval of her action, in her desire to perpetuate the name of her dead husband, is all the more striking, and shows how real such a claim as Tamar's was in the practice of those days, extreme though her action was felt to be. And Judah acknowledged his tokens and said, “She hath been more righteous than I: because that I gave her not to Shelah my [youngest] son.”

The statement of the customary procedure in Deuteronomy is very picturesquely illustrated and fulfilled in detail in the story of Ruth, who though only a daughter-in-law takes the position of heiress through a sort of adoption by her mother-in-law Naomi, on her refusal to go back to her own people. “Where thou goest, I will go: where thou lodgest, I will lodge: thy people shall be my people, and thy God, my God. Where thou diest will I die, and there will I be buried.” She accepts Naomi's hearth her kin, her religion, and finally her tomb.

Elimelech and his two sons dying in Moab, Naomi and both her daughters-in-law are left widows in a strange land. If Naomi had other sons, upon them would have devolved the duty of taking Orpah and Ruth to wife. But Naomi declares herself73 too old to marry again and be the mother of sons, and implores her daughters-in-law to return to their own people in Moab, where she hopes they will start afresh with new husbands, a course which seems always to have been open to wives in tribal communities. Orpah does so, but Ruth elects to remain with Naomi, and returning with her to Bethlehem takes her chance [pg 032] among the kindred of Elimelech. Happening to arrive at Bethlehem at the beginning of the barley harvest, it so chances that Ruth goes forth to glean upon that part of the open field which belonged to Boaz—a rich man of the συγγενία of Elimelech, who, having heard of her devotion to Naomi and the house of his late kinsmen, protects her from possible insult from strangers and treats her richly. On her return home Naomi informs her that Boaz is of their next of kin (τῶν ἀγχιστευόντων)74 whose place it was to redeem property sold or lost by a kinsman. This duty is thus set forth in Leviticus:—

An instance of it in practice is given in Jeremiah.

But on Ruth's applying to Boaz, he informs her that though he is ἀγχιστεύς, i.e. within the reach of the claim on the next of kin, yet is there one ἀγχιστεύς who is nearer than he, and who must first be asked.

The rendering of the Vulgate of the kinsman's reply is more easily understood:—“I yield up my right of near kinship: for neither ought I to blot out the continuance (posteritas) of my family: do thou use my privilege, which I declare that I freely renounce.”

Now Boaz was sixth in descent from this Perez whose mother Tamar, as quoted above, had been in much the same position as Ruth.

It is interesting to read further that the son born of this marriage of Ruth and Boaz is taken by the women of Bethlehem to Naomi, saying, “There is a son born to Naomi,” emphasising the duty of the heiress to bear a son, not into her husband's family, but to that of her father.

The story of Ruth is not, therefore, an exact example of the custom of levirate. But it illustrates incidentally the unity of the family. The sons of Elimelech died before the family division had taken place, and the house of Elimelech their father was thus in jeopardy of extinction. If Naomi had come within the proper operation of the levirate, the next of kin ought to have married her, but by her adoption of Ruth as her daughter, she gave Ruth the position of heiress or ἐπίκληρος, whilst the heir born to Ruth was called son, not of Ruth's former or present husband, but of Elimelech and (by courtesy) of Naomi, Elimelech's widow, through whom the issue ought otherwise to have been found.

§ 4. Succession Through A Married Daughter: Growth Of Adoption: Introduction Of New Member To Kinsmen.

But if the heiress was already married and had sons, she need not be divorced and marry the next of kin, though that still lay in her power. It was considered sufficient if she set apart one of her sons to be heir to her father's house. But she must do this absolutely: her son must entirely leave her husband's house and be enfranchised into the house of her father. If she did not do this with all the necessary ceremonies, the house of her father would become extinct, which would be a lasting shame upon her.

Isaeus75 mentions a case where a wife inherits from her deceased brother a farm and persuades her [pg 035] husband to emancipate their second son in order that he may carry on the family of her brother and take the property.

In another passage76 the conduct of married sisters in not appointing one of their own sons to take his place as son in the house of their deceased brother, and in absorbing the property into that of their husbands, whereby the οἶκος of their brother became ἔρημος, is described as shameful (αἰσχρῶς).

In Demosthenes77 a man behaving in similar wise is stigmatised as ὑβριστής.

Herein lay the reason that adoption became so favourite a means in classical times of securing an heir. It became almost a habit among the Athenians who had no sons, to adopt an heir—often even the next of kin who would naturally have succeeded to the inheritance.78

The transfer of the adopted son from the οἶκος of his father to the οἶκος he was chosen to represent was so real that he lost all claim to inheritance in his original family, and henceforth based his relationship and rights of kinship from his new position as son of his adoptive father. This absolutely insured the childless man that his successor would not merge the inheritance in that of another οἶκος, and made it extremely unlikely that he would neglect his religious duties as they would be henceforth his own ancestral rites.

Sometimes, it seems,79 sons of an unfortunate [pg 036] father were adopted into another οἶκος so as not to share in the disgrace brought upon their family. In such a case presumably their father's house would be allowed to become extinct.

The inheritance of property being only an accessory to the heirship,80 the ceremony of adoption consisted of an introduction to the kindred and to the ancestral altars, and an assumption of the responsibilities connected therewith.

The process was the same as for the proclamation of the true blood of a son, and was exactly in accordance with tribal instincts.

Whatever the history of the φρατρία at Athens, in it seems to have been accumulated a great number of the survivals of tribal sentiment.

The adoption at Athens took place at the gathering of the phratores in order that all the kin might be present (παρόντων τῶν συγγενῶν).81 The adopter must lead his son to the sacrifices on the altars82 and must show him to the kinsmen (συγγενεῖς or γεννῆται) and phratores: he must give assurance on the sacrifices that the young man was born in lawful wedlock from free citizens. This done, and no one questioning his rights, the assembly proceeded to vote83 and if the vote was in his favour, then and not till then he was enrolled in the common register (εἰς τὸ κοινὸν γραμματεῖον) of the phratria in the name of son of his adopted father. As a father could not without reason disinherit his true-born sons, so the phratores could not without reason refuse to accept them to the kinship.84

If any of the phratores objected to the admission of the new kinsman, he must stop the sacrifices and remove the victim from the altar.85 He would have to state the grounds of his objection, and if he could not produce good reasons, he incurred a fine. If there was no objection, the unsacrificial parts of the victim were divided up and each member took home with him his share,86 or joined in a feast provided by the father of the admitted son.87

The ceremonial given in the Gortyn laws is similar:—

The adopted son gets all the property and shall fulfil the divine and human duties of his adoptive father88 and shall inherit as in the law for true-born sons. But if he does not fulfil them according to law, the next of kin shall take the property. He can only renounce his adoption by paying a fine.

The adopted son thus introduced was considered to have become of the blood of his adoptive father, and was unable to leave his new family and return to his original home unless he left in the adoptive house a son to carry on the name to posterity. As long as he remained in the other οἶκος, i.e. had not provided for his succession and by certain legal ceremonies been readmitted to his former family, he [pg 038] was considered of no relationship to them and had no right of inheritance in their goods.89

An adopted son could not adopt or devise by will, and if he did not provide for the succession by leaving a son to follow him, the property went back into the family and to the next of kin of his adopted father.90

If he did return to his former οἶκος, leaving a son in his place and that son died, he could not return and take the property thus left without heir direct.91

Adoption amongst the Hindoos took place in like manner before the convened kindred. The adopting father offered a burnt-offering, and with recitation of holy words in the middle of his dwelling completed the adoption with these words:—

The adopted son should be as near a relation as possible, and when once the ceremony had taken place, was considered to have as completely lost his position in his former family as if he had never been born therein.93

The introduction into the deme which took place at the age of eighteen at Athens, including the enrolment in the ληξιαρχικόν γραμματεῖον, seems to have been a registration of rights of property and an assumption of the full status of citizen. The word ληξιαρχικός is [pg 039] defined by Harpocration as meaning “capable of managing the ancestral estate (τὰ πατρῷα οἰκονομεῖν).” The word λῆξις is used by Isaeus for the application, by others than direct descendants, to the Archon for the necessary powers to take their property.

It appears to have been at this period that the young man left the ranks of boyhood and dedicated himself to the responsibilities of his life.

Plutarch94 states that it was the custom at coming of age to tonsure the head and offer the hair to some god, and describes the young Theseus as adopting what we know as the Celtic tonsure, thenceforth called after his name.

This cutting the hair as token of dedication to any particular object or deity was of common occurrence. Achilles' hair was dedicated as an offering to the river Spercheios in case of his safe return.98 Knowing that this is impossible, in his grief at the death of Patroklos, with apologies to the god he cuts his [pg 040] flowing locks and lays them in the hand of his dead friend.

Pausanias declares that it was the custom with all the Greeks to dedicate their hair to rivers.99

Theophrastus100 mentions as a characteristic of the man of Petty Ambition that he will “take his son away to Delphi to have his hair cut (ἀποκεῖραι),” showing that this venerable custom had by that time become pedantic and an object of ridicule.

According to Athenaeus,101 when the young men cut their hair they brought a large cup of wine to Herakles and, pouring a libation, offered it to the assembled people to drink.

The age at which the hair was cut seems to have varied. The Ordinances of Manu102 give the following instructions:—

But whenever the actual tonsure was performed, it seems to have been a very widely spread custom, symbolical in some way of devotion to a deity or kindred, or to some particular course of life.

Its importance in this place, however, lies in its being one of the special acts relating to the admission to tribal status, and to the devotion, so to speak, of the services of the individual to the corporate needs of his tribe or kindred.

The public introduction to the kindred, combined [pg 041] with publicity of marriage and of the birth of children would, it is obvious, be a very important protection for the preservation of the jealously guarded purity of the tribal blood. Isaeus104 says that all relations (προσήκοντες), all the phratores, and most (οἱ πολλοί) of the demesmen would know whom a man married, and what children he had. This, in addition to the oath (πίστις) of the father or of the mother105 of the legitimacy of the son introduced to his kin, would seem a very sufficient safeguard.106

If a child was not introduced to the phratores, it was considered illegitimate,107 and could have no share in the rites of kindred and property.108

§ 5. The Liability For Bloodshed.

A notable feature of the tribal system all over the world was the blood-feud, wiped out only by the death of the manslayer or by the payment of a sufficient recompense. The incidence of the responsibility for murder and for payment of the recompense upon a group instead of only on the guilty individual was of remarkable tenacity, and survived to comparatively late days.

In Arabia the whole tribe of the murderer subscribed to the blood-money, which went to all the males in the tribe of the murdered man.109

But in Greece the responsibility fell upon the next of kin, with the help and under the supervision of the rest of the immediate kindred. He had to see that a spear was carried in front of the funeral of the slain man and planted in his grave, which must be watched for three days.110 He must make proclamation of the foul deed at the tomb, and must undergo purificatory rites, himself and his whole house (οἰκία). If the dead body be found in the country and no cause of death known, the demarch must compel the relatives to bury the corpse and to purify the deme on the same day.111

The subject is a familiar one in Homer. The wanderer (μετανάστης) is said to have no value (he is ἀτίμητος), no fine is exacted for his death.

There are many men told of in the Iliad and Odyssey who were in the position of refugees at the court of some chief. As many of them were wealthy—chiefs' sons or even chiefs—and well able to pay large recompenses, it seems probable that (as is definitely stated in some instances), if the murder was committed on a member of the same family or tribe as the murderer, [pg 043] the only way to wipe out the stain was by death or perpetual exile, as in the case of the typical fratricide Cain. The blood-price was then only between tribe and tribe or city and city. Within the kindred there would be no ransom allowed.113

Medon had slain the brother of his step-mother and was a fugitive from his country.114

Epeigeus ruled (ἤνασσε) fairest Boudeion of old, but having slain a good man of his kin (ανεψιόν), to Peleus fled, a suppliant.115

Tlepolemos slew his own father's maternal uncle, gathered much folk together and fled across the sea, because the other sons and grandsons of his father threatened him.116

If ransom there was none for the murderer within the tribe, there was equally none for murders between citizen and citizen,—in this point also the inheritors of the sentiments of tribesmen. In the law of Solon118 it [pg 044] was forbidden to take payment in compensation from the murderer:—

Plato119 describes the soul of the deceased as troubled with a great anger against the murderer, so that even the innocent and unintentional homicide must needs flee at any rate for a year. The presence too of a man thus denied with bloodshed at the sacred altars was held to be a gross impiety and source of divine anger. Plato120 says:—

In the case of a suicide, the hand that committed the crime was to be cut off and buried separately.

