UNIVERSITY OF CALIFORNIA SAN DIEGO
3 1822 00742 5077
Central University Library
University of California, San Diego
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|,y^''yERSITY OF CALIFORNIA SAN DIEGO
3' 1822 00742 5077
THE
AEYAN HOUSEHOLD
Works hy the same Author.
I.
PLUTOLOGY :
Ok, The Tujiuuv oi- Thk Efforts to Satisfy Human
Wants.
Price Sixteen Shillings.
II.
THE GOVERNMENT OF ENGLAND,
Its Structure and its Development.
Price Sixteen Shillings.
THE
ARYA¥ HOUSEHOLD
ITS STRUCTURE AND ITS
DEVELOPMENT
AN TXTRODUCTIOX TO
COMPARATIVE JURISPRUDENCE
4
BY
WILLIAM EDWARD HEARN, LL.D.
DKAN OF TIIK FACTI.TV OF LAW IN TIIK IM\ Ki;<nv OK MKLBOCRNR
GEORGE ROBERTSON
MELBOURNE, SYDNEY, AND ADELAIDE
MPCCCLXXVIII
All rights reserved.
MKLBOURNE :
PRINTED BY WALKER, MAY, AND CO.,
9 JfACKILLOP STREET.
TABLE OF CONTENTS.
IXTRODUCTION'
PAGR
1
Chapter I. Archaic Worship.
, '/
V.L^ Objects of archaic belief
-2^ The relations between the Divinity and tlic ^^'orshippor
3. The relations Ijetween Co-worshippers
4. The symbol of community of worship was the Common Meal
5. The Common Meal implies both act and intent
6. The theory of this symbol ...
15
19
26
29
30
33
Chapter II. The Ilov.se Sjyiril.
,^jtj^ Nature of House Worship ...
^^^y The Worship of Deceased Ancestors an Aryan institution
3. House Worsliip a veritable religion
4. Tlie Worship on the Hearth
5. House Worship and House Burial
..-6; Iiitual of House Worship ...
7. Persistence of Hou.se Worship
39
41
47
49
52
54
5G
Chapter ITT. The I/oiisrhnhl.
53'^ '^'*<^ ^"T^ratc character of tlie Household ... ... (13
2. , Historical exami)les of this Corporate cliaracter ... ... (J7
/^j^^'he foundation of the Household was Marriage ... ... GO
4. TIic Kite of Initiation ... ... ... ... 72
5. The Property of the Household ... ... ... ... 74
fc^ The Succession ... ... ... ... ... ... 79
Chapter IV. Thp JJintinctioii (if L\tuhs in ihr Jfonsehohl.
1^. The House Fatlicr ... ... ... ... ... 84
/^^The House Mother ... ... ... ... ... 86
3,,^'lic Children ... ... ... ... ... ... yi
/^ .The cliccks ujjon Patenial Power ... ... ... ... 97
/ B. The provisions in default of Sons ... ... ... ... 102
6. The Dependents ... ... ... .. ... ... 107
vi TABLE OF CONTENTS.
Chapter V. The Clan.
PARE
§ 1. Description of the Clan ... ... ... ... ••• 112
2. The Sacra of the Clan ... ... ... ... ...118
3. The Inheritance of the Clan ... ... .. ...122
4. The Organization of the Clan ... ... ... ... 125
5. Admission to and Departure from the Clan ... ... ... 131
6. The Help to Clansmen and their Redress ... ... ... 133
7. Theories respecting the origin of the Clan ... ... ... 136
Chapter VI. The System of Archaic Kinship.
Kinship traced from the Eponym
Kin,ship among the Aryan nations Agnatic ...
Alleged traces of opposite system
I The principle of Exogamy ...
The theory of Agnation
Chapter VII. The Nem' Kin.
§ 1. The Agnati and the Gentiles
2. The boundary between tlie Agnatio and the Gens
3. The Joint Undivided Family
4. The identity of the Joint Family and the Near Kin ...
5. The development of the Joint Family
6. The Proprietary Eights of its Members
Chapter VIII. The DisfAnction of Kanhs in the Clan
§ 1. The division of the Free Population
2. The causes of Nobility
3. The Chieftaincy ...
4. The Custom of the Three Descents . .
5. Historical evidence of the Three Descents
I}.' The importance of Genealogies
Chapter IX. Community.
% 1. The territorial relations of Clansmen
2. The Land of the Clan as regards strangers ...
3. The Land of the Clan as between Clansmen ...
4. The Township and its Houses
5. The Arable Land
6. The Waste Land ...
143
147
150
155
162
167
171
176
181
185
190
192
195
198
202
205
209
212
214
217
221
223
227
Chapter X. Immunity.
1. Independent Households co-existed with Communes ... ... 232
2. Distinction between InheritEince and Acquisition ... ... 2.35
TABLE OF CONTENTS. vii
PACJK
§ 3. The Extra-communal Household ... ... ... ... 242
4. Tlic Comitatus ... ... ... ... ... ... 247
5. The Inferior Population ... ... ... ... ... 251
6. The Land-rights of the Dependent Classes ... .. ... 253
Chapter XI. The Conihiaallon vf Claim.
§ 1. The Natural E.vpansion of Clans ... ... .. ... 259
2. Difficulty of Co-operation ill Cliins ... ... ... ... 2G2
3. Association of Clans by Cuncjuest .. ... ... ... 265
4. Association of Clans by Agi'eenient ... ... ... ... 268
5. Moral effects of sucli agreements ... ... ... ... 271
6. Minor forms of Association ... ... ... ... 273
Chapter Xll. Geutis Cunabula Xostrae.
§ 1. The Primitive Aryans ... ... ... .. ... 277
2. The Comparative Method of Inquiry ... ... ... 27S
, 3. "^ The Household ... ... ... ... 2S1
4. The House Spirit and the Hearth ... ... ... .. 285
5. The Clan and its Divisions... ... ... ... ... 287
G. The Mark System ... ... ... ... ...292
,^ The Negative EWdence ... ... ... ... ...293
Chapter XIII. Xon-GeHeuloylc Clans.
§ 1 . The Household the type of archaic Association ... ... 296
2. Tlie formation of artificial Associations ... ... ... 298
3. ^ The llcligious Association . . ... ... ... 303
^^^^T^he Professional or Industrial Association ... ... ... 309
5. Some examples of Professional Associations ... ... ... 312
Chapter XIV. The .StaU:
^1, 'C'oinparison of social combinations ... ... ... ... 317
2. The character of the State Union ... . ... ... 319
3. Historical evidence of tliis view of the State ... ... ... 325
4. Tlic relation of the Curia to tiie State ... ... 333
5. Tlie State and tlie Army ... ... ... ... ... 335
U. The disintegration of the State ... .. ... 339
Chaptkk XV. Thfi Members I)/' the State.
% 1. Jus Publicum and Jus Privatum ... ... ... ... .S42
2. Infant Sons not Members of the State ... ... ... .S44
Cji-^J'olitical Kiglits of a Son under Power ... ... ... .347
^_j|^ AVomen not Members of the State ... ... .351
'^^ji^ Slaves not Mend)er« of tlie Stite ... .. .. ^^'A
G. E.\cmptiua of the House and its Precinct from .Ins Publicum ... .356
TABLE OF CONTENTS.
Chapteii XVI. Tug Terr'itorij of the State.
The principle of Vicinity ...
'^_^^^,.^^Y\cu\itj as a source of Eight
3. Vicinity as a source of Duty
«i^^The failui-e of the City State
5. The growth of Territorial Sovereignty
6. The doctrines of Allegiance and Territoriality
Chapter XVII. Laio and Custom.
§ 1. The nature of Law
2. The nature of Custom
The nature of Customary Law
^How Custom becomes Law
/Some consequences of this theory
Eeciprocal influence of Law and Custom
I'AfiK
. 361
. 364
. 368
. 370
. 372
. 378
381
384
390
395
400
404
Chapter XVIII, TJie Law and C adorn of Properti/.
of the Property of the
\y^ Universality of Property
2. The origin of Aryan Property
3. Jus Civile and Jus Honorarium
4. Jus Civile was the Customary Law
Household
^^^/^istorical origin of Jus Honorarium
^
Chapter XIX. The Rise of Civil Jurisdiction.
(:j^'
!jaw originally limited to direct interests of the State .
The State arbitrates in private disputes
The State regixlates private remedies
The State enforces rights ...
The State warrants protection
•^A.nalogies in the history of International Law
Chapter XX. The Decadence of the Clan.
§ 1
State action tends to Gentile Disintegration ...
The State performs Gentile Functions
Transition from Corporate to Individual Ownership
Limitation of the House Father's Power
/f^T\ The disintegrating influence of Christianity . . .
Y 6. y The rise of the Modern Nation
411
413
418
421
424
430
432
436
443
447
450
453
455
465
470
473
478
INTRODUCTION.
