Chapter IV: The Law of Land-Ownership in Western Asia

In a country which was swept by conquering races in succession from the earliest times to the year A.D. 1071, and later by the rather ineffective Crusaders of 1098, 1146, and 1175,¹ some sort of arrangement was necessarily made between the older population and the new warrior-settlers. Already in the Iliad we read that Priam in his youth had fought against the Amazons on the banks of the Sangarios. This implies that an European people, entering Asia Minor across the great salt river called the Dardanelles and the Bosphorus, had to fight against a native population cheered on or led by its priestesses and priests. By the victory was determined the limit between the older population and the immigrant conquerors.

It is, however, not to be supposed that the older people, where they were conquered, were exterminated. They were left unharmed after the battle was fought and the victory won. (1) They were the agricultural population, who knew the nature of the soil, whereas the immigrants were soldiers who had to learn how to use the soil, and their teachers were the older cultivators. The previously settled people knew when and how to plough and to sow. The time of reaping was evident, but the soldiers did not love to turn their spears into pruning-hooks, nor to stoop to the hard work of reaping. It was necessary, therefore, to employ the older inhabitants for this purpose; and these must be kept alive. They must retain part of their own soil and crops, or they must work a produce-sharing business. Perhaps both systems were employed.

(2) The old religion and the old gods must not be outraged. They were powerful in their own country; and the new conquerors were obliged to reverence them in order to gain their favour. Religion is the key to the history of Asia.

(3) It is generally the case that soldiers coming into and overrunning a new country have not with them enough of women: the soldiers had often to take wives from the older nations, and a more or less mixed race sprang up. The very stones of the land became men and women (as in the myth of Deucalion).²

(4) An almost more important factor lay in the government of the land. The conquerors formed the council of the king. This was specially the case at first; but with mixture of race and the superior acquisitiveness of the older people, familiar with the land, the council of the king tended to become mixed. The soldier-aristocracy could not keep itself pure and unmixed with the subject population. The abler men among the subjects pushed their way up.

The principle is implied in this religion that the land can be the property in absolute ownership of no human being.³ This is expressed as usual in the sharpest and clearest form in the Old Testament. “The earth is the Lord's and the fulness thereof” (Ps. xxiv. 1): the world is arranged as the expression of the will of God and of moral law, and in the obedience to this divine law lies the way of prosperity. The passage just quoted from Psalm xxiv. is quoted also by St. Paul in discussing the question as to whether meat sacrificed to idols should be eaten by Christians. Absolute ownership belongs to the gods alone. Possession and usufruct can belong to human beings, but are contingent upon their obedience to the law as laid down by the goddess, and as put in execution by the god, who sets an example to men of the right course of life and ritual. If a human possessor neglects his duty to the religion and the land, and allows it to remain useless through laziness or folly, his right to it lapses, and it reverts to the divine ownership, to be granted again to some other deserving possessor. The sinner can atone by public confession and expiation (which imply reform).⁴

The strictness combined with the wonderful elasticity of this principle ensured its hold on human nature. Obedience to the law formed the atmosphere in which the people of the goddess were brought up from infancy. Their life from birth to death was hedged about with the law. They were trained in obedience to it, and they knew perfectly that prosperity and food, and even life itself, depended on obedience to the great principles. We learn the facts in various ways, partly from the confessions made publicly by sinners against the law, partly through the records of history or through the statements with regard to the enforcing of law, and the faults against the law which were usual. We find faults of personal purity, infractions of the law due to greed, or even to carelessness, as when, e.g., a man takes wood from the sacred grove for his own private use, shifting of landmarks in order to increase possession at the expense of one's neighbour, and so on. But we learn of only the very slightest infraction of the agricultural law. It guards itself in this direction. You would as readily expect a farmer in the Lothians to postpone the planting of his potatoes until the season was past, as that an ancient possessor should violate the necessary law of agricultural seasons and the alternation of duties and festivals marking the great seasonal occasions of the agricultural year.

Possession therefore tended to become permanent. The family lived on a piece of land, and clung to it with the intense feeling of the peasant landowner. There is probably hardly any feeling stronger in guiding the conduct of the less educated population than this sense of possession due to confidence that the results of work will belong to the family. This feeling ensured full obedience to agricultural law.