In Isacus122 it is related how Euthukrates in a quarrel over a boundary-stone was so flogged by his brother Thoudippos that, dying some days after, he charged his friends (οἱκεῖοι) not to allow any of Thoudippos' people (τῶν Θουδίππου) to approach his tomb. But if the murdered man before his death forgave his murderer, the relatives could not proceed against him.

If the murderer escaped fleeing he must go forever: if he returned he could be killed at sight by any one and with impunity.123 The pollution rested on the whole kindred of the murdered man.

The pollution cannot be washed out until the homicidal soul has given life for life and has laid to sleep the wrath of the whole family (ξυγγένια).125

If it is a beast that has killed the man, it shall be slain to propitiate the kin and atone for the blood shed.

If it is a lifeless thing that has caused death, it shall solemnly be cast out before witnesses to acquit the whole family from guilt.126

Amongst the Israelites, treating of homicides amongst themselves, compensation was forbidden in like manner.

Let us complete this subject with the following story told by Herodotus:127—Adrastus, having slain his brother, flees to the court of Croesus. There he becomes as a son to Croesus and a brother to Atys, Croesus' son. This Atys Adrastus has the terrible misfortune to slay, thereby incurring a three-fold pollution. He has brought down upon himself the triple wrath of Zeus Katharsios, Ephestios, and Hetaireios: he has violated his own innocence, his protector's hearth, and the comradeship of his friend.

In despair he commits suicide.

§ 1. Degrees Of Blood-Relationship; The Ἀγχιστεία.

Such being the character of the burden of mutual responsibility borne by members of kindred blood, it remains, if possible, to obtain some idea of how this responsibility became narrowed and limited to the nearest relations, and what was the meaning underlying the distinction drawn between certain degrees of relationship.

When examining the more detailed structure of the organisation of the kindred, considerable light seems to be thrown upon survivals in Athens by comparison with the customs of other communities, which were undergoing earlier stages of the same process of crystallisation from the condition of semi-nomadic tribes into that of settled provinces or kingdoms.

In the Gortyn Laws we read:—

The headship of the οἶκος and the ownership of the property vested in the parent as long as he lived and wished to maintain his power. Even after his death, unless they wished it, the sons need not divide up amongst themselves, but could live on with joint ownership in the one οἶκος of their deceased father. The eldest son would probably take the house itself, i.e. the hearth, with the duties to the family altars which devolved upon him as head of the family.128

An example of this joint ownership occurs in the speech of Demosthenes against Leochares.129 The two sons of Euthumachos after his death gave their sister in marriage (no doubt with her proper portion), and lived separately but without dividing their inheritance (τὴν οὐσίαν ἀνέμητον). Even after the marriage of one brother, they still left the property undivided, each living on his share of the income, one in Athens, the other in Salamis.

The possibility of thus living in one οἶκος and on an undivided patrimony is implied in another passage in Demosthenes, where, however, the exact opposite is described as actually having taken place.130

Bouselos had five sons. He divided (διένειμεν τὴν οὐσίαν) his substance amongst them all as was fair and right, and they married wives and begat children and [pg 048] children's children. Thus five οἶκοι sprang up out of the one of Bouselos, and each brother dwelt apart, having his own οἶκος and bringing up his own offspring (ἔκγονοι) himself (χωρὶς ἕκαστος ᾤκει).

Whilst the parents were alive the family naturally held very closely together, and often probably lived in one patriarchal household like Priam's at Troy.

Isaeus declares:—The law commands that we maintain (τρέφειν) our parents (γονεῖς): these are—parents, grandparents and their parents, if they are still alive:

The duty of maintenance (τρέφειν) owed to the ancestor would follow the same relationship as the right of inheritance from him, and this common debt towards their living forebears could not help further consolidating the group of descendants already bound together by common rites at the tombs of the dead.

But granted this community of rights and debts, is it possible to formulate for the Greeks anything of the same limitations in the incidence of responsibility amongst blood-relations that is to be found elsewhere?

In western Europe, owing perhaps to the influence of Christianity, the rites of ancestor-worship have no prominence. Ecclesiastical influence however was unable to prevent an exceedingly complex subdivision of the kindred existing in Wales and elsewhere. Whether this subdivision finds its raison d'être in the worship of ancestors or not, the groups [pg 049] thus formed serve as units for sustaining the responsibilities incident to tribal life, and being, as will be seen, governed by similar considerations to those existing among the Greeks, they afford very suitable material for comparison, and throw considerable light upon one another.

As the various departments affected by blood-relationship or purity of descent come under notice, it will be seen that the position of great-grandson as at once limiting the immediate family of his parents and heading a new family of descendants is marked with peculiar emphasis.

In the ancient laws of Wales it rests with great-grandsons to make the final division of their inheritance and start new households.

Second cousins may demand redivision of the heritage descending (and perhaps already divided up in each generation between) from their great-grandfather. After second cousins no redivision or co-equation can be claimed.132

In the meanwhile the oldest living parents maintained their influence in family matters. In the story of Kilhwch and Olwen, in the Mabinogion, the father of Olwen, before betrothing her to Kilhwch, declares that “her four great-grandmothers and her four great-grandsires are yet alive; it is needful that I take counsel of them.”133

Even when feudalism refused to acknowledge other than an individual responsibility for a fief, it was unable to overcome the tribal theory of the [pg 050] indivisibility of the family, which maintained its unity in some places even under a feudal exterior. But as generations proceeded, and the relationships within the family diverged beyond the degree of second cousin, a natural breaking up seems to have taken place, though in the direction of subinfeudation under the feudal enforcement of the rule of primogeniture, instead of the practice, more in accordance with tribal instincts, of equal division and enfranchisement. It may however be surmised that the subdivision and subinfeudation of a holding in the occupation of such a group of kinsmen would be carried out by the formation of further similar groups.

In the Coustumes du Pais de Normandie mention is made of such a method of land-holding, called parage. It consists of an undivided tenure of brothers and relations within the degree of second cousins.

The eldest does homage to the capital lord for all the paragers. The younger and their descendants hold of the eldest without homage, until the relationship comes to the sixth degree inclusive (i.e. second cousins). When the lineage is beyond the sixth degree, the heirs of the cadets have to do homage to the heirs of the eldest or to whomsoever has acquired the fief. Then parage ceases.134

The tenure then becomes one of subinfeudation. As long as the parage continued, the share of a deceased parager would be dealt with by redivision of rights, and no question would arise of finding heirs. But when it became a question of [pg 051] finding an heir to the group, failing heirs in the seventh degree inclusive, that is, son of second cousins—looked upon as son to the group—failing such an heir, the estate escheated to the lord.

There is an interesting passage in the Ancient Laws of Wales ordaining that the next-of-kin shall not inherit as heir to his deceased kinsman, but as heir to the ancestor, who, apart from himself, would be without direct heir, i.e. presumably their common ancestor.

This of course refers to inheritance within the group of co-heirs, the members of which held their position by virtue of their common relationship within certain degrees to the founder. And we may infer that emphasis was thus laid on the proof of relationship by direct descent, in order to prevent shares in the inheritance passing from hand to hand unnoticed, beyond the strict limit where subdivision could be claimed per capita by the individual representatives of the diverging stirpes.

The kindred in the Ordinances of Manu is divided into two groups:—

1. Sapindas, who owe the funeral cake at the tomb.

2. Samānodakas, who pour the water libation at the tomb.

This may be put in tabular form:—

Receivers of water.

1. Great-grandfather's great-grandfather.
2. Great-grandfather's grandfather.
3. Great-grandfather's father.

Receivers of cake.

1. Great-grandfather.
2. Grandfather.
3. Father.
4. Giver of cake and water
5. Excluded

Or inversely:—

Givers of cake or Sapindas.

Householder
Brothers
1st cousins
2nd cousins

Pourers of water or Samānodakas.

3rd cousins
4th cousins
5th cousins

Within the Sapinda-ship of his mother, a “twice-born” man may not marry.137 Outside the Sapinda-ship, a wife or widow, “commissioned” to bear children to the name of her husband, must not go.

All are Sapindas who offer the cake to the same ancestors.

The head of the family would himself offer or share with all his descendants in the offering of the one cake to his great-grandfather, his grandfather, and his father. And if this passage is taken in conjunction with the one quoted just above, the number sharing in the cake-offering, limited as in the text at the seventh person from the first ancestor who receives the cake, is just sufficient to include the great-grandson of the head of the family, supposed to be making the offering.

The group, thus sharing the same cake-offering, would in the natural course be moving continually downwards, generation by generation as the head of the family died, thereby causing the great-grandfather to pass from the receivers of the cake-offering to the receivers of the water libation, and admitting the great-grandson's son into the number of Sapindas who shared the cake-offering. And at no time would more than four generations have a share in the same cake offered to the three nearest ancestors of the head of the family.

The Samānodakas, or pourers of the water libation appear to have been similarly grouped.

“Ignorance of birth and name” was in Wales considered to be equivalent to beyond fifth cousins. According to the Gwentian Code, “there is no proper name in kin further than that”—i.e. fifth cousins.139 And this tallies exactly with the previous quotation from Manu limiting the water libation to [pg 054] three generations of ancestors beyond those to whom the cake is due, which, as has been seen, includes fifth cousins.

And it must be borne in mind that fifth cousins are great-grandsons of the great-grandsons of their common ancestor, or two generations of groups of second cousins.

It was extremely improbable that a man would see further than his great-grandchildren born to him before his death. And it might also occasionally occur in times of war or invasion that a man's sons and grandsons might go out to serve as soldiers, leaving the old man and his young great-grandchildren at home.

If the fighting members of the family were killed, the great-grandsons (who would be second cousins or nearer to each other) would have to inherit directly from their great-grandfather: and thus, especially in cases where the property was held undivided after the father's death, we can easily see that second cousins (i.e. all who traced back to the common great-grandfather) might be looked upon as forming a natural limit to the immediate descendants in any one οἶκος, and as the furthest removed who could claim shares of the ancestral inheritance.

After the death of the great-grandfather or head of the house, his descendants would probably wish to divide up the estate and start new houses of their own. The eldest son was generally named after his father's father,140 and would carry on the name of the [pg 055] eldest branch of his great-grandfather's house, and would be responsible for the proper maintenance of the rites on that ancestor's tomb. He would also be guardian of any brotherless woman or minor amongst his cousins, each of whom would be equally responsible to him and to each other for all the duties and privileges entailed upon blood-relationship.

Thus seems naturally to spring up an inner group of blood-relations closely drawn together by ties which only indirectly reached other and outside members of the γένος.

In the fourth century B.C. this compact group limited to second cousins still survived at Athens, responsible to each other for succession, by inheritance or by marriage of a daughter; for vengeance and purification after injury received by any member, and for all duties shared by kindred blood.

This close relation was called ἀγχιστεία, and all its members were called ἀγχιστεῖς i.e. any one upon whom the claim upon the next-of-kin might at any time fall.

The speech of Demosthenes against Makartatos affords considerable information as to the constitution of the family-group or οἶκος. The five sons of Bouselos,141 we are told, on his death divided his substance amongst them, and each started a new οἶκος and begat children and children's children.142 The action, which was the occasion of the speech, lay between the great-grandsons of two of these five founders of οἶκοι, Stratios and Hagnias, and had reference to the disposal of the estate of the grandson [pg 056] of the latter, which had come into the hands of the great-grandson of Stratios.

One might have supposed that the descendants of Bouselos, with their common burial ground143 and so forth, would have ranked as all in the same οἶκος under their title of Bouselidai. But it is clear from this speech of Demosthenes, that too many generations had already passed to admit of Bouselos being considered as still head of an unbroken οἶκος, and that his great-great-grandsons were subdivided into separate οἶκοι under the names of their respective great-grandfathers, Stratios, Hagnias, &c. (οἵ εἰσιν ἐκ τοῦ Στρατίου οἴκου, ἐκ δὲ τοῦ Ἁγνίου οὐδεπώποτ᾽ ἐγένοντο).144

§ 2. Limitations In Respect Of Succession Outside The Direct Line Of Descent.

