§ 9. Survivals Of Family Land In Later Times.
Land was in theory inalienable from the family.
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]
“Now I, as the legislator, regard you and your possessions, not as belonging to yourselves, but as belonging to your whole family, both past and present.”[327]
Plutarch and Heraclides say that the same law against the sale of the κλῆρος existed anciently at Sparta.
In Sparta child must be accepted by its father's tribesmen,
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—
“When a child was born, the father was not entitled to maintain it (τρέφειν), but he took and carried it to a place called ‘lesche,’ where the elders of his tribesmen were sitting, who, if they found the child pretty well grown and healthy, ordered its maintenance (τρέφειν), allotting to it one of the 9,000 kleroi (κλήρων αὐτῷ τῶν ἐνακισχιλίων προσνείμαντες).”[328]
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]
who decided as to its maintenance.
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.
Maintenance derived from the κλῆρος.
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 family bound to their land at Athens;
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.
and in Lokris.
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.:—
“The colonist has the right to return to Lokris and sacrifice with his γένος both in the rites of his δᾶμος and his φοίνανοι for ever. He can only return permanently without paying the re-establishment tax if he has left ἐν τᾷ ἱστίᾳ at Naupaktos a grown-up son or a brother. If a γένος of the colonists is left without a representative (ἐχέπαμον) ἐν τᾷ ἱστίᾳ, the nearest of kin (ἐπάγχιστος) in Lokris shall take the property, provided he go himself, be he man or boy, within three months to Naupaktos. A colonist can inherit his share of his Lokrian father's or brother's property....”
“If a magistrate deals unfairly and refuses justice, he shall be ἄτιμος and shall lose his μέρος μετὰ οἰκιατᾶν.”[332]
But heirs at Athens also must first be accepted by group of kinsmen.
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.