The whole system is, as has already been remarked, based on the sense of security of tenure. As a man has ploughed, so shall he reap. But such feelings and facts are dependent on a state of peace, and cannot last when war and conquest endanger the situation. The invasion of conquering tribes was hostile to the law of the goddess. The conquerors seized part of the land. There existed a sort of international principle, if we may generalise from scattered references and examples, that the conqueror was entitled to take one-third, while two-thirds was left to the possession of the older population and to the ownership of the goddess, exercised through the priests and prophets of the sanctuary. The attitude of the conquerors to the law of the goddess was doubtful. On the one hand, they felt that the gods of the land must be respected and worshipped: on the other hand, they were not willing to lose all advantage from the conquest. In what form then did they hold the land which they had taken? Were they still only possessors and cultivators, or were they owners? If they were only possessors, then the law of the goddess required that they must make profitable use of the land, or it ceased to be theirs, and the advantages of conquest were lost. If, on the other hand, they became absolute owners of the land, the principle of divine law and of divine ownership could not be fulfilled. The law of the goddess was violated, and her wrath must follow.

Something of the process can be gathered from the remarkable inscription which was found engraved on the wall of the great temple of Cybele of Sardis, and which belongs to the closing years of the 4th century or the earliest years of the 3rd century B.C.⁵ This inscription regulated the conduct of an estate belonging to the goddess, but taken in possession or in ownership by a soldier. It is obvious that the owner of such an estate, a soldier accustomed to spend his time in war, and trained to no agricultural administration, found that the possession of sufficient capital was indispensable in working his estate. He had to supply his quota to the management, and as he could not supply it in labour, he must supply it in cash, and only ready money would be accepted in the market. The only place, or at least the most advantageous place, where he could get money was the treasury of the goddess. It has long been recognised that the goddess acted as a steward, willing to take charge of deposits of money. A well-known example is often quoted from Xenophon. For thus taking charge she exacted a percentage, and thus the temple became a sort of banking institution.⁶ The goddess lent the money to the owners of the estates on the security of the property. In this way the mutual arrangement between owner and cultivator was fulfilled.

When the owner, a soldier unused either to agriculture or to business, became a debtor to the religious bank of the goddess, his relation to the priests was seriously affected. He became now subject to the power of the temple, and ceased to enjoy real independence. Thus the situation became a very complicated one; the landowner was borrowing from the temple, and the cultivators had to produce sufficient return from the land to support their own families, and maintain the state and dignity of the landlord, and to pay the interest on the loan. This implies a very complex state of society. No other example occurs exactly similar to this case recorded in the temple at Sardis, but we know nothing about any of the other cases, and have to estimate the entire process which went on during the centuries from general principles, and the obvious facts and needs stated in the one typical case about which full information has survived.

That these great estates came into existence at a comparatively early period in the history of war is certain. The gigantic fortune of Pythios, the host of King Xerxes, whose tragic story is related by Herodotus,⁷ must have been founded on the possession of great estates, and it is not impossible that certain land mentioned in the Sardian inscription just quoted derived its name from being the possession of the ancient Pythios.

The part which was played by the temples, that is to say, the great central sanctuaries which were the original landlords, was a somewhat delicate and difficult one during the period of conquest and of the formation of great private estates; but they had the power which is given by the possession of ready money, and that in the long run proved stronger than the sword. They retained their position and influence throughout the centuries preceding the Roman Conquest. One example is known with regard to the way in which an arrangement was concluded between conquerors and the temple. This was at Pessinus, where an inscription records that half the places in the sacred college of the priests were filled by the conquering Gauls, and the other half presumably were left to the old priestly families. We cannot take this single case as a rule that can be generalised literally. We find, however, that in the great sanctuary at Pisidian Antioch, the Emperor Augustus and his successors governed and owned the entire territory of the god, through a sort of religious fiction, viz. the identification of the god with the Emperor as his manifestation on earth. This is expressed by Strabo under the form that the priesthood was brought to an end, whereas the inscriptions show that the succession of priests did not cease, but that the worship of the sanctuary was maintained with even greater state than before, and that the procurator of the Emperor, who administered the estates for his imperial master, became ex officio the priest of the god. The entire process, therefore, stands out clear. That system of deification of the Emperor and identification of the Emperor with the local god proved the most convenient way for administering government. The Emperor was now the god, and the estates of the god belonged to the Emperor as his impersonation on earth. The Emperor, who could not be present on the estates, was represented by his procurator, and the procurator took the place which the successive priests of the old priestly families used to fill in the ritual and administration of the sanctuary. Each priest was for the time the representative of the god. The god was the original first priest, who showed the subjects of the sanctuary the ritual, and set the original example of the way to perform it in practical life. What Strabo, therefore, means when he says that the priesthood was brought to an end, is that the old system of priestly landlords was done away with, and that Roman officials took their place. The words of Strabo have been often mistranslated and misunderstood. He does not mean “the priesthood was abolished,” but “the system of hereditary priest-dynasts was shorn of its political power.” This case has been recognised by Rostovtsev as typical.⁸