The Gortyn law quoted above in the previous section goes on:—

This clause takes the evidence one step further, and it is noticeable how the right of inheritance is determined by the great-grandchild of the common ancestor. In the direct line, a man's descendants [pg 057] down to his great-grandchildren inherited his estate. In dealing with inheritance through a brother of the deceased the heirship terminates with the grandchild of the brother, who would be great-grandchild of the nearest common ancestor with the previous owner of the estate. If there is no brother, the child of the cousin limits the next branch, as will be seen.

Isaeus145 describes the working of the then-existing (c. 350 B.C.) law of inheritance at Athens as follows:—

The law gives “brothers' property” (i.e. property without lineal succession) to

That is to say, failing first cousins once removed, the inheritance goes back and begins again at the mother of the deceased, who however, being a woman, can only inherit on behalf of her issue, present or prospective.146 If she has married again and has a son (half-brother to her deceased son) he would inherit. Failing her issue, her brother and so on to first cousin's children [pg 058] of the deceased, through his mother, would have the inheritance.

Failing these, the nearest kinsman to be found on the father's side, of whatsoever degree, is to inherit.

The law as stated by Demosthenes147 coincides with this:—

Whenever this law is quoted the limit of relationship laid down therein for the immediate ἀγχιστεία is always that of ἀνεψιῶν παῖδες, or sons of first cousins, who inherit from their first cousins once removed (oncle à la Brétagne, or Welsh uncle as this relation has been called). Occasionally the patronymic form ἀνεψιαδοῖ is used, apparently with the same signification, though properly ἀνεψιαδοῖ would mean sons of two first cousins, i.e. second cousins.148

It appears from the evidence reviewed hitherto, that any great-grandson could inherit from any grandson of a common ancestor, and the conclusion [pg 059] also seems to be justified, that the group of great-grandsons were considered to divide up their right to inherit once for all, and that having done so, with respect to that inheritance they were considered to have begun a new succession. To put it differently, in case of the death of one of these second cousins, after the final division of their inheritance had taken place, the rest of the second cousins would have no right to a share in his portion; an heir would have to be found within his nearer relations. Thus, they share responsibilities towards any of their relations within the group and higher up in their families, and also stand shoulder to shoulder in sharing such burdens as pollution and so on, but are outside the immediate ἀγχιστεία with respect to each other's succession. The reason for this will perhaps be more apparent as the argument proceeds.

That the grandson of a first cousin was outside the ἀγχιστεία is clear from the speech of Demosthenes already mentioned,149 where the plaintiff, who originally stands in that relationship to the deceased whose inheritance is in dispute, is adopted as son of his grandfather (first cousin of the deceased), in order to come within the legal definition of ἀνεψιοῦ παῖς.

That the son of a second cousin was also without the pale is directly stated in several passages in Isaeus.

It must be remembered that by “inheritance” is meant the assumption of all the duties incumbent on the ἀγχιστεύς, and that the man who “inherited” took [pg 060] his place for the future as son of the deceased in the family pedigree, and reckoned his relationship to the rest of the γένος thenceforth from his new position, in the house into which he had come.150

Now if it is true that to the great-grandson was the lowest in degree to which property could directly descend without entering a new οἶκος, and if that great-grandson was also looked upon as beginning with his acquired property a new portion of the continuous line of descent; any one, who “inherited” from him and ranked in the scale of relationship as HIS SON, would necessarily fall outside the former group and would be considered as forming the nearest relative in the next succeeding group. This, it seems, is the meaning of the language of the law which limits the ἀγχιστεία to the children of first cousins who could inherit from their parent's first cousins, and still retain their relationship as great-grandsons of the same ancestor. Whereas any one taking the place of son to his second cousin would be one degree lower down in descent, and pass outside the limit of the four generations. The law makes the kinsmen therefore exhaust all possible relationships within the group by reverting to the mother's kindred with the same limitation before allowing the inheritance to pass outside or lower down.

In confirmation of this view the following passage may be quoted from Plato's Laws:—

Before dishonouring one of the family and so bereaving it of a member owing duties which, by his disinheritance, may fall into abeyance or be neglected, the parent calls together all to whom his son might perhaps ultimately become the only living representative and heir, and who might at some future time be dependent on him for the performance of ancestral rites. That this was in Plato's mind when he wrote is shown by the next sentence, in which he provides for the possibility of some relation already having need of the young man and being desirous to adopt him as his son, in which case he shall by no means be prevented. The concurrence of all relations in such a position was therefore necessary.

In other cases where Plato mentions similar gatherings of the kin but for different purposes, he extends the summons to cousin's children. But here it can be seen they would have no place. They would be second cousins to the disgraced youth; they might have to share privilege or pollution with him, but had no claim on him for duties towards themselves. He would be “cousin's son” to his father's first cousins—the limit of such a claim in the ἀγχιστεία.

In the speech of Isaeus concerning the estate of Hagnias, a real second cousin is in possession of the estate. He won the case at the time and died in [pg 062] possession, and an action against his son Makartatos for the same property is the occasion of one of the speeches of Demosthenes. To fully understand the relationships referred to in these cases, the accompanying genealogical tree of the descendants of Bouselos may be of assistance. It will also serve as an example of how a kindred hung together, and how by intermarriage and adoption the name of the head of an οἶκος was carried on down a long line of male descendants.

Theopompos, in the speech of Isaeus, had taken possession of the estate of his second cousin Hagnias, as his next of kin and heir. Throughout the speech he is styled ἀνεψιοῦ παῖς so as to bring him within the phraseology of the law, and he successfully defends himself from the claims of the next generation below—viz., his brother's son. But in the speech of Demosthenes against his son Makartatos, who had taken possession at his father's death of the disputed property, it is represented that his father had got possession only by defeating another claimant, Phylomache II., by “surprise,” as it was called, by stating that her grandmother through whom she traced her claim was only half-sister to Hagnias' father. But Phylomache's husband, having caused their son Euboulides III. to be adopted as the son of Euboulides II.—his wife's father and Hagnias' first cousin, a quite regular course for the grandson inheriting through his heiress mother—proved that his wife's grandmother was whole sister to Hagnias father, and brought the action under the guidance of Demosthenes against Makartatos. This Euboulides III. sued as true ἀνεψιοῦ παῖς and οἰκεῖος ἐκ τοῦ οἴκου [pg 064] of Hagnias.153 He is described as having “one of the titles mentioned in the law as far as which the law bids the ἀγχιστεία go, for he is cousin's son to Hagnias.”

On the other hand, Theopompos, father of Makartatos and second cousin of Hagnias, is mentioned154 as “being of a different οἶκος altogether,” and not at all related in such a way as to be heir of Hagnias (μηδὲν προσηκόντων ὤστε κληρονομεῖν τῶν Ἁγνίου, ἀλλὰ γένει ἀπωτέρω ὄντων), being too far off in the family (or by birth).

That the title of Theopompos (viz., second cousinship) was not valid, may be inferred partly by the ruses he adopted to get possession, but more especially by the fact155 that none of the other second cousins on a par with him, and with whom he ought to have shared, seem to have believed in the validity of their titles, or at any rate taken the trouble to sue for part of the estate.

However this may be, there does not seem anything in these speeches other than confirmatory of the view stated above of the composition and limitation of the ἀγχιστεία.

§ 3. Division Amongst Heirs.

Succession to the inheritance of an estate was ordained by law in strict accordance with the ancient conception of the unity of the family. On the death of the head of a family, unless the paternal οἶκος was [pg 065] voluntarily continued unbroken by his descendants, the natural course was for each son ultimately to live apart and found a separate οἶκος consisting of himself and his offspring. Equal division amongst heirs was therefore the rule in Greece; equal division, that is to say, between all of equal grade.

The Gortyn Laws have already been referred to as enforcing the principle.156 If a man died, his heirs were either his sons, or his grandsons, or his greatgrandsons. If he had no children, his brothers, and their children, or their grandchildren succeeded.

The Athenian law was conceived in the same spirit, but mentions a further point—viz., that in the division amongst sons, the οἶκος of any one of their number who had died before the division, could be represented by his sons or grandsons, who thus received their father's share.

This system of representation probably existed also among the Gortynians, though no mention of it is made in their laws, for it is inconceivable that any of the grandsons could be deprived of all share in their grandfather's estate by the mere death of the intermediate generation.

But the division per stirpes was not maintained throughout. It is probable from the words of the Attic orators that equal division amongst all of the same grade, such as nephews or cousins, took place per capita, any deceased member of that grade being represented by his sons. Representation, of course, could not take place in the case of a division amongst cousins' sons, owing to the strict limitation of the [pg 066] ἀγχιστεία to four generations from the common ancestor; any deceased relation in that degree therefore simply dropped out of the succession.

It has generally been assumed that grandsons inheriting directly from their grandfather, all the intermediate generation being already dead, inherited none the less the shares of their respective fathers per stirpes. But if the foregoing account of the unity of the οἶκος and its resemblance in its composition to the household of the Welsh tribal system be correct, it seems more reasonable to suppose that, all the intermediate generation being dead, the grandsons, in virtue of being all equally related to their grandfather, would inherit in equal shares per capita. Any dead grandson would of course be represented, as before, by his son or sons.

The evidence is not sufficient to justify more than a suggestion on either side with regard to divisions amongst lineal descendants. With regard to successions by relations outside of the direct line of descent, such as nephews or cousins, it is almost certain that all of the same degree took equal shares per capita.

Following the law for daughters, quoted by Demosthenes157—viz., that though all shared the inheritance of the property, only one need be dealt with in view of securing the succession—the assumption can be made that, when there were several heirs related in the same degree to the former owner of the estate, one of their number would be set apart to continue the household of their kinsman as his son, whilst the [pg 067] others merely took their shares of the property divided to continue their own οἶκοι respectively.

The equal division of inheritance amongst kinsmen of equal degree per capita, in combination with the system of representation above described, is entirely consistent with the tribal conception of the household as hanging closely together, its members always looking up to their venerable head, in whom the ownership of the property vested, until by the death of older generations and the consequent subdivision, each in his turn became head of an οἶκος and owner of its share in the ancestral property.

§ 4. Qualifications For The Recognition Of Tribal Blood.

It has been remarked above with what jealousy the purity of the blood of the community was guarded. No child was admitted into the kindred of its father until all concerned were fully convinced of the blamelessness of its pedigree. In such circumstances it was no easy matter to acquire the privileges attached to the possession of tribal or citizen blood. It seems to have been considered that however great otherwise the claims of a stranger might be, time alone could really render the qualifications of his family complete.

Under the ancient Laws of Wales no stranger's family could acquire the full privileges of a Welsh tribesman or Cymro, as regards location on land, until after many generations. But if they married Welshwomen, and held land from generation to generation, [pg 068] the greatgrandsons became fully privileged tribesmen.158 Similarly if a stranger voluntarily assumed the position of serf to a Welshman, and his descendants did not choose to depart, but remained in that position to the descendants of the Welshman, the greatgrandsons of the Welshman became proprietors of the greatgrandsons of the stranger.159

But for the stranger who merely resided in Wales and did not marry into any Welsh tribe the period of probation was three times as long—viz., the greatgrandson of the greatgrandson of his greatgrandson was the first to attain to full tribal privilege—

i.e., the tenth man would no longer be reckoned an aillt but a free Cymro.

The issue of a stranger obtains the privilege of a tribesman in the fourth person by legitimate marriages.161 But the aillt or stranger, who dwells in Cymru, does not attain until the end of the ninth descent.

So too inversely:—

The title to inherit by kin and descent in the tribal land and rights of his ancestors does not become extinct till the ninth man. The ninth man in descent from a banished tribesman coming home and finding his title as representative of his family seemingly [pg 069] extinguished, is to raise an outcry that from a proprietor he is becoming a nonproprietor, and the law will shelter him and adjudge him an equal share with the occupants he finds on the land. This is called the “outcry across the abyss.” The tenth man's outcry cannot be heard. “Others say” that the ninth man is too late to raise the cry.162

This is exactly parallel to the case of the stranger resident in Cymru. For nine generations he is a stranger, and in the tenth a Cymro. Here for nine generations is the Cymro abroad a tribesman, and in the tenth he is a stranger.

From a passage in Deuteronomy it would appear that the qualifications for admission as a full tribesman amongst the Israelites were identical with those just mentioned.

