CHAPTER V

PRIMITIVE SOCIETY AND ANCIENT LAW

The necessity of submitting the subject of jurisprudence to scientific

treatment has never been entirely lost sight of in modern times, and

the essays which the consciousness of this necessity has produced have

proceeded from minds of very various calibre, but there is not much

presumption, I think, in asserting that what has hitherto stood in the

place of a science has for the most part been a set of guesses, those

very guesses of the Roman lawyers which were examined in the two

preceding chapters. A series of explicit statements, recognising and

adopting these conjectural theories of a natural state, and of a

system of principles congenial to it, has been continued with but

brief interruption from the days of their inventors to our own. They

appear in the annotations of the Glossators who founded modern

jurisprudence, and in the writings of the scholastic jurists who

succeeded them. They are visible in the dogmas of the canonists. They

are thrust into prominence by those civilians of marvellous erudition,

who flourished at the revival of ancient letters. Grotius and his

successors invested them not less with brilliancy and plausibility

than with practical importance. They may be read in the introductory

chapters of our own Blackstone, who has transcribed them textually

from Burlamaqui, and wherever the manuals published in the present day

for the guidance of the student or the practitioner begin with any

discussion of the first principles of law, it always resolves itself

into a restatement of the Roman hypothesis. It is however from the

disguises with which these conjectures sometimes clothe themselves,

quite as much as from their native form, that we gain an adequate idea

of the subtlety with which they mix themselves in human thought. The

Lockeian theory of the origin of Law in a Social Compact scarcely

conceals its Roman derivation, and indeed is only the dress by which

the ancient views were rendered more attractive to a particular

generation of the moderns; but on the other hand the theory of Hobbes

on the same subject was purposely devised to repudiate the reality of

a law of nature as conceived by the Romans and their disciples. Yet

these two theories, which long divided the reflecting politicians of

England into hostile camps, resemble each other strictly in their

fundamental assumption of a non-historic, unverifiable, condition of

the race. Their authors differed as to the characteristics of the

prae-social state, and as to the nature of the abnormal action by which

men lifted themselves out of it into that social organisation with

which alone we are acquainted, but they agreed in thinking that a

great chasm separated man in his primitive condition from man in

society, and this notion we cannot doubt that they borrowed,

consciously or unconsciously, from the Romans. If indeed the phenomena

of law be regarded in the way in which these theorists regarded

them--that is, as one vast complex whole--it is not surprising that

the mind should often evade the task it has set to itself by falling

back on some ingenious conjecture which (plausibly interpreted) will

seem to reconcile everything, or else that it should sometimes abjure

in despair the labour of systematization.

From the theories of jurisprudence which have the same speculative

basis as the Roman doctrine two of much celebrity must be excepted.

The first of them is that associated with the great name of

Montesquieu. Though there are some ambiguous expressions in the early

part of the _Esprit des Lois_, which seem to show its writer's

unwillingness to break quite openly with the views hitherto popular,

the general drift of the book is certainly to indicate a very

different conception of its subject from any which had been

entertained before. It has often been noticed that, amidst the vast

variety of examples which, in its immense width of survey, it sweeps

together from supposed systems of jurisprudence, there is an evident

anxiety to thrust into especial prominence those manners and

institutions which astonish the civilised reader by their uncouthness,

strangeness, or indecency. The inference constantly suggested is, that

laws are the creatures of climate, local situation, accident, or

imposture--the fruit of any causes except those which appear to

operate with tolerable constancy. Montesquieu seems, in fact, to have

looked on the nature of man as entirely plastic, as passively

reproducing the impressions, and submitting implicitly to the

impulses, which it receives from without. And here no doubt lies the

error which vitiates his system as a system. He greatly underrates the

stability of human nature. He pays little or no regard to the

inherited qualities of the race, those qualities which each generation

receives from its predecessors, and transmits but slightly altered to

the generation which follows it. It is quite true, indeed, that no

complete account can be given of social phenomena, and consequently of

laws, till due allowance has been made for those modifying causes

which are noticed in the _Esprit des Lois_; but their number and their

force appear to have been overestimated by Montesquieu. Many of the

anomalies which he parades have since been shown to rest on false

report or erroneous construction, and of those which remain not a few

prove the permanence rather than the variableness of man's nature,

since they are relics of older stages of the race which have

obstinately defied the influences that have elsewhere had effect. The

truth is that the stable part of our mental, moral, and physical

constitution is the largest part of it, and the resistance it opposes

to change is such that, though the variations of human society in a

portion of the world are plain enough, they are neither so rapid nor

so extensive that their amount, character, and general direction

cannot be ascertained. An approximation to truth may be all that is

attainable with our present knowledge, but there is no reason for

thinking that is so remote, or (what is the same thing) that it

requires so much future correction, as to be entirely useless and

uninstructive.

The other theory which has been adverted to is the historical theory

of Bentham. This theory which is obscurely (and, it might even be

said, timidly) propounded in several parts of Bentham's works is quite

distinct from that analysis of the conception of law which he

commenced in the "Fragment on Government," and which was more recently

completed by Mr. John Austin. The resolution of a law into a command

of a particular nature, imposed under special conditions, does not

affect to do more than protect us against a difficulty--a most

formidable one certainly--of language. The whole question remains open

as to the motives of societies in imposing these commands on

themselves, as to the connection of these commands with each other, and

the nature of their dependence on those which preceded them, and

which they have superseded. Bentham suggests the answer that

societies modify, and have always modified, their laws according to

modifications of their views of general expediency. It is difficult to

say that this proposition is false, but it certainly appears to be

unfruitful. For that which seems expedient to a society, or rather to

the governing part of it, when it alters a rule of law is surely the

same thing as the object, whatever it may be, which it has in view

when it makes the change. Expediency and the greatest good are nothing

more than different names for the impulse which prompts the

modification; and when we lay down expediency as the rule of change in

law or opinion, all we get by the proposition is the substitution of

an express term for a term which is necessarily implied when we say

that a change takes place.

There is such wide-spread dissatisfaction with existing theories of

jurisprudence, and so general a conviction that they do not really

solve the questions they pretend to dispose of, as to justify the

suspicion that some line of inquiry necessary to a perfect result has

been incompletely followed or altogether omitted by their authors. And

indeed there is one remarkable omission with which all these

speculations are chargeable, except perhaps those of Montesquieu. They

take no account of what law has actually been at epochs remote from

the particular period at which they made their appearance. Their

originators carefully observed the institutions of their own age and

civilisation, and those of other ages and civilisations with which

they had some degree of intellectual sympathy, but, when they turned

their attention to archaic states of society which exhibited much

superficial difference from their own, they uniformly ceased to

observe and began guessing. The mistake which they committed is

therefore analogous to the error of one who, in investigating the laws

of the material universe, should commence by contemplating the

existing physical world as a whole, instead of beginning with the

particles which are its simplest ingredients. One does not certainly

see why such a scientific solecism should be more defensible in

jurisprudence than in any other region of thought. It would seem

antecedently that we ought to commence with the simplest social forms

in a state as near as possible to their rudimentary condition. In

other words, if we followed the course usual in such inquiries, we

should penetrate as far up as we could in the history of primitive

societies. The phenomena which early societies present us with are not

easy at first to understand, but the difficulty of grappling with them

bears no proportion to the perplexities which beset us in considering

the baffling entanglement of modern social organisation. It is a

difficulty arising from their strangeness and uncouthness, not from

their number and complexity. One does not readily get over the

surprise which they occasion when looked at from a modern point of

view; but when that is surmounted they are few enough and simple

enough. But even if they gave more trouble than they do, no pains

would be wasted in ascertaining the germs out of which has assuredly

been unfolded every form of moral restraint which controls our actions

and shapes our conduct at the present moment.