I PROPOSE to describe the rise and the progress of the
principal institutions that are common to the nations of the
Aryan race. I sliall endeavour to illustrate the social
ortranization under -svliich our remote forefathers lived. I
shall, so far as I am able, trace the modes of thought and of
feeling which, in their mutual relations, influenced their
conduct. I shall indicate the germs of those institutions
which have now attained so high a development ; and I
shall attempt to show the circumstances in which political
society took its lise, and the steps by which, in Western
Europe, it supplanted its ancient rival.
My subject is confined to the institutions of the Aiyan
race. I do not offer these pages as a contribution to the
histoiy of culture. I do not seek to propose or to support
any system as to the origin or the evolution of man. With
the theories that have been advocated on these subjects, I
am not now concerned, and I express no opinion upon them.
I neither affirm nor deny their truth. I seek to investigate
the early history of the institutions of one family of the
human race, and to follow tliat inquiry so far only a,s there
is positive evidence for our guidance. Even within these
limits the subject is wide enough and grand enough to
wai rant a separate discussion. That famil}' of nations of
wliicli 1 write is confes.sedly the foremost in the world. It
includes almost all the nations of Europe. It includes
2
2 INTEODUCTION.
the Empire, once so great, of Persia, and the multi-
tudinous tribes of Hindostan. Its history is more
glorious, its renown is more diffused, its progress in science
and in art is more advanced, its religion is more pure, its
politics and its laws are more beneficent and more just, than
those which prevail elsewhere upon earth. It, too, is that
great mother of men by whose sons vast continents have
been, and still are being, won from the wildness of nature,
and converted to purposes of human use and human enjoy-
ment. By their strong arms and their bold hearts the
aspiration of Poseidon* has been fulfilled, and the Aryan
name and the Aryan fame have been borne wherever Eos
sheds her rays. The early history of such a race is worth
an inquiry for itself. Except, therefore, when it is necessary
to prove the present existence of some social force which has
ceased to operate among ourselves, I have omitted all notice
of non- Aryan peoples. If no conclusions be drawn wider
than the premises, if the assertions made be limited to Aryan
men, no reasonable objection can be taken to this course.
We thereby sacrifice, indeed, much that is of interest, and
detract much from the pretensions of our inquiry to
scientific rank. Yet, if we lose in extent, we gain in
accuracy. Our evidence as to early Aryan institutions is
far superior to the evidence respecting the institutions of
any other people, except the Hebrews. Most of our know-
ledge of other races rests upon the unsupported testimony
of travellers or sojourners. Of these persons, many had
little competency as observers. Even where the skill of
the observer is undisputed, the difficulty of communication
between men whose intellects are on a different level, the
difficulty of explaining in a strange language strange and
complicated customs, and the fact that the information thus
* (Tov 3' i]TOL (cXe'oc e.(TTaL utrov r iiriKidfarai j'/wc- — ^^-i ^"•' '^^^-
INTRODUCTION. 3
acquired relates to contemporaneous matters" only, and does
not profess to explain preceding states of society, all tend
to diminish the value of the evidence. In the case of such
testimony, even though it be the best of its kind, we
anxiously look for some corroboration. This corroboration
is attained, in a special degree, in the case of the Aiyan
nations. For them, or at least for some of them, wc
possess trustworthy records, both direct and incidental, of
their modes of life, their beliefs, and their manners, for a
period extending backwards for 3,000 years. Not only are
our materials richer, but they have been more thoroughly
treated, and are more ready for use than those which exist
in any other case. And for the Aryans alone, the recent
sciences of Comparative Philology and of Comparative
Mythology have thrown new and welcome lights upon the
remote past. Further, the Aiyans form a well-marked
ethnolof^ic division. Even if foreigfn elements sometimes
present themselves, tlie main influencing forces arc homo-
geneous. We can pursue our inquiries without being
disturbed by the appearance of that unknown and immeasur-
able (quantity termed race. When definite conclusions
respecting the primitive Aryan culture have been established,
these conclusions may hereafter receive — indeed, wc may
confidently anticipate will receive — a much wider extension.
But, in tlie present condition of our knowledge, it is prudent
to avoid all disturbing influences, and to trace as fully as
wc can those lines upon which the gi-eat edifice of Western
civilization has, in fact, been built.
For these reasons, I have assumed as my stalling pi)int
the earliest state of Aryan society of which we have any
distinct historical proof. How that state began, or what
were its antecedents, I do not incjuire. Doubtless society
had a beginning upon earth as well as life itself. Whether
these beginnings arc, or are not, discoverable, I do not
4 INTRODUCTION.
pretend to say. But all of truth that the following pages
contain will remain true in whatever way society began, or
whatever may have been the antecedents of our race.
The other extreme, however, of our inquiry is more difficult
to mark. The stream of history not only broadens and
deepens, but also divides as it flows down. I do not say
that a history of Aryan civilization, or even a general
history of the Aryan race, is an impossibility ; but it is a
task which I have no intention to undertake. All that I
propose is to examine the structure of our archaic society,
and to indicate, if I cannot fully trace, the process of its
development. That development has, of course, varied
with the circumstances of each people. I can but illustrate
its mother form, and note the rudiments of our present
institutions. I have thus to describe, first, the clan system,
which was the original t3rpe of Aryan society ; and, next,
the rise of political society, and its relation to the earlier
system. With the complete establishment of the later
form my task is done, and I leave to others the narration
of the complex fortunes of the State.
In all its leading characteristics — political, legal, religious,
economic — archaic society presents a complete contrast to
that in which we live. There was in it no central govern-
ment, and consequently there were no political organs.
There was no law to make, and there was none to be
executed. There were neither parliaments, nor courts of
justice, nor executive officers. There was no national church.
The great bulk of property, not only as to its tenure, but
as to its enjoyment, was in the hands — not of individuals,
but of corporate households. There were few contracts,
and no wills. Men lived according to their customs. They
received their property from their fathers, and transmitted
it to their heirs. They were protected, or, if need were,
avenged, by the help of their kinsmen. There was, in
INTRODUCTION. S
short, neither individual nor State. The clan, or some
association founded upon the model of the clan, and its
subdivisions, filled the whole of our forefathers' social life.
Within its limits was their world. Beyond it, they could
find no resting place. For the origin of this clan relation,
we must ascend a long way in the history of the human
mind. It is due neither to force nor to fraud, nor to any
calculation of personal advantage. It has its source in the
sentiment of religion. In archaic society, the one unfailing-
centripetal force was community of worship. As many as
were forms of worship, so many were'the associations of men.
Where men were associated, there a special worship is
found. The symbol of the common worship was a meal
shared in honour of the Deity. Of these various worships,
probably the oldest, and certainly the most persistent, was
the worship of the Lares, or house spirits, or, in other words,
deceased ancestors. These spirits, together with their living-
descendants — whether natural, or adoptive — in their sevei"al
ranks formed collectively that corporate body which,
though it is known by a variety of names, I have called the
hou.sehold. Over the household the House Father presided,
with powers limited only by the custom of his race. He
was generally the eldest male of the line. He represented
the househ(jld in all external dealinf's. He wa-s charjred
with the management of its property and with the celebra-
tion of its worship. Sooner or later, when the household
became inconveniently large, it spontaneously divided into
several liouseholds, all related to eacli other, but each having
a separate existence, each holding distinct corporate
property, and each maintaining its special worship. The
continued increase of these related households irave rise to
the clan, the form in which, historically, our ancestoi*s first
become apparent to us. This wider association, which
naturally resembled, in many respects, the househoM uf
6 INTRODUCTION.
which it was the expansion, marked the boundary line of
human sympathy in the archaic world. Within the clan
there were the truest loyalty and devotion. Beyond the
clan there was at best absolute indifference, and usually
active hostility. The clan was settled upon land of
which it, in its corporate character, had the exclusive
ownership, and which it shared among its members
according to certain customary rules. It possessed an
organization sufficient for its ordinary wants, and was
essentially autonomous. It had, too, its gradations
of rank. Every clan contained nobles — that is, men of
pure blood and of long descent, and free men whose blood,
though good, was not maintained through the necessary
number of generations. But it contained others besides
the men of pure blood. These were dependents, varying
in degree from the honoured guest to the mere slave.
