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Kitto's Popular Cyclopedia of Biblial Literature
The laws and observances which determine the acquisition and regulate the devolution of property, are among the influences which affect the vital interests of states; and it is therefore of high consequence to ascertain the nature and bearing of the laws and observances relating to this subject which come to us with the sanction of the Bible. We may also premise that, in a condition of society such as that in which we now live, wherein the two diverging tendencies which favor immense accumulations on the one hand, and lead to poverty and pauperism on the other, are daily becoming more and more decided, disturbing, and baneful, there seems to be required on the part of those who take Scripture as their guide, a careful study of the foundations of human society, and of the laws of property, as they are developed in the divine records which contain the revealed will of God.
That will, in truth, as it is the source of all created things, and especially of the earth and its intelligent denizen, man, so is it the original foundation of property, and of the laws by which its inheritance should be regulated. God, as the Creator of the earth, gave it to man to be held, cultivated, and enjoyed (, sq.;; ). The primitive records are too brief and fragmentary to supply us with any details respecting the earliest distribution or transmission of landed property; but from the passages to which reference has been made, the important fact appears to be established beyond a question, that the origin of property is to be found, not in the achievements of violence, the success of the sword, or any imaginary implied contract, but in the will and the gift of the common Creator and bountiful Father of the human race. It is equally clear that the gift was made, not to any favored portion of our race, but to the race itself—to man as represented by our great primogenitor, to whom the use of the divine gift was first graciously vouchsafed.
The impression which the original gift of the earth was calculated to make on men the Great Donor was pleased, in the case of Palestine, to render, for his own wise purposes, more decided and emphatic by an express re-donation to the patriarch Abraham (, sq.). Many years, however, elapsed before the promise was fulfilled. Meanwhile the notices which we have regarding the state of property in the patriarchal ages, are few and not very definite. The products of the earth, however, were at an early period accumulated and held as property. Violence invaded the possession; opposing violence recovered the goods. War soon sprang out of the passions of the human heart. The necessity of civil government was felt. Consuetudinary laws accordingly developed themselves. The head of the family was supreme. His will was law. The physical superiority which he possessed gave him this dominion. The same influence would secure its transmission in the male rather than the female line. Hence too the rise of the rights of primogeniture. In the early condition of society which is called patriarchal, landed property had its origin, indeed, but could not be held of first importance by those who led a wandering life, shifting continually, as convenience suggested, from one spot to another. Cattle were then the chief property (). But land, if held, was held on a freehold tenure; nor could any other tenure have come into existence till more complex and artificial relations arose, resulting, in all probability, from the increase of population and the relative insufficiency of food. When Joseph went down into Egypt, he appears to have found the freehold tenure prevailing, which, however, he converted into a tenancy at will, or, at any rate, into a conditional tenancy. Other intimations are found in Genesis which confirm the general statements which have just been made. Daughters do not appear to have had any inheritance. If there are any exceptions to this rule, they only serve to prove it. Thus Job (the book so called is undoubtedly very old, so that there is no impropriety in citing it in this connection) is recorded () to have given his daughters an inheritance conjointly with their brothers—a record which of itself proves the singularity of the proceeding, and establishes our position that inheritance generally followed the male line. How highly the privileges conferred by primogeniture were valued, may be learned from the history of Jacob and Esau. In the patriarchal age doubtless these rights were very great. The eldest son, as being by nature the first fitted for command, assumed influence and control, under his father, over the family and its dependents; and when the father was removed by death, he readily, and as if by an act of Providence, took his father's place. Thus he succeeded to the property in succeeding to the headship of the family, the clan, or the tribe. At first the eldest son most probably took exclusive possession of his father's property and power; and when, subsequently, a division became customary, he would still retain the largest share—a double portion, if not more (;; ). That in the days of Abraham other sons partook with the eldest, and that too though they were sons of concubines, is clear from the story of Hagar's expulsion:—'Cast out (said Sarah) this bondwoman and her son; for the son of this bondwoman shall not be heir with my son, even with Isaac' (). The few notices left us in Genesis of the transfer of property from hand to hand are interesting, and bear a remarkable similarity to what takes place in Eastern countries even at this day (, sq.; 23:9, sq.). The purchase of the Cave of Machpelah as a family burying-place for Abraham, detailed in the last passage, serves to show the safety of property at that early period, and the facility with which an inheritance was transmitted even to sons' sons (comp. ). That it was customary, during the father's lifetime, to make a disposition of property, is evident from , where it is said that Abraham had given all he had to Isaac. This statement is further confirmed by , where it is added that Abraham gave to the sons of his concubines 'gifts, sending them away from Isaac his son, while he yet lived, eastward unto the east country.' Sometimes, however, so far were the children of unmarried females from being dismissed with a gift, that they shared with what we should term the legitimate children, in the father's property and rights. Thus Dan and Naphtali were sons of Bilhah, Rachel's maid, whom she gave to her husband, failing to bear children herself. So Gad and Asher were, under similar circumstances, sons of Zilpah, Leah's maid (). In the event of the eldest son's dying in the father's lifetime, the next son took his place; and if the eldest son left a widow, the next son made her his wife (, sq.), the offspring of which union was reckoned to the first-born and deceased son. Should the second likewise die, the third son took his place (). While the rights of the first-born were generally established and recognized, yet were they sometimes set aside in favor of a younger child. The blessing of the father or the grandsire seems to have been an act essential in the devolution of power and property—in its effects not unlike wills and testaments with us; and instances are not wanting in which this (so to term it) testamentary bequest set aside consuetudinary laws, and gave precedence to a younger son (, sq.). Special claims on the parental regards were acknowledged and rewarded by special gifts, as in the case of Jacob's donation to Joseph (). In a similar manner, bad conduct on the part of the eldest son (as well as of others) subjected him, if not to the loss of his rights of property, yet to the evil influence of his father's dying malediction (); while the good and favored, though younger, son was led by the paternal blessing to anticipate, and probably also to reap, the richest inheritance of individual and social happiness ().