The rudiments of the social state, so far as they are known to us at

all, are known through testimony of three sorts--accounts by

contemporary observers of civilisations less advanced than their own,

the records which particular races have preserved concerning their

primitive history, and ancient law. The first kind of evidence is the

best we could have expected. As societies do not advance concurrently,

but at different rates of progress, there have been epochs at which

men trained to habits of methodical observation have really been in a

position to watch and describe the infancy of mankind. Tacitus made

the most of such an opportunity; but the _Germany_, unlike most

celebrated classical books, has not induced others to follow the

excellent example set by its author, and the amount of this sort of

testimony which we possess is exceedingly small. The lofty contempt

which a civilised people entertains for barbarous neighbours has

caused a remarkable negligence in observing them, and this

carelessness has been aggravated at times by fear, by religious

prejudice, and even by the use of these very terms--civilisation and

barbarism--which convey to most persons the impression of a difference

not merely in degree but in kind. Even the _Germany_ has been

suspected by some critics of sacrificing fidelity to poignancy of

contrast and picturesqueness of narrative. Other histories too, which

have been handed down to us among the archives of the people to whose

infancy they relate, have been thought distorted by the pride of race

or by the religious sentiment of a newer age. It is important then to

observe that these suspicions, whether groundless or rational, do not

attach to a great deal of archaic law. Much of the old law which has

descended to us was preserved merely because it was old. Those who

practised and obeyed it did not pretend to understand it; and in some

cases they even ridiculed and despised it. They offered no account of

it except that it had come down to them from their ancestors. If we

confine our attention, then, to those fragments of ancient

institutions which cannot reasonably be supposed to have been tampered

with, we are able to gain a clear conception of certain great

characteristics of the society to which they originally belonged.

Advancing a step further, we can apply our knowledge to systems of law

which, like the Code of Menu, are as a whole of suspicious

authenticity; and, using the key we have obtained, we are in a

position to discriminate those portions of them which are truly

archaic from those which have been affected by the prejudices,

interests, or ignorance of the compiler. It will at least be

acknowledged that, if the materials for this process are sufficient,

and if the comparisons be accurately executed, the methods followed

are as little objectionable as those which have led to such surprising

results in comparative philology.

The effect of the evidence derived from comparative jurisprudence is

to establish that view of the primeval condition of the human race

which is known as the Patriarchal Theory. There is no doubt, of

course, that this theory was originally based on the Scriptural

history of the Hebrew patriarchs in Lower Asia; but, as has been

explained already, its connection with Scripture rather militated than

otherwise against its reception as a complete theory, since the

majority of the inquirers who till recently addressed themselves with

most earnestness to the colligation of social phenomena, were either

influenced by the strongest prejudice against Hebrew antiquities or by

the strongest desire to construct their system without the assistance

of religious records. Even now there is perhaps a disposition to

undervalue these accounts, or rather to decline generalising from

them, as forming part of the traditions of a Semitic people. It is to

be noted, however, that the legal testimony comes nearly exclusively

from the institutions of societies belonging to the Indo-European

stock, the Romans, Hindoos, and Sclavonians supplying the greater part

of it; and indeed the difficulty at the present stage of the inquiry,

is to know where to stop, to say of what races of men it is _not_

allowable to lay down that the society in which they are united was

originally organised on the patriarchal model. The chief lineaments of

such a society, as collected from the early chapters in Genesis, I

need not attempt to depict with any minuteness, both because they are

familiar to most of us from our earliest childhood, and because, from

the interest once attaching to the controversy which takes its name

from the debate between Locke and Filmer, they fill a whole chapter,

though not a very profitable one, in English literature. The points

which lie on the surface of the history are these:--The eldest male

parent--the eldest ascendant--is absolutely supreme in his household.

His dominion extends to life and death, and is as unqualified over his

children and their houses as over his slaves; indeed the relations of

sonship and serfdom appear to differ in little beyond the higher

capacity which the child in blood possesses of becoming one day the

head of a family himself. The flocks and herds of the children are the

flocks and herds of the father, and the possessions of the parent,

which he holds in a representative rather than in a proprietary

character, are equally divided at his death among his descendants in

the first degree, the eldest son sometimes receiving a double share

under the name of birthright, but more generally endowed with no

hereditary advantage beyond an honorary precedence. A less obvious

inference from the Scriptural accounts is that they seem to plant us

on the traces of the breach which is first effected in the empire of

the parent. The families of Jacob and Esau separate and form two

nations; but the families of Jacob's children hold together and become

a people. This looks like the immature germ of a state or

commonwealth, and of an order of rights superior to the claims of

family relation.

If I were attempting for the more special purposes of the jurist to

express compendiously the characteristics of the situation in which

mankind disclose themselves at the dawn of their history, I should be

satisfied to quote a few verses from the _Odyssee_ of Homer:

[Greek: toisin d out agorai boulephoroi oute themistes.

* * * themisteuei de ekastos

paidon ed alochon, oud allelon alegousin.]

"They have neither assemblies for consultation nor _themistes_, but

every one exercises jurisdiction over his wives and his children, and

they pay no regard to one another." These lines are applied to the

Cyclops, and it may not perhaps be an altogether fanciful idea when I

suggest that the Cyclops is Homer's type of an alien and less advanced

civilisation; for the almost physical loathing which a primitive

community feels for men of widely different manners from its own

usually expresses itself by describing them as monsters, such as

giants, or even (which is almost always the case in Oriental

mythology) as demons. However that may be, the verses condense in

themselves the sum of the hints which are given us by legal

antiquities. Men are first seen distributed in perfectly insulated

groups, held together by obedience to the parent. Law is the parent's

word, but it is not yet in the condition of those _themistes_ which

were analysed in the first chapter of this work. When we go forward to

the state of society in which these early legal conceptions show

themselves as formed, we find that they still partake of the mystery

and spontaneity which must have seemed to characterise a despotic

father's commands, but that at the same time, inasmuch as they proceed

from a sovereign, they presuppose a union of family groups in some

wider organisation. The next question is, what is the nature of this

union and the degree of intimacy which it involves? It is just here

that archaic law renders us one of the greatest of its services and

fills up a gap which otherwise could only have been bridged by

conjecture. It is full, in all its provinces, of the clearest

indications that society in primitive times was not what it is assumed

to be at present, a collection of _individuals_. In fact, and in the

view of the men who composed it, it was _an aggregation of families_.

The contrast may be most forcibly expressed by saying that the _unit_

of an ancient society was the Family, of a modern society the

Individual. We must be prepared to find in ancient law all the

consequences of this difference. It is so framed as to be adjusted to

a system of small independent corporations. It is therefore scanty,

because it is supplemented by the despotic commands of the heads of

households. It is ceremonious, because the transactions to which it

pays regard resemble international concerns much more than the quick

play of intercourse between individuals. Above all it has a

peculiarity of which the full importance cannot be shown at present.

It takes a view of _life_ wholly unlike any which appears in developed

jurisprudence. Corporations _never die_, and accordingly primitive law

considers the entities with which it deals, _i.e._ the patriarchal or

family groups, as perpetual and inextinguishable. This view is closely

allied to the peculiar aspect under which, in very ancient times,

moral attributes present themselves. The moral elevation and moral

debasement of the individual appear to be confounded with, or

postponed to, the merits and offences of the group to which the

individual belongs. If the community sins, its guilt is much more than

the sum of the offences committed by its members; the crime is a

corporate act, and extends in its consequences to many more persons

than have shared in its actual perpetration. If, on the other hand,

the individual is conspicuously guilty, it is his children, his

kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him,

and sometimes for him. It thus happens that the ideas of moral

responsibility and retribution often seem to be more clearly realised

at very ancient than at more advanced periods, for, as the family

group is immortal, and its liability to punishment indefinite, the

primitive mind is not perplexed by the questions which become

troublesome as soon as the individual is conceived as altogether

separate from the group. One step in the transition from the ancient

and simple view of the matter to the theological or metaphysical

explanations of later days is marked by the early Greek notion of an

inherited curse. The bequest received by his posterity from the

original criminal was not a liability to punishment, but a liability

to the commission of fresh offences which drew with them a condign

retribution; and thus the responsibility of the family was reconciled

with the newer phase of thought which limited the consequences of

crime to the person of the actual delinquent.

