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.