At Pessinus, as has been stated, a partition of the hieratic power according to numbers in a college or council of priests is formally attested during the second century B.C. On this analogy (mutatis mutandis) we must interpret the statement of Strabo xiv. 5. 10, p. 672, that the hieron at Olba in Cilicia Tracheia was founded by Ajax, Aiant-, i.e. Yavan, son of Teukros, i.e. Tarku, that the chief priest of the hieron was dynastes and lord of the whole Tracheiotic land, and that most of the priests were called either Ajax or Teukros. It was pointed out in J.H.S., 1918, p. 131, that these two names represent respectively the sons of Yavan (the early Ionian settlers on the south coast) and the older race of Tarku (the worshippers and people of the Hittite and old Anatolian god Tarku). It is obvious that the genealogical relationship is the ancient expression of an agreement by which the hieratic power was divided between the older race of Tarku and the Ionian sailor-settlers; the moral and legal right was expressed in terms of family relationship;⁹ the younger race Yavan was the son of Tarku, and Yavan was in turn succeeded by his son Tarku, and so on (with some exceptions, about which we have no information).

The history of this development in the law of landed property finds no parallel in Palestine. It was guarded against from early time by a remarkable regulation, which ensured the preservation of old rights. This was the principle of the Jubilee Year.

In the history of the Israelites we hear of no social revolutions or disturbances caused by the operation of debt due from the poor to the rich; we hear indeed about discontent. Debt is inevitable and discontent is inseparable from debt. Changes in the State occurred. One change was brought about by the recognition that greater unity in the nation was required than could be got through the administration by Judges, viz. the institution of kingship at the desire of the people.¹⁰ There was an even more serious change in the constitution, when the land was divided through the revolt of a large part of the country against the cruel exactions and oppressions of the kings. An Asiatic people prefers a monarch to freedom, as many examples prove. The Israelites took possession of the land; and as history is presented to us, they, to a very large extent, destroyed or expelled the older population, and took entire possession, with revocable ownership and re-division. Such of the older population as remained seem to have been reduced to the status of serfs or slaves. The intention was conceived by the great lawgiver to maintain a system of peasant ownership and tribal mastery, and to guard against the formation of large estates through the operation of the law of debt, and the seizing of the property of the debtor by the more prudent and able of the community. It was not allowed to the possessor to sell or to part with the ownership of property permanently. Property must come back to the family every fiftieth year, and the selling of property was burdened with this condition. It has been maintained by almost unanimous foreign opinion, and by a considerable body of opinion in this country, which has been largely influenced by foreign scholarship, that the Jubilee system was a mere invention concocted at a very late period, and that it never came into actual operation. But there was some system whereby the amassing of great estates was prevented. Such a system is mentioned in Ezekiel xlvi. 17, and is implied in some obscure words in Ruth iv. 6.

Here some way in which a term was set to the transference of landed property, so that the transfer became inoperative after a certain period, is clearly implied as customary and in ordinary operation, and no other system of terminating the transference of property is mentioned except the Jubilee system. Ezekiel is, of course, a late witness, but he alludes to a term or limit which is accepted, and which cannot be supposed to have originated in any recent period, while the Book of Ruth is accepted almost universally as being an extremely early production. The reference in Numbers xxxvi. 4 can hardly be used, any more than the law itself as stated in Leviticus, because the antiquity of those books is contested by those who ridicule the idea that a Jubilee system ever existed as a real fact in social life. But, at least, this chapter of Numbers bears witness to the existence of a strong and universal feeling that the land of one tribe should not be suffered to be cut up and pass out of the tribe in parts through the marriage of women of one tribe with men of another. The story in 1 Kings xxi. about Naboth's vineyard, which King Ahab offered to purchase from him, bears witness to the intense attachment of the people to the principle that the inheritance of a family should remain in the family. Naboth refused, not on the ground that he individually was specially fond of this property, but on the ground that it would be unlawful and contrary to the will and command of God that he should give away or sell the family inheritance to any other person. It is noteworthy that Ahab, in telling what had happened to Queen Jezebel, does not state the case truly. He simply says that Naboth refused to give or sell the King his vineyard. The Queen, as a foreigner, did not know the feeling of the Hebrews on this point. She treated it as mere unreasonable churlishness, since the owner would neither accept another vineyard equally good in place of his own, nor the money value. To her there is no question of religion involved, but to Naboth the matter was clearly a question of the religious law. Whether Jezebel's intention would have been affected by knowledge of the real situation remains doubtful, but at least the story shows that she was misinformed with regard to Naboth's motives. A feeling like this is intensely strong, and grows stronger with the generations. There are few emotions which have affected the conduct of society more powerfully than the attachment to family property in land. The possessor for the time being regards himself, not merely as the owner of something which he is free to alienate, but as the trustee representing the interests of his family, and when one reads the facts of a story like this, one feels that those who discredit the existence of a Jubilee system regulating the transfer of land, and preventing it from being permanent, are bound to show reason why this feeling in the people never expressed itself in any regulation. The Mosaic system takes account of it and regulates it. There is nothing impossible in the carrying out of some system of this kind, as described in the Law. Those who ridicule this regulation as a somewhat fanciful invention of a late writer, never affecting the social structure of Hebrew history, are failing in what the historian must regard as a necessary condition of sound interpretation of historical records. They are not even attempting to explain how the old ideas of divine ownership, and the historical fact that tribes and families clung to their land as a religious institution, produced no effect in written regulation. The Jubilee principle may have come down to us in a form which is like some American laws, made to look well and symmetrical on the Statute Book. It may, perhaps, be elaborated in a more official form according to certain numerical principles, but that something of the kind did exist seems beyond a doubt. If it was not incorporated in the Mosaic Law by Moses, this can only have been due to the fact that it was so deeply rooted in the heart and conduct of the people as to require no formal re-enactment at that time. But the writer feels no doubt that the principle was adopted from the old national feeling by Moses, and made into a legal statute.