It would be a very simple explanation of the origin of society if we

could base a general conclusion on the hint furnished us by the

scriptural example already adverted to, and could suppose that

communities began to exist wherever a family held together instead of

separating at the death of its patriarchal chieftain. In most of the

Greek states and in Rome there long remained the vestiges of an

ascending series of groups out of which the State was at first

constituted. The Family, House, and Tribe of the Romans may be taken

as the type of them, and they are so described to us that we can

scarcely help conceiving them as a system of concentric circles which

have gradually expanded from the same point. The elementary group is

the Family, connected by common subjection to the highest male

ascendant. The aggregation of Families forms the Gens or House. The

aggregation of Houses makes the Tribe. The aggregation of Tribes

constitutes the Commonwealth. Are we at liberty to follow these

indications, and to lay down that the commonwealth is a collection of

persons united by common descent from the progenitor of an original

family? Of this we may at least be certain, that all ancient societies

regarded themselves as having proceeded from one original stock, and

even laboured under an incapacity for comprehending any reason except

this for their holding together in political union. The history of

political ideas begins, in fact, with the assumption that kinship in

blood is the sole possible ground of community in political functions;

nor is there any of those subversions of feeling, which we term

emphatically revolutions, so startling and so complete as the change

which is accomplished when some other principle--such as that, for

instance, of _local contiguity_--establishes itself for the first time

as the basis of common political action. It may be affirmed then of

early commonwealths that their citizens considered all the groups in

which they claimed membership to be founded on common lineage. What

was obviously true of the Family was believed to be true first of the

House, next of the Tribe, lastly of the State. And yet we find that

along with this belief, or, if we may use the word, this theory, each

community preserved records or traditions which distinctly showed that

the fundamental assumption was false. Whether we look to the Greek

states, or to Rome, or to the Teutonic aristocracies in Ditmarsh which

furnished Niebuhr with so many valuable illustrations, or to the

Celtic clan associations, or to that strange social organisation of

the Sclavonic Russians and Poles which has only lately attracted

notice, everywhere we discover traces of passages in their history

when men of alien descent were admitted to, and amalgamated with, the

original brotherhood. Adverting to Rome singly, we perceive that the

primary group, the Family, was being constantly adulterated by the

practice of adoption, while stories seem to have been always current

respecting the exotic extraction of one of the original Tribes and

concerning a large addition to the houses made by one of the early

kings. The composition of the state, uniformly assumed to be natural,

was nevertheless known to be in great measure artificial. This

conflict between belief or theory and notorious fact is at first sight

extremely perplexing; but what it really illustrates is the efficiency

with which Legal Fictions do their work in the infancy of society. The

earliest and most extensively employed of legal fictions was that

which permitted family relations to be created artificially, and there

is none to which I conceive mankind to be more deeply indebted. If it

had never existed, I do not see how any one of the primitive groups,

whatever were their nature, could have absorbed another, or on what

terms any two of them could have combined, except those of absolute

superiority on one side and absolute subjection on the other. No

doubt, when with our modern ideas we contemplate the union of

independent communities, we can suggest a hundred modes of carrying it

out, the simplest of all being that the individuals comprised in the

coalescing groups shall vote or act together according to local

propinquity; but the idea that a number of persons should exercise

political rights in common simply because they happened to live within

the same topographical limits was utterly strange and monstrous to

primitive antiquity. The expedient which in those times commanded

favour was that the incoming population should _feign themselves_ to

be descended from the same stock as the people on whom they were

engrafted; and it is precisely the good faith of this fiction, and the

closeness with which it seemed to imitate reality, that we cannot now

hope to understand. One circumstance, however, which it is important

to recollect, is that the men who formed the various political groups

were certainly in the habit of meeting together periodically, for the

purpose of acknowledging and consecrating their association by common

sacrifices. Strangers amalgamated with the brotherhood were doubtless

admitted to these sacrifices; and when that was once done we can

believe that it seemed equally easy, or not more difficult, to

conceive them as sharing in the common lineage. The conclusion then

which is suggested by the evidence is, not that all early societies

were formed by descent from the same ancestor, but that all of them

which had any permanence and solidity either were so descended or

assumed that they were. An indefinite number of causes may have

shattered the primitive groups, but wherever their ingredients

recombined, it was on the model or principle of an association of

kindred. Whatever were the fact, all thought, language, and law

adjusted themselves to the assumption. But though all this seems to me

to be established with reference to the communities with whose records

we are acquainted, the remainder of their history sustains the

position before laid down as to the essentially transient and

terminable influence of the most powerful Legal Fictions. At some

point of time--probably as soon as they felt themselves strong enough

to resist extrinsic pressure--all these states ceased to recruit

themselves by factitious extensions of consanguinity. They

necessarily, therefore, became Aristocracies, in all cases where a

fresh population from any cause collected around them which could put

in no claim to community of origin. Their sternness in maintaining the

central principle of a system under which political rights were

attainable on no terms whatever except connection in blood, real or

artificial, taught their inferiors another principle, which proved to

be endowed with a far higher measure of vitality. This was the

principle of _local contiguity_, now recognised everywhere as the

condition of community in political functions. A new set of political

ideas came at once into existence, which, being those of ourselves,

our contemporaries, and in great measure of our ancestors, rather

obscure our perception of the older theory which they vanquished and

dethroned.

The Family then is the type of an archaic society in all the

modifications which it was capable of assuming; but the family here

spoken of is not exactly the family as understood by a modern. In

order to reach the ancient conception we must give to our modern ideas

an important extension and an important limitation. We must look on

the family as constantly enlarged by the absorption of strangers

within its circle, and we must try to regard the fiction of adoption

as so closely simulating the reality of kinship that neither law nor

opinion makes the slightest difference between a real and an adoptive

connection. On the other hand, the persons theoretically amalgamated

into a family by their common descent are practically held together by

common obedience to their highest living ascendant, the father,

grandfather, or great-grandfather. The patriarchal authority of a

chieftain is as necessary an ingredient in the notion of the family

group as the fact (or assumed fact) of its having sprung from his

loins; and hence we must understand that if there be any persons who,

however truly included in the brotherhood by virtue of their

blood-relationship, have nevertheless _de facto_ withdrawn themselves

from the empire of its ruler, they are always, in the beginnings of

law, considered as lost to the family. It is this patriarchal

aggregate--the modern family thus cut down on one side and extended on

the other--which meets us on the threshold of primitive jurisprudence.

Older probably than the State, the Tribe, and the House, it left

traces of itself on private law long after the House and the Tribe had

been forgotten, and long after consanguinity had ceased to be

associated with the composition of States. It will be found to have

stamped itself on all the great departments of jurisprudence, and may

be detected, I think, as the true source of many of their most

important and most durable characteristics. At the outset, the

peculiarities of law in its most ancient state lead us irresistibly to

the conclusion that it took precisely the same view of the family

group which is taken of individual men by the systems of rights and

duties now prevalent throughout Europe. There are societies open to

our observation at this very moment whose laws and usages can scarcely

be explained unless they are supposed never to have emerged from this

primitive condition; but in communities more fortunately circumstanced

the fabric of jurisprudence fell gradually to pieces, and if we

carefully observe the disintegration we shall perceive that it took

place principally in those portions of each system which were most

deeply affected by the primitive conception of the family. In one

all-important instance, that of the Roman law, the change was effected

so slowly, that from epoch to epoch we can observe the line and

direction which it followed, and can even give some idea of the

ultimate result to which it was tending. And, in pursuing this last

inquiry, we need not suffer ourselves to be stopped by the imaginary

barrier which separates the modern from the ancient world. For one

effect of that mixture of refined Roman law with primitive barbaric

usage, which is known to us by the deceptive name of feudalism, was to

revive many features of archaic jurisprudence which had died out of

the Roman world, so that the decomposition which had seemed to be

over commenced again, and to some extent is still proceeding.