Some of these dependents, who were personally free, and
were settled on the land, acquired, by a residence extending
over three generations, rights of inheritance in the soil;,
and could not, according to general custom, be removed
from their holdings so long as they performed their
customary duties. But although property was thus generally
held by corporate households, agencies were at work which
tended to introduce separate interests. The old customs
were inflexible. They admitted of no deviation, and of
no extension. Accordingly, their rules of property
applied only to certain specified objects. These objects,
including generally the house and the land, with certain
rights incident thereto, and the instruments of cultivation,
descended from father to son. They were the corpus, so to
speak, of the household estate, and were intended to be
inalienable. But other kinds of property, otherwise
acquired, were not within the custom. Two kinds of
property seem thus to have grown up together, both of which,
INTRODUCTION. 7
in regard to ditferent objects, miglit co-exist in the same
person. Thus, although all households had their respective
shares in the common estate, one household might become
much richer than another. In a time when there were
few markets either for the sale of sui-plus produce or for
the purchase of objects of desire, the larger part of any
superfluous wealth was naturally expended in the main-
tenance of permanent retainers, or in the occasional supply
of food and equipments. Thus we have two institutions
— the village community, and by its side, in favourable
conditions, the enlarged independent household under the
absolute control of its head. Such apparently was the
form of the society in which lived the connuon forefathers
of the great nations of Western Europe. In their original
home in Central Asia they lived much as the Rajput clans
now live, as the Hitrhlanders lived two centuries ago, as the
Romans lived under their Icings, as the Athenians lived
before the time of Solon. This was the germ — even yet in
some places discernible in its original form — from which, by
lineal descent, came the Empire of Rome and the Empire of
Byzantium, the chivalry of the Latin nations, the restored
sceptre of the united Fatherland, and the long glories of
the British Crown.
These clans gave rise to new combinations. Sometimes
they fo)ined the model for other associations more or less
lasting, which, although the motive for their establishment
varied, always assumed tlie foiiii and followed the rules of
a brotherhood. Sometimes new and kindred clans arose in
the ordinaiy course of evolution, and acknowledged an
inter-gentile relation similar to the relation which cxi.sted
between members of tlu' same clan. Sometimes separate
clans combined, either for temporary objects, or with the
intention of a permanent alliance. One of these forms of
union gave riso to what we call the State. Between the
8 INTRODUCTION.
different coalescing bodies a true integration took place,
and the aggregate acquired a life separate from the life of
its several component parts, and ultimately superior to it.
This union was at first, like all others, personal, but finally
became territorial. The tie that held the society together
was not the fact of a common descent, or even the fact of a
common worship, but the fact of its occupation of a common
country. Early political history consists mainly of the
narrative of the relations between the clans and the new
body to which they had given rise. The great example of
this process is found in the history of Koman law, both
because Rome was the earliest example on a large scale of
a true State, and because the results of that process directly
and largely influenced the history of modern Europe. I
have therefore endeavoured to compare the two analogous
social functions — Law and Custom ; the one belonging to
the State, the other holding a similar place in relation to
the clan. I have sought to trace the early history of
property, and the gradual growth of the supremacy of law;
and I have followed the sinking fortunes of the clan until,
all over the ancient world, the State shone forth sole regent
of the social sky in the unclouded splendour of the Julian line.
The discovery that society may be organized otherwise
than politically, and that our own political society includes
among its antecedents such an organization, will ultimately
lead to a reconsideration of some important departments of
human knowledge. The earliest and the most conspicuous
and the most extensive changes may be expected in history.
The tale must be told over again, and from a different point
of view. Narratives which pre-suppose the existence of a
state of society similar to our own, and of similar motives,
cannot be set right by a few notes or corrections. The
stand-point must be changed, and the old materials must
under the altered lioht be studied anew. Still more than
INTRODUCTION. 9
in general history the necessity for reconstruction appears
in the history of law. Law is a secondaiy phenomenon,
and is itself the result of remoter antecedents. It follows,
therefore, that, in the words of Sir H. S. Maine, " Nothing
in law springs entirely from a sense of convenience."* In
law, above all things, we must leave the streams and seek
the sources. It is not long since it was thought to be a
sufficient explanation of any legal peculiarity to refer it to
the feudal system ; and the feudal system has to answer for
many an error, and much pei-plexity, in original inquiries
into archaic society, and sometimes for more serious and
practical inconveniences. It is now clear that we must go
a long way behind feudalism, and that the so-called feudal
analogies among (for example) the Rajputs and the Afghans
are altogether delusive. To these earlier social forms many
branches of our law and our institutions may readily be
traced. The development of the village, or assemblage of
dwellings, gave the ttoXic, or City State. The development
of the arable mark gave the Indian and the Slav village
communities. The development of the pastoral mark
explains many peculiarities of the Keltic clan. The
Comitatus is merely an enlargement of the household. The
law of allegiance, the law of the precinct, the law of the
peace, were all const-* jueiices of the Com itntus. They marked
tlie authority of the House Father, whether personal, or local,
or guaranteed. The various associations, whether for
religious, or industrial, or professional pui-poses, pre-suppo.se
and imitate the archaic forms of society. And these
forms, and the modes of thought to whicli they give rise,
alone explain the old di.sputes between the nobles and the
plebeians, the nature of the tyrannies, and iinitli else that is
perplexing in the law and the government of antiquity.
• "Ancient Law," p. 2.13.
10 INTRODUCTION.
I may here notice a consequence of this view which
throws some hght on a once famous controversy. I mean
the theory of the social contract. That society was
based upon a contract few persons would now care to
maintain. There is no evidence that any such contract was
in fact made. It is in effect inconceivable that it should
have been formed ; it is scarcely less inconceivable that,
having been formed, it should have been observed. But it
is, I think, too much to say that no political society could
have at least originated in contract. I suppose that, in the
case of the United States, and in the case of the United
Kingdom itself, we have examples of two great political
societies of which contract is the foundation. Colonial
governments, too, are formed, if not by contract, yet arti-
ficially by legislation. We shall see that the earliest
political societies were in the nature of voluntary associa-
tions, the basis of which was community of worship. The
controversy seems to have arisen from the faihire to perceive
that political society, although it is the highest, is not the
only form of society ; and that men have lived, and still
live happily, without kings, and without parliaments, and
without laws.
There are other matters, too, on which, under the penalty
of serious error, we must not apply, to men under different
conditions from ourselves, our ordinary standards of judg-
ment. Much of the opposition to political economy has
been due to the very natural, or at least very British, desire
of some of its earlier teachers to generalize from British
phenomena alone. This error has been corrected ; but it is
evident that there are some societies which the ordinary
economic rules do not fit. I think that the reason is, that
the conditions of political society alone furnish the postulates
of political economy. I believe that political economy is a
true science ; that is, that its phenomena may be traced to
INTRODUCTION. 11
ultimate laws of human nature. These laws are at all times
the same, but the conditions necessary for their operation
did not exist, or very imperfectly existed, in archaic society.
Political economy requires competition, and is hopelessly
embarrassed by custom. Competition implies free indi-
vidual action, and such action is unknowTi under the clan
regime. The conclusions of political economy are univer-
sally true, but only on the assumption that a certain state of
society is present, and that certain beliefs and motives are
absent. What can political economy do with a Chinaman,
who, for the sake of posthumous worship of himself and
his ancestors, is willinfj to be hanfjed for the sum of £33 ?
" It is difficult," says Mr. Lyall,* " to deal with a holy
man whose disciples are ready to bury themselves alive if
the Government puts pressure on their master for land-
taxes, and thus to bring down a curse upon the whole
administration. This is the Hindu method of excom-
munication, veiy effective still in Rajpiitana, and not to
be faced with impunity by the most powerful chief."
Similar observations apply in the case of ethics. The
principles of right and wrong are immutable, but their
application in dealings with other pei-sons is different in
different ages. Among archaic men the clan, or other
association like the clan, forms to each individual his
world. Within it his duties lie, and are recognized.
Without it he acknowled<xes no more oblisfation towards
other men than he does towards the inhabitants of another
planet. It is imreasonable to blame men for not conft)rming
to a standard which tliey never accepted, ami of which
they never heard. The theoiy of utility would liave been
altogether incomprehensible to our archaic forefathei-s.
Tlie theory of the moral sen.se would have been intidligible,
•E.l. Uov., cxliv., 198.
12 INTRODUCTION.
provided that its operation was limited to a man's own kin.
The recognition of the brotherhood of the human race has
been a slow and painful lesson, and perhaps even yet some
portions of it remain to be learned. We should not,
therefore, be harsh in our condemnation of archaic men
whose moral standard was different from our own, because
they, without hesitation, did acts or observed forbearances
which, among those who walk by a better light, would
call forth merited reprobation.
