Chapter IV. The Relation Of The Family To The Land.

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.

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.

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.

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

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