On a few systems of law the family organisation of the earliest

society has left a plain and broad mark in the life-long authority of

the Father or other ancestor over the person and property of his

descendants, an authority which we may conveniently call by its later

Roman name of Patria Potestas. No feature of the rudimentary

associations of mankind is deposed to by a greater amount of evidence

than this, and yet none seems to have disappeared so generally and so

rapidly from the usages of advancing communities. Gaius, writing under

the Antonines, describes the institution as distinctively Roman. It is

true that, had he glanced across the Rhine or the Danube to those

tribes of barbarians which were exciting the curiosity of some among

his contemporaries, he would have seen examples of patriarchal power

in its crudest form; and in the far East a branch of the same ethnical

stock from which the Romans sprang was repeating their Patria Potestas

in some of its most technical incidents. But among the races

understood to be comprised within the Roman empire, Gaius could find

none which exhibited an institution resembling the Roman "Power of the

Father," except only the Asiatic Galatae. There are reasons, indeed, as

it seems to me, why the direct authority of the ancestor should, in

the greater number of progressive societies, very shortly assume

humbler proportions than belonged to it in their earliest state. The

implicit obedience of rude men to their parent is doubtless a primary

fact, which it would be absurd to explain away altogether by

attributing to them any calculation of its advantages; but, at the

same time, if it is natural in the sons to obey the father, it is

equally natural that they should look to him for superior strength or

superior wisdom. Hence, when societies are placed under circumstances

which cause an especial value to be attached to bodily and mental

vigour, there is an influence at work which tends to confine the

Patria Potestas to the cases where its possessor is actually skilful

and strong. When we obtain our first glimpse of organised Hellenic

society, it seems as if supereminent wisdom would keep alive the

father's power in persons whose bodily strength had decayed; but the

relations of Ulysses and Laertes in the _Odyssee_ appear to show that,

where extraordinary valour and sagacity were united in the son, the

father in the decrepitude of age was deposed from the headship of the

family. In the mature Greek jurisprudence, the rule advances a few

steps on the practice hinted at in the Homeric literature; and though

very many traces of stringent family obligation remain, the direct

authority of the parent is limited, as in European codes, to the

nonage or minority of the children, or, in other words, to the period

during which their mental and physical inferiority may always be

presumed. The Roman law, however, with its remarkable tendency to

innovate on ancient usage only just so far as the exigency of the

commonwealth may require, preserves both the primeval institution and

the natural limitation to which I conceive it to have been subject. In

every relation of life in which the collective community might have

occasion to avail itself of his wisdom and strength, for all purposes

of counsel or of war, the filius familias, or Son under Power, was as

free as his father. It was a maxim of Roman jurisprudence that the

Patria Potestas did not extend to the Jus Publicum. Father and son

voted together in the city, and fought side by side in the field;

indeed, the son, as general, might happen to command the father, or,

as magistrate, decide on his contracts and punish his delinquencies.

But in all the relations created by Private Law, the son lived under a

domestic despotism which, considering the severity it retained to the

last, and the number of centuries through which it endured,

constitutes one of the strangest problems in legal history.

The Patria Potestas of the Romans, which is necessarily our type of

the primeval paternal authority, is equally difficult to understand as

an institution of civilised life, whether we consider its incidence on

the person or its effects on property. It is to be regretted that a

chasm which exists in its history cannot be more completely filled. So

far as regards the person, the parent, when our information commences,

has over his children the _jus vitae necisque_, the power of life and

death, and _a fortiori_ of uncontrolled corporal chastisement; he can

modify their personal condition at pleasure; he can give a wife to his

son; he can give his daughter in marriage; he can divorce his children

of either sex; he can transfer them to another family by adoption; and

he can sell them. Late in the Imperial period we find vestiges of all

these powers, but they are reduced within very narrow limits. The

unqualified right of domestic chastisement has become a right of

bringing domestic offences under the cognisance of the civil

magistrate; the privilege of dictating marriage has declined into a

conditional veto; the liberty of selling has been virtually abolished,

and adoption itself, destined to lose almost all its ancient

importance in the reformed system of Justinian, can no longer be

effected without the assent of the child transferred to the adoptive

parentage. In short, we are brought very close to the verge of the

ideas which have at length prevailed in the modern world. But between

these widely distant epochs there is an interval of obscurity, and we

can only guess at the causes which permitted the Patria Potestas to

last as long as it did by rendering it more tolerable than it appears.

The active discharge of the most important among the duties which the

son owed to the state must have tempered the authority of his parent

if they did not annul it. We can readily persuade ourselves that the

paternal despotism could not be brought into play without great

scandal against a man of full age occupying a high civil office.

During the earlier history, however, such cases of practical

emancipation would be rare compared with those which must have been

created by the constant wars of the Roman republic. The military

tribune and the private soldier who were in the field three-quarters

of a year during the earlier contests, at a later period the proconsul

in charge of a province, and the legionaries who occupied it, cannot

have had practical reason to regard themselves as the slaves of a

despotic master; and all these avenues of escape tended constantly to

multiply themselves. Victories led to conquests, conquests to

occupations; the mode of occupation by colonies was exchanged for the

system of occupying provinces by standing armies. Each step in advance

was a call for the expatriation of more Roman citizens and a fresh

draft on the blood of the failing Latin race. We may infer, I think,

that a strong sentiment in favour of the relaxation of the Patria

Potestas had become fixed by the time that the pacification of the

world commenced on the establishment of the Empire. The first serious

blows at the ancient institution are attributed to the earlier Caesars,

and some isolated interferences of Trajan and Hadrian seem to have

prepared the ground for a series of express enactments which, though

we cannot always determine their dates, we know to have limited the

father's powers on the one hand, and on the other to have multiplied

facilities for their voluntary surrender. The older mode of getting

rid of the Potestas, by effecting a triple sale of the son's person,

is evidence, I may remark, of a very early feeling against the

unnecessary prolongation of the powers. The rule which declared that

the son should be free after having been three times sold by his

father seems to have been originally meant to entail penal

consequences on a practice which revolted even the imperfect morality

of the primitive Roman. But even before the publication of the Twelve

Tables it had been turned, by the ingenuity of the jurisconsults, into

an expedient for destroying the parental authority wherever the father

desired that it should cease.

Many of the causes which helped to mitigate the stringency of the

father's power over the persons of his children are doubtless among

those which do not lie upon the face of history. We cannot tell how

far public opinion may have paralysed an authority which the law

conferred, or how far natural affection may have rendered it

endurable. But though the powers over the _person_ may have been

latterly nominal, the whole tenour of the extant Roman jurisprudence

suggests that the father's rights over the son's _property_ were

always exercised without scruple to the full extent to which they were

sanctioned by law. There is nothing to astonish us in the latitude of

these rights when they first show themselves. The ancient law of Rome

forbade the Children under Power to hold property apart from their

parent, or (we should rather say) never contemplated the possibility

of their claiming a separate ownership. The father was entitled to

take the whole of the son's acquisitions, and to enjoy the benefit of

his contracts without being entangled in any compensating liability.

So much as this we should expect from the constitution of the earliest

Roman society, for we can hardly form a notion of the primitive family

group unless we suppose that its members brought their earnings of all

kinds into the common stock while they were unable to bind it by

improvident individual engagements. The true enigma of the Patria

Potestas does not reside here, but in the slowness with which these

proprietary privileges of the parent were curtailed, and in the

circumstance that, before they were seriously diminished, the whole

civilised world was brought within their sphere. No innovation of any

kind was attempted till the first years of the Empire, when the

acquisitions of soldiers on service were withdrawn from the operation

of the Patria Potestas, doubtless as part of the reward of the armies

which had overthrown the free commonwealth. Three centuries afterwards

the same immunity was extended to the earnings of persons who were in

the civil employment of the state. Both changes were obviously limited

in their application, and they were so contrived in technical form as

to interfere as little as possible with the principle of Patria

Potestas. A certain qualified and dependent ownership had always been

recognised by the Roman law in the perquisites and savings which

slaves and sons under power were not compelled to include in the

household accounts, and the special name of this permissive property,

Peculium, was applied to the acquisitions newly relieved from Patria

Potestas, which were called in the case of soldiers Castrense

Peculium, and Quasi-castrense Peculium in the case of civil servants.

