Ancient Law Chapter 5

ore 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 shar

ed in its actual perpetration. If， on the other hand. the individual is conspicuously guilty， it is his children， his kinsfolk， his tribesmen， or his fellow-citizens， who suffer with him， and sometimes for him. It thus happens that the ideas of moral responsibility and retribution often seem to be more clearly realised at very ancient than at more advanced periods， for， as the family group is immortal， and its liability to punishment indefinite， the primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group. One step in the transition from the ancient and simple view of the matter to the theological or metaphysical explanations of later days is marked by the early Greek notion of an inherited curse. The bequest received by his posterity from the original criminal was not a liability to punishment， but a liability to the commission of fresh offences which drew with them a condign retribution； and thus the responsibility of the family was reconciled with the newer phase of thought which limited the consequences of crime to the person of the actual delinquent.

　　It would be a very simple explanation of the origin of society if we could base a general conclusion on the hint furnished us by the Scriptural example already adverted to， and could suppose that communities began to exist wherever a family held together instead of separating at the death of its patriarchal chieftain. In most of the Greek states and in Rome there long remained the vestiges of an ascending series of groups out of which the State was at first constituted. The Family， House， and Tribe of the Romans may be taken as the type of them， and they are so described to us that we can scarcely help conceiving them as a system of concentric circles which have gradually expanded from the same point. The elementary group is the Family， connected by common subjection to the highest male ascendant. The aggregation of Families forms the Gens or House. The aggregation of Houses makes the Tribe. The aggregation of Tribes constitutes the Commonwealth. Are we at liberty to follow these indications， and to lay down that the commonwealth is a collection of persons united by common descent from the progenitor of an original family？ Of this we may at least be certain， that all ancient societies regarded themselves as having proceeded from one original stock， and even laboured under an incapacity for comprehending any reason except this for their holding together in political union. The history of political ideas begins， in fact， with the assumption that kinship in blood is the sole possible ground of community in political functions； nor is there any of those subversions of feeling， which we term emphatically revolutions， so startling and so complete as the change which is accomplished when some other principle —— such as that， for instance， of local contiguity —— establishes itself for the first time as the basis of common political action. It may be affirmed then of early commonwealths that their citizens considered all the groups in which they claimed membership to be founded on common lineage. What was obviously true of the Family was believed to be true first of the House， next of the Tribe， lastly of the State. And yet we find that along with this belief， or， if we may use the word， this theory， each community preserved records or traditions which distinctly showed that the fundamental assumption was false. Whether we look to the Greek states， or to Rome， or to the Teutonic aristocracies in Ditmarsh which furnished Niebuhr with so many valuable illustrations， or to the Celtic clan associations， or to that strange social organisation of the Sclavonic Russians and Poles which has only lately attracted notice， everywhere we discover traces of passages in their history when men of alien descent were admitted to， and amalgamated with， the original brotherhood. Adverting to Rome sing

ly， we perceive that the primary group， the Family， was being constantly adulterated by the practice of adoption， while stories seem to have been always current respecting the exotic extraction of one of the original Tribes and concerning a large addition to the houses made by one of the early kings. The composition of the state， uniformly assumed to be natural， was nevertheless known to be in great measure artificial. This conflict between belief or theory and notorious fact is at first sight extremely perplexing； but what it really illustrates is the efficiency with which Legal Fictions do their work in the infancy of society. The earliest and most extensively employed of legal fictions was that which permitted family relations to be created artificially， and there is none to which I conceive mankind to be more deeply indebted. If it had never existed， I do not see how any one of the primitive groups， whatever were their nature， could have absorbed another， or on what terms any two of them could have combined， except those of absolute superiority on one side and absolute subjection on the other. No doubt， when with our modern ideas we contemplate the union of independent communities， we can suggest a hundred modes of carrying it out， the simplest of all being that the individuals comprised in the coalescing groups shall vote or act together according to local propinquity. but the idea that a number of persons should exercise political rights in common simply because they happened to live within the same topographical limits was utterly strange and monstrous to primitive antiquity. The expedient which in those times commanded favour was that the incoming population should feign themselves to be descended from the same stock as the people on whom they were engrafted； and it is precisely the good faith of this fiction， and the closeness with which it seemed to imitate reality， that we cannot now hope to understand. One circumstance， however， which it is important to recollect， is that the men who formed the various political groups were certainly in the habit of meeting together periodically， for the purpose of acknowledging and consecrating their association by common sacrifices. Strangers amalgamated with the brotherhood were doubtless admitted to these sacrifices； and when that was once done we can believe that it seemed equally easy， or not more difficult， to conceive them as sharing in the common lineage. The conclusion then which is suggested by the evidence is， not that all early societies were formed by descent from the same ancestor， but that all of them which had any permanence and solidity either were so descended or assumed that they were. An indefinite number of causes may have shattered the primitive groups， but wherever their ingredients recombined， it was on the model or principle of an association of kindred. Whatever were the fact， all thought， language， and law adjusted themselves to the assumption. But though all this seems to me to be established with reference to the communities with whose records we are acquainted， the remainder of their history sustains the position before laid down as to the essentially transient and terminable influence of the most powerful Legal Fictions. At some point of time —— probably as soon as they felt themselves strong enough to resist extrinsic pressure —— all these states ceased to recruit themselves by factitious extensions of consanguinity. They necessarily， therefore， became Aristocracies， in all cases where a fresh population from any cause collected around them which could put in no claim to community of origin. Their sternness in maintaining the central principle of a system under which political rights were attainable on no terms whatever except connexion 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 co

ndition of community in political functions. A new set of political ideas came at once into existence， which， being those of ourselves， our contemporaries， and in great measure of our ancestors， rather obscure our perception of the older theory which they vanquished and dethroned.

　　The Family then is the type of an archaic society in all the modifications which it was capable of assuming； but the family here spoken of is not exactly the family as understood by a modern. In order to reach the ancient conception we must give to our modern ideas an important extension and an important limitation. We must look on the family as constantly enlarged by the absorption of strangers within its circle， and we must try to regard the fiction of adoption as so closely simulating the reality of kinship that neither law nor opinion makes the slightest difference between a real and an adoptive connexion. On the other hand， the persons theoretically amalgamated into a family by their common descent are practically held together by common obedience to their highest living ascendant， the father， grandfather， or great-grandfather. The patriarchal authority of a chieftain is as necessary an ingredient in the notion of the family group as the fact （or assumed fact） of its having sprung from his loins； and hence we must understand that if there be any persons who， however truly included in the brotherhood by virtue of their blood-relationship， have nevertheless de facto withdrawn themselves from the empire of its ruler， they are always， in the beginnings of law， considered as lost to the family. It is this patriarchal aggregate —— the modern family thus cut down on one side and extended on the other which meets us on the threshold of p

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