One suggestion of a practical character I will, in this
connection, venture to offer. One of the great difficulties
that missionaries have experienced in dealing with those
people whose society is archaic has been the ruinous social
consequences of conversion. In such circumstances a
convert must literally obey the precept of the Gospel, and,
if he desire to follow his new Master, must leave all. He
becomes an outcast from his own people and his father's
house ; but his new religion does not supply him with a
new place in the world. A religion which has adapted
itself to a system where the social unit is the individual,
strangely misfits a convert who has never known any other
form of society than that of the clan. Yet in its early days
Christianity was formed upon the ancient type, and the
Church was practically an all-receiving non-genealogic
clan, in which every new comer found his appointed place
and his fit society. To some such primitive form it will
have to revert when it deals with people whose social state
is imperfectly developed. Amongst them the Church must
compete, as once among our own race it competed, with the
household and the kin; and the mutual relations of Christian
men must, under such conditions, be rendered far more
intimate than for a thousand years they have been in
Europe. I believe that, in India at least, some of the
missionaries perceive this necessity. Villages have been
INTRODUCTION. 13
formed of converts collected from a variety of distncts.
It is said that these persons readily fall into a " brother-
hood,"* and assume the character of a genuine village
community. The experiment is one of deep interest to
those who obsei've social phenomena. To those who are
occupied with higher concerns it may possibly prove a new
and potent force.
If we cannot measure the Past by the Present, so it is
vain to seek for the Present a standard in the Past. The
structures of the two societies are radically different. Some
persons have fancied that they can see in the Russian Mir
the realization of their communistic dreams, just as the philo-
sophers of the Porch once thought that they had found in the
jurisdiction of the Prpetor their long-sought Law of Nature.
But the Mir is on a lower level of social structure than
that of Western Europe ; and the attempt on our part to
imitate it is not more reasonable than would be an attempt
to make men quadrupeds, or to convert mammals into birds.
We cannot, while we remain what we are, restore the
institutions of the past. The better adapted these institu-
tions were to their original purpose, the less fit are they
for the altc're<l conditions of our present life. The land
tenure of archaic times implied among the freemen an
aristocracy of birth, and below the freemen a servile popu-
lation. Our forefathers would have regarded the doctrine
of the equality of man as folly, and the doctrine of the free
transfer of land as impious. We cannot, then, hope to
leam from the history of these lower forms any practical
improvement in our social arrangements. But we can more
or less distinctly trace the steps by which these an*ange-
ments in fact arose. We can see how much of them is
permanent, and in what direction alteration is safe.
• Sir H. S. Maine, "Early History of Institutions," p. 238. See also
Mr. Hunter's "Orissa," vol. ii., p. 143.
14 INTRODUCTION.
Most of all, early histoiy suggests how slow, and difficult,
and uncertain a process is national growth ; how easily the
oak that has stood for centuries may be cut down ; how
impossible it is to fill its place. There was true wisdom in
the admonition of the Doric mother to her son, " Spartam
nactus es ; heme exorna." The study of the Past teaches
us to be proud of the Present, although with no indis-
criminating pride ; and while it warns us that change is the
law of social life, it also warns us that the character and
the limits of that change are not arbitrary. Such will, I
think, be the predominating sentiment in the mind of
every one who, from the scattered fragments and faint
memories of the Past, essays to —
" Spell tlie record of his long descent,
More largely conscious of the life that was. "
C H A P T E Pt I.
ARCHAIC WORSHIP.
§ 1. The tiutli or the falsity of any belief has a very objects of
different meaning in history from that which it hasl in belief.
physical science. In the latter case, it is the supreme
(question. The object of science is to ascertain whether
certain facts do or do not bear certain relations to certain
other facts ; and a belief upon the subject is useful only
when and so far as it agrees with the actual state of things.
But in discussions relating to human conduct, the matter is
often different. In these circumstances, the inquiry relates
not to the character of the belief, but to its existenc e. We
ask riot whether such a belief be true or Ijc false, but
whether men have or have not entertained it and acted
upon it. In this aspect, the quality of the belief is
immaterial. It is not relevant to the pui-poses of the
inquiry. The gieat problem of history is to trace the
process by which the Present has been evolved from the
Past. One main agent of that process is liuman beliefs ;
an<l human beliefs include — and in their early stages
absolutely pre-suppose — human errors. We must not,
therefore, turn with scorn from the simple theories by
which our forefathers sought to account for the phenomena
winch they observed in themselves and in the external
world. In the a])scnce of any accumulated experience, of
any extended observation, of any systematic knowledge,
these theories were of necessity rude enough. They were.
16 ARCHAIC WOESHIP.
however, the best that the nature of the case admitted. On
the assumption that they were true, the inferences deduced
from them were for the most part reasonable and consistent.
But no accuracy in reasoning could cure the original defect.
That defect men were slow to discover ; and when it w^as
discovered, it was no easy matter to alter the practical
arrangements to which it had given rise.
It is no part of my present purpose to narrate the history
of primitive beliefs, either generally or even among the men
of our own race, or to trace the circumstances which gave
rise to the states of mind from which these beliefs pro-
ceeded. It is enough for me that, so far as the external
world was concerned, men applied the sole standard
which they possessed — namely, that which they found
within themselves. That man is the measure of all things
is a very ancient maxim. Hence the archaic man supposed
that every force to which his attention was directed was
similar to that which he reco gnized in him self, and either
was or implied a like being. He was conscious, or thought
that he was conscious, that he himself consisted of a soul
and a body — of something substantial, and of something
insubstantial ; and he concluded that, in like manner, there
were souls in things. The forces of Nature were^nera^
more powerful than he, and were, or seemed to be, capable
of doing him good or evil. They therefore, appeared to him
fit objects of supplication — beings whose favour he might
procure, or whose wrath he might avert. Hence arose the
whole system of Nature-worship, and all the myths of the
Sun and of the Moon — of the Dawn, the Twilight, and the
Night — of the Wind and the Storm — of Earth, and Sea,
and Sky. The uncultured man, indeed, worships every
force* that assists, or that obsti-ucts him in his daily work.
* See Mr. Lyall, cited in Sir H. S. Maine's "Village Communities,"
p. 399 {2ncl ed.)
OBJECTS OF ARCHAIC BELIEF. 17
That-worehip js his recognition^ of the existence of such a
force, and .of its connection — or, at least, its possible con-
nection — with his own welfare. It is the method by which
he accounts for phenomena which have casually attracted his
attention, or affect his life. In other words, Mytholo*^ was
the natural philosophy of the early world. " .1 ^^
But there were other forces than those of external Nature
that more nearly — and, therefore, more powerfully — affected
men's minds. Explanations were needed, not only of
physical, but of biological phenomena. Fearfully and
wonderfully as man is made, his own structure and its
functions, since they were independent of his volition,
seemed to imply the interference of some external agency.
The animals and the plants which surrounded him presented
similar phenomena, and received a similar explanation. The
Romans, at least, created a complete pantheon of natural
history. It is, indeed, difficult, when we read the long and
curious catalogue of that pantheon which St. Augustine* has
preserved for us, to believe that the deities whom he
describes were ever regarded as anything beyond mere
names of certain physical fonns and processes. However
this may have been, other phenomena of our nature suggested
— and more than suggested — some unseen, superhuman,
power. Sleep and waking — birth, and life, and death
— dreams, trances, and visions — madness and the varied
forms of nervous disease — all these raised questions^
some of which have not yet been answered. From
these facts it was almost inevitable that the untrained
and unassisted intellect should draw the conclusion tliat
disembodied spirits bore no unimportant part in the
economy of Nature, and that these spirits — terrible, because
un.secn — were capable of becoming friends or foes. The
• "City of God" (Mr. Dod'a translation), vol. i., pj.. 1 14, 149, 249, 260.
8
18 ARCHAIC WORSHIP.
dwelling-place of the spirit was not unnaturally assumed to
be the place where the body was laid. Men, therefore,
sought to conciliate the spirit of some distinguished stranger
whose last home was, or might be made, in the land of
his votaries. Thus the Thebans and the Athenians disputed
over the body of (Edipus, and the Argives and the Trojans
fought for the bones of Orestes. Thus the Acanthians
offered sacrifice to the gigantic Persian engineer who died
amongst them, and the people of Amphipolis to the gallant
Brasidas.* So, too, the Hindu of the present day adores
the name of any prominent English official that happens
to be buried near his village. Such worship was natural,
according to archaic ideas; but far more natural, by the
same standard, was the belief that the spirits of those whom
men loved and honoured in their life continued after death
their vigilance and their aid. The interests of men in the
flesh were also their interests in the spirit, and the loves
and the hates of this world followed the deceased to that
world which lay beyond the grave.
Manes-worship, therefore, stands on the same base as the
more picturesque worship of Olympos. As the latter is the
explanation which the youth of the world offers of physical
phenomena, so the former is its attempt to solve the mightier
problems of human existence. The one is primitive physics,
the other is primitive biology. But they agree in applying
to these different classes of facts the same method, that
method which we still observe in children and in uncultured
races, that method so natural to man when he seems to
himself the measure of all things. In both cases alike, the
phenomena are interpreted by the presence and the action
of some sentient being, feeling and thinking as man himself
feels and thinks. Thus, primitive worship and that great
* Herodotus, vii., 117 ; Thucyd., v. 11.
