These several forms of ownership tend to show that the oldest tenure, by which land was held, was by the tribe in common; that after its cultivation began, a portion of the tribe lands was divided among the gentes, each of which held their portion in common; and that this was followed, in course of time, by allotments to individuals, which allotments finally ripened into individual ownership in severalty. Unoccupied and waste lands still remained as the common property of the gens, the tribe and the nation. This, substantially, seems to have been the progress of experience with respect to the ownership of land. Personal property, generally, was subject to individual ownership.
The monogamian family made its first appearance in the Upper Status of barbarism, the growth of which out of a previous syndyasmian form was intimately connected with the increase of property, and with the usages in respect to its inheritance. Descent had been changed to the male line; but all property, real as well as personal, remained, as it had been from time immemorial, hereditary in the gens.
Our principal information concerning the kinds of property, that existed among the Grecian tribes in this period, is derived from the Homeric poems, and from the early laws of the period of civilization which reflect ancient usages. Mention is made in the Iliad of fences[511] around cultivated fields, of an enclosure of fifty acres (πεντηκοντόγυος), half of which was fit for vines and the remainder for tillage;[512] and it is said of Tydeus that he lived in a mansion rich in resources, and had corn-producing fields in abundance.[513] There is no reason to doubt that lands were then fenced and measured, and held by individual ownership. It indicates a large degree of progress in a knowledge of property and its uses. Breeds of horses were already distinguished for particular excellence.[514] Herds of cattle and flocks of sheep possessed by individuals are mentioned, as “sheep of a rich man standing countless in the fold.”[515] Coined money was still unknown, consequently trade was by barter of commodities, as indicated by the following lines: “Thence the long-haired Greeks bought wine, some for brass, some for shining iron, others for hides, some for the oxen themselves, and some for slaves.”[516] Gold in bars, however, is named as passing by weight and estimated by talents.[517] Manufactured articles of gold, silver, brass and iron, and textile fabrics of linen and woolen in many forms, together with houses and palaces, are mentioned. It will not be necessary to extend the illustrations. Those given are sufficient to indicate the great advance society had attained in the Upper Status of barbarism, in contrast with that in the immediately previous period.
After houses and lands, flocks and herds, and exchangeable commodities had become so great in quantity, and had come to be held by individual ownership, the question of their inheritance would press upon human attention until the right was placed upon a basis which satisfied the growing intelligence of the Greek mind. Archaic usages would be modified in the direction of later conceptions. The domestic animals were a possession of greater value than all kinds of property previously known put together. They served for food, were exchangeable for other commodities, were usable for redeeming captives, for paying fines, and in sacrifices in the observance of their religious rites. Moreover, as they were capable of indefinite multiplication in numbers, their possession revealed to the human mind its first conception of wealth. Following upon this, in course of time, was the systematical cultivation of the earth, which tended to identify the family with the soil, and render it a property-making organization. It soon found expression, in the Latin, Grecian and Hebrew tribes, in the family under paternal power, involving slaves and servants. Since the labor of the father and his children became incorporated more and more with the land, with the production of domestic animals, and with the creation of merchandise, it would not only tend to individualize the family, now monogamian, but also to suggest the superior claims of children to the inheritance of the property they had assisted in creating. Before lands were cultivated, flocks and herds would naturally fall under the joint ownership of persons united in a group, on a basis of kin, for subsistence. Agnatic inheritance would be apt to assert itself in this condition of things. But when lands had become the subject of property, and allotments to individuals had resulted in individual ownership, the third great rule of inheritance, which gave the property to the children of the deceased owner, was certain to supervene upon agnatic inheritance. There is no direct evidence that strict agnatic inheritance ever existed among the Latin, Grecian or Hebrew tribes, excepting in the reversion, established alike in Roman, Grecian and Hebrew law; but that an exclusive agnatic inheritance existed in the early period may be inferred from the reversion.