The Israelites had purified themselves of the ancestor worship, that so long survived in Greece, and had, if one may say so, amalgamated all their minor deities and tribal superstitions in their one great monotheistic religion. Even then their tribal minds could not carry back their theology behind the known history of their own ancestors. Their God was the God of Abraham, Isaac, and Jacob, and was in their conception the greatest of Gods—i.e., greater than the Gods of other peoples, the existence of which their own beliefs did not preclude. Thus where in Attic writers we have mention of the religious rites of the family (which a stranger or polluted man might not [pg 070] approach), and of the partaking therein as proof of the whole admission and pure blood of those present, so in Deuteronomy the expression “the Congregation of the Lord,” is used to denote that sacred precinct, forbidden to all save pure tribesmen of Israel.

It may be inferred from the following passage that if a stranger resided in Israel, and his family continued to do so for nine generations, the tenth generation would in any ordinary case be admitted to the Congregation of the Lord as full Israelites.

In special cases (exactly as was the rule in Wales)—such as the Edomite who was partly akin already, and the Egyptian who was united to the Israelites by the mysterious bonds of hospitality—a shorter sojourn in the land was held to qualify for full tribal privilege.

The third generation of children would be the greatgrandchildren of the original settler, and this is just one third of the length of time implied as required from the ordinary stranger, who only attained the tribal privilege in the third succession of greatgrandchildren.

It is worth notice in this connection that the land of Canaan was divided up in the names of the greatgrandchildren of Abraham, to whom the promise was [pg 071] made; Ephraim and Manasseh, the sons of Joseph, taking their place amongst the others by adoption as sons by their grandfather Jacob, on an equality with his other sons.163

These rules are not to be found with the same distinctness surviving at Athens, but there is a good deal of evidence showing how jealously the introduction of strangers to citizenship—which retained much that made it the later equivalent of the tribal bond—was regarded.

Strangers made citizens (formally, ceremoniously, and by public vote) by the Athenian people cannot hold office as archon or partake of a holy office (ἱεροσύνη); but their children can, if they are born from a citizen wife duly and lawfully betrothed.164 That is to say, that the Athenians considered it necessary that there should be actually citizen blood in the veins of all who held office amongst them.165

The abhorrence in which the introduction of alien blood was held is illustrated by the Athenian law concerning marriage with aliens, quoted by Demosthenes in his speech against Neaera.

Citizenship was considered the highest of privileges, and was conferred only on persons worthy of great honour. Any citizen could bring an action against the newly-admitted stranger to test his real merits, and even after formal acceptance by the people of Athens, if he failed to justify his claims at such a trial, his new honours were stripped from him and he remained an alien. This being so, it cannot be expected in the comparison that he should rank with the ordinary resident in Cymru in the Welsh Laws, but rather as the chieftain whom the people wished to honour by admission to their tribe.

It is stated in the Welsh Laws that the son of a stranger chief, to whom honour was to be given, entered the whole privilege of the tribe.

According to Aristotle,166 candidates for archonship at Athens were asked their father's name and his deme, their grandfather's name and his deme, their mother's and her father's name and his deme;167 whether the candidate had an Apollo Patroïos and Zeus Herkeios, and where these shrines were: also if he treated his parents well and paid his taxes.

In order to be perfectly sure that the candidate was of full and pure blood, they investigated the condition of both his grandparents, and, as further proof, [pg 073] assured themselves that he had a house and property of his own, and that too inherited from his ancestors. Furthermore, he must be guilty of no impiety towards his parents or the State.

If it were the case at Athens that the fourth generation from a stranger was considered as having attained to the rights of a citizen, it mattered little what a man's greatgrandfather was. He might have been an alien, yet if the intermediate ancestors were “in order,” the candidate would have acquired the full blood.168

In the Oedipus Tyrannus,169 Sophocles apparently uses the expression “slave from the third mother” as implying that three descents were considered to confirm the position of the fourth generation as slave or citizen, or whatever the case might be. Oedipus assures Jokasta that her pedigree and status will remain unimpugned, even though the enquiry he is prosecuting establish him thrice-born a slave from slave mother, slave grandmother, and slave greatgrandmother.

In elections for sacred offices, which appear to have been about the last things laid open to the new citizen, the possession of three generations of privileged ancestors was in some places insisted on. There is an inscription to this effect belonging to [pg 074] Halikarnassos;170 and some similar rule seems to have held good among the Jews.

The book of Nehemiah closes with the triumphant verse: “Thus I cleansed them from all strangers.”

The rule in the Ordinances of Manu for the recovery of Brahman caste is just halfway between the tenth and the fourth generations—namely, the seventh, or greatgrandson of the greatgrandson of the first halfcaste. This is only the case when each generation marries a Brahman wife.

Thus:—

§ 5. Limitations Of Liability For Bloodshed.

The ἀγχιστεία, limited to relations within the same degrees as for other purposes, seems to be the unit in the case of pollution of the kindred by the death—violent or natural—of one of their number.

Ransom was forbidden; citizen was bound to citizen with ties that had inherited too much of the tribal sanctity to admit of any extenuation of the extreme penalty.

It was no doubt a wise policy on the part of the legislators, with the view to the preservation of respect for life and property, to make the responsibility for murder rest as widely as possible, and include as many relations and connections on both sides as might be. In order also that the wife, in case her husband was killed, and the daughter, in case her father was killed, might be fully protected and represented [pg 076] among the prosecuting kindred, the law of Draco seems to lay the necessity for action also on the father-in-law and the son-in-law. The phratria, being such a compact organisation and exacting such formal admission of its members, would naturally be concerned to see that justice was dealt to any of its number. Though we cannot include the phratores amongst those directly responsible equally with the near kinsmen for crimes committed by one of their number, they would always have to take a certain part in whatever was necessary to bring him to justice, besides being generally concerned in all matters relating to kinship, which affected any member of their phratria.

“Proclamation shall be made against the murderer in the agora within [? his] cousinship and (the degree) of a first cousin, and prosecution shall be made jointly by cousins and cousins' children and descendants of cousins, and sons-in-law and fathers-in-law and phratores.”

That Demosthenes here quotes a genuine law of Draco is proved by an inscription found at Athens belonging to the year 409 B.C., recording this sentence as part of the law of Draco about murder.177

In another place Demosthenes thus refers to the action of this law:—

“The law commands the relations to go forth and [pg 077] prosecute as far as descendants of cousins; and in the oath it is defined what the relationship actually is, etc.”178

The use of ἀνεψιαδοῖ in addition to ἀνεψιῶν παῖδες in Draco's law above is emphatic as implying that as regards pollution the group of relations to second cousins were treated en masse as under the stain; they had not yet, so to speak, reached the point where they could divide up their responsibility.

If the murder was committed within the narrow limits of the ἀγχιστεία itself, the double pollution of the bloodspilling and the blood spilled rested upon the whole group with overwhelming force.

Plato179 treats of such a calamity and prescribes the remedy. If a man slay his wife, or she her husband, his children are orphans; their debt of maintenance to their parent is cancelled; he must flee; they possess his goods. If he is childless, his relations shall meet to the children of his cousins on the male and female side (i.e. all his possible heirs) and shall elect not one of themselves, but a younger son of some other and pious family to bring in new blood with better fortune to counteract the curse, as heir to the house (κληρονόμος εἰς τὸν οἶκον), introducing him to the father of the banished (or deceased) man and to those further back in the family (τοῖς ἄνω τοῦ γένους), calling him their son, the continuer of their family (γεννήτωρ), their hearth-keeper [pg 078] (ἑστιοῦχος), and minister of their sacred rites.... But the guilty man they shall “let lie,” nameless, childless, portionless for ever.180

In the ancient Laws of Wales the blood-fine takes a very important position. But whereas all the relations of the murderer are liable to be called upon to pay the “Spearpenny,” as it is called, only the inner kindred within fixed degrees contribute proportionally to the payment of the price. The group upon which this responsibility falls is twice as large in the Welsh Laws as at Athens, and includes fifth cousins, or the greatgrandchildren of greatgrandchildren of a common ancestor.

The Dimetian Code describes the relations who pay galanas as follows.181 Those beyond only pay “spearpenny.”

According to the Gwentian Code, fifth cousins share. “There is no proper share, no proper name in kin further than that.”182

The Venedotian Code states that galanas is paid by the kindred: two parts by the relations of the father, one part by the relations of the mother, to sixth cousins. All kindred after sixth cousins pay spearpenny.183

The sixth cousin is also called “kinsman son of a fifth cousin, and then the father (i.e. the fifth cousin) pays it, because his relationship can be fixed, but the relationship of his son to the murderer cannot.”

The defilement of carrying out a corpse and assisting at a funeral also covered the same area of relationship at Athens—i.e. the ἀγχιστεία. The house of the dead man was only to be entered by those naturally polluted.

Demosthenes quotes the law of Solon to the effect that—

All those near of kin assist in the funeral.

The payment of the blood-fine by the whole family of the murderer was considered necessary to [pg 080] allay the vengeance and anger of the family of the murdered man within the same area of relationship. In Wales the members of the family who received the galanas, did so in proportion to the importance of their position in the transmission of the kindred blood, according to a classification identical with their proximity in relationship to the dead man, and their expectation of inheritance from him or succession to his place.

The inclusion of the mother's relatives and their liability in these circumstances, in addition to the paternal relations, follow naturally enough in Wales as in Greece when once the transmission of inheritance through a woman, in default of male heirs, had become a recognised possibility. A woman's sons might always be called upon under certain circumstances to take inheritance from her father or next of kin. They therefore quite fairly shared in the claims as well as the privileges of their position. And vice versa, in exchange for the priceless guarantee of continuity provided by a woman's offspring to her relations, they too would be prepared to undergo a part of the penalties incurred by any of those who might rank some day as their next of kin, or as their sons.

This view of the source of their recognition as members of the kindred responsible for the blood-fine in Wales is confirmed by a statement in the Venedotian Code.186 Those women and clerks who can swear that they will never have children, and so are useless for the preservation of continuity in the [pg 081] families to which they belong, are specially exempted from contribution to the galanas, inasmuch as they have forsworn the privilege of attaining through posterity a share in the immortality on earth of their kindred.

§ 1. The Κλῆρος And Its Form.

In trying to realise the methods of land tenure amongst the Greeks, we are baffled by the indirectness of the evidence available.

We know that the estate which descended from father to son, and was in theory inalienable from the family of its original possessors, was called a κλῆρος or “lot,” but the familiarity with which the poets, historians, and orators use the word does not afford information as to what the κλῆρος really was and how it was made use of in practice. The law concerning these family holdings, says Aristotle,187 and concerning their possible transmission through daughters was not written. It was a typical example of customary law. This statement gives a hint as to the usual treatment of questions arising under this head. Methods of land tenure were not of rapid growth, nor [pg 083] were they easily changed; they had their source with the slow devotion to agriculture of pastoral tribes, and were dependent on a class unaffected by the growth of education and the arts.

The intricate connection of the system of land tenure with the composition of the family removed the consideration of questions of ownership from the sphere of written law, and delegated them to the most conservative department of customary procedure, ranking them on a par with questions of family religious observances.188 The deposit of some ancestor's bones in a certain field was occasionally a valuable link in the title to possession of that piece of land as private property;189 and the possession of land at all was in part a guarantee of the pure native blood in the veins of the possessor.190 It is a striking illustration of the truth of this that, throughout all the extant speeches of Isaeus dealing with the disposal of κλῆροι of dead citizens, not a single case turns upon evidence for or against a sale or transfer of property. The speeches all deal exclusively with family matters; the line of argument always leads to the proof of near kinship by blood or adoption to the previous owner; and the right of possession of the inheritance seems taken for granted as following incontrovertibly the establishment of the required relationship.191

In the early settlements, as Thucydides tells us, necessity was the ruling motive. Each man devoted his attention to providing the necessaries of life. There was superfluity neither of chattels nor of tilth. Men hesitate to sow when the harvest is to be reaped by their enemies.193 The flocks and herds of the pastoral tribes could be driven for safety into the mountain strongholds; yet even they were liable to frequent losses. On one occasion Odysseus had to go to Messene “to recover a debt; which, to wit, the whole people owed him (πᾶς δῆμος): for the Messenians had lifted 300 sheep with their shepherds from Ithaka.”194 As the newcomers increased in numbers and gained a reputation for ability to defend their own, sufficient to discourage the attacks of their neighbours, they would have leisure to devote some of their energies to the cultivation of the plains around them. Troy was founded first up in the hills,195 and afterwards was moved down to a good position on the lower ground for the sake no doubt of the better [pg 085] pasture in the river meadows, and of the agriculture which had long been carried on over the “wheat-bearing plain” around the city,196 before the ravages of the ten years' war.

