Ancient Society. Lewis H. Morgan 1877
Three Rules of Inheritance (Continued)
The last great period of barbarism was never entered by the American aborigines. It commenced in the Eastern, according to the scheme adopted, with the production and use of iron.
The process of smelting iron ore was the invention of inventions, as elsewhere suggested, beside which all other inventions and discoveries hold a subordinate position. Mankind, notwithstanding a knowledge of bronze, were still arrested in their progress for the want of efficient metallic tools, and for the want of a metal of sufficient strength and hardness for mechanical appliances. All these qualities were found for the first time in iron. The accelerated progress of human intelligence dates from this invention. This ethnical period, which is made forever memorable, was, in many respects, the most brilliant and remarkable in the entire experience of mankind. It is so overcrowded with achievements as to lead to a suspicion that many of the works ascribed to it belong to the previous period.
IV. Property in the Upper Status of Barbarism.- Near the end of this period, property in masses, consisting of many kinds and held by individual ownership, began to be common, through settled agriculture, manufactures, local trade and foreign commerce; but the old tenure of lands under which they were held in common had not given place, except in part, to ownership in severalty. Systematic slavery originated in this status. It stands directly connected with the production of property. Out of it came the patriarchal family of the Hebrew type, and the similar family of the Latin tribes under paternal power, as well as a modified form of the same family among the Grecian tribes. From these causes, but more particularly from the increased abundance of subsistence through field agriculture, nations began to develop, numbering many thousands under one government, where before they would be reckoned by a few thousands. The localization of tribes in fixed areas and in fortified cities, with the increase of the numbers of the people, intensified the struggle for the possession of the most desirable territories. It tended to advance the art of war, and to increase the rewards of individuals prowess. These changes of condition and of the plan of life indicate the approach of civilization, which was to overthrow gentile and establish political society.
Although the inhabitants of the Western hemisphere had no part in the experience which belongs to this status, they were following down the same lines on which the inhabitants of the Eastern had passed. They had fallen behind the advancing column of human race by just the distance measured by the Upper Status of barbarism and the super- added years of civilization.
We are now to trace the growth of the idea of property in this status of advancement, as shown by its recognition in kind, and by the rules that existed with respect to its ownership and inheritance.
The earliest laws of the Greeks, Romans and Hebrews after civilization had commenced, did little more than turn into legal enactments the results which their previous experience had embodied in usages and customs. Having the final laws and the previous archaic rules, the intermediate changes, when not expressly known, may be inferred with tolerable certainty.
At the close of the Later Period of barbarism, great changes had occurred in the tenure of lands. It was gradually tending to two forms of ownership, namely, by the state arid by individuals. But this result was not fully secured until after civilization had been attained. Land among the Greeks were still held, as we have seen, some by the tribes in common, some by the phratry in common for religious uses, and some by the gens in common; but the bulk of the lands had fallen under individual ownership in severalty. In the time of Solon, while Athenian society was still gentile, lands in general were owned by individuals, who had already learned to mortgage them;[1] but individual ownership was not then a new thing. The Roman tribes, from their first establishment, had a public domain, the Ager Romanus; while lands were held by the curia for religious uses, by the gens, and by individuals in severalty. After these social corporations died out, the lands held by them in common gradually became private property. Very little is known beyond the fact that certain lands were held by these organizations for special. uses, while individuals were gradually appropriating the substance of the national areas.
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[2] around cultivated fields, of an enclosure of fifty acres, half of which was fit for vines and the remainder for tillage[3] and it is said of Tydeus that he lived in a mansion rich in resources, and had corn-producing fields in abundance.[4] 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.[5] Herds of cattle and flocks of sheep possessed by individuals are mentioned, as "sheep of a rich man standing countless in the fold."[6] Coined money was still un- known, 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."[7] Gold in bars, however, is named as passing. by weight and estimated by talents.[8] Manufactured articles of gold, silver, brass and iron, and textile fabrics of linen and woollen 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 lends, 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 systematic 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 labour 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 centre 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."[9]
In the Hebrew tribes of whose expedience 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.[10] 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 end 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 loti of our inheritance."[11] 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."[12] 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," 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."[13]
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 the 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 h 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 usage in respect marriage among the Hebrews; and it has now become the rule of Christian nations.