Other modifications of the parental privileges followed, which showed

a less studious outward respect for the ancient principle. Shortly

after the introduction of the Quasi-castrense Peculium, Constantine

the Great took away the father's absolute control over property which

his children had inherited from their mother, and reduced it to a

_usufruct_, or life-interest. A few more changes of slight importance

followed in the Western Empire, but the furthest point reached was in

the East, under Justinian, who enacted that unless the acquisitions of

the child were derived from the parent's own property, the parent's

rights over them should not extend beyond enjoying their produce for

the period of his life. Even this, the utmost relaxation of the Roman

Patria Potestas, left it far ampler and severer than any analogous

institution of the modern world. The earliest modern writers on

jurisprudence remark that it was only the fiercer and ruder of the

conquerors of the empire, and notably the nations of Sclavonic origin,

which exhibited a Patria Potestas at all resembling that which was

described in the Pandects and the Code. All the Germanic immigrants

seem to have recognised a corporate union of the family under the

_mund_, or authority of a patriarchal chief; but his powers are

obviously only the relics of a decayed Patria Potestas, and fell far

short of those enjoyed by the Roman father. The Franks are

particularly mentioned as not having the Roman Institution, and

accordingly the old French lawyers, even when most busily engaged in

filling the interstices of barbarous custom with rules of Roman law,

were obliged to protect themselves against the intrusion of the

Potestas by the express maxim, _Puyssance de pere en France n'a lieu_.

The tenacity of the Romans in maintaining this relic of their most

ancient condition is in itself remarkable, but it is less remarkable

than the diffusion of the Potestas over the whole of a civilisation

from which it had once disappeared. While the Castrense Peculium

constituted as yet the sole exception to the father's power over

property, and while his power over his children's persons was still

extensive, the Roman citizenship, and with it the Patria Potestas,

were spreading into every corner of the empire. Every African or

Spaniard, every Gaul, Briton, or Jew, who received this honour by

gift, purchase, or inheritance, placed himself under the Roman Law of

Persons, and, though our authorities intimate that children born

before the acquisition of citizenship could not be brought under Power

against their will, children born after it and all ulterior

descendants were on the ordinary footing of a Roman _filius familias_.

It does not fall within the province of this treatise to examine the

mechanism of the later Roman society, but I may be permitted to remark

that there is little foundation for the opinion which represents the

constitution of Antoninus Caracalla conferring Roman citizenship on

the whole of his subjects as a measure of small importance. However we

may interpret it, it must have enormously enlarged the sphere of the

Patria Potestas, and it seems to me that the tightening of family

relations which it effected is an agency which ought to be kept in

view more than it has been, in accounting for the great moral

revolution which was transforming the world.

Before this branch of our subject is dismissed, it should be observed

that the Paterfamilias was answerable for the delicts (or _torts_) of

his Sons under Power. He was similarly liable for the torts of his

slaves; but in both cases he originally possessed the singular

privilege of tendering the delinquent's person in full satisfaction of

the damage. The responsibility thus incurred on behalf of sons,

coupled with the mutual incapacity of parent and Child under Power to

sue one another, has seemed to some jurists to be best explained by

the assumption of a "unity of person" between the Paterfamilias and

the Filius-familias. In the chapter on Successions I shall attempt

to show in what sense, and to what extent, this "unity" can be

accepted as a reality. I can only say at present that these

responsibilities of the Paterfamilias, and other legal phenomena which

will be discussed hereafter, appear to me to point at certain _duties_

of the primitive Patriarchal chieftain which balanced his _rights_. I

conceive that, if he disposed absolutely of the persons and fortune of

his clansmen, this representative ownership was coextensive with a

liability to provide for all members of the brotherhood out of the

common fund. The difficulty is to throw ourselves out of our habitual

associations sufficiently for conceiving the nature of his obligation.

It was not a legal duty, for law had not yet penetrated into the

precinct of the Family. To call it _moral_ is perhaps to anticipate

the ideas belonging to a later stage of mental development; but the

expression "moral obligation" is significant enough for our purpose,

if we understand by it a duty semi-consciously followed and enforced

rather by instinct and habit than by definite sanctions.

The Patria Potestas, in its normal shape, has not been, and, as it

seems to me, could not have been, a generally durable institution. The

proof of its former universality is therefore incomplete so long as we

consider it by itself; but the demonstration may be carried much

further by examining other departments of ancient law which depend on

it ultimately, but not by a thread of connection visible in all its

parts or to all eyes. Let us turn for example to Kinship, or in other

words, to the scale on which the proximity of relatives to each other

is calculated in archaic jurisprudence. Here again it will be

convenient to employ the Roman terms, Agnatic and Cognatic

relationship. _Cognatic_ relationship is simply the conception of

kinship familiar to modern ideas; it is the relationship arising

through common descent from the same pair of married persons, whether

the descent be traced through males or females. _Agnatic_ relationship

is something very different: it excludes a number of persons whom we

in our day should certainly consider of kin to ourselves, and it

includes many more whom we should never reckon among our kindred. It

is in truth the connection existing between the members of the Family,

conceived as it was in the most ancient times. The limits of this

connection are far from conterminous with those of modern

relationship.

Cognates then are all those persons who can trace their blood to a

single ancestor and ancestress; or, if we take the strict technical

meaning of the word in Roman law, they are all who trace their blood

to the legitimate marriage of a common pair. "Cognation" is therefore

a relative term, and the degree of connection in blood which it

indicates depends on the particular marriage which is selected as the

commencement of the calculation. If we begin with the marriage of

father and mother, Cognation will only express the relationship of

brothers and sisters; if we take that of the grandfather and

grandmother, then uncles, aunts, and their descendants will also be

included in the notion of Cognation, and following the same process a

larger number of Cognates may be continually obtained by choosing the

starting point higher and higher up in the line of ascent. All this is

easily understood by a modern; but who are the Agnates? In the first

place, they are all the Cognates who trace their connection exclusively

through males. A table of Cognates is, of course, formed by taking

each lineal ancestor in turn and including all his descendants of both

sexes in the tabular view; if then, in tracing the various branches of

such a genealogical table or tree, we stop whenever we come to the

name of a female and pursue that particular branch or ramification no

further, all who remain after the descendants of women have been

excluded are Agnates, and their connection together is Agnatic

Relationship. I dwell a little on the process which is practically

followed in separating them from the Cognates, because it explains a

memorable legal maxim, "Mulier est finis familiae"--a woman is the

terminus of the family. A female name closes the branch or twig of the

genealogy in which it occurs. None of the descendants of a female are

included in the primitive notion of family relationship.

If the system of archaic law at which we are looking be one which

admits Adoption, we must add to the Agnate thus obtained all persons,

male or female, who have been brought into the Family by the

artificial extension of its boundaries. But the descendants of such

persons will only be Agnates, if they satisfy the conditions which

have just been described.

What then is the reason of this arbitrary inclusion and exclusion? Why

should a conception of Kinship, so elastic as to include strangers

brought into the family by adoption, be nevertheless so narrow as to

shut out the descendants of a female member? To solve these

questions, we must recur to the Patria Potestas. The foundation of

Agnation is not the marriage of Father and Mother, but the authority

of the Father. All persons are Agnatically connected together who are

under the same Paternal Power, or who have been under it, or who might

have been under it if their lineal ancestor had lived long enough to

exercise his empire. In truth, in the primitive view, Relationship is

exactly limited by Patria Potestas. Where the Potestas begins, Kinship

begins; and therefore adoptive relatives are among the kindred. Where

the Potestas ends, Kinship ends; so that a son emancipated by his

father loses all rights of Agnation. And here we have the reason why

the descendants of females are outside the limits of archaic kinship.