It is not proposed to enter in detail into the methods of cultivation of the soil in vogue at various times in Greece; but inasmuch as whilst studying the kernel, assistance may often be obtained from knowledge of the shell, mention may be made in passing of such few points of interest in the physical features of agriculture as may be available.

In the Consular Reports on Land Tenure in Europe made in 1869, descriptions are given of the existing methods of tenure and cultivation in Greece and the Islands.

In Greece the usual holding of a small proprietor is said to be of fifteen to twenty-five acres (or sometimes double that area), and is called a zeugarion.197 Many have only a couple of acres.

In cases of intestacy real property is divided equally among the children or nearest relatives. When there is a will the testator can only reserve for his disposal a share of the estate equivalent to that which, after an equal division, descends by right to each of the direct heirs.

Professor Ansted, in his book on the Ionian Islands in the year 1863, thus describes the management of an estate on the Island of Santa Maura:—199

According to the Consular Reports, the relations between landlord and tenant are governed more by local usage than by law, and the landlord generally takes on an average about 15 per cent. of the produce in kind on the threshing-floor, as rent, in cases where he does not supply more than the bare use of the land.200

There is little manuring; the light plough barely turns the surface of the land. Land is usually allowed to lie fallow every other year, sometimes two years out of three. Sheep and goats are the chief stock; they of course graze in summer on the mountains; villages sometimes own forests and waste lands in common.

In the islands of the Archipelago,201 the holdings are frequently divided into separate plots consisting of a quarter or half acre apiece or even less, intersected by those belonging to other parties. Cattle are pastured on the fallow, roadsides, &c., near the village.

In Cephalonia,202 holdings consist of from five to twenty-five acres, seldom in a continuous piece, but “cut up into patches and intersected by other properties.”

In Corfu,203 the holdings are similar—infinitesimally small and intermixed pieces of land, especially in the olive groves, where however there are no divisions on the land and the “oldest inhabitant” has to be asked for evidence of ownership in disputed cases.

Throughout the Greek nation, the peasants live in their houses in villages and not on separate estates. They help one another to avoid the expense of hired labour, and themselves work for hire on the estates of the large proprietors.

Professor Ridgeway has drawn attention to the knowledge of this open field system in the Iliad and Odyssey;204 and indeed the division of the land tilled by occupants of villages into small pieces or strips, in such a way that the holding of each consists of a number of isolated pieces lying promiscuously amongst the strips of others, over the whole area under plough, is a world-wide custom and is the habit alike of the east as of the west.

Though the assertion cannot yet be made that the κλῆρος was thus arranged on the soil, it can do no harm at any rate to bear in mind this ancient and still used method of dividing land, whilst considering the question of the relation of the ownership of the soil to the rank and status of the tribesman.

§ 2. The Relation Of The Κλῆρος To The Οἶκος.

The connection of the possession of land with the headship of the family finds its counterpart in the right of maintenance of those who had the true blood of that family. And in those countries where the sons remained until their father's death under his patria potestas they had to look to him for maintenance [pg 089] derived from the κλῆρος which descended to him as the means of sustenance for himself and his family. Where the head of the family alone was responsible for the rites to the dead at the family altars, the position of a son would always be incomplete if he tried to establish during his father's lifetime a hearth and household of his own. And it has been already mentioned that it was necessary to emancipate a son from the family of his own father, before he could take property, passing on the death of his mother's relations to her issue, and assume his rightful position as their representative and the living head of their household.205

According to Harpocration, the initiation into the mysteries of the hearth only took place on the actual assumption of the inheritance.206

Occasionally a father feeling the weight of years would be glad to pass on to his son during his lifetime some of his burden of responsibility by making him master of his estate (κύριος τῆς οὐσίας).207 In this case, the son would be responsible for the maintenance of his parent, a duty much insisted on by Plato and Isaeus. In fact the conclusion is justified that the family, until final subdivision into separate οἶκοι, drew its supplies from the common inheritance, and that the subdivision of the means of subsistence was contemporaneous and co-extensive with the differentiation of the various branches of the original οἶκος along the lines of the rising generations.

The same may be inferred from the words of Demosthenes describing the division of the property of Bouselos amongst his sons and the foundation of their several οἶκοι.

In the meanwhile, before division, all sons had equal right to participate in the family goods after the father's death, and dowries had to be paid therefrom to the daughters. The eldest brother was guardian (κύριος) of his sisters and those of his brothers who were minors, inasmuch as he succeeded to his father's position of head of his kindred at the altars of their ancestors. But in Greece at any rate his authority over his brothers when once a division had taken place seems to have been slight if it existed at all.

Amongst the Gods, the three brothers Zeus, Poseidon, and Hades, sons of Rhea, shared their inheritance from their father Kronos. They divided everything in three, shaking lots thereover (παλλομένων). Each took equal share of honour (ἔμμορε τιμῆς), but earth and Olympos were common (ξυνή) to all.209 But Zeus was the first-born and “knew more things”—Ἀλλὰ Ζεὺς πρότερος γεγόνει καὶ πμείονα ᾒδη210—and Poseidon therefore avoided open strife with him, however [pg 091] unwillingly. Though Zeus be the stronger, grumbles the Sea-god, let him keep to his third share and not interfere with his brothers' pleasure on their common ground, the earth. Let him threaten his sons and daughters who needs must listen to him (ἀκούσονται καὶ ἀνάγκῃ). Yet because the Erinnyes ever take the side of the eldest born—ὡς πρεσβυτέροισιν Ἐριννύες αἰὲν ἕπονται—it were good counsel to knock under, even though the division was made in perfect equality (ἰσόμορον καὶ ὁμῇ πεπρωμένον αἴσῃ).211

This passage contrasts the recognised autocracy of the head of the family over his own household with the courteous deference of the younger brothers towards the eldest; and it is evidence, so far as it goes, that the eldest brother did not succeed to his father's power over his grown-up brothers, but owed what influence he did not obtain from the superior advantages of his age and experience, to a superstitious feeling that something was due to him in his position of head of the eldest branch of the family.

In the Odyssey,212 Zeus gives Poseidon the title of “eldest and best”—πρεσβύτατον καὶ ἄριστον—and elsewhere Hera lays claim to the same birthright.213

The power of the head of a household must have been something much more real. Telemachos declares that he is willing that some other basileus in Ithaka [pg 092] should take the kingship, but he will be master over his own house—ἄναξ οὄκοιο ἡμετέροιο—“and over the slaves that the divine Odysseus won for me.”214

In the Homeric Hymn to Hestia, that deity receives the title of honour of firstborn: the poet, by a fanciful blending of ideas, implying that the honour paid to the sacred hearth by the eldest of the family, fell to her share as the eldest born of the children of Kronos.215

Aristotle says that every household is ruled (βασιλεύεται) by its oldest member,216 and gives this prerogative of the household-basileus as the type and origin of the kingship in the village and the State. Reference has already been made, in the section on the limitations of the ἀγχιστεία, to the passage in the Gortyn law, viz.—

But it must be borne in mind that though the κλῆρος was set apart in theory for the use and sustenance of a head of a family with all his descendants, and was supposed to be inalienable therefrom, there is no reason to suppose that there existed among [pg 093] the Greeks a system of joint holding between father and son. The ownership and management of the property vested in the head of the family. It is true that brothers did not always divide their inheritance on the death of their father, but their undivided right to their respective equal shares remained to each one and his descendants as an individual property, and they always seem to have had the expectation of an ultimate subdivision amongst the separate οἶκοι that had sprung into being.218

The Gortyn Laws throw some light on the subject.

As long as the father is alive, no man shall buy or receive in pledge from the son any of the father's property. But what the son himself has earned, or inherited, he may sell if he like.

So too the father may not dispose of the goods of the children which they have earned or inherited.

Yet may a son's prospective share in his paternal inheritance be sold to pay any legal fine he has incurred.219

There is no joint holding here between father and son. The father is in undisputed possession, and nothing the son can do by private contract can affect his father's occupation. But if the son had a right of maintenance from his father during the lifetime of both, his expectation of succession to an equal share with his brothers would give him, so to speak, a value [pg 094] in the public eye. In the event of his incurring a blood-fine, his father would presumably be obliged to pay it out of the patrimony; and when exaction of such penalties passed into the hands of a court, exception would hardly be made for long on behalf of the fine for murder over penalties for other crimes coming before the court. Although therefore for all ordinary purposes a son had no claim on the paternal estate beyond his maintenance, his right of succession might easily grow up in the eye of the law as an available asset capable of forfeiture with the theoretical assumption that the scapegrace was unfit to hold his position in the family.220 His future portion, thus becoming deprived of a representative, might be wholly or in part confiscated to the State. There are many inscriptions confiscating to the State the goods of criminals who transgressed the laws therein; but Plato evidently contemplated the possibility of wiping out the individual without depriving his descendants of their inheritance.221 In such a case as wife-murder, he says, the husband's right of maintenance is extinguished from amongst his family, he should be banished and his name wiped out for ever, whilst his sons or relations enter upon the inheritance of his property immediately. No distinction is made by Plato, or in the Gortyn Laws in such a case between chattels and land. But inasmuch as all fines would be levied [pg 095] in the first instance upon the property of the guilty individual, it may be assumed that his own earnings went first, and that only in extreme cases would the ancestral land of the family be sold. Even then, in Israelite law, it was expected that the land would be redeemed by the nearest relative,222 so that the result would be that the land would go out of the family only when no relative could be found rich enough to pay the fine out of his chattels.

It is interesting to find analogous provisions in the customs of Gavelkind of ancient Kent. Under the system of Gavelkind equal division of property amongst sons obstinately held its own against the incursions of the right of primogeniture; and the connection of the family with their land seems to have been regarded as especially privileged in spite of the growth of Feudalism.

It had become customary to allot to a bastard son who was prevented by his birth from ranking with his brothers, and who had no place in the kindred, some smaller substance as a means of subsistence.

Odysseus pretends he was in this position, and relates how his proud brothers allotted him but a small gift (παῦρα δόσαν) and a house as his portion.224

Isaeus mentions that, only on the acquiescence of the true son, was admission granted to a bastard into the phratria. Even then he was not apparently taken into his father's family, but allotted a farm (χωρίον ἕν) by his brother and, as it were, launched into the world to start a family of his own, without any further claim upon the property of his father.225

His introduction and admission to a phratria and deme, as a descendant of an old family, so far removed the stigma of his birth as to give him the title of citizen, and thus afforded him the qualification for holding land. Yet the knowledge of his real parentage bereft him of the right of sharing equally with the rest of his father's sons, and compelled him to be satisfied with the bare means of subsistence wherewith to found and continue a house of his own.226

When citizenship was conferred upon a beneficent stranger, it was the custom at the same time to assign him and his descendants a house and some land. We hear of grants on such occasions consisting of a κλῆρος in the plain, a house, and a garden free of taxes; a half-κλῆρος in the plain, a house and a garden of half the area of the preceding grant, &c. In the fourth century B.C. a similar grant takes the form [pg 097] of so many plethra as a patrimony or ever. Sometimes, as at Sparta in the second century B.C., the estate was allotted to the newly-made citizen only on condition of residence within the borders of the State.227

§ 3. The Householder In India: The Guest.

Sir Henry S. Maine in his Early Law and Custom228 quotes Narada in illustration of the composition of the early Indian family. A son “is of age and independent in case his parents be dead: during their lifetime he is dependent, even though he be grown old.”

