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.
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:—
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.”
| Father and mother. | |
| Grandfather. | |
| Greatgrandfather. | |
| Brother and sister. | |
| First cousins. | |
| Second cousins. | |
| Third cousins. | |
| Fourth cousins. | |
| Fifth cousins. |
According to the Gwentian Code, fifth cousins share. “There is no proper share, no proper name in kin further than that.”182
[pg 079]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.