If a woman died unmarried, she could have no legitimate descendants.

If she married, her children fell under the Patria Potestas, not of

her Father, but of her Husband, and thus were lost to her own family.

It is obvious that the organisation of primitive societies would have

been confounded, if men had called themselves relatives of their

mother's relatives. The inference would have been that a person might

be subject to two distinct Patriae Potestates; but distinct Patriae

Potestates implied distinct jurisdictions, so that anybody amenable to

two of them at the same time would have lived under two different

dispensations. As long as the Family was an imperium in imperio, a

community within the commonwealth, governed by its own institutions of

which the parent was the source, the limitation of relationship to the

Agnates was a necessary security against a conflict of laws in the

domestic forum.

The Parental Powers proper are extinguished by the death of the

Parent, but Agnation is as it were a mould which retains their imprint

after they have ceased to exist. Hence comes the interest of Agnation

for the inquirer into the history of jurisprudence. The Powers

themselves are discernible in comparatively few monuments of ancient

law, but Agnatic Relationship, which implies their former existence,

is discoverable almost everywhere. There are few indigenous bodies of

law belonging to communities of the Indo-European stock, which do not

exhibit peculiarities in the most ancient part of their structure

which are clearly referable to Agnation. In Hindoo law, for example,

which is saturated with the primitive notions of family dependency,

kinship is entirely Agnatic, and I am informed that in Hindoo

genealogies the names of women are generally omitted altogether. The

same view of relationship pervades so much of the laws of the races

who overran the Roman Empire as appears to have really formed part of

their primitive usage, and we may suspect that it would have

perpetuated itself even more than it has in modern European

jurisprudence, if it had not been for the vast influence of the later

Roman law on modern thought. The Praetors early laid hold on Cognation

as the _natural_ form of kinship, and spared no pains in purifying

their system from the older conception. Their ideas have descended to

us, but still traces of Agnation are to be seen in many of the modern

rules of succession after death. The exclusion of females and their

children from governmental functions, commonly attributed to the usage

of the Salian Franks, has certainly an agnatic origin, being descended

from the ancient German rule of succession to allodial property. In

Agnation too is to be sought the explanation of that extraordinary

rule of English Law, only recently repealed, which prohibited brothers

of the half-blood from succeeding to one another's lands. In the

Customs of Normandy, the rule applies to _uterine_ brothers only, that

is, to brothers by the same mother but not by the same father; and,

limited in this way, it is a strict deduction from the system of

Agnation, under which uterine brothers are no relations at all to one

another. When it was transplanted to England, the English judges, who

had no clue to its principle, interpreted it as a general prohibition

against the succession of the half-blood, and extended it to

_consanguineous_ brothers, that is to sons of the same father by

different wives. In all the literature which enshrines the pretended

philosophy of law, there is nothing more curious than the pages of

elaborate sophistry in which Blackstone attempts to explain and

justify the exclusion of the half-blood.

It may be shown, I think, that the Family, as held together by the

Patria Potestas, is the nidus out of which the entire Law of Persons

has germinated. Of all the chapters of that Law the most important is

that which is concerned with the status of Females. It has just been

stated that Primitive Jurisprudence, though it does not allow a Woman

to communicate any rights of Agnation to her descendants, includes

herself nevertheless in the Agnatic bond. Indeed, the relation of a

female to the family in which she was born is much stricter, closer,

and more durable than that which unites her male kinsmen. We have

several times laid down that early law takes notice of Families only;

this is the same thing as saying that it only takes notice of persons

exercising Patria Potestas, and accordingly the only principle on

which it enfranchises a son or grandson at the death of his Parent, is

a consideration of the capacity inherent in such son or grandson to

become himself the head of a new family and the root of a new set of

Parental Powers. But a woman, of course, has no capacity of the kind,

and no title accordingly to the liberation which it confers. There is

therefore a peculiar contrivance of archaic jurisprudence for

retaining her in the bondage of the Family for life. This is the

institution known to the oldest Roman law as the Perpetual Tutelage of

Women, under which a Female, though relieved from her Parent's

authority by his decease, continues subject through life to her

nearest male relations as her Guardians. Perpetual Guardianship is

obviously neither more nor less than an artificial prolongation of the

Patria Potestas, when for other purposes it has been dissolved. In

India, the system survives in absolute completeness, and its operation

is so strict that a Hindoo Mother frequently becomes the ward of her

own sons. Even in Europe, the laws of the Scandinavian nations

respecting women preserved it until quite recently. The invaders of

the Western Empire had it universally among their indigenous usages,

and indeed their ideas on the subject of Guardianship, in all its

forms, were among the most retrogressive of those which they

introduced into the Western world. But from the mature Roman

jurisprudence it had entirely disappeared. We should know almost

nothing about it, if we had only the compilations of Justinian to

consult; but the discovery of the manuscript of Gaius discloses it to

us at a most interesting epoch, just when it had fallen into complete

discredit and was verging on extinction. The great jurisconsult

himself scouts the popular apology offered for it in the mental

inferiority of the female sex, and a considerable part of his volume

is taken up with descriptions of the numerous expedients, some of them

displaying extraordinary ingenuity, which the Roman lawyers had

devised for enabling Women to defeat the ancient rules. Led by their

theory of Natural Law, the jurisconsults had evidently at this time

assumed the equality of the sexes as a principle of their code of

equity. The restrictions which they attacked were, it is to be

observed, restrictions on the disposition of property, for which the

assent of the woman's guardians was still formally required. Control

of her person was apparently quite obsolete.

Ancient Law subordinates the woman to her blood-relations, while a

prime phenomenon of modern jurisprudence has been her subordination to

her husband. The history of the change is remarkable. It begins far

back in the annals of Rome. Anciently, there were three modes in which

marriage might be contracted according to Roman usage, one involving a

religious solemnity, the other two the observance of certain secular

formalities. By the religious marriage or _Confarreation_; by the

higher form of civil marriage, which was called _Coemption_; and by

the lower form, which was termed _Usus_, the Husband acquired a number

of rights over the person and property of his wife, which were on the

whole in excess of such as are conferred on him in any system of

modern jurisprudence. But in what capacity did he acquire them? Not as

_Husband_, but as _Father_. By the Confarreation, Coemption, and Usus,

the woman passed _in manum viri_, that is, in law she became the

_Daughter_ of her husband. She was included in his Patria Potestas.

