Ancient society

by Lewis Henry Morgan

Turning to the laws of Solon concerning inheritances, we find them substantially the same as those of Moses. From this coincidence, an inference arises that the antecedent usages, customs and institutions of the Athenians and Hebrews were much the same in relation to property. In the time of Solon, the third great rule of inheritance was fully established among the Athenians. The sons took the estate of their deceased father equally; but charged with the obligation of maintaining the daughters, and of apportioning them suitably on their marriage. If there were no sons, the daughters inherited equally. This created heiresses (ἐπίκληροι) by investing women with estates, who like the daughters of Zelophehad, would transfer the property, by their marriage, from their own gens to that of their husband. The same question came before Solon that had been brought before Moses, and was decided in the same way. To prevent the transfer of property from gens to gens by marriage, Solon enacted that the heiress should marry her nearest male agnate, although they belonged to the same gens, and marriage between them had previously been prohibited by usage. This became such a fixed rule of Athenian law, that M. De Coulanges, in his original and suggestive work, expresses the opinion that the inheritance passed to the agnate, subject to the obligation of marrying the heiress.[524] Instances occurred where the nearest agnate, already married, put away his wife in order to marry the heiress, and thus gain the estate. Protomachus, in the Eubulides of Demosthenes, is an example.[525] But it is hardly supposable that the law compelled the agnate to divorce his wife and marry the heiress, or that he could obtain the estate without becoming her husband. If there were no children, the estate passed to the agnates, and in default of agnates, to the gentiles of the deceased owner. Property was retained within the gens as inflexibly among the Athenians as among the Hebrews and the Romans. Solon turned into a law what, probably, had before become an established usage.

The progressive growth of the idea of property is illustrated by the appearance of testamentary dispositions established by Solon. This right was certain of ultimate adoption; but it required time and experience for its development. Plutarch remarks that Solon acquired celebrity by his law in relation to testaments, which before that was not allowed; but the property and homestead must remain in the gens (γένει) of the decedent. When he permitted a person to devise his own property to any one he pleased, in case he had no children, he honored friendship more than kinship, and made property the rightful possession of the owner.[526] This law recognized the absolute individual ownership of property by the person while living, to which was now superadded the power of disposing of it by will to whomsoever he pleased, in case he had no children; but the gentile right to the property remained paramount so long as children existed to represent him in the gens. Thus at every point we meet the evidence that the great principles, which now govern society, were elaborated step by step, proceeding in sequences, and tending invariably in the same upward direction. Although several of these illustrations are drawn from the period of civilization, there is no reason for supposing that the laws of Solon were new creations independent of antecedents. They rather embodied in positive form those conceptions, in relation to property, which had gradually developed through experience, to the full measure of the laws themselves. Positive law was now substituted for customary law.

The Roman law of the Twelve Tables (first promulgated 449 B. C.)[527] contain the rules of inheritance as then established. The property passed first to the children, equally with whom the wife of the decedent was a co-heiress; in default of children and descendants in the male line, it passed to the agnates in the order of their nearness; and in default of agnates it passed to the gentiles.[528] Here we find again, as the fundamental basis of the law, that the property must remain in the gens. Whether the remote ancestors of the Latin, Grecian and Hebrew tribes possessed, one after the other, the three great rules of inheritance under consideration, we have no means of knowing, excepting through the reversion. It seems a reasonable inference that inheritance was acquired in the inverse order of the law as it stands in the Twelve Tables; that inheritance by the gentiles preceded inheritance by the agnates, and that inheritance by the agnates preceded an exclusive inheritance by the children.

During the Later Period of barbarism a new element, that of aristocracy, had a marked development. The individuality of persons, and the increase of wealth now possessed by individuals in masses, were laying the foundation of personal influence. Slavery, also, by permanently degrading a portion of the people, tended to establish contrasts of condition unknown in the previous ethnical periods. This, with property and official position, gradually developed the sentiment of aristocracy, which has so deeply penetrated modern society, and antagonized the democratical principles created and fostered by the gentes. It soon disturbed the balance of society by introducing unequal privileges, and degrees of respect for individuals among people of the same nationality, and thus became the source of discord and strife.

In the Upper Status of barbarism, the office of chief in its different grades, originally hereditary in the gens and elective among its members, passed, very likely, among the Grecian and Latin tribes, from father to son, as a rule. That it passed by hereditary right cannot be admitted upon existing evidence; but the possession of either of the offices of archon, phylo-basileus, or basileus among the Greeks, and of princeps and rex among the Romans, tended to strengthen in their families the sentiment of aristocracy. It did not, however, become strong enough to change essentially the democratic constitution of the early governments of these tribes, although it attained a permanent existence. Property and office were the foundations upon which aristocracy planted itself.

Whether this principle shall live or die has been one of the great problems with which modern society has been engaged through the intervening periods. As a question between equal rights and unequal rights, between equal laws and unequal laws, between the rights of wealth, of rank and of official position, and the power of justice and intelligence, there can be little doubt of the ultimate result. Although several thousand years have passed away without the overthrow of privileged classes, excepting in the United States, their burdensome character upon society has been demonstrated.

Since the advent of civilization, the outgrowth of property has been so immense, its forms so diversified, its uses so expanding and its management so intelligent in the interests of its owners, that it has become, on the part of the people, an unmanageable power. The human mind stands bewildered in the presence of its own creation. The time will come, nevertheless, when human intelligence will rise to the mastery over property, and define the relations of the state to the property it protects, as well as the obligations and the limits of the rights of its owners. The interests of society are paramount to individual interests, and the two must be brought into just and harmonious relations. A mere property career is not the final destiny of mankind, if progress is to be the law of the future as it has been of the past. The time which has passed away since civilization began is but a fragment of the past duration of man’s existence; and but a fragment of the ages yet to come. The dissolution of society bids fair to become the termination of a career of which property is the end and aim; because such a career contains the elements of self-destruction. Democracy in government, brotherhood in society, equality in rights and privileges, and universal education, foreshadow the next higher plane of society to which experience, intelligence and knowledge are steadily tending. It will be a revival, in a higher form, of the liberty, equality and fraternity of the ancient gentes.

Some of the principles, and some of the results of the growth of the idea of property in the human mind have now been presented. Although the subject has been inadequately treated, its importance at least has been shown.

With one principle of intelligence and one physical form, in virtue of a common origin, the results of human experience have been substantially the same in all times and areas in the same ethnical status.