§ 2. The Relation Of The Κλῆρος To The Οἶκος.
Ownership of the κλῆρος vested in the head of 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]
Dependence of other members of the οἶκος.
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.
“And all these sons of Bouselos became men, and their father divided his substance amongst them all, with perfect justice. And they having shared the substance, each of them married a wife according to your laws, and there were born children to them all, and children's children, and there grew up five οἶκοι from the one οἶκος of Bouselos, and each dwelt apart, having his own house and his own offspring.”[208]
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.
The prerogative of the eldest brother,
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 ᾒδη[210]—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]
contrasted with the power of the head of the household.
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.—
“The father shall have power over the children and the property to divide it amongst them.... As long as they (the parents) are alive there is no necessity for division.”[217]
No joint holding between a father and his sons.
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]
Confirmatory evidence of the Gortyn Laws.
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]
But the land was in theory inalienable from the family.
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.
Close analogy in the custom of Gavelkind in Kent.
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.
“If any tenant in Gauelkinde be attainted of felonie, for which he suffereth execution of death, the king shall have all his goods, and his heire forthwith after his death shall be inheritable to all his landes and tenements which he held in Gauelkinde in fee, and in inheritance: and he shall hold them by the same services and customes as his auncestors held them: whereupon, it is said in Kentish:
“The father to the boughe,
“And the sonne to the ploughe.”[223]
Allotment or “gift” to a bastard son.
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.
But he was not admitted to his father's family.
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]
Gifts of land to new citizens.
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]