CHAPTER V

PRIMITIVE SOCIETY AND ANCIENT LAW

THE necessity of submitting the subject of juris-
prudence 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 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, recog-
nising 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 more with
brilliancy and plausibility than with practical
importance. They may be read in the intro-
ductory chapters of our own Blackstone, who has

100



CHAP.V] LOCKE AND HOBBES 101

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 condi-
tion 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 organi-
sation with which alone we are acquainted, but
they agreed in thinking that a great chasm separ-
ated 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



102 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 systematisation.

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



CHA * tl MONTESQUIEU 103

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 in-
herited 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 phe-
nomena, and consequently of laws, till due allow-
ance 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
over-estimated by Montesquieu. Many of the
anomalies which he parades have since been
shown to rest on false report or erroneous con-
struction, 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 it 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



104 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 diffi-
culty a most formidable one certainly of lan-
guage. The whole question remains open as to
the motives of societies in imposing these com-
mands 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 sug-
gests the answer that societies modify, and have
always modified, their laws according to modifica-
tions 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.



CHAP.V] PROPER MODE OF INQUIRY IO5

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 care-
fully 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 ex-
hibited 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 ingre-
dients. 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



106 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 pro-
portion to the perplexities which beset us in con-
sidering 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 ascer-
taining 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 testi-
mony 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



CHAP.V] THE GERMANY OF TACITUS 107

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 picturesque-
ness 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 cha-
racteristics 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 Manu, are as a whole of suspicious



108 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 objec-
tionable as those which have led to such surprising
results in comparative philology.

The effect of the evidence derived from com-
parative jurisprudence is to establish that view of
the primaeval 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 ex-
plained already, its connection with Scripture
rather militated than otherwise against its recep-
tion 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 insti-
tutions of societies belonging to the Indo-European
stock, the Romans, Hindoos, and Sclavonians
supplying the greater part of it ; and indeed the



CHAP, v] SCRIPTURAL ACCOUNTS IOQ

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 contro-
versy which takes its name from the debate be-
tween Locke and Filmer, they fill a whole chapter,
though not a very profitable one, in English litera-
ture. 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 re-
lations 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



IIO PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 pur-
poses 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
Odyssey of Homer :

8* ovr* ayopal /3ov\T]6pot, ovrc 0efttoT9,

0e/it , ovS*



" 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 dis-
tributed in perfectly insulated groups, held to-
gether by obedience to the parent. Law is the



CKAP.V] PRIMITIVE SOCIETY III

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 spon-
taneity 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



112 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

of which the full importance cannot be shown
at present. It takes a view of life wholly
unlike any which appears in developed juris-
prudence. 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 de-
basement of the individual appear to be con-
founded 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 tran-
sition from the ancient and simple view of the
matter to the theological or metaphysical ex-
planations of later days is marked by the early
Greek notion of an inherited curse. The bequest



CHAP, v] FROM FAMILIES TO TRIBE 113

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 con-
clusion 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 descendant.
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 common-
wealth 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

8



114 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 brother-
hood. Adverting to Rome singly, we perceive
that the primary group, the Family, was being



CHAP.V] FICTION OF ADOPTION 115

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 illus-
trates 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 accord-
ing to local propinquity ; but the idea that a num-
ber 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



Il6 PRIMITIVE SOCIETY AND ANCIENT LAW ICHAP. v

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 facts, 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 re-
mainder 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



CHAP.V] THE ANCIENT FAMILY 117

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 com-
munity 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 differ-
ence between a real and an adoptive connection.
On the other hand, the persons theoretically



Il8 PRIMITIVE SOCIETY AND ANCIENT LAW [C*AP. v

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 with-
drawn themselves from the empire of its ruler,
they are always, in the beginnings of law, con-
sidered 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 character-
istics. 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



] PATRIA POTESTAS

are supposed never to have emerged from this
primitive condition ; but in communities more for-
tunately 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 fol-
lowed, 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 decom-
position 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 con-
veniently call by its later Roman name of Patria
Potestas. No feature of the rudimentary associa-
tions 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



120 PRIMITIVE SOCIETY AND ANCIENT LAW (CHAP, v

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/ 1 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 super-
eminent wisdom would keep alive the father's



CHAP.VJ PATRIA POTESTAS 121

power in persons whose bodily strength had de-
cayed ; but the relations of Ulysses and Laertes
in the Odyssey appear to show that, where extra-
ordinary 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 common-
wealth 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 delinquen-
cies. But in all the relations created by Private
Law, the son lived under a domestic despotism
which, considering the severity it retained to the



122 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 vita 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 chas-
tisement has become a right of bringing domestic
offences under the cognisance of the civil magis-
trate ; 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 im-
portance 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



CHAP.V] PATRIA POTESTAS 123

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 tem-
pered 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 them-
selves 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



124 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP. ?

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 de-
termine 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 publica-
tion 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.



CHAP.V] PATRIA POTESTAS 125

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 contem-
plated 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 acquisi-
tions 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 cen-
turies 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



126 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 introduc-
tion 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 right 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



CHAP..V] PATRIA POTESTAS 127

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 customs with rules of
Roman law, were obliged to protect themselves
against the intrusion of the Potestas by the express
maxim, Puyssance de phe en France n'a lieu.