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 by investing woman 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.[14] 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.[15] 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 were not allowed; but the property and homestead must remain in the gens 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 honoured friendship more than kinship, and made property the rightful possession of the owner.[16] 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.)[17] 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 bf their nearness; and in default of agnates it passed to the gentiles.[18] 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.
The principle of the intelligence, although conditioned in its powers within narrow limits of variation, seeks ideal standards invariably the same. Its operations, consequently, have been uniform through all the stages of human progress. No argument for the unity of origin of mankind can be made, which, in its nature, is more satisfactory. A common principle of intelligence meets us in the savage, in the barbarian, and in civilized man, It was in virtue of this that mankind were able to produce in similar conditions the same implements and utensils, the same inventions, and to develop similar institutions from the same original germs of thought. There is something grandly impressive in a principle which has wrought out civilization by assiduous application from small beginnings; from the arrow head, which expresses the thought in the brain of a savage, to the smelting of iron ore, which represents the higher intelligence of the barbarian, and, finally, to the railway train in motion, which may be called the triumph of civilization.
It must be regarded as a marvellous fact that a portion of mankind five thousand years ago, less or more, attained to civilization. In strictness but two families, the Semitic and the Aryan, accomplished the work through unassisted self-development. The Aryan family represents the central stream of human progress, because it produced the highest type of mankind, and because it has proved its intrinsic superiority by gradually assuming the control of the earth. And yet civilization must be regarded as an accident of circumstances. Its attainment at some time was certain; but that it should have been accomplished when it was, is still an extraordinary fact. The hindrances that held mankind in savagery were great, and surmounted with difficulty. After reaching the Middle Status of barbarism, civilization hung in the balance while barbarians were feeling their way by experiments with the native metals, toward the process of smelting iron ore. Until iron and its uses were known, civilization was impossible. If mankind had failed to the present hour to cross this barrier, it would have afforded no just cause for surprise. When we recognize the duration of man's existence upon the earth, the wide vicissitudes through which he has passed in savagery and in barbarism, and the progress he was compelled to make, civilization might as naturally have been delayed for several thousand years in the future, as to have occurred when it did in the good providence of God. We are forced to the conclusion Chat it was the result, as to the time of its achievement, of a series of fortuitous circumstances. It may well serve to remind us that we owe our present condition, with its multiplied means of safety and of happiness, to the struggles, the sufferings, the heroic exertions and the patient toil of our barbarous, and more remotely, of our savage ancestors. Their labours, their trials and their successes were a part of the plan of the Supreme Intelligence to develop a barbarian out of a savage, and a civilized man out of this barbarian.
1. Plutarch, in "Solon," c. xv.
2. "Iliad," v, 90.
3. lb., ix, 577.
4. lb., xiv, 121.
5. lb., v, 265.
6. lb., iv, 433, Buckley's trans.
7. lb., vii, 472, Buckley's trans.
8. "Iliad," xii, 274.
9. The German tribes when first known historically were in the Upper Status of barbarism. They used iron, but in limited quantities, possessed flocks and herds, cultivated the cereals, and manufactured coarse textile fabrics of linen and woollen; but they had not then attained to the idea of individual ownership in lands. According to the account of Caesar, elsewhere cited, the arable lands were allotted annually by the chiefs, while the pasture lands were held in common. It would seem, therefore, that the idea of individual property in lands unknown in Asia and Europe in the Middle Period of barbarism but came in during the Later Period.
10. "Genesis," xxiii, 13.
11. "Numbers," xxvi, 4.
12. "Numbers," xxxvi, 5-9.
13. "Numbers" xxvii, 8-11
14. "The Ancient City, " Lee & Shepard's ed., Small's trans., p. 99
15. "Demosthenes against Eubul," 41.
16. Plutarch, "Vita Solon," c. 21.
17. Livy, iii. 54. 57.
18. Gaius, "Inst.," iii, 1, 9, 17.
The End of the Book