OBJECTS OF ARCHAIC BELIEF. 19
train of consequences that it has transmitted to us depend,
like primitive mythology, upon the state of our intelligence.
It is, after all, the intellect that ultimately directs and
determines the main current of the varying and tortuous
stream of the world's history.
Early philosophy, then, and early religion were at first_
one^ Such a union in later times tends indeed to produce,
in the words of Lord Bacon, " an heretical religion and a
fantastic philosophy." But, in an early stage of mental
development, the combination is one which we are prepared
to expect. Whether or not there may have been a still
more rudimentary and homogeneous form than any with
which we are acquainted, I am not now concerned to
inquire. At all events, at the first dawn of our historical
knowledge a differentiation is apparent, and we perceive
two forms of this combination. In their philosophical
aspect these forms represented, the one the natural philo-
sophy, the other the biology of our forefathers. In their
religious aspect, the one was the mj-thical, or heroic, or
Olympian religion ; the other was t^he domestic religion, the
religion of the hearth and of daily life. lUt is of this latter
religion — the earlier in point of time, the more effective in its
moral element, and the more influential in detennininir the
growth of institutions and the general coui-se of events —
that I now propose to treat.
Jlj 2. Nothing was farther from the minds of archaic men The ida-
than the noti<>n that all men were of one blood, and werg the twccn'tlic
creatures of an All-Father in Heaven. The u nivei-sal bblie l!^!,Vn'7
of the early world was, that men were of different blodds ; j^r"^''\/
t hat they each had fathers of their own; and that these ^
fathers were not in Heaven, but beneath the earth. They ^^^
had a strong and practical conviction that they livcd^undei'
a Divine protection ; that this protection extended to them-
^-
20 ARCHAIC WOESHIP.
selves and all the members of their households ; and that
its influence not only did not defend, but was usually hostile
to others. Those others had in like manner their own
gods, who naturally favoured and protected them, as
household gods ought to do. Every aggregation of
men, whether domestic or passing beyond that limit,
had its tutelary spirit; and this spirit was the only
known means of securing the permanency of the aggre-
gation. The House Father of old cared little whether
the universe had one author or many authors. His
practical duty, his hopes and fears, centered upon his
own hearth. Profoundly religious, indeed, he was; but his
relio:ion assumed a different form from that with which
we are familiar. In its origin, its objects, and its results,
it was entirely domestic.
Thus, in place of the uniform government of an impartial
Creator, whose sun shines and whose rain falls alike upon
the unjust and the just, the world presented itself to the
archaic^ mind as governed by ava'st^ariety of gods, acting
each on his own principles, and each seeking the exclusive
interest of his worshippers. Every assemblage of men had
their own god, and regarded that god as their exclusive
property. If they prospered, he prospered ; if they were
unfortunate, his worship suffered with them ; if they were
conquered, he was conquered too. They repudiated any
obligation to any other deity. They resented any worship
of him by any other persons. They even contemplated the
possibility that he might be stolen from them or induced to
abandon them. As they owed to him true and faithful
_allegiance, so they expected from him protection and
support. If he was negligent or impotent, if he was
unwilling or unable to help them in the time of need, they
regarded the contract as dissolved, and renounced their
allegiance to so useless a protector.
THE DIVINITY AND THE WORSHIPPER. 21
It is not easy to give strict proof of propositions -which
are not so mueli expressly stated by any early writer as
implied and assumed throughout all ancient literature.
But this conception of property in special deities, strange
as it sounds in Christian ears, admits of illustrations ranging
from the present day to the remotest records of our race.
We know that, at this day, it is the first duty of a good
Hindu* to worship his village god. The old Zend inscrip-
tions make mention of similar divinities under the
suggestive title of Vithihis Bagaihis, the Wick-Bogies.-f- It
is needless to cite examples of the special cults of Hellas or
of Italy; or to tell of the Ai-give Here and Athene of
Alalkomene ; of the gi'eat goddess whom all Asia and
the world worshipped ; of the gieat Twin Brothers whose
home was on the Eurotas; or of the less famous Jupiter of
Anxur, and JujDiter of Lanuvium ; of Feronia of Terracina ;
or of Anguitia Marsorum, We read of special gods of the
Teutonic tribes, and of special gods of the Keltic tribes ; of
the woi-shippers of Hertha, and the worshippers of Woden;
of the god of the Gadeni,:J: and the goddess of the Brigantes.
In how special a light these deities were regarded we may
infer from various incidental notices. Polyphemos§ scorns
the autliority of Zeus, and recognizes no god but his father,
Poseiilon. In " Tlie Suppliants" of -^schylus.ij an Egj-ptian
herald tells the Argivcs, to wliose land he has come, that
he does not dread their gods, for that they did not rear him
nor maintain him to old age. The gods around Neilos,
indeed, he venerates, but to the gods of Argos he gives no
heed. The Russian peasant of the present day draws, we
are told,^ a clear line between his own Damovoy and his
• Mr. lltiiiter's "Oriasa," vol. i., j). 1).').
t Mr. .Sj)ciiccr'8 "Sociology," vol. i., part i., Appciuli.x A., ».
X Mr. Skene's "Celtic Scotland," vol. i., p. 71.
8 "Odysscc," ix., 27.'i. || w. 893, 922.
If Mr. Italaton, " Songs of Russia," p. 129.
22 ARCHAIC WORSHIP.
neighbour's. The former is a benignant spirit, who will
do him good even at the expense of others. The latter is
a malevolent being, who will steal his hay and drive away
his poultiy for his neighbour's benefit. The disasters of
their worshippers, too, extended to their gods. The
"vanquished Penates" of the poet might, perhaps, if the
expression stood alone, be regarded as a daring image; but
both Cicero and the Digest confirm it in its most literal
sense. The former tells us that victory made all the sacred
things of the Syracusans profane.* The Digest very
plainly lays down the rule of which the case of Syracuse
was an example. It declares f that the tombs of our enemies
(however holy in their eyes, or however holy our own
tombs may be in our own estimation) are not holy to us.
It also statesj that when places are taken by the enemy
all things cease to be religious or sacred, just as if free men
had come into a state of slavery ; but that if they have
been freed from this misfortune, they return by a sort of
Postliminium, and are restored to their original condition.
The exclusive character of this religion is easily shown
when a number of Helfenic clans united for a common
object. The bond of their uni on was th e_worship of some
__£Qmmon god; but, without their__express_ invitation, no
stranger to that wors hip could reso rt to their sacred feasts
QX participate in their games. The mere presence of a
stranger at religious ceremonies, or even at any holy place,
was ^tolerable, r " An(L- this. jw mpan^' exclaimed Demos-
thenes,§ denouncing a" gfOss case of sacrilegious fraud,
" offered up the mysterious sacrifices for the welfare of the
State, and saw what it was not right for her to see, being
an alien ; and notwithstanding what she was, entered
places to which, out of the whole Athenian community, no
* In Verrem, lib. iv. + xlvii., 12, 4.
X xi., 7, 36. § Against Nesera.
THE DR'INITY AND THE WORSHIPPER. 423
one but the wife of the King-Archon is admitted." The
prophet Helenus* warned ^Eneas to veil his head when he
was performing sacrifices, lest the appearance of a stranger
should intervene between the holy fires in honour of the
gods, and disturb the omens. The Brahmins punished "f*
those who happened to be near enough to hear the sound
of their prayers or to witness their sacrifices. Even later,
in the Middle Ages, men believed that in the celebration of
the Mass:|: the breath of one of evil deed polluted the
sacred day, and that from his abhorred approach the holy
things recoiled. There was, perhaps, another reason besides
the mere dislike to interruption that led to this extreme
privacy of worship. Men seem t o have then lived in
constant dread that their god should be stolen from them,
or be seduced to abandon them. Thus Troy could not be
taken before the theft of the Palladium. Hence, too, the
name of the tutelary god of Rome was a profound state
secret ; for, without a knowledge of the name by which he
ought to be addressed, the spell which was of power to
compel the god to abandon his seat could not be spoken.
The Romans had themselves a formula that is still
preserved, l)y which they induced Juno to abandon Veil
and transfer her residence to con([uering Rome.
Another curious consequence seems to have followed
from this peculiar conception of property in a divinity.
The relation was held to be terminal»le at the pleasure of
the parties. The divinity, as we have seen, might neglect
or even desert his worshippei-s ; and in like manner the
worshippers might abandon, and, in the old sense of the
term, defy or withdraw their allegiance from their divinity.
• Virgil, ^En. iii., 405.
+ I'rof. Max Muller, "Chips," voL iv., p. 254.
Z Sec Sir Walter Scott'a Scottish Ballads — " The Grey Friar."
§ See Mr. Tylor, "Early History of Mankiud," p. 127. "La CiW
Antique," pp. 179, 256.
