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 exten-
sive, 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



128 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 fortunes of his clansmen, this representative



CHAP.V] PATRIA POTESTAS

ownership was coextensive with a liability to pro-
vide for all members of the brotherhood out of
the common fund. The difficulty is to throw our-
selves 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 ex-
pression " 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 demon-
stration 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. Cog-
natic relationship is simply the conception of
kinship familiar to modern ideas : it is the relation-
ship 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 ex-
cludes a number of persons whom we in our day

9



130 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 relation-
ship.

Cognates then are all those persons who can
trace their blood to a single ancestor and ances-
tress ; 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 de-
scendants of both sexes in the tabular view ; if
then, in tracing the various branches of such a



CHAP, v] AGNATION AND COGNATION

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 Agnates 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 in-
clusion 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 Agna-
tion 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



132 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

ancestor had lived long enough to exercise his
empire. In truth, in the primitive view, Relation-
ship is exactly limited by Patria Potestas. Where
the Potestas begins, Kinship begins ; and there-
fore 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 in-
ference would have been that a person might be
subject to two distinct Patriae Potestates ; but
distinct Patriae Potestates implied distinct juris-
dictions, 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 Paternal 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
sf Agnation for the inquirer into the history of



CHAP, v] AGNATION 133

jurisprudence. The powers themselves are dis-
cernible 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 pecu-
liarities 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, kin-
ship 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 per-
petuated 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 attri-
buted 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



134 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 Eng-
land, 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 whch 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 ger-
minated. 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



CHAP.V] GUARDIANSHIP OF WOMEN 135

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 juris-
prudence 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, con-
tinues subject through life to her nearest male
relations, or to her father's nominees, 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 opera-
tion 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 com-



136 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

pilations of Justinian to consult j 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 dis-
playing 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 solem-
nity, 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



CHAP.V] ANCIENT ROMAN MARRIAGE 137

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 mri, 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 abso-
lutely 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 con-
sidered reputable which was founded on a modi-
fication of the lower form of civil marriage. With-
out explaining the technical mechanism of the
institution now generally popular, I may describe
it as amounting in law to a 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



138 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 rudi-
ments, 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 German 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



CHAP, v] CONDITION OF WOMEN 139

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 Southern and Western 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 prin-
cipal 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 effica-
ciously undermined the customs which it pre-
tended 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



140 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

middle Roman law, but the proprietary disabilities
of married females stand on quite a different basis
from their personal incapacities, and it is by the
tendency of their doctrines to keep alive and
consolidate 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 la\v 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 Danish and Swedish
laws, harsh for many centuries to all females, are
still much less favourable to wives than the
generality of Continental codes. And yet more
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



CHAP, v] GUARDIANSHIP OF ORPHANS

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 Chan-
cery 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. 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



142 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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. Accord-
ingly 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 prolonga-
tion 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 con-
venience ; and this the Romans seem to have
discovered at a very early stage of their social



CHAP, v] MASTER AND SLAVE 143

progress. One of the very oldest monuments of
Roman legislation is the Lex L&ioria or Platoria,
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 men'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. Pupil-
age, or wardship, in modern jurisprudence has
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
mature 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 compunc-



144 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

tion which ancient communities almost uncon-
sciously 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 exer-
cised powerful influence in many ways. They
satisfied the conscience of the Master. They
perpetuated and probably increased the debase-
ment 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. This relation, though not clearly ex-
hibited, 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



CHAP, v] SLAVERY 145

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 Suc-
cession, implies that the Government and repre-
sentation 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 doubt-
less 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 com-
prehending any basis of the connection inter se of
individuals, apart from the relations of family.
The Family consisted primarily of those who be-
Iqnged to it by consanguinity, and next of those



146 PRIMITIVE SOCIETY

who had been engrafted on it by adoptioi^;* tyit
there was still & third Class of persons wh6 were
only joined to it by common ^|bj,ecj;ion to its head,
and these were the Slaves. Th% born and the
adopted subjects of the chief were.fajsted 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 ad-
vanced 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 juris-
prudence 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 tha t



'ANCIENT LAW 147

servitude is sanctioned *by institutions
Have beer* deeply affected by Roman juris-
pruc^nce; th servile condition is never intolerably
wretched. T^itefe is a great deal of evidence that
in tho^e 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 were better in many material
respects, until the letter of the fundamental law
was overlaid by recent statutory enactments
passed under the influence of panic, 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 defmiteness 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 ad-
dressed 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



148 PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 reach 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 re-
combined 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 re-
covered by mankind. When we leave this juris-
prudence at the epoch of its final reconstruction
by Justinian, few traces of archaism can be dis-
covered in any part of it except in the single
article of the extensive powers still reserved to
the living Parent. Everywhere else principles



CHAF.V] DISINTEGRATION OF THE FAMILY 149

of convenience, or of symmetry, or of simplifica-
tion new principles at any rate have usurped
the authority of the jejune considerations which
satisfied the conscience of ancient times. Every-
where 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 Indi-
vidual 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



ISO PRIMITIVE SOCIETY AND ANCIENT LAW [CHAP, v

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 con-
tractual 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 the 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 lan-
guage 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



CHAP, v] FROM STATUS TO CONTRACT

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.