We should be glad to know, and probably there is some evidence bearing on this point, whether the ownership which is spoken of was possession or absolute dominion. As we have seen, the old system contemplated by the religion and usage of Anatolia permitted only possession, and made the possession contingent on actual use, and in that country the introduction of dominion in land was due to foreign conquest. The Israelites came into possession of Palestine by conquest. The question arises, whether they regarded either tribal ownership or the family ownership as being of the nature of absolute dominion, or only of possession, while the ownership belonged to Jehovah. The expression above quoted from Ps. xxiv. is only a reaffirmation of the general principle in Exodus xix. 5, “All the earth is mine,” and confirmed again in Deut. x. 14. But its expression is couched in a form so general that it is hardly convincing with regard to ownership of the land of Palestine, and I am not aware of any regulation making the possession either by tribe or family of land contingent upon actual use. It may perhaps have been assumed that the family would without doubt use its property and obey the divine law, but the whole question is not free from difficulty.

Another form of joint possession of the fruits of labour was also practised, viz. that the conquerors became landlords, and their lands were cultivated by the older population as resident labourers; these labourers were not slaves, but free, and their remuneration was a share of the produce. There is no evidence as to proportion customary in Anatolia in sharing the harvest; but there lies at the basis of the system the principle of the Idia (ἡ ἰδία, τὰ ἴδια¹¹), viz. that the cultivator was bound to reside and work on the land owned by the conquering owners, and was not permitted to migrate and to leave the land uncultivated. Such a system of joint possession and profit-sharing is undoubtedly implied in the situation, but details are as yet a matter of investigation and conjecture. There was certainly no rigidly fixed law, giving the proprietor a right to the work of the cultivator, and power to detain the cultivator and force him to labour. In fact, law was still merely inchoate, and tribunals for enforcing law hardly existed. It was largely a matter of custom, and was enforced only by the general agreement on all sides that this system, as it existed, should be observed. The new generation of labourers and of owners grew up in the system, and lived according to it in an easy-going fashion, which admitted and connived at exceptions. A certain looseness suited human nature; exceptional individuals broke away from the common practice; and, so long as these were only occasional and rare, the custom remained and was generally accepted.

Moreover, the hieratic and theocratic order continued powerful in its new form, as shared between the old priestly families and the conquerors; and it enjoined the system of resident labour and sharing produce as a religious duty. The god approved the custom; but enforcing was left to the divine lord.¹² Where exceptional individuals broke away from the custom, they had to accept the penalty; and punishment came sooner or later in the form of fever, or bodily accident or misfortune. The sufferer recognised that his sin had been the cause of his suffering, and commonly he sought to appease the god, confessing his sin and making atonement. As the common use of writing spread among the rustics,¹³ these “Confessions” were often displayed on stelae so that all might read and take warning by them. In the confessions that have survived, the recording stele is called Exonplarion or Exoprareion (Latin exemplar), which shows that the custom of publication by writing on a stone displayed to general view did not become usual until the Roman period, and therefore acquired a Latin name. Moreover, this habit began early in the Roman period, before the idea of enforcing the use of Latin had been abandoned in the Anatolian provinces, and before Greek had been accepted by the Roman organisation of government as the language of the social organisation. The facts, therefore, prove that the publication began to be customary about or shortly after the reign of Augustus in those regions where this Latin name was employed.