24 ARCHAIC WORSHIP.
If property may be abandoned, and if a divinity be
property, the conclusion that the divinity might be aban-
doned was inevitable. Such a proceeding was, of course, a
grave and dangerous step, but upon good grounds it was
not infrequent. Even in the case of the domestic and
kindred gods its admissibility was fully recognized. The
theory and the practice of adoption implied, as we shall
see, both the detestatio sacrorum, the solemn abjuration of a
former worship, and the ti^ansitio in sacra, the equally
solemn admission into a new worship. In other cases than
those of kindred gods, in cases where some celestial patron
had been voluntarily chosen, the difficulties of change were
naturally even less formidable. The relations between the
divine Patronus and his worshipper seem, as the name itself
suggests, to have resembled those which we usually describe
by the terms sovereignty and subjection. The subject
owes obedience and service ; the sovereign owes protection.
In return for his adoration and his offerings, the tutelary
spirit was bound to fight for and defend, both in the spirit
world and against all enemies of the flesh, his servant and
worshipper. People who had no conception of physical
laws believed that the world was inhabited by spirits and
by men ; and as they had their alliances with the one, so
they thought it necessary to form their alliances with the
other. They seem, indeed, to have regarded the two
alliances in a very similar aspect. As they would not
have hesitated to leave an earthly protector with whom
they were dissatisfied, so they had no scruple in abandoning
a celestial patron who was unable or unwilling to defend
them. We read of deities being taken or left according to
the exigency of the time. Augustus is said * to have
dis-established Neptune. The statue of the Cuman Apollo,f
* Suetonius, Aug., c. 16.
t St. Augustine, "City of God," vol. i., p. 101.
THE DIVINITY AND THE WORSHIPPER. 25
in consequence of an ill-timed fit of weeping, had a narrow
escape from being thrown into the sea. Fortunately, the
better opinion prevailed, that his tears were for his old
friends the Greeks, and not for his new friends the Romans.
The conversion of Clovis was due to a prayer which he
conceived to have been answered in the crisis of a battle.
On the occurrence of a severe pestilence, as Bede * tells us,
the people of Essex apostatized, and returned to their old
faith until they were reconverted by Gearoman. When the
question of Christianity against Paganism was debated in
the council of King Edwin of Northumbria, Coifi, the pagan
chief-priest, declared in favour of the new rt4igion, because,
as he with perfect naivete said to the king,f " Not one of
your people has applied himself more diligently to the
worship of our gods than I have ; and yet there are many
who have received from you gi'eater benefits and greater
honours, and are more prosperous in all their undertakings :
whereas, if the gods were good for anything, they would
ratlier forward me, who have been so zealous to serve them."J
Even to this day, among uncultured people, practices
similar to those of Coifi sometimes occur. A prince of
Nepaul, in his rage at the death of a favourite wife, turned
his artillery upon the temples of his gods, and, after six
hours' heavy cannonading, efiectually destroyed them. In
like manner, a Portuguese Indian, the skipper of a craft
from Goa, refused to light the usual lamp before the image
of his patron saint, because the patron could not, or would
not, give him fair weather; and threateneil, if another s(|uall
came on, to throw his worthless image overboard and to
take Santa Catterina in his stead. §
• Hist. Ecclos., iii., .30. t Bedo, uhi gujtra, ii., 14.
Z See also for Sweden, Milmaij'a " History of I^tin Christianity,"
vol. ii., p. 438. Dr. Dasent's "IJumt Njal," vol. i., p. xviii.
§ Sec Mr. Spencer's "Study of Sociology," pp. 302, 160.
26 ARCHAIC WORSHIP.
So, too, the Finns do not hesitate, in time of need, to have
recourse to the more powerful gods of the Russ. When
Yumala* and the other Finnish deities do not do as they
are desired, their worshippers apply for protection or
assistance to the Madonna and the "Russian god." If their
own traditional magic rites do not suffice to ward oif evil
influences, they naturally try the effect of crossing them-
selves, as the Russians do, in moments of danger. At the
harvest festivals, Tchervash peasants have been known to
pray, first to their own deities, and then to St. Nicholas, the
miracle worker, the favourite saint of the Russian peasantry.
The rela- § 3. In the archaic world, society implied religious union.
tween^Co- When any new household was formed, or when any
peTs^^^^^" combination of individuals, or any combination of clans, or
any state, or any combination of states, or any subordinate
association within a state, was established, a special form of
worship was simultaneously set up. Community of worship
was, indeed, the one mode by which, in early times, men
were brought together and were kept together. Every form
of worship, as I have already said, implied a special relation
between the divinity and his worshipper. But when several
persons joined in the worship of the same divinity, they
naturally developed, as between themselves, new and special
sympathies. Community of worship always implied both
a fact and a symbol. The fact was the special and intimate
relation that thereby arose between the co-worshippers.
The symbol of that relation was the participation by them
of a meal intentionally prepared and eaten in honour of the
\ object of that worship.
^ That a community of worship established special relations
between co-worshippers is a proposition on which the
* Mr. Wallace's "Russia," vol. i., p. 235.
CO-WORSHIPPERS. 27
\ following pages mainly depend. I hope to prove that,
among at least the Aryan nations, and it may be over a
much wider area, the ori<rinal basis of human association
was religion. In the early world, it was not the tie of blood,
or of family habit, or of superior physical force, that held
men together, but the far more potent bond of a connnon
\^^ worship. Those who worshipped the same gods were
^ relatives, although no drop of common blood flowed in their
veins. Those who did not worship common gods were not
relatives, although, according to the flesh, they were brother
and brother, or parent and child. When a man was adopted,
he formally renounced his original sacra, and passed over into
the saci'a of his adoptive father. He thereby ceased to be of
kin to his natural father and his natural brothei-s. He
could not inherit from them, nor they from him. It was
not his duty to assist them, or to avenge their deaths ; nor
were they bound to notice his fate more than that of any
stranger. All his duties and all his rights were attached
to the family which he had joined. Towards the members
of that family he stood in precisely the same relation in
which he would have stood if lie luul been born a son of
their blood.
The proximity of kinshi}), too, was measund ly the
same standard. The Hindu made to liis ancestors, within a
ceilain degree, offerings of cake ; to those beyond that
degree, offerings of water. Those persons* who made to a
common ancestor offerings of cake were termed Sapindas,
or fellow cake-men. Those who made to a common
ancestor offerings of water were termed Samanodocaa, or
fellow water-givei*s. But those who were not connected by
either of these modes of worsliip were simply strangere,
and stood to each other in no recognized relation. So, too,
• Laws of Menu, v. GO.
28 ARCHAIC WOESHIP.
when a contest arose in the courts at Athens upon a
question of inheritance, we find* that the proper legal
evidence to establish kinship was the proof that the
alleged ancestor and the alleged heir observed a common
worship and shared in the same repast in honour of the
dead.
For this theory of archaic relationship there is abundant
proof. Natural love and affection was not its cause.
I say nothing now of the difference between the agnates
and the cognates, the relatives by the male line and the
relatives by the female line. But mere birth was not the
basis of relationship even between agnates. If two
brothers, being slaves, were emancipated, they ought, on the
principle of birth and natural affection, to have had
reciprocal rights of succession. Yet the Roman lawf" did
not regard them as agnates ; and, upon the death of one of
them, his property went not to his surviving brother, but
to his patron. The father's superiority of physical
strength was not the foundation of his power. Old blind
Appius Claudius, or old Cato the Censor, was not stronger
than the young men who were in his inanus; and yet both
of them ruled their respective households with absolute
sway. Nor can we rely upon the force of habit arising
from long years of undisputed authority during infancy.
The same force is in operation in the modern no less than
in the antique world; yet, parental authority and its
consequences are far from being the same. Further, this
explanation will not account for the obedience of an
arrogated son, an adult man, who voluntarily accepted the
potestas of another. On the other side, in support of the
theory I have stated, there are — in addition to all the
considerations that I have mentioned, and shall hereafter
* See Becker's " Charicles," p. 394, and the authorities there cited.
t Inst, iii., 7.
CO-WORSHIPPERS. 29
mention — the express words of Menu ami of Plato. The
former defines the character of the nearer and the more
remote relatives of the Hindu, according to the character
of their ancestral worship. The latter says distinctly that
relationship is the community of the same domestic gods.