She incurred all the liabilities springing out of it while it

subsisted, and surviving it when it had expired. All her property

became absolutely his, and she was retained in tutelage after his

death to the guardian whom he had appointed by will. These three

ancient forms of marriage fell, however, gradually into disuse, so

that, at the most splendid period of Roman greatness, they had almost

entirely given place to a fashion of wedlock--old apparently, but not

hitherto considered reputable--which was founded on a modification of

the lower form of civil marriage. Without explaining the technical

mechanism of the institution now generally popular, I may describe it

as amounting in law to little more than a temporary deposit of the

woman by her family. The rights of the family remained unimpaired, and

the lady continued in the tutelage of guardians whom her parents had

appointed and whose privileges of control overrode, in many material

respects, the inferior authority of her husband. The consequence was

that the situation of the Roman female, whether married or unmarried,

became one of great personal and proprietary independence, for the

tendency of the later law, as I have already hinted, was to reduce

the power of the guardian to a nullity, while the form of marriage in

fashion conferred on the husband no compensating superiority. But

Christianity tended somewhat from the very first to narrow this

remarkable liberty. Led at first by justifiable disrelish for the

loose practices of the decaying heathen world, but afterwards hurried

on by a passion of asceticism, the professors of the new faith looked

with disfavour on a marital tie which was in fact the laxest the

Western world has seen. The latest Roman law, so far as it is touched

by the constitutions of the Christian Emperors, bears some marks of a

reaction against the liberal doctrines of the great Antonine

jurisconsults. And the prevalent state of religious sentiment may

explain why it is that modern jurisprudence, forged in the furnace of

barbarian conquest, and formed by the fusion of Roman jurisprudence

with patriarchal usage, has absorbed, among its rudiments, much more

than usual of those rules concerning the position of women which

belong peculiarly to an imperfect civilisation. During the troubled

era which begins modern history, and while the laws of the Germanic

and Sclavonic immigrants remained superposed like a separate layer

above the Roman jurisprudence of their provincial subjects, the women

of the dominant races are seen everywhere under various forms of

archaic guardianship, and the husband who takes a wife from any family

except his own pays a money-price to her relations for the tutelage

which they surrender to him. When we move onwards, and the code of the

middle ages has been formed by the amalgamation of the two systems,

the law relating to women carries the stamp of its double origin. The

principle of the Roman jurisprudence is so far triumphant that

unmarried females are generally (though there are local exceptions to

the rule) relieved from the bondage of the family; but the archaic

principle of the barbarians has fixed the position of married women,

and the husband has drawn to himself in his marital character the

powers which had once belonged to his wife's male kindred, the only

difference being that he no longer purchases his privileges. At this

point therefore the modern law of Western and Southern Europe begins

to be distinguished by one of its chief characteristics, the

comparative freedom it allows to unmarried women and widows, the heavy

disabilities it imposes on wives. It was very long before the

subordination entailed on the other sex by marriage was sensibly

diminished. The principal and most powerful solvent of the revived

barbarism of Europe was always the codified jurisprudence of

Justinian, wherever it was studied with that passionate enthusiasm

which it seldom failed to awaken. It covertly but most efficaciously

undermined the customs which it pretended merely to interpret. But the

Chapter of law relating to married women was for the most part read by

the light, not of Roman, but of Canon Law, which in no one particular

departs so widely from the spirit of the secular jurisprudence as in

the view it takes of the relations created by marriage. This was in

part inevitable, since no society which preserves any tincture of

Christian institution is likely to restore to married women the

personal liberty conferred on them by the middle Roman law, but the

proprietary disabilities of married females stand on quite a different

basis from their personal incapacities, and it is by keeping alive and

consolidating the former that the expositors of the Canon Law have

deeply injured civilisation. There are many vestiges of a struggle

between the secular and ecclesiastical principles, but the Canon Law

nearly everywhere prevailed. In some of the French provinces married

women, of a rank below nobility, obtained all the powers of dealing

with property which Roman jurisprudence had allowed, and this local

law has been largely followed by the Code Napoleon; but the state of

the Scottish law shows that scrupulous deference to the doctrines of

the Roman jurisconsults did not always extend to mitigating the

disabilities of wives. The systems however which are least indulgent

to married women are invariably those which have followed the Canon

Law exclusively, or those which, from the lateness of their contact

with European civilisation, have never had their archaisms weeded out.

The Scandinavian laws, harsh till lately to all females, are still

remarkable for their severity to wives. And scarcely less stringent in

the proprietary incapacities it imposes is the English Common Law,

which borrows far the greatest number of its fundamental principles

from the jurisprudence of the Canonists. Indeed, the part of the

Common Law which prescribes the legal situation of married women may

serve to give an Englishman clear notions of the great institution

which has been the principal subject of this chapter. I do not know

how the operation and nature of the ancient Patria Potestas can be

brought so vividly before the mind as by reflecting on the

prerogatives attached to the husband by the pure English Common Law,

and by recalling the rigorous consistency with which the view of a

complete legal subjection on the part of the wife is carried by it,

where it is untouched by equity or statutes, through every department

of rights, duties, and remedies. The distance between the eldest and

latest Roman law on the subject of Children under Power may be

considered as equivalent to the difference between the Common Law and

the jurisprudence of the Court of Chancery in the rules which they

respectively apply to wives.

If we were to lose sight of the true origin of Guardianship in both

its forms and were to employ the common language on these topics, we

should find ourselves remarking that, while the Tutelage of Women is

an instance in which systems of archaic law push to an extravagant

length the fiction of suspended rights, the rules which they lay down

for the Guardianship of Male Orphans are an example of a fault in

precisely the opposite direction. All such systems terminate the

Tutelage of males at an extraordinary early period. Under the ancient

Roman law, which may be taken as their type, the son who was delivered

from Patria Potestas by the death of his Father or Grandfather

remained under guardianship till an epoch which for general purposes

may be described as arriving with his fifteenth year; but the arrival

of that epoch placed him at once in the full enjoyment of personal and

proprietary independence. The period of minority appears therefore to

have been as unreasonably short as the duration of the disabilities of

women was preposterously long. But, in point of fact, there was no

element either of excess or of shortcoming in the circumstances which

gave their original form to the two kinds of guardianship. Neither the

one nor the other of them was based on the slightest consideration of

public or private convenience. The guardianship of male orphans was no

more designed originally to shield them till the arrival of years of

discretion than the tutelage of women was intended to protect the

other sex against its own feebleness. The reason why the death of the

father delivered the son from the bondage of the family was the son's

capacity for becoming himself the head of a new family and the founder

of a new Patria Potestas; no such capacity was possessed by the woman

and therefore she was _never_ enfranchised. Accordingly the

Guardianship of Male Orphans was a contrivance for keeping alive the

semblance of subordination to the family of the Parent, up to the time

when the child was supposed capable of becoming a parent himself. It

was a prolongation of the Patria Potestas up to the period of bare

physical manhood. It ended with puberty, for the rigour of the theory

demanded that it should do so. Inasmuch, however, as it did not

profess to conduct the orphan ward to the age of intellectual maturity

or fitness for affairs, it was quite unequal to the purposes of

general convenience; and this the Romans seem to have discovered at a

very early stage of their social progress. One of the very oldest

monuments of Roman legislation is the _Lex Laetoria_ or _Plaetoria_

which placed all free males who were of full years and rights under

the temporary control of a new class of guardians, called _Curatores_,

whose sanction was required to validate their acts or contracts. The

twenty-sixth year of the young man's age was the limit of this

statutory supervision; and it is exclusively with reference to the age

of twenty-five that the terms "majority" and "minority" are employed

in Roman law. _Pupilage_ or _wardship_ in modern jurisprudence had

adjusted itself with tolerable regularity to the simple principle of

protection to the immaturity of youth both bodily and mental. It has

its natural termination with years of discretion. But for protection

against physical weakness and for protection against intellectual

incapacity, the Romans looked to two different institutions, distinct

both in theory and design. The ideas attendant on both are combined in

the modern idea of guardianship.

The Law of Persons contains but one other chapter which can be

usefully cited for our present purpose. The legal rules by which

systems of nature jurisprudence regulate the connection of _Master and

Slave_, present no very distinct traces of the original condition

common to ancient societies. But there are reasons for this exception.

There seems to be something in the institution of Slavery which has at

all times either shocked or perplexed mankind, however little

habituated to reflection, and however slightly advanced in the

cultivation of its moral instincts. The compunction which ancient

communities almost unconsciously experienced appears to have always

resulted in the adoption of some imaginary principle upon which a

defence, or at least a rationale, of slavery could be plausibly

founded. Very early in their history the Greeks explained the

institution as grounded on the intellectual inferiority of certain

races and their consequent natural aptitude for the servile condition.

The Romans, in a spirit equally characteristic, derived it from a

supposed agreement between the victor and the vanquished in which the

first stipulated for the perpetual services of his foe; and the other

gained in consideration the life which he had legitimately forfeited.

Such theories were not only unsound but plainly unequal to the case

for which they affected to account. Still they exercised powerful

influence in many ways. They satisfied the conscience of the Master.

They perpetuated and probably increased the debasement of the Slave.

And they naturally tended to put out of sight the relation in which

servitude had originally stood to the rest of the domestic system. The

relation, though not clearly exhibited, is casually indicated in many

parts of primitive law, and more particularly in the typical

system--that of ancient Rome.