Further information on this subject is afforded by the Ordinances of Manu, where the position of the first-born with regard to his younger brothers is given at some length.229

Likewise: “If among brothers born of one father, one should have a son, Manu said all those brothers would be possessed of sons by means of that son.”231 But this seems to apply only to the son born to the eldest, for if a younger brother married before the eldest and performed the daily sacrifices, he sent himself, his brother, and his wife “to Hell.”232

The eldest, if he performs his duty, “causes the family to flourish” and “is most honoured among men.” He alone is “duty-born,” through him his father “pays his debt”; other sons are only “born of desire.” As long as his conduct is befitting, he must be honoured “like a father, like a mother,” but if not, he only receives the respect of an ordinary relative.233

The brothers may live together in this way,234 but if they divide and live apart, the separate ceremonies necessitated by their separate households will multiply the performance of religious duties, to the advantage of all.

The title of Householder, moreover, was more than a name.

The guest takes a very high place, and his presence is a revered addition to the family sacrifices; so much so that it was thought necessary to state definitely that “if the guest appears after the offering to all the gods is finished, one should give him food as best one can, but should not make (another) offering.”238

The same virtue seems to have been considered by the Greeks also to lie in the presence of the guest. In Euripides' Elektra, Aigisthos, hearing from Orestes that he and his friend are strangers, promptly invites them to share as his ξυνέστιοι in his impending sacrifice of a bull to the nymphs, promising to send them on their way in the morning.239

Earlier in the play during the plotting of Aigisthos' death, it is taken for granted that directly he sees them he will call them thus to join him at the sacrifice and the feast.240

Alkinoos expresses the feeling of the Homeric age when he says:

Nestor at Pylos, making sacrifice to Poseidon with his sons and company, welcomes the unknown Telemachos and Mentor to the sacrificial feast.242 When the duty of feeding the guests has been satisfactorily accomplished, he then asks them whether they are merchants or pirates, that “wander over the brine at hazard of their own lives bringing bale to alien men!”

It would appear that the virtue lay in the hospitality of the host and not in the worthiness of the guest, and that therefore it was worth while to run the risk of having invited the presence of a polluted man whose impiety in not refusing to partake would doubtless fall on his own head.

To return to the organisation of the Indian inheritance:—The duty of maintenance243 of the younger members of the family devolves upon the eldest son at the death of his father. If the brothers are [pg 101] all “perfect in their own occupations,” and they come to an equal division, “some trifle should be given to the elder (brother) to indicate an increased respect for him.”244 Also if in division there remains over an odd goat or sheep, or animal, it goes to the eldest brother.

If any brother has disgraced himself, he does not deserve a share in the property.245

Sisters' portions are allotted out of all the brothers' shares equally.246

Property is divided once only.247 But if “on living together after being separated, they divide (the inheritance) a second time, in that case the division should be equal, (as) in that case no right of primogeniture occurs.”248

The father's wealth acquired during his lifetime is at his own disposal, and need not be divided amongst his sons.249 Likewise with any property acquired by the sons.250 If “any one of the brothers, being able (to support himself) by his own occupation, does not desire (his share of the) property,” he may be excluded from the division, but “something for his support” should be given him to discharge his claim of maintenance from the family at any future time.251

§ 4. Tenure Of Land In Homer: The Κλῆρος And The Τέμενος.

In the Homeric poems, written, as they are, from an aristocratic or heroic point of view, a great gulf always exists between the royal or princely class and the ordinary tribesmen.

The βασιλεύς—the lion of his people252—has his select estate, his τέμενος, with orchards and gardens of considerable extent; while the swarms of tribesmen are allotted their κλῆροι in the open field, their share in the common pasture, and depend on each other for help in the vintage and harvest.

The possession of large estates and of multitudinous flocks and herds was one of the privileges of the chieftain or tribesman of princely rank.

Bellerophon migrated from his own country and settled under the patronage of the king of Lykia.254 He married the king's daughter, and to complete his qualification and to confirm his princely status as a βασιλεύς of Lykia, he was allotted by the Lykians an estate where the plain was fattest on the banks of the [pg 103] river, consisting half of arable, half of vineyard, the latter presumably on the slopes of the sides of the valley.255 Besides these no doubt he had flocks and herds on the mountains, with steadings and slaves for their protection. It is improbable that the fattest of the plain was unoccupied before, and it must therefore be supposed that the system of agriculture was such as to admit of such a partition and the consequent readjustment, or that the dispossessed tribesmen had to compensate themselves with land out of the common waste.

In somewhat similar wise Tydeus at Argos wedded one of the daughters of Adrastos, and dwelt in a house full of livelihood; and “wheatbearing ἄρουραι enough were his, and many were his orchards of trees apart, and many sheep were his.”256

In the description of the Shield of Achilles in the Iliad a vivid contrast is drawn between the rich harvest of the βασιλεύς and the busy toil of the tribesmen.

Meanwhile henchmen are preparing apart a great feast for himself and his friends, and the women are strewing much white barley to be a supper for the hinds.258

But in the great common field all was toil and action; many ploughers therein drave their yokes to and fro as they wheeled about.259 The holding of the common tribesman was not an estate (τέμενος) cut out of the plain, but an allotment (κλῆρος), probably of strips as in Palestine to-day, in the open fields that lay around the town. On the wheatbearing plain round Troy260 lay the stones that former men, before the ten years' war, had used to mark the balk or boundary of their strips (οὖρον ἀρούρης).261 One of these Athena uses to hurl against Ares, who, falling where he stood, covers seven of the pelethra that the stones were used to divide. A pinnacle of stones is the only boundary to be seen to this day between the strips of cornland in Palestine. Easily dislodged as these landmarks were, they were specially protected by a curse against their removal, and were with the Greeks under the awful shadow of a special deity of boundaries.262 They seem however to have been liable to considerable violation. The ass, according to Homer, being driven along the field-way, if his skin was thick enough, easily disregarded the expostulations of his attendants, and made free with the growing crop.263 Homer also describes a fight between two men with measuring rods in the common field,264 and Isaeus265 relates how an Athenian citizen flogged his brother in [pg 105] a quarrel over their boundary so that he afterwards died, whilst the neighbours, working on their land around, were witnesses of what took place.

Land was brought into cultivation, no doubt, as it was wanted. Achilles contemplates that some of the rich fields of his friends may be exceedingly remote, so that it would be a great thing to spare the ploughman a journey to the nearest blacksmith. And no doubt the powerful men of the community would, by means of their slaves or retainers, acquire additional wealth by reclaiming lands out of the way and therefore requiring a strong hand to protect them, which were profitable by reason of their very fatness.266 Such acquisitions would not be included in the τέμενος of the prince, the very word τέμενος implying an area of land cut out of the cultivated land of the community, generally described as being in the plain (πέδιον).

Such allotments of land seem only to have been made to princes and gods, but when once allotted, remained as far as can be seen the property of their descendants. It was a common fancy of the Homeric prince that he was worshipped as a god, and they often mistook each other for some deity. The godlike Sarpedon asks his cousin Glaukos, wherefore are they two honoured in Lykia as gods, with flesh and full cups and a great τέμενος.267

As the possession of full tribal blood was necessary for the ownership of a κλῆρος, so princely blood was the qualification for the enjoyment of a τέμενος. [pg 106] The honoured individual need not be a king or overlord, but besides his valour he must have in his veins the all-potent blood royal, without which his privilege was no greater than that of other rich tribesmen.

It was not till the king of Lykia had satisfied himself that Bellerophon was “the brave offspring of a god,” that he gave him honour, and the Lykians meted him out a τέμενος.268 This great τέμενος on the banks of the Xanthos, half arable and half vineyard, remained in the possession of his grandchildren, Sarpedon and Glaukos, apparently still undivided, though they were not brothers but first cousins.269

The king of the Phæakians had his τέμενος and fruitful orchard near but apart from the fields and tilled lands of his townsfolk.270 Odysseus it seems had more than one τέμενος.271

Once in the Iliad the epithet πατρώιος is applied to a chief's τέμενος.272 According to Hesychius, πατρώιος means “handed down to one's father from his ancestors,”273 and Homer evidently uses the word in this sense.274

The kingship itself in Ithaka was considered as part of Telemachos' patrimony: “Never may Kronion [pg 107] make thee king in sea-girt Ithaka, which is πατρώιον to thee by birth (γενεῇ).”275

But though the τέμενος and the kingship were both equally πατρώια, they did not together constitute an indivisible inheritance. Any one of the blood could enjoy possession of the land, whilst the over-lordship must necessarily descend in the eldest or the most able line.

In his answer to the malignant wish quoted above, Telemachos does not speak as if he contemplated giving up any tangible property. The bestowal of the kingship, though due to him by inheritance (πατρώιον) is in the hands of the gods; he means to be master (ἄναξ) of whatsoever Odysseus his father won for him.

It is interesting to compare this choice of Telemachos with the exactly opposite choice made by Iason, as told by Pindar, when he came back to claim his inheritance which had been seized in the meantime by his second cousin, Pelias.

He has come home, he tells Pelias, to seek his father's ancient honour which Zeus had of old bestowed on his great-grandfather Aiolos and his sons. It is not for them now, being of the same stock (ὁμόγονοι), to divide the great honour of their forefathers with sword and javelin. He will give up all the sheep and herds of kine, and all the fields of late robbed from his sires, though they make fat beyond measure the house of Pelias (τεὸν οἶκον πορσύνοντ᾽ [pg 108] ἄγαν). But the kingly sceptre and throne of his father must be his without wrath between them. And Zeus, the ancestral god of them both (Ζεὺς ὁ γενέθλιος ἀμφοτέροις), is witness to their oath.276

Property in land could also be accumulated in the hands of individuals not necessarily of princely station. Odysseus tells a tale of how he took a wife of “men with many κλῆροι” (πολυκλήρων ἀνθρώπων) by reason of his valour.277 The κλῆρος must therefore at that time have been at any rate roughly of some recognised area. Perhaps the tendency, so fatal to Sparta, for the possession of the original shares or allotments of many families to accumulate in the hands of the powerful or rich, had already set in. In later colonisations and assignments of new land the κλῆροι were often equally divided,278 and the gift of citizenship, as has been already mentioned, was sometimes accompanied by a grant of a half-kleros (ἡμικλήριον). Did the κλῆρος then represent in theory an area of cultivated ground capable of sustaining a single household?

§ 5. Early Evidence continued: The Κλῆρος And The Maintenance Of The οἶκος.

There are signs in Homer of the existence, already insisted upon for later times, of the connection of the ownership of property with the headship of a household. It follows that if the head of a [pg 109] family was the only owner of land, the desire of establishing a family and thereby preserving at the same time the acquired property and the name of the possessor, made the acquisition of a wife a real necessity for the owner of land.

Eumaios, the swineherd, says that Odysseus would have given him a property (κτῆσις), both an οἶκος and a κλῆρος and a shapely wife.279 And Odysseus in one of his many autobiographies speaks of taking a wife as if it were the necessary sequel to coming into his inheritance.280

Even Hesiod, the son of a poor settler, without much property to keep together, if we can take Aristotle's reading of the line, gives the necessary outfit for a peasant farmer in occupation of a small κλῆρος, as a house, a wife, and a plough-ox.281

Aristotle quotes this line of Hesiod, in his argument that the οἶκος was the association formed to supply the wants of each day,282 its members being called by Charondas, he says, ὁμοσίπυοι (sharers in the mealbin), and by Epimenides the Cretan ὁμόκαποι (sharers of the same plot of ground).283 And he might have added that Pindar uses the word ὁμόκλαροι to mean “twins.”284

A household, according to Aristotle, consisted thus partly of human beings, partly of property.285

So closely is the idea of livelihood bound up that of the house or οἶκος, that Telemachos can say without incongruity that his house is being eaten by the wooers:—

The sanctity shared by the hearth and its sustenance may be illustrated by Odysseus' oath, which occurs three times in the Odyssey: “Now be Zeus my witness before any god, and the hospitable board and the hearth of blameless Odysseus whereunto I am come.”287

When once the hospitable board had laid its mysterious spell on the relations of host and guest, the bond was not easily dissolved. Glaukos and Diomedes meet “in the mid-space of the foes eager to do battle,” fighting on opposite sides. Nevertheless because the grandfather of one had entertained the grandfather of the other for twenty days and they had parted with gifts of friendship, their grandsons refrain from battle with each other, pledge their faith, and exchange armour as a witness to others that they are guest-friends by inheritance (ὄφρα καὶ οἵδε γνῶσιν, ὅτι ξεῖνοι πατρώιοι εὐχόμεθ᾽ εἶναι).288

If such force lay in the entertainment of a guest for a few days, some idea can be formed of the virtue underlying the meaning of such words as ὁμοσίπυοι [pg 111] and ὁμόκαποι, and binding together those habitually nourished at the same board.