§ 4. Of this community of worship and its resulting The sym-
bond, there was a well-undei-stood symbol. That symbol munity of
was the pai-taking in common of a meal prepared in honoui* was^the
of the object of the worship. The common meal prepared Mea™°°
upon the altar was the outward visible sign of the spiritual
communion between the divinity and his worshippers. The
connection between this meal and the religious ceremony
is constant. We never hear of any public worship without
a common meal. In domestic life every meal was a sacri-
fice; that is, it was eaten in honour of the house spirits, and,
as it was thought, in their presence. Other examples
abound in all the earlier books. In the Iliad the King of
Men is constantly engaged in the sacrifice of an ox, fat, five
years old, to the all-powerful Son of Kronos. In the Odyssee,
King Alkinoos offers a sacrifice when he gives a feast to
his people. In the Greek language — and the same remark*
may be made in the case of some tribes in Northern India —
the same word is used to express the act of killing and
the act of sacrificing. In Virgil, we find King Latinus
and King Evander holding their sacrificial feasts after
the manner of tlio Homeric kings. Feasts in honour of
the dead, in which the kinsmen shared, were habitually
celebrated in India, in Hellas, in Rome, in England, in
Scamlinavia. They are so celebrated in Russia up to the
present day. The names of the kin in their several degi'ces,
the Sapindas and Samanodocas of India, the 'O/ioyoXau-fc
• Mr. Tylor's "Primitive Culture," vol. ii., p. 359.
30 ARCHAIC WORSHIP.
and 'Opyeiorec of Greece, the Confarrei of Rome, express in
themselves the community of eating and drinking as form-
inof the basis of their relation. And as a share in a common
worship was legal evidence of kinship between any two
persons, so the participation in a common sacrificial meal
was legal evidence of that community of worship.
The most striking evidence of the belief that a tie, and a
tie of no common efficacy, was formed by such a participa-
tion, not only between the co-worshippers, but between each
worshipper and the object of his worship, is found in a
remarkable passage* of St. Paul. The Apostle is writing on
the evil of Christians being in any way concerned with the
sacrificial feasts of the heathen ; and he asks, as though the
answer to his question were self-evident — " Ai^e not they
who eat of the sacrifices communicants of the altar ? "
Although his immediate subject is Jewish sacrifice, yet he
appears to select the familiar Jewish rites merely as
illustrative of the more general question. Accordingly, he
proceeds to declare that a sacrifice to devils — that is, to the
heathen gods — makes him who takes part in the sacrifice
" a communicant of devils." It was this belief that rendered
the early Christians so uncompromising upon the question
of meats ofiered to idols ; a question, at that day, of the most
practical and urgent importance ; but of which, in the
altered circumstances of modern times, we can hardly even
y'^ appreciate the difficulty.
The Com- § 5. It is not enough to say that the common meal was the
impUes symbol of worship. Something more than the mere fact of
andin^*^ the meal was required. It must be a meal specially
*^°** prepared for, and offered to, the object of the worship.
Sometimes the nature of the meal, the mode of its prepara-
* 1 Cor. X, 18-20. And see Dean Stanley's Commentary.
THE COMMON MEAL. 31
tion, and the form of its presentation, were rigorously
prescribed. But, in all cases, the intention was essential.
The characteristic difference of a sacrificial meal, as com-
pared with an ordinary meal, was, that it was eaten with a
religious intent. The spirits were not supposed to come
unbidden. They did not help themselves. The offering
must be made to tliem, their presence invited, and their
share set apart. Tlien, and then only, would they participate
in the meal ; and then, and then only, did their woishippers
enjoy the benefits which their presence, their favour, and
their guidance conferred.
We can thus understand the nature of certain difficulties
to which I have already referred as having beset the early
Christian Church, and the solution of those difficulties which
the Fathere of the Church, with their characteristic common
sense, supplied.* So numerous, at the time of the Empire,
had the public religious festivals in the gi'eat cities become,
that it was no easy matter to avoid, in ordinary consumption,
the use of meats that had been offered to idols. Not only
were these meats necessarily used on all occasions when the
people made holyday, but they formed a principal source of
supply to the retail butchers. But to eat such meat
appeared to scrupulous minds to be the actual establishment
of a communion between the Christian consumer and the
false spirit and his votaries. In these circumstances, it was
decided — first, that any wilful participation in any idolatrous
meal was a breach of Christian duty ; second, that a Chris-
tian was not under any obligation to ask any question
regarding any meat that he might purchase, or that might,
at any private entertainment, l»e set before him ; third, that
if his attention were called to the fact that such meat had
been idolatrous, he^ouglit not to use it. The ground of this
• See Dean Stanley 'a " Epistles of St. Paul to the Corinthians," 131 d seq.
32 ARCHAIC WORSHIP.
last-mentioned prohibition was expedience only, and not
duty. The Christian abstained from meat respecting which
he had notice, not because any spiritual communion was,
by the use of such meat, established between him and the
false spirit — for he did not eat the meat with that intent —
but because he desired to avoid the scandal and the miscon-
ception which might arise from the fact of a Christian
knowingly eating meat that had been offered to some idol.
The fact would, to many persons, be evidence of the intent.
The same difficulties continued, long after the decision of St.
Paul, to vex the souls of Christian missionaries. It was
one of the subjects with which Gregory the Great* had to
deal on the evangelization of England. The Penitential of
Theodore has a long chapter upon the heathen practices of
communicants and their appropriate penances."|* Among
these offences a conspicuous place is occupied by sacrificing to
demons, eating and drinking near heathen temples in honour
of the god of the place, eating what has been sacrificed
to demons, and celebrating festal meals in the abominable
places of the heathen. These demons were the ancient
gods ; and the belief on which their rites were founded, and
the practical difficulties thence resulting, were the same in
Northumbria as, six centuries before, they had been in
Corinth. So, too, we find that, in dealing with their Norse
converts, the Christian missionaries had to struggle against
three leading abominations.:]: They insisted that all
Christian men should abstain from three things — first,
they must not worship idols ; second, they must not
expose their children ; third, they must not eat horseflesh.
"Why the Church should trouble itself on the last point, or
why, if such abstinence were desired, it should be placed on
* Bede, Hist. Eccles., i., 30.
t Kemble's " Saxons in England," vol. i., p. 524.
t Dr. Dasent's "Burnt Njal," vol. i., p. xxvi.
THE COMMON MEAL. 33
a level with the two preceding requirements, are questions
that to our modem notions are hard to answer. When,
however, we remember that horses were habitually offered
at the Norse sacrifices, we perceive at once the true
explanation. The prohibition of horseflesh meant the pro-
hibition of meats offered to idols. It is probable that the
prejudice which still prevails against the use of a meat
that is otherwise unobjectionable is a survival of the days
when the horse was sacrificed to Odin, and when Angstur
and his companicjns ceased not to warn their disciples
against those sacrificial meats, from which, as the Apostles
once said, " If ye keep youreelves, ye shall do well."
§ G. It thus appears that a close connection existed ^j^^ ^^^^^
between common woi^ship and common meals. Meals were °^ ^^'f
an essential part of religious ceremonies. Wherever we read
of such ceremonies, we hear of such meals. Wherever we
read of public meals, we always find that they formed part
of some religious celebration. We find the Greek terms for
kinsmen and for feasters used as synonyms. We find that
the right to partake of a common meal was regarded as the
proper legal proof of a community of worship. We find,
too, that the common worship and the conmion meal were
universal among the Aryan nations. Among them, at least,
and probably^nong many other races, it is not too much
to say* that " the earliest religious act seems to have been
the eating of a meal prepared on an altar." The question,
however, still remains, How are we to account for these
facts? What were the beliefs which led to tlu- universal
adoption of this particular symbol, and to the establishment
of these peculiar relations ? Such an inquiry is necessarily
difficult. We cannot enter into the thoughts ai^d the
• M. Do Coulangea' " La Cit<S Antique, " p. 182.
34 ARCHAIC WORSHIP.
feelings of men upon a much lower level of culture than
our own. We have little definite information on the
subject, partly because men are habitually reticent on such
matters, and partly because there was no need to treat of
subjects that to the readers of that time were perfectly well
known. The ideas themselves, too, were from their very
nature more or less vague. Finally, these ideas must be
distinguished from other and similar, though probably later,
ideas. With this distinction I must preface my remarks.
Th^ idea of sacrifice implies either a benefit to the
recipient or a loss to the giver, or partly the one and partly
the other. In the first case, the benefit may consist either
in actual assistance, or in some gratification, or in merely a
mark of attention and respect. In the second case, it
consists in the costliness of the gift, a costliness which is
measured either by the rarity of the object, or by the pain
(f^ with which the donor yields it. Sometimes these motives
are blended. But these complex motives generally relate
to the attempts made to propitiate external and unknown
forces. They thus belong rather to the class of Nature-
worship than to the simpler and older rites of domestic
religion. Parva petunt Lares: the Household worship
sought no costly sacrifice. Men thought that the disembodied
spirit retained similar feelings, and similar needs, to those
that he had in the flesh. It was thus equally a duty and a
pleasure to share with him the customary meal, and to pay
to him the wonted respect. But there was something more
than this. The common meal was the sole means by which
a communication could be maintained between the spirit-
"world and the earth. The spirits were not perceptible to
human senses; but the oflfering of food and of drink
formed a sort of middle term by which the spiritual and
the earthy could be brought together. Every object,
"whether animate Qr_inajiimatejWas_supposed to consist of
THE THEORY OF THIS SYMBOL. 85
two parts — of a substance and of a shadow, of a soul and of
a body, of something immaterial as well as of something
material. The aiiicles of food and of diink possessed this
nature. It was upon the immaterial part of the offerings
that the spirits fed, while the earthly parts were left for
m en. T hus both the spirit and the worshipper lived on
the same nourishment. That which supported and
strengthened after its kind the human frame, supported
and strengthened by its spiritual force the spirit to whom
it was presented. Nor did the worshippers doubt that at
every such meal their Divine Head sat present, though
unseen, among them.