The original promise made to Abraham of the land of Palestine was solemnly repeated to Isaac (), the reason assigned being, because 'Abraham obeyed my voice and kept my charge, my commandments, my statutes, and my laws;' while it is expressly declared that the earlier inhabitants of the country were dispossessed and destined to extermination for the greatness of their iniquity. The possession of the Promised Land was embraced by Isaac in his dying benediction to Jacob (), to whom God vouchsafed (; see also ) to give a renewed assurance of the destined inheritance. That this donation, however, was held to be dependent for the time and manner of its fulfillment on the divine will, appeal's from , where Jacob, on coming into the land of Canaan, bought for an hundred pieces of money 'a parcel of a field, at the hand of the children of Hamor.' Delayed though the execution of the promise was, confidence never deserted the family of Abraham, so that Joseph, dying in the land of Egypt, assured his brothers that they would be visited of God and placed in possession of Canaan, enjoining on them, in this conviction, that when conducted to their possession, they should carry his bones with them out of Egypt ().
A promise thus given, thus repeated, and thus believed, easily, and indeed unavoidably, became the fundamental principle of that settlement of property which Moses made when at length he had effected the divine will in the redemption of the children of Israel. The observances and practices, too, which we have noticed as prevailing among the patriarchs would, no doubt, have great influence on the laws which the Jewish legislator originated or sanctioned. The land of Canaan was divided among the twelve tribes descended through Isaac and Jacob from Abraham. The division was made by lot for an inheritance among the families of the sons of Israel, according to the tribes, and to the number and size of families in each tribe. The tribe of Levi, however, had no inheritance, but forty-eight cities with their suburbs were assigned to the Levites, each tribe giving according to the number of cities that fell to its share ( sq.; 34:1 sq.; 35:1 sq.). The inheritance thus acquired was never to leave the tribe to which it belonged; every tribe was to keep strictly to its own inheritance. An heiress, in consequence, was not allowed to marry out of her own tribe, lest property should pass by her marriage into another tribe (). This restriction led to the marriage of heiresses with their near relations: thus the daughters of Zelophehad 'were married unto their father's brother's sons,' 'and their inheritance remained in the tribe of the family of their father' (). In general cases the inheritance went to sons, the first-born receiving a double portion, 'for he is the beginning of his father's strength.' If a man had two wives, one beloved, the other hated, and if the first-born were the son of her who was hated, he nevertheless was to enjoy 'the right of the firstborn' (). If a man left no sons, the inheritance passed to his daughters; if there was no daughter, it went to his brothers; in case there were no brothers, it was given to his father's brothers; if his father had no brothers, it came into possession of the nearest kinsman (). The land was Jehovah's, and could not therefore be permanently alienated. Every fiftieth year, whatever land had been sold returned to its former owner. The value and price of land naturally rose or fell in proportion to the number of years there were to elapse prior to the ensuing fiftieth or jubilee-year. If he who sold the land, or a kinsman, could redeem the land before the year of jubilee, it was to be restored to him on his paying to the purchaser the value of the produce of the years remaining till the jubilee. Houses in villages or unwalled towns might not be sold for ever; they were restored at the jubilee, and might at any time be redeemed. If a man sold a dwelling-house situated in a walled city, he had the option of redeeming it within the space of a full year after it had been sold; but if it remained unredeemed, it belonged to the purchaser, and did not return to him who sold it even at the jubilee (; ). The Levites were not allowed to sell the land in the suburbs of their cities, though they might dispose of the cities themselves, which, however, were redeem able at any time, and must return at the jubilee to their original possessors ().
The regulations which the laws of Moses established rendered wills, or a testamentary disposition of (at least) landed property, almost, if not quite, unnecessary; we accordingly find no provision for anything of the kind. Some difficulty may have been now and then occasioned, when near relations failed; but this was met by the traditional law, which furnished minute directions on the point. Personal property would naturally follow the land, or might be bequeathed by word of mouth. At a later period of the Jewish polity the mention of wills is found, but the idea seems to have been taken from foreign nations. In princely families they appear to have been used, as we learn from Josephus; but such a practice can hardly suffice to establish the general use of wills among the people. In the New Testament, however, wills are expressly mentioned (; ).
Kitto, John, ed. Entry for 'Inheritance'. "Kitto's Popular Cyclopedia of Biblial Literature". https://www.studylight.org/encyclopedias/eng/kbe/i/inheritance.html.