They had common rights, duties, and privileges, as well as common supplies; and hence the idea arose that the property of the members of a gens belonged to the gens. At the death of an individual, his personal property would be divided among the remaining members of the gens. “Practically,” says Mr. Morgan, “they were appropriated by the nearest of kin; but the principle was general that the property should remain in the gens.”22 That this is a true statement there is not the shadow of a doubt. This was the general rule of inheritance among the Indian tribes of North America. As time passed on, and the tribes learned to cultivate the land, some idea of real property would arise—but not of personal ownership.
This is quite an important topic; because, when we read of lords with great estates, we are puzzled to know how to reconcile such statements with what we now know of the nature of Mexican tribal organization. Mr. Bandelier has lately gone over the entire subject. He finds that the territory on which the Mexicans originally settled was a marshy expanse of land which the surrounding tribes did not value enough to claim.
This territory was divided among the four gentes of the tribe. As we have already seen, each of these four gentes subsequently split up into other independent gentes until there were twenty in all. Each of these gens held and possessed a portion of the original soil. This division of the soil must have been made by tacit consent. The tribe claimed no ownership of these tracts, still less did the head-chief. Furthermore, the only right the gentes claimed in them was a possessory one. “They had no idea of sale or barter, or conveyance, or alienation.” As the members of a gens stood on equal footing, this tract would be still further divided for individual use. This division would be made by the council of the gens. But we must notice the individual acquired no other right to this tract of land than a right to cultivate it—which right, if he failed to improve, he lost. He could, however, have some one else to till it for him. The son could inherit a father’s right to a tract.
We have seen that the Mexicans had a great volume of tribal business to transact, which required the presence of an official household at the tecpan. Then the proper exercise of tribal hospitality required a large store of provisions. To meet this demand, certain tracts of the territory of each gens were set aside to be worked by communal labor. Then, besides the various officers of the gens, and the tribe, who, by reason of their public duties, had no time to till the tracts to which, as members of a gens, they would be entitled, had the same tilled for them by communal labor. This was not an act of vassalage, but a payment for public duties.
This is a very brief statement of their customs as regards holding of lands. It gives us an insight into the workings of ancient society. It shows us what a strong feature of this society was the gens, and we see how necessary it is to understand the nature of a gens before attempting to understand ancient society. We see that, among the civilized nations of Mexico and Central America, they had not yet risen to the conception of ownership in the soil. No chief, or other officer, held large estates. The possessory right in the soil was vested in the gens composing the tribe, and they in turn granted to individuals certain definite lots for the purpose of culture. A chief had no more right in this direction than a common warrior. We can easily see how the Spaniards made their mistake. They found a community of persons holding land in common, which the individuals could not alienate. They noticed one person among them whom the others acknowledged as chief. They immediately jumped to the conclusion that this chief was a great “lord,” that the land was a “feudal estate,” and that the persons who held it were “vassals” to the aforesaid “lord.”23
We must now consider the subject of laws, and the methods of enforcing justice amongst the civilized nations. The laws of the Mexicans, like those of most barbarous people, are apt to strike us as being very severe; but good reasons, according to their way of thinking, exist for such severity. The gens is the unit of social organization; which fact must be constantly borne in mind in considering their laws. In civilized society, the State assumes protection of person and property; but, in a tribal state of society, this protection is afforded by the gens. Hence, “to wrong a person was to wrong his gens; and to support a person was to stand behind him with the entire array of his gentile kindred.”
The punishment for theft varied according to the value of the article stolen. If it were small and could be returned, that settled the matter. In cases of greater value it was different. In some cases the thief became bondsman for the original owner. In still others, he suffered death. This was the case where he stole articles set aside for religion—such as gold and silver, or captives taken in war; or, if the theft were committed in the market-place. Murder and homicide were always punished with death. According to their teaching, there was a great gulf between the two sexes. Hence, for a person of one sex to assume the dress of the other sex was an insult to the whole gens—the penalty was death. Drunkenness was an offense severely punished—though aged persons could indulge their appetite, and, during times of festivities, others could. Chiefs and other officials were publicly degraded for this crime. Common warriors had their heads shaved in punishment.
These various penalties necessarily suppose judicial officers to determine the offense and decree the punishment. Having established, on a satisfactory basis, the Mexican empire, the historians did not scruple to fit it out with the necessary working machinery of such an organization. Accordingly we are presented with a judiciary as nicely proportioned as in the most favored nations of to-day. But when, under the more searching light of modern scholarship, this empire is seen to be something quite different, we find the whole judicial machinery to be a much more simple affair.
Not much need be added on this point to what we have already mentioned. Each gens, through its council, would regulate its own affairs, and would punish all offenses against the law committed by one of its members against another. Of necessity the decision of this council had to be final. There was no appeal from its decision. The council of the tribe had jurisdiction in all other cases—such as might arise between members of different gentes, or among outcasts not connected with any gens, or such as were committed on territory not belonging to any gens.
For this work, the twenty chiefs composing the council were subdivided into two bodies, sitting simultaneously in the different halls of the tecpan. This division was for the purpose of greater dispatch in business. They did not form a higher and lower court, with power of the one to review the decisions of the other. They were equal in power and the decisions of both were final. The decision of the council, when acting in a judicial capacity, would be announced by their foreman, who was, as we have seen, the head-chief of the Mexicans—the Snake-woman. It is for this act that the historian speaks of him as the supreme judge, and makes him the head of judicial authority.24 His decisions were, of course, final, not because he made them, but because they were the conclusions of the council.