Much industry and some learning have been bestowed in the United

States of America on the question whether the Slave was in the early

stages of society a recognised member of the Family. There is a sense

in which an affirmative answer must certainly be given. It is clear,

from the testimony both of ancient law and of many primeval histories,

that the Slave might under certain conditions be made the Heir, or

Universal Successor, of the Master, and this significant faculty, as I

shall explain in the Chapter on Succession, implies that the

government and representation of the Family might, in a particular

state of circumstances, devolve on the bondman. It seems, however, to

be assumed in the American arguments on the subject that, if we allow

Slavery to have been a primitive Family institution, the

acknowledgment is pregnant with an admission of the moral

defensibility of Negro-servitude at the present moment. What then is

meant by saying that the Slave was originally included in the Family?

Not that his situation may not have been the fruit of the coarsest

motives which can actuate man. The simple wish to use the bodily

powers of another person as a means of ministering to one's own ease

or pleasure is doubtless the foundation of Slavery, and as old as

human nature. When we speak of the Slave as anciently included in the

Family, we intend to assert nothing as to the motives of those who

brought him into it or kept him there; we merely imply that the tie

which bound him to his master was regarded as one of the same general

character with that which united every other member of the group to

its chieftain. This consequence is, in fact, carried in the general

assertion already made that the primitive ideas of mankind were

unequal to comprehending any basis of the connection _inter se_ of

individuals, apart from the relations of family. The Family consisted

primarily of those who belonged to it by consanguinity and next of

those who had been engrafted on it by adoption; but there was still a

third class of persons who were only joined to it by common subjection

to its head, and these were the Slaves. The born and the adopted

subjects of the chief were raised above the Slave by the certainty

that in the ordinary course of events they would be relieved from

bondage and entitled to exercise powers of their own; but that the

inferiority of the Slave was not such as to place him outside the pale

of the Family, or such as to degrade him to the footing of inanimate

property, is clearly proved, I think, by the many traces which remain

of his ancient capacity for inheritance in the last resort. It would,

of course, be unsafe in the highest degree to hazard conjectures how

far the lot of the Slave was mitigated, in the beginnings of society,

by having a definite place reserved to him in the empire of the

Father. It is, perhaps, more probable that the son was practically

assimilated to the Slave, than that the Slave shared any of the

tenderness which in later times was shown to the son. But it may be

asserted with some confidence of advanced and matured codes that,

wherever servitude is sanctioned, the Slave has uniformly greater

advantages under systems which preserve some memento of his earlier

condition than under those which have adopted some other theory of his

civil degradation. The point of view from which jurisprudence regards

the Slave is always of great importance to him. The Roman law was

arrested in its growing tendency to look upon him more and more as an

article of property by the theory of the Law of Nature; and hence it

is that, wherever servitude is sanctioned by institutions which have

been deeply affected by Roman jurisprudence, the servile condition is

never intolerably wretched. There is a great deal of evidence that in

those American States which have taken the highly Romanised code of

Louisiana as the basis of their jurisprudence, the lot and prospects

of the negro-population are better in many material respects than

under institutions founded on the English Common Law, which, as

recently interpreted, has no true place for the Slave, and can only

therefore regard him as a chattel.

We have now examined all parts of the ancient Law of Persons which

fall within the scope of this treatise, and the result of the inquiry

is, I trust, to give additional definiteness and precision to our view

of the infancy of jurisprudence. The Civil laws of States first make

their appearance as the Themistes of a patriarchal sovereign, and we

can now see that these Themistes are probably only a developed form of

the irresponsible commands which, in a still earlier condition of the

race, the head of each isolated household may have addressed to his

wives, his children, and his slaves. But, even after the State has

been organised, the laws have still an extremely limited application.

Whether they retain their primitive character as Themistes, or whether

they advance to the condition of Customs or Codified Texts, they are

binding not on individuals, but on Families. Ancient jurisprudence, if

a perhaps deceptive comparison may be employed, may be likened to

International Law, filling nothing, as it were, excepting the

interstices between the great groups which are the atoms of society.

In a community so situated, the legislation of assemblies and the

jurisdiction of Courts reaches only to the heads of families, and to

every other individual the rule of conduct is the law of his home, of

which his Parent is the legislator. But the sphere of civil law, small

at first, tends steadily to enlarge itself. The agents of legal

change, Fictions, Equity, and Legislation, are brought in turn to bear

on the primeval institutions, and at every point of the progress, a

greater number of personal rights and a larger amount of property are

removed from the domestic forum to the cognisance of the public

tribunals. The ordinances of the government obtain gradually the same

efficacy in private concerns as in matters of state, and are no longer

liable to be overridden by the behests of a despot enthroned by each

hearthstone. We have in the annals of Roman law a nearly complete

history of the crumbling away of an archaic system, and of the

formation of new institutions from the recombined materials,

institutions some of which descended unimpaired to the modern world,

while others, destroyed or corrupted by contact with barbarism in the

dark ages, had again to be recovered by mankind. When we leave this

jurisprudence at the epoch of its final reconstruction by Justinian,

few traces of archaism can be discovered in any part of it except in

the single article of the extensive powers still reserved to the

living Parent. Everywhere else principles of convenience, or of

symmetry, or of simplification--new principles at any rate--have

usurped the authority of the jejune considerations which satisfied the

conscience of ancient times. Everywhere a new morality has displaced

the canons of conduct and the reasons of acquiescence which were in

unison with the ancient usages, because in fact they were born of

them.

The movement of the progressive societies has been uniform in one

respect. Through all its course it has been distinguished by the

gradual dissolution of family dependency and the growth of individual

obligation in its place. The Individual is steadily substituted for

the Family, as the unit of which civil laws take account. The advance

has been accomplished at varying rates of celerity, and there are

societies not absolutely stationary in which the collapse of the

ancient organisation can only be perceived by careful study of the

phenomena they present. But, whatever its pace, the change has not

been subject to reaction or recoil, and apparent retardations will be

found to have been occasioned through the absorption of archaic ideas

and customs from some entirely foreign source. Nor is it difficult to

see what is the tie between man and man which replaces by degrees

those forms of reciprocity in rights and duties which have their

origin in the Family. It is Contract. Starting, as from one terminus

of history, from a condition of society in which all the relations of

Persons are summed up in the relations of Family, we seem to have

steadily moved towards a phase of social order in which all these

relations arise from the free agreement of Individuals. In Western

Europe the progress achieved in this direction has been considerable.

Thus the status of the Slave has disappeared--it has been superseded

by the contractual relation of the servant to his master. The status

of the Female under Tutelage, if the tutelage be understood of persons

other than her husband, has also ceased to exist; from her coming of

age to her marriage all the relations she may form are relations of

contract. So too the status of the Son under Power has no true place

in law of modern European societies. If any civil obligation binds

together the Parent and the child of full age, it is one to which only

contract gives its legal validity. The apparent exceptions are

exceptions of that stamp which illustrate the rule. The child before

years of discretion, the orphan under guardianship, the adjudged

lunatic, have all their capacities and incapacities regulated by the

Law of Persons. But why? The reason is differently expressed in the

conventional language of different systems, but in substance it is

stated to the same effect by all. The great majority of Jurists are

constant to the principle that the classes of persons just mentioned

are subject to extrinsic control on the single ground that they do not

possess the faculty of forming a judgment on their own interests; in

other words, that they are wanting in the first essential of an

engagement by Contract.

The word Status may be usefully employed to construct a formula

expressing the law of progress thus indicated, which, whatever be its

value, seems to me to be sufficiently ascertained. All the forms of

Status taken notice of in the Law of Persons were derived from, and to

some extent are still coloured by, the powers and privileges anciently

residing in the Family. If then we employ Status, agreeably with the

usage of the best writers, to signify these personal conditions only,

and avoid applying the term to such conditions as are the immediate or

remote result of agreement, we may say that the movement of the

progressive societies has hitherto been a movement _from Status to

Contract_.