Properties of Blood I:8, Kith and Kin, II: Spouses and Heirs, B
Complex and far-reaching rules on marriage and inheritance presuppose the recognition of kinship beyond the level of the immediate family. How far beyond can vary greatly, and the breadth or narrowness of kin-recognition is a defining element in any social system. Some suburban Californians can barely stay in contact with their siblings, while in some parts of the American South, much time is still spent calculating possible kinship with new acquaintances. Pitt-Rivers noted that in Andalusia, “People are seldom able to give a comprehensive account of their families beyond first cousins,” and first-cousinhood was largely a matter of sentiment. Even first cousins may not become close if they do not have the opportunity for frequent encounters. Property can always strengthen such ties, and in Andalusia first cousins frequently married in order to keep property intact. A similar tactic was adopted in colonial South Carolina, though such unions were frowned upon in contemporary England. It is observed in Gone With the Wind that even in the mid-19th century, “Wilkeses and Hamiltons always marry their own cousins”
Property and inheritance laws, even more perhaps than incest prohibitions, are a clear indication of how societies structure their priorities. In some modern countries, a citizen may write a will leaving much or all of his wealth to person or persons outside the family; in more traditional societies, by contrast, custom and law regulate or even dictate succession. In 16th century England and British North America, for example, estates passed from father to eldest son by the traditional custom of primogeniture, just as in most European monarchies, a king was succeeded by his eldest son.
Primogeniture is by no means a universal rule or even a dominant tendency in inheritance laws: In many societies sons—or sons and daughters—may inherit equal shares. But even in societies where estates are normally passed to the eldest son, some provisions are generally made for the heir’s younger brothers, who might inherit incomes or goods, and sisters, who would be provided with dowries. In addition, ancestral property, such as a family farm might be distinguished from wealth acquired by business and pass by law to a natural heir or heirs. To survey the variety of privileges accorded (or denied) to first-born sons would require a tedious and distracting diversion from the argument, which concerns the enduring ethical significance of inheritance rules in general. What does matter is not the details of any particular system, but the universality of such systems in human societies. We should, however, take a passing glance at the inheritance systems of several societies that have, until recently, exercised an influence on our own.
For the society described (or imagined) in the Pentateuch, where preservation of family identity and property depended upon strong and resolute men, a man’s property went to his sons, the first-born receiving a share double that of each of his brothers. In other words, if a father had four sons, his property was divided into five parts, two of which went to the eldest son, and one to each of the others. This favored status was a gift from God and not a mere human privilege, and a less favored older son, such as Esau or Reuben might occasionally be passed over in favor of a younger. Primogeniture was not a one-sided affair but entailed corresponding duties. The first-born, who enjoyed greater power and respect than his brothers, had the burdens of assuming a priesthood, maintaining the dignity of the family, and, probably, taking care of his mother and sisters. He had the right to decline both the double inheritance and the duties that went along with it.
If a father failed to produce any sons, Moses granted a dispensation that permitted daughters to inherit, [Num 21:7-11], though it was later stipulated that such heiresses must marry within the tribe to prevent the property from passing to strangers. [Num 36]. This law is a parallel to a more stringent Athenian provision that such an heiress must marry the closest male relative on her father’s side.
Since the Jews were polygynous, problems arose when a father might be tempted to prefer the son of a younger wife, as in the early story of Jacob and Esau, but he was, nonetheless, generally constrained [Deut 21:15-17] to award the double share to the son of his less favored older wife. Hard and fast rules of this type tend to discourage family disputes by removing inheritances from the whim of the proprietor. In such traditional societies, the current possessor is not a self-made individualist but only one link in a long chain going back generations.
In early Athens, there was no such thing as a will, since a man’s entire estate (kleros) passed by strict rules to his male heirs, to his sons, if he had any still living, of, if the sons had died leaving legitimate male offspring, to his grandsons. “The line of heir continued theoretically ad infinitum.” For his daughters he was expected to provide a dowry, which constituted their inheritance. Sons automatically inherited equal shares of the estate, unless they had been adopted into another family. If there were no sons or issue thereof, the daughters or their children inherited, but daughters were legally required to marry a close kinsman of their father (the order was fixed) in order to preserve the estate. Failing any living descendants, a man’s collateral relatives on his father’s side became the heirs. The preference went to males up to the degree of children of first cousins. The object was to preserve the ongoing line of descent by keeping property within the network of kinfolk.
