Ancient Law Chapter 5

t 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 conceding 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 therein， 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 th

at 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 characteristic 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 connexion 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 ： "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 whol1y 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 m

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