[125] It is interesting to note that in the Chinese penal code stealing from a relative is punished less severely than other cases of theft, and that the mitigation of the punishment is proportionate to the nearness of the relationship (Ta Tsing Leu Lee, sec. cclxxii. p. 287). The reason for this is that, “according to the Chinese patriarchal system, a theft is not in this case a violation of an exclusive right, but only of the qualified interest which each individual has in his share of the family property” (Staunton, ibid. p. 287, n.*).
[126] Robertson Smith, Kinship and Marriage in Early Arabia, pp. 55, 56, 66 sq.
[127] Laws of Manu, ix. 186 sq. Isaeus, Oratio de Philoctemonis hereditate, 51. Cicero, De legibus, ii. 19 sq. Fustel de Coulanges, op. cit. p. 84. Maine, Ancient Law, p. 191 sq.
[128] Cf. Mill, op. cit. i. 274.
[129] Westermarck, History of Human Marriage, pp. 104, 111.
[130] Hume, Treatise of Human Nature, ii. 3 (Philosophical Works, ii. 280). Godwin, Enquiry concerning Political Justice, ii. 438. Mill, op. cit. i. 275.
In details the rules of succession are influenced by a variety of circumstances. Women may be excluded from inheritance or receive a smaller share than the men because the latter, being the stronger party, appropriate everything or the larger portion of the property for themselves;[131] or because the women are less in need of property, being supported by their male relatives or husbands;[132] or because they are exempt from the heaviest duties connected with kinship, as the duty of blood-revenge;[133] or, as was the case in the feudal system, because a female tenant is naturally unable to attend the lord in his wars;[134] or for the purpose of preventing the estate from passing to another family or tribe.[135] The idea of keeping together the property of the house also largely is at the bottom of the rule of primogeniture. Besides, the eldest son is the most respected among the children, sometimes he is regarded quite as a sacred being.[136] On the death of the head of the family he is generally better suited than anybody else to take his place; and his privileged position with regard to inheritance is justified by the duties connected with it, especially the duty of looking after and supporting the other members of the household.[137] In feudalism, where tenancy implied duties as well as rights, it was also, from the lord’s point of view, the simplest arrangement that when a tenant died a single person should fill the vacant place.[138] But there are many other points of view which may determine the rules of succession. It may be thought just that each child should have an equal share in the inheritance, and that something should be given also to the widow, whose maintenance devolved on the husband and who, whilst he was alive, had been in joint possession of many of his belongings. Or the youngest son may be the chief or the exclusive heir, partly perhaps for the sake of preventing a division of the property, or because the lord would have but one tenant,[139] but partly also because he had remained with his father till his death,[140] or “on the plea of his being less able to help himself on the death of the parents than his elder brethren, who have had their father’s assistance in settling themselves in the world during his lifetime.”[141] The Wanyamwezi, again, justify the practice of leaving property to their illegitimate children by slave girls or concubines, to the exclusion of their legitimate offspring, “by the fact of the former requiring their assistance more than the latter, who have friends and relatives to aid them.”[142] Generally there seems to be a close connection between illegitimate children’s right to inheritance and the legal recognition of polygamous practices. This is indicated by a comparison between Oriental and Roman legislation on the subject, and, in Teutonic countries, between ancient custom and the later law, which was influenced by Christianity’s horror of sexual acts falling outside the monogamous marriage relation. The privileges which Hindu law grants to the illegitimate children of Sûdras are due to the notion that the marriage of a member of this caste is itself considered to be of so low a nature as to be on a par with irregular connections.[143]
[131] Cf. Campbell, Travels in South Africa, p. 520 (Kafirs).
[132] Cf. Cranz, op. cit. i. 176 (Greenlanders); Macpherson, Memorials of Service in India, p. 62 (Kandhs); Hinde, op. cit. p. 51 (Masai); ‘Inheritance and “Patria Potestas” in China,’ in China Review, v. 406; Jolly, loc. cit. p. 83 (ancient Hindus); Post, Entwicklungsgeschichte des Familienrechts, p. 296 sq.; Idem, Grundriss der ethnol. Jurisprudenz, i. 218 sq.
[133] Cf. Robertson Smith, Kinship and Marriage in Early Arabia, p. 65 sq.; Stemann, Den danske Retshistorie indtil Christian V.’s Lov, p. 311 sq.