The Athenian law eventually did leave room for maneuvering. A man without children might adopt a son, who would automatically inherit the entire estate or, if sons were born subsequent to the adoption, an equal share with the natural sons. A childless adult male could also make a will, devising the property to a specific set of relatives or friends. By the fourth century, even a man with sons might leave a portion of his property to others, though the nearest male relatives of the deceased could sue to have the will overturned.
Members of a Greek household generally handled their own affairs without going to law with each other. These household family groups were part of a broader clan or network of kinfolks, the genos, whose senior members could resolve inter-familial disputes and help to preserve common customs. The more important gene usually played a dominant role both in their neighborhood and in the politics of Attica.
In pre-classical Athens, the genos was the arbiter of disputed inheritances, and the property-owner’s desires counted for little. Solon is credited with introducing the will as a legal instrument to cover cases of epikleroi (daughters without brothers) or families with no offspring. Whoever the author and whatever the inspiration for them, wills have an advantage in discouraging (though hardly preventing) family feuds over inheritance.
The Nephews of Cleonymus
Athenian courts must have been clogged with cases of disputed succession, and virtually the entire surviving corpus of Isaeus’ speeches (early fourth century B.C.) is devoted to disputed legacies. A particularly rich example is the case of Cleonymus’ heirs [Isaeus I]. Cleonymus had died without children, having made a will, many years before his death, giving his property to a set of friends who were distantly related. His sister’s sons, however, made a stink, and when the heirs agreed to share with them, the nephews felt emboldened to sue for everything.
The nephews based their case on two allegations: Their first claim was that Cleonymus had only disinherited them because he was quarreling with their guardian, whom he did not wish to control his property or have responsibility for his funeral. When that guardian died, the boys moved in with Cleonymus, who helped to settle their debts and provide for their education, which the boys cited as evidence of their uncle’s affection for them. In their second claim, they declared that on his deathbed Cleonymus had called for a magistrate’s clerk to bring his will, presumably intending to change it, but his designated heirs would not allow the clerk to enter the house.
The nephews’ case would not stand scrutiny for a moment in an American or English court, but the boys were counting on the jurors to sympathize with them. Their real case did not rest on their somewhat dubious claims about what might have happened but on the fact of blood, and their argument reveals an Athenian predilection for kinship over individual preferences, even when those preferences were set forth in an unambiguous legal document. In general, it can be said, Athenian juries were more skeptical of documents, which could always be forged, and more attentive to the probabilities of human character. In their calculations, the propinquities of blood might matter more than a piece of paper, however meticulously drawn up.
“It is only right,” the brothers sum up, “that you should, as in fact you do, give your verdicts on the basis of the truth of the matter and on the grounds of blood-relationship (genos) rather than siding with those who contest the case on the basis of a will. For you all know what the relationship of the genos is; that can not be falsified, but many people have falsified wills, some by making complete forgeries, in other cases wills are made by people not in their right mind.”
They are obviously suggesting that any uncle who would disinherit his beloved nephews would have been out of his head, thus the will—which he allegedly drew up in a fit of anger—is false on one of two counts: either because he intended to change it, but his heirs prevented him, or because he did it in anger against the guardian but not with any rancor toward his next-of-kin. To gain the sympathy of the jurymen, the nephews declare, at the beginning, that it grieves them to go to law against their kinsmen, and that they would feel as bad in damaging the interests of kinsmen as they would in being unjustly deprived of their property by such people.
Another point of view is given in an earlier speech written by Isocrates. Here a sickly man has died, leaving his estate to the boyhood friend who had taken care of him during his illness. The friend is also instructed to marry his sister. The friend is thereupon sued by the testator’s illegitimate half-sister. In his defense the heir argues not only that he is the best friend of the deceased but that their families had been previously and are now again connected by marriage. Once again, explicit legal claims seem to take second place to considerations of kinship and friendship.
Although, like all Greeks, Athenians were busybodies who liked meddling in their neighbors’ business, the political and legal system of the polis had so few coercive mechanisms at its disposal that troublesome citizens took each other to court rather than invoke the power of the non-existent cops, social workers, and bureaucrats. Cleonymus’ nephews expected to persuade their fellow-citizens on the moral grounds of kinship, ignoring the plain facts of a written will.