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.
[pg 047]
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.
[pg 052]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
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.