If sons married during their father's lifetime without any particular means of livelihood, they could live under his roof and authority, forming a great patriarchal household like that of Priam and his married sons and daughters at Troy. But when a household dispersed before the marriage of the sons and the inheritance was divided amongst them, it was deemed indispensable for them to take wives, and each provide for the establishment of his house and succession. This necessity is the underlying motive of the compulsion over the only daughter left as ἐπίκληρος to marry before a certain age, exercised by the Archon at Athens. There the idea of the need of a continuous family (as well as for other purposes), to keep together the property, had grown up apparently as a reflection, so to speak, of the obvious importance of the property to the family for the maintenance of itself and its ancestral rites.

Though evidence is wanting for the raison d'être of this sentiment in Homer, the existence of the feeling can hardly be denied.

The κλῆρος, at any rate, continued to pass from father to son in the family of the tribesman or citizen. Hector encourages his soldiers by reminding them that though they themselves fall in the fight, their children, their house (οἶκος), and their κλῆρος will be unharmed, provided only that the enemy are driven back.289

The sentiment that a man was not really “established,” [pg 112] according to the estimation of the Homeric Greeks, until the continuity of his house was provided for, seems to explain the two references to Telemachos in the Iliad. Odysseus is twice mentioned, as Mr. Leaf points out in his Companion to the Iliad,290 as the father of Telemachos, simply because it was considered a title of honour to be named as sire of an established house. No other mention of Telemachos occurs in the Iliad.

Failure of heirs was, as in later times, the great disintegrating factor and danger to the continuity of the family holdings. As long as a direct descendant was to be found, the property was safe.

Eurykleia comforts Penelope in her fear for the absent Telemachos, saying:—

Is it by accident that she here chooses the name of Arkeisios to describe the head of the family of Laertes and Odysseus? He was Laertes' father, and in Telemachos, if he was preserved alive, he would thus have a great-grandson to represent his line in the succession to his property.

The diversion of inheritance to any property from [pg 113] the direct line is spoken of in Homer as a lamentable circumstance greatly intensifying the natural grief at the death of the direct heir.

In the tumultuous times of the Odyssey the right of succession must often have been interrupted by war and violence. Possessions, not only of land, had to be defended by the sword even during the lifetime of the acquirer. This prompts one of the wishes of Odysseus in his prayer at the knees of Arete:—

The same anxiety prompts his question to his mother in Hades, to which he obtains answer:—

The belief in the inseparability of the ancestral holding and the family was strong in Samaria at the time of Ahab. The King offered Naboth another vineyard better than his own in exchange for the one at Jezreel near the palace, or, should he prefer it, its worth in money. But Naboth said to Ahab, “The Lord forbid it me, that I should give the inheritance of my fathers unto thee.”295

Both the Hebrew narrators and the Greek translators [pg 114] describe Ahab finally as taking the vineyard at Naboth's death by inheritance (LXX. κληρονομεῖν), in spite of the violence of the means of acquiring it adopted by Jezebel.

The limited right of the prince to alienate from his family any part of his possessions is thus alluded to by Ezekiel:—

§ 6. Early Evidence continued: The Τέμενος And The Maintenance Of The Chieftain.

It must be borne in mind that the tribal idea of the chieftainship sanctioned the custom that the maintenance of the chieftain and his companions or retainers should be levied at will upon the property of the people. This privilege is very wide spread, and had its origin in the earliest times.

The levies were claimed under the name of gifts, and earned for the princes the title of δωροφάγοι. As Telemachos declares, “it is no bad thing to be a βασιλεύς, and quickly does his house become rich and he himself most honoured.”297

The royal family and nobles298 levied contributions on their own or conquered peoples apparently at will [pg 115] in Homer. Agamemnon calls together the Greek chiefs:—

Priam chides his sons:—

Telemachos declares that if the wooers eat up all his sheep and substance, he will go through the city (κατὰ ἅστυ) claiming chattels until all be restored.301

Alkinoos proposes to give gifts to Odysseus, and they themselves going amongst the people (ἀγειρόμενοι κατὰ δῆμον) will recompense themselves: “for hard it were for one man to give without return.”302

These passages throw light on Agamemnon's offer to Achilles of seven well-peopled towns, whose inhabitants would enrich him with plenteous gifts.304 The proposal of Menelaos to empty a city of Argos, to accommodate Odysseus and his people, seems to be of quite a different order, and betrays to us that the tyranny of the tribal chieftain, so conspicuous in other nations, was no less a reality also amongst the Greeks under Achaian rule.305

In the Indian society that was regulated in [pg 116] accordance with the Ordinances of Manu, the king appointed a chief of a town whose duty it was to report to the higher officials on any “evil arising in the town.” He likewise represented the king, and had the king's right to receive supplies from those under his oversight.

the line always being drawn between legitimate demands and tyrannical extortion.

Under the rule of the Persians, all Asia was parcelled out in such a way as to supply maintenance (τροφή) for the Great King and his host throughout the whole year.308 The satrap of Assyria kept at one time so great a number of Indian hounds, that four large villages of the plain were exempted from all other charges on condition of finding them food.309

Solomon's table was provided after the same method.

Sesostris is said to have obtained his revenue from the holders of κλῆροι in Egypt in proportion to the amount of land in each man's occupation;311 and Pharaoh, having bought all the land at the time of the famine in Egypt except that which supported the priests, took one-fifth of all the produce, leaving the remainder “for seed of the field,” and for the food of the cultivators, and their households and little ones. “And Joseph made it a law over the land of Egypt unto this day, that Pharaoh should have the fifth part, except the land of the priests only, which became not Pharaoh's.”312

In this case Pharaoh became proprietor by purchase of the land in Egypt. But it must not be supposed that by exacting a payment from the occupier, the overlord as a rule had any power over the ownership of the soil. He no doubt had proprietary rights over his own estate, and may or may not have had power to regulate any further distribution of the waste. But the right of receiving dues, or of appointing another to receive them, gave him no power over the actual tillage of the soil.

The maintenance of the prince was a first charge apparently upon the property of his subjects; and it is easy to see how the lion's share would always be allotted to him, alike of booty as of acquired territory. As long as the community was pastoral, it is also easy to imagine how the chief both increased his own wealth and admitted favoured companions or resident strangers to a share in the elastic area of [pg 118] the common pasturage. After agriculture had assumed equal importance in the economy of the tribe as the tending of flocks and herds, one is apt to forget that for centuries—perhaps for thousands of years—the system of agriculture that grew up, still possessed much of the elasticity of the old pastoral methods. Under the open field system, such a custom as that described by Tacitus and in the Welsh Laws, viz. of ploughing up out of the pasture or waste sufficient to admit of each tribesman having his due allotment, and letting it lie waste again the next year, admitted of considerable readjustment to meet the exigencies of declining population, as well as providing an easy means whereby any stranger prince, like Bellerophon, who might be admitted to the tribe, could be allotted either a τέμενος apart, or a κλῆρος in the open plain.

Pindar describes this method of cultivation when he says:—

It is noticeable that the Aetolians offered Meleagros a τέμενος in the fattest part of the plain, wherever he might choose, as a gift (δῶρον); and as the τέμενος would certainly be cultivated by slave or hired labour, what they really gave him was the right of receiving the produce from the 50 guai composing the τέμενος. But this gift was meant as a special honour or bribe, and took a special form in being in land as a means of permanent enrichment.

In similar wise Ezekiel suggested the capitalisation, as it were, by a gift of land of the contributions to the princes, which no doubt were felt to be very irksome. In the division of the land, a portion was to be set aside first for the use of the temple and priests, then a portion for the prince.

And again:—

But there can be no doubt, that although the prince may have had no power to dislodge any of the free tribesmen of his own people from their holdings, yet no one could gainsay him if he chose to enrich himself by planting or reclaiming any part of his domains, as Laertes is represented as having done.316

The modern usage in Boeotia and in the island of Euboea may very well represent the procedure of ancient times, and if it can be imagined that some method of the same sort was in vogue in Boeotia in the time of Hesiod, it will be understood how possible it was for Hesiod's father to settle at Askra and gradually to acquire possession of a house and κλῆρος.

At Achmetaga, in Euboea,

Whether the free tribesman ever looked upon the contribution he made to the maintenance of the princes, under whose protection he had the privilege of living, as a condition of tenure of his land, is open to doubt; but from the right to demand indiscriminate gifts, to confiscate or eject in case of refusal, it is only one step to the exaction of a regular food-rent as a return for the occupation of land.

§ 7. Summary Of The Early Evidence.

It may be useful here briefly to summarise the results of the inquiry of the last three sections into the relation of the ownership of land to the structure of society in Homer and in early times.

the princes had their compact estates divided off from the other land of the community, so that a passer-by could point and say, “There is the king's τέμενος.”319 The ordinary tribesman on the other hand had a share in the common fields under cultivation, probably consisting of a number of scattered pieces of land lying mixed up with those of others, and therefore only referred to on the face of the land, under the comprehensive terms ἀγροὶ καὶ ἔργα ἀνθρώπων.320

This share of the tribesman was, as in later times, called a κλῆρος, it being possible for a man to enjoy several such holdings and deserve the epithet πολύκληρος, whilst the lowest class of freemen consisted of those who possessed no land, under the ignominious title of ἄκληρος.

The κλῆρος, descending from father to son, was apparently connected with the οἶκος or household, and supplied its maintenance. The οἶκος grew fat or was consumed in accordance with the capacity of its head, and its continuity was regarded as a matter of the utmost importance. Its members were bound together at their ancestral hearth by mutual ties of common maintenance. The sanctity of thus sharing the same loaf extended also to guests, whose relations to their hosts might last for several generations. It is the necessity of supplying the οἶκος and its dependents with the means of sustenance and hospitality among a pastoral people gradually adapting themselves to agriculture, that regulates the tenure of land and the duties of the householder.

The power of the chieftain to draw upon the resources [pg 122] of his people for the entertainment of his household and his guests by exactions payable in kind, supplemented by the power he also seems to have possessed to transfer at will the right of receiving these “gifts” to any one he chose, seems to contain the germs of the more complicated system of food-rents as a condition of land tenure, which is so important a feature of the Celtic tribal arrangements.

Inasmuch as the prince was a member of the tribe, he was entitled to an allotment in the land under cultivation, the very word κλῆρος implying the equal right of all members of the tribe to a share in the soil. But inasmuch as the prince possessed blood royal and claimed his descent from the very gods that the tribesmen worshipped, his dignity was above partaking with his tribesmen of a κλῆρος in the common fields. He was therefore allotted a τέμενος apart, and worthy of his divine parentage. Besides the bare single allotment of the τέμενος, land was set apart for him as a gift of honour by the people, from whom honour and gifts to their prince were due. Gifts in land formed a special mark of honour, and may at the same time have served another purpose from the giver's point of view by way of a permanent source of income or endowment, as it were, whereby the continuous exactions towards the maintenance of the prince from the lands of the people might tend to be alleviated. Thus much of power over the property of his inferiors he undoubtedly retained, and he probably cultivated what he liked of the outlying lands under his sway.

But the evidence does not show that he ever had the right of coming between the οἶκος of his tribesmen [pg 123] and their κλῆρος: the only means at his disposal of severing the link between the family and the land, were those employed by Ahab and Jezebel to acquire the “inheritance” of the ancestral vineyard of Naboth at Jezreel.

§ 8. Hesiod And His Κλήρος.

In the time of Hesiod, the κλῆρος321 could be sold in case of need and added to the possession of another.

But the case of Hesiod is in itself somewhat exceptional. His father had fled from his own country by stress of poverty, and settled on the barren land of Askra in Boeotia, where he was allowed to acquire some land.322 He was therefore somewhat of a sojourner (the μετανάστης of Homer),323 and, true to the Homeric doctrine, was unencumbered by the claims of kindred. Hesiod contrasts the ready help of the neighbour with the perfunctory slowness of the kinsman, duty-bound. The neighbour, he says, is prompted by the need of mutual protection of material property, the kinsman stays to bind on his sandals and gird his loins for the labour he is forbidden to shirk.324

Hesiod and his brother Perses had divided the κλῆρος of their father into two, and lived apart. Perses had squandered his half, and spent his time [pg 124] and his livelihood in the gay life of the town, but none the less seems to have expected to be allowed to draw still further on the resources of the paternal property, to the distress of his industrious brother.