When field agriculture had demonstrated that the whole surface of the earth could be made the subject of property owned by individuals in severalty, and it was found that the head of the family became the natural center of accumulation, the new property career of mankind was inaugurated. It was fully done before the close of the Later Period of barbarism. A little reflection must convince any one of the powerful influence property would now begin to exercise upon the human mind, and of the great awakening of new elements of character it was calculated to produce. Evidence appears, from many sources, that the feeble impulse aroused in the savage mind had now become a tremendous passion in the splendid barbarian of the heroic age. Neither archaic nor later usages could maintain themselves in such an advanced condition. The time had now arrived when monogamy, having assured the paternity of children, would assert and maintain their exclusive right to inherit the property of their deceased father.[518]
In the Hebrew tribes, of whose experience in barbarism very little is known, individual ownership of lands existed before the commencement of their civilization. The purchase from Ephron by Abraham of the cave of Machpelah is an illustration.[519] They had undoubtedly passed through a previous experience in all respects similar to that of the Aryan tribes; and came out of barbarism, like them, in possession of the domestic animals and of the cereals, together with a knowledge of iron and brass, of gold and silver, of fictile wares and of textile fabrics. But their knowledge of field agriculture was limited in the time of Abraham. The reconstruction of Hebrew society, after the Exodus, on the basis of consanguine tribes, to which on reaching Palestine territorial areas were assigned, shows that civilization found them under gentile institutions, and below a knowledge of political society. With respect to the ownership and inheritance of property, their experience seems to have been coincident with that of the Roman and Grecian tribes, as can be made out, with some degree of clearness, from the legislation of Moses. Inheritance was strictly within the phratry, and probably within the gens, namely “the house of the father.” The archaic rule of inheritance among the Hebrews is unknown, except as it is indicated by the reversion, which was substantially the same as in the Roman law of the Twelve Tables. We have this law of reversion, and also an illustrative case, showing that after children had acquired an exclusive inheritance, daughters succeeded in default of sons. Marriage would then transfer their property from their own gens to that of their husband’s, unless some restraint, in the case of heiresses, was put on the right. Presumptively and naturally, marriage within the gens was prohibited. This presented the last great question which arose with respect to gentile inheritance. It came before Moses as a question of Hebrew inheritance, and before Solon as a question of Athenian inheritance, the gens claiming a paramount right to its retention within its membership; and it was adjudicated by both, in the same manner. It may be reasonably supposed that the same question had arisen in the Roman gentes, and was in part met by the rule that the marriage of a female worked a deminutio capitis, and with it a forfeiture of agnatic rights. Another question was involved in this issue; namely, whether marriage should be restricted by the rule forbidding it within the gens, or become free; the degree, and not the fact of kin, being the measure of the limitation. This last rule was to be the final outcome of human experience with respect to marriage. With these considerations in mind, the case to be cited sheds a strong light upon the early institutions of the Hebrews, and shows their essential similarity with those of the Greeks and Romans under gentilism.
Zelophehad died leaving daughters, but no sons, and the inheritance was given to the former. Afterwards, these daughters being about to marry out of the tribe of Joseph, to which they belonged, the members of the tribe objecting to such a transfer of the property, brought the question before Moses, saying: “If they be married to any of the sons of the other tribes of the children of Israel, then shall the inheritance be taken from the inheritance of our fathers, and shall be put to the inheritance of the tribe whereunto they are received: so shall it be taken from the lot of our inheritance.”[520] Although this language is but the statement of the results of a proposed act, it implies a grievance; and that grievance was the transfer of the property from the gens and tribe to which it was conceived as belonging by hereditary right. The Hebrew lawgiver admits this right in the language of his decision. “The tribe of the sons of Joseph hath spoken well. This is the thing which the Lord doth command concerning the daughters of Zelophehad, saying, Let them marry to whom they think best: only to the family of the tribe of their father shall they marry. So shall not the inheritance of the children of Israel remove from tribe to tribe: for every one of the children of Israel shall keep himself to the inheritance of the tribe of his fathers. And every daughter that possesseth an inheritance in any tribe of the children of Israel shall be wife unto one of the family of the tribe of her father, that the children of Israel may enjoy every man the inheritance of his fathers.”[521] They were required to marry into their own phratry (supra, p. 368), but not necessarily into their own gens. The daughters of Zelophehad were accordingly “married to their father’s brother’s sons,”[522] who were not only members of their own phratry, but also of their own gens. They were also their nearest agnates.
On a previous occasion, Moses had established the rule of inheritance and of reversion in the following explicit language. “And thou shalt speak unto the children of Israel, saying, If a man die and have no son, then you shall cause his inheritance to pass unto his daughters. And if he have no daughter, then you shall give his inheritance unto his brothers. And if he have no brethren, then ye shall give his inheritance unto his father’s brethren. And if his father have no brethren, then ye shall give his inheritance unto his kinsman, that is next to him of his family, and he shall possess it.”[523]
Three classes of heirs are here named; first, the children of the deceased owner; second, the agnates, in the order of their nearness; and third, the gentiles, restricted to the members of the phratry of the decedent. The first class of heirs were the children; but the inference would be that the sons took the property, subject to the obligation of maintaining the daughters. We find elsewhere that the eldest son had a double portion. In default of sons, the daughters received the inheritance. The second class were the agnates, divided into two grades; first, the brethren of the decedent, in default of children, received the inheritance; and second, in default of them, the brethren of the father of the decedent. The third were the gentiles, also in the order of their nearness, namely, “his kinsman that is next to him of his family.” As the “family of the tribe” is the analogue of the phratry (supra, p. 369), the property, in default of children and of agnates, went to the nearest phrator of the deceased owner. It excluded cognates from the inheritance, so that a phrator, more distant than a father’s brother, would inherit in preference to the children of a sister of the decedent. Descent is shown to have been in the male line, and the property must remain hereditary in the gens. It will be noticed that the father did not inherit from his son, nor the grandfather from his grandson. In this respect and in nearly all respects, the Mosaic law agrees with the law of the Twelve Tables. It affords a striking illustration of the uniformity of human experience, and of the growth of the same ideas in parallel lines in different races.
At a later day, the Levitical law established marriage upon a new basis independent of gentile law. It prohibited its occurrence within certain prescribed degrees of consanguinity and affinity, and declared it free beyond those degrees. This uprooted gentile usages in respect to marriage among the Hebrews; and it has now become the rule of Christian nations.