Hesiod does not contemplate any possible means of making a living other than by tilling the soil; and his quaint ideas may be taken as typical of the small Boeotian peasant-farmer, allowance being made for the short time that his family had held land at Askra.

§ 9. Survivals Of Family Land In Later Times.

In later Greek writers it is several times stated that the κλῆροι or ἀρχαῖαι μοῖραι were inalienable. Yet all remark to what a deplorable extent the alienation and accumulation of land into few hands had been carried. Aristotle comments on the excellence of the ancient law, at one time prevalent in many cities, against the sale of the original κλῆροι, and the good purpose therein of making every one cultivate his own moderate-sized holding.325

Innumerable passages could be quoted from the speeches of Isaeus, referring to the law that forbade any one to alienate by will his landed estate from his lawful sons. Plato warns his friends that buying and selling is desecration to the god-given κλῆρος.326

Plutarch and Heraclides say that the same law against the sale of the κλῆρος existed anciently at Sparta.

Plutarch's evidence, late as it is, of the ancient customs among the Spartans is worthy of further consideration.

In his Life of Agis he states that the κλῆρος passed in succession from father to son—ἐν διαδοχαῖς πατρὸς παιδὶ τὸν κλῆρον ἀπολείποντος—until the Peloponnesian war.

In his Life of Lycurgus he says that—

Elsewhere in Greece at the introduction of the new-born child to the relations and friends a few days after its birth, symbolical gifts of food were made as the child was carried round the hearth.329

The important part of this ceremony at Sparta, described by Plutarch, seems to be the introduction of the infant to the elders of the tribe, and the recognition by them of its right to maintenance, if it [pg 126] appeared to them physically worthy of admission to the tribe. It cannot be supposed that Plutarch believed that vacant κλῆροι escheated, so to speak, to the community, because he elsewhere describes the lamentable tendency of estates to get into few hands, which the community would in that case surely have been able somewhat to prevent. Nor is it likely that a κλῆρος was actually set apart for the maintenance of each infant, who was apparently still nourished in its father's house until seven years old, when its education and occupations were regulated by the State.

Reading this passage with the other in the Life of Agis, a natural inference is, that the child's right to succeed to the property of his father only was thereby assured to him by the elders, i.e. the right on his attaining manhood to enjoy the possession of land. This is the view taken by M. de Coulanges;330 but surely there is more underlying the account of the ceremony. What actually took place with regard to the allotment of a κλῆρος to the infant member of the tribe, cannot be decided here. The State at Sparta undertook to educate all her sons after a certain age, and gave the parent no further rights over the child. Is there in this ceremony a transfer of the claim for maintenance from against the head of the household to the larger unit represented by the elders of the tribe, irrespective of the inheritance of the son from his father?

It would be necessary for the adult Spartan citizen, of the class of ὁμοιοι at any rate, to have a right to the [pg 127] produce of some land, as otherwise it is difficult to see how he could contribute the necessary provisions that formed his share of maintenance at the joint table of his syssition; unless indeed he drew his allowance from his father's estate.

In any case the idea of the dependence of a member of the tribe for sustenance upon his right to a κλῆρος is striking; and at the same time the evidence goes to show that his maintenance was a claim upon a group of kinsmen at Sparta, comprising more than the nearest relations, and was recognised as such by them.

The link that bound the cultivators to their land was so strong in early times at Athens, that mortgages could apparently not be paid off by mere transfer of the land itself; but the whole family of the debtor went with their mortgaged property and became enslaved to the creditor, having in future to work the land for him at a fixed charge.

This was the state of affairs that Solon set himself to mend, and it is instructive that the method, he seems to have chosen, was to loosen the tie between the owner and his land, and, by facilitating the transfer of land from one to another, to obviate the necessity of taking the debtor's person with his family into slavery on account of the debt.331

Nevertheless, in spite of the radical legislation of Solon, the sentiment that bound the family to the soil remained long after his time.

Besides the prohibition to sell the family land which Aristotle speaks of as prevailing in Lokris, the [pg 128] Hypoknemidian Lokrians insisted on actual residence on that land in the case of their colony at Naupaktos. Though unable apparently wholly to forbid the participation of the colonists in the ancestral rites of their kin in Lokris, they took advantage of the prevailing sentiment with regard to the permanence of the family, and insisted that the continuance of the hearth of the colonist at Naupaktos should at any rate be considered of equal importance.

According to an inscription of the fifth century B.C.:—

Though the sale of estates could be effected at Athens in the fourth century B.C., yet, when the owner died without having sold, the succession was regulated by the ancient custom. If there were legitimate children, the inheritance to the land could not be diverted from them, even by will;333 provided only that the children had gone through the ceremony of being accepted and enrolled by the phratria. If the descendant had neglected this formality, and had failed to be recognised as a legal member of the kindred [pg 129] or clan, he or she lost all rights to the property, which went to the devisee or next of kin.334 The right to possess land was thus at Athens, as at Sparta, intimately connected with the tribal organisation; and the claim for maintenance from the paternal estate could only lie, after full acknowledgment of the necessary qualification had been granted by the larger unit of relationship.

§ 10. The Idea Of Family Land Applied Also To Leasehold And Semi-Servile Tenure.

Attention has been drawn to the reciprocal relations that existed between the family and its land, and their inseparability in the minds and phraseology of the Greeks at different times. There is a further development however arising from this point of view, without some notice of which the subject of the tenure of the κλῆρος would be incomplete, and which serves to confirm the method with which this subject has been treated.

Though alike in their estimation of the possession of land as a means of livelihood and for the accumulation of wealth, the Greeks had very different views with respect to the place of agriculture as a worthy occupation for a citizen. Sparta regarded it as entirely beneath the dignity of her sons and forbade their personal application to the cultivation of their κλῆροι. There was at Athens, on the other hand, a large class of citizens whose energies were entirely devoted to the production of fruits of the earth, whilst [pg 130] the life of a country gentleman, combined with that of the farmer, was by no means despicable in their eyes.

There were mainly two methods of enjoying the possession of a landed estate. Either the land was cultivated by the owner himself with the help of bought slaves or hired servants, few or many, as described in Hesiod and the Oeconomics of Xenophon;335 or the owner resided in the city or a neighbouring town, and the land was tilled by aliens or serfs (called sometimes κλαρῶται), like the Helots of Sparta, who paid an annual contribution from the produce to their landlord. The serf was often attached hereditarily to the soil in the sense of being unable to give up his holding, but also had certain rights as against his master, both in the matter of his own possessions and in that he could not be sold out of the country.336

There is a passage in the Gortyn Laws that states:—that if there are no rightful successors to inherit the property of a deceased Gortynian, his household's κλῆρος, i.e. the persons composing it, shall inherit his property. That is to say, if a Gortynian family died out and no legal representative could be found, their proprietary rights were extinguished and the κλαρῶται who lived upon the land took all their property. This provision favours the idea [pg 131] that at Gortyn also the citizen-population came of a race of conquerors, who were not exactly looked upon as ground landlords upon whose land a subject family was settled or had been allowed to remain, but that, whilst the relation of the κλαρῶται to their land was of the closest if not an absolute bondage to the soil, the proprietary rights of their superiors and masters consisted of the conqueror's overlordship and the power to derive their maintenance from the joint produce of their serfs' labour and the land.337

This comprehensive use of the word κλῆρος, as meaning both the allotment of land and the family who were bound to occupy it, whose labour also created its value to its lord and master, is quite consistent with the use of the word in reference to the holdings of the Spartan citizens. The allotment of a κλῆρος at Sparta evidently meant also a transference of rights over the Helots that worked it; and even if this further implication was not actually included in the meaning of the word, it was so inseparable in thought that no explanation was necessary of the composite significance of the allotment.

The Athenians in their κληρουχίαι seem instinctively to have combined these two methods of agriculture. The κληροῦχοι were not colonists, who became citizens of a new city, but they remained citizens of Athens, holding however their κλῆροι in a remote district. [pg 132] But the chief feature of this method of landholding was that the owner, though remaining a citizen of Athens and liable to the same claims from the mother city in respect of military service, &c, as before, was yet supposed to reside in the neighbourhood of his new κλῆρος. This was the case, even when the land itself was left in the hands of the conquered population at a fixed annual charge.

An inscription found on the Acropolis of Athens, and relating to some date about 560 or 570 B.C., defines the legal status of the first κληροῦχοι sent to Salamis. They were assimilated to Athenian citizens as to taxes and military service; but they must reside on their land under pain of an absentee's tax to the State.338

In the year 427 B.C. the Athenians conquered the island of Lesbos. They imposed no tribute on the subjugated islanders, but, making the land into three thousand κλῆροι “except the Methymnian land,” they first set apart three hundred κλῆροι as sacred to the gods, and on to the others they sent off κληροῦχοι chosen by lot from themselves; to these the Lesbians paid annually for each κλῆροι two minae, and themselves worked the land.339

According to the account of Aelian, the same method of procedure was adopted after the conquest of Euboea in about 510 B.C. The Athenians, having conquered the Chalkidians, apportioned their land to κληροῦχοι340 in two thousand κλῆροι, i.e. the country [pg 133] called Hippobotos; and, setting aside τεμένη to Athena in the place called Lelantos, they let out341 the rest according to the pillars that stand in the King's Stoa, which thus bear record of the leases.342

The holding of each κληροῦχος may have varied in size according to the character of the soil and features of the country; but it may safely be asserted that it must have been of sufficient dimensions, not only to provide subsistence for the native population left on the soil, but also to pay a considerable portion towards the keep of the κληροῦχος himself, during his enforced residence in the conquered country.

The class of citizen from amongst whom the κληροῦχοι were chosen by lot, did not consist of families with much property in Athens.343 Younger sons without occupation, whom their fathers had not been quite callous enough to “expose” in infancy,344 and restless individuals without property in the mother country, would be most likely to offer themselves. And to such the two minae per annum, paid by the Lesbians from the produce of each κλῆρος, would appear a reasonable if not a sumptuous provision of livelihood. There were a hundred drachmae in the mina, and if it is true, as asserted by Plutarch,345 that in the time of Solon one drachma was the price of a sheep, a yearly income of two hundred sheep, or their equivalent, would be forthcoming to each [pg 134] κληροῦχος—surely a considerable contribution to the maintenance of his family.346

Under these circumstances each κλῆρος served to provide maintenance for two households—both of whom had hereditary rights therein, though themselves in different strata of society. Both households also were in a sort attached to the soil, the one in practical bondage, the other bound by law to reside in the country wherein lay its substance, and (if we may use the common expression of the Welsh Laws) its privilege.

This double and continuous ownership was not confined to the semi-servile tenure of lands annexed by Athenian conquests.

Leases to be handed down from father to son for ever—τὸν πάντα χρόνον—subject of course to the regular payment of the rent, seem to have been quite usual.

What is said to be the oldest Greek contract we have, is of this nature.347 It was found in Elis at Olympia, and runs as follows:—

There is an instance of a proprietor of land at Mylasa, in Karia, deliberately selling his estates to a [pg 135] sacred community for the benefit of the god, and receiving them again (like the Roman precaria) from the trustees on perpetual lease—εἰς πατρικά—as the patrimonial substance of his family, for himself and his issue or whosoever should take inheritance from him. He thus obtained a money value down in return for his property, but bound himself and his descendants to an annual rent of so many drachmae, to form part of the revenues of the god. Moreover his “family-land” in this case was apparently more inalienable now than before; for he might neither divide the land henceforth, nor share the responsibility for the rent with another.349

Do not these instances show that even leases were included in the same category with actual ownership of land, being embraced within the characteristic idea that the land that contributed to the maintenance of the family and had come to be regarded almost as giving that family its social if not its political status, should descend unintermittently from generation to generation in that family, though its occupation was subject to providing support likewise to a superior owner and his family, whose descendants in their turn also would demand their share in the produce?

Is the conclusion justified that the basis of this indomitable feeling was that the peculiar view of the family, as consisting of a long line of past and future representatives, precluded the individual, who happened to be the living representative at any given time, from taking an irresponsible position as absolute master of the property, upon which his family had been, was, and would be dependent?