Each of these propositions is fully supported by abundant
evid ence. We know that Animism — that is,_the Jbelief in
the souls of objects — both did exist in primitive times and
does at j,he present day exist among the races of lower
culture. That the spirits reta in in the spirit- worl d some
semblance of the interests an d the pursuits of the present
life is a familiar belief. We need but recall, for its illus-
tration, the classical descriptions of the shadowy heroes
pursuing the hostile shades, or chasing the phantom deer.
Even to this day, among races of lower culture, the distinc-
tion between the spirit of the sacrificial victim and its flesh
is well understood, and is distinctly stated. " When," says
Sir John Lubbock,* " it is observed that meat-offerings arc
not consumed, it is supposed that the spirit eats the
spiritual part of the victim and leaves the meat to the
worshipper." Thus the Limboos, near Darjiling, say —
" The life-blood to the gods, the flesh to ourselves." " By
that time," says Marco Polo,t writing of feasts in ccitain
Indian temples, " they .say the spirit of the idol has con-
sumed the substance of tlie food ; so they remove the
• " Origin of Civilization," p. 237. t Vol. ii. (Col, Yule's cd.), p. 282.
S6 ARCHAIC WORSHIP.
viands to be eaten by themselves with great jollity."
" The Chinese," says Mr. Doolittle,* " entertain the idea
that the spirits of the dead partake of the essential and
immaterial elements of the food and the wine. What the
living consume at the conclusion of the ceremony is only
the coarse and material portions, which the dead leave
untouched." For further evidence it is enough to refer to
the numerous facts accumulated by Mr. Tylor.-}* Nor does
this belief sound wholly strange to those who remember
the frequent mention that Homer makes of the savoiu" of
the sacrifices being wafted to the gods.
We can also see that, in the state of mind of which we
speak, the belief exists that the gods and their worshippers
form one community^ They are, literally, in the old phrase
which Aiistotle cites respecting the^ primitive family -groups
of the Hellenic tribes, of the same meal-bin and the same
hearth. They have a common descent, common interests^
common property, common sympathies, common enjoyments.
Plato if speaks of the kinship and communion of the kindred
gods that have the nature of the same blood as their
worshippers. He says that a man, if he honour and
venerate the kindred and the communion of his kindred
gods, that have the nature of the same blood as he has, may
reasonably expect from them the blessing of children.
Pollux,§ a later writer, but of high authority, who
apparently expresses the views of Aiistotle, uses, as terms of
apparently the like meaning, words denoting respectively
blood relations or kinsmen — men who make a common
offering, and men who partake of a common feast.
I shall frequently have occasion to notice the strength of
•this sentiment towards the Household gods. It is to them,
* " Social Life of the Chinese," vol. ii., p. 48.
t " Primitive Culture," vol. i., p. 435.
J "Laws," V. 729. § viii., 9, 111.
THE THEORY OF THIS SYMBOL. 3^.
indeed, much more than to any patron saint, as we might
term him, that their feelings were specially directed. We
may trace among uncultured people the operation of a
similar sentiment even at this day. The Chinese describe
certain feasts in honour of their deceased ancestors by the
expressive name, " keeping company with the gods." In
Fiji, too, we find a singular illustration of these old beliefs.
The term Veita uvu means sprung from the same root, and
denotes people who worehip the same god, who may swear
at each other and take each other's property. This
privilege of swearing is explained by the belief that the
god invoked cannot, or will not, injure the person cursed,
because he belongs to him. But, when one cursed a
stranger, the wrath of the god thus invoked may be
expected to fall upon the person cursed, in whom he has no
interest, and who has offended one of that god's people.*
It may have been that the primitive view of this matter
is that which I have thus endeavoured to describe, and
nothing more. It may have been that our forefathers
regarded their gods as members of their clan ; invisible,
indeed, and with gi-eater and more varied powers than
those of any mortal clansman, but still presenting essen-
tially the same relation. But it may also have been other-
wise. There is another and a less obvious explanation. It
is, at least, conceivable that the religious relation was based
upon a more mystic i dea. A belief — vague, indeed, but not
on that account less intense — may have prevailed that, by J^
the eating of the holy food, a portion of thejlivine essence
entered into and became incoi-porated with the worshipper. ^Z^
A savage will cat his enemy, in the belief that he thereby
appropriates that enemy's strength and skill and courage.
• Mr. Thurston's " Memorandum on Owncrsliip of Land in Fiji," in
Report of Commodore Goodcnough and Mr. Consul Layard, '" On the
Colony of Fiji," presented to House of Commons, July, 1874.
38 ARCHAIC WORSHIP.
The strange blending of the identity of the father with
that of the son formed, as we shall see, a prominent part of
the primitive theory of life and of society. In some such
manner it may have been thought* that the common food
produced some kind of interchange between its participants,
whether human or divine ;■ that, in cases where a patron,
saint had been chosen, the Divine Father and his adopted
sons had become identified ; that the Divine essence dwelt
in the man, and the human essence dwelt in the Divinity j
and that the worshippers were alike animated by the same
indwelling Divine Spirit. Whether views of this kind
were actually entertained, and if they were entertained,
whether they formed part of the primitive beliefs of our
race or were the addition of a fantastic philosophy upon
the old creed, are questions which I do not undertake to
determine. Whichever explanation be correct, it will
account for the general acceptance of that creed and for its
symbolism in the common meal.
* See :Mr. Spencer's "Sociology," vol. i., p. 299.
CHAPTER II.
THE HOUSE SPIRIT.
§ 1. The belief which guided the conduct of our fore- ^^ture of
fathers was the same as that which seems to have prevailed ^ro'J^yp
among most other of the first-bom children of the earth.
That belief was the spirit-inile of deceased ancestors. The
simple minds of uncultured men unhesitatingly believed
that the spirit of the depai-ted House Father "hovered round
_the place he joved in life ; and, with powers both for good
and evil supematui-ally exalted, still exercised, although
unseen, the functions which in his life-time he had
performed. He still, in his spirit state, needed the shadow-
food and drink such as spirits enjoy ; and he still continued
sensible both of the reverence and the neglect of his
descendants. To him, therefore, were daily made, at the
commencement of every meal, libations and offerings, not
merely as tokens and pledges of honour and affection, but
as his share of the property of the household. To this share
he was entitled as of right, and its possession was essential
for his happiness in the spirit world. Consequently, the
due performance of the sacred rites was to him a source of
constant satisfaction. " Whatever a man endued with
strong faitli," says Menu,* " piously offers as the law has
directed, becomes a pei-petual, unperishable gratification to
• iii., 275.
40 THE HOUSE SPIRIT.
his ancestors in the other world." On the other hand, the
spirit to whom no such offerings were made was supposed
to suffer the pangs of eternal hunger. If, therefore, the
proper libations were made by the proper person, in the
*^roper place, and at the proper time, the spirit would
graciously guard and assist his sons. But the case was far
otherwise, when, from neglect of his^ duties of piety (such
was the technical expression among the Komans), a man
destroyed his happiness and caused the misery of all his
forefathers. The offended spirits did not perish. They were
changed from faithful friends into deadly enemies. The
benignant Lares became the dreaded Larv?e. Those powers
which formerly were used for the offender's benefit were
now turned to his destruction. The impious man, the man
who neglected his filial duty, or violated the customary
laws of the household, had not to dread any human punish-
ment. He was given over to his own tormentors. His
gods were against him ; and every former blessing became
a curse.
The difference between our mental state and that of our
forefathers is so wide, that it costs no ordinary effort to
realize those forms of belief, once so potent and so wide-
spread, which I have endeavoured to describe. But this
difficulty rests with ourselves only, and is no proof against
the existence of that belief. It is not more difiicult to
comprehend that our ancestors found their Providence in
their fathers' tombs, than it is to comprehend that a hundred
million subjects of Queen Victoria believe that Ganges or
Nerbudda is not merely the seat or the emblem of a god,
but is itself a very god. If we doubt whether House-worship
be an actual existence, and not a dream of idle speculators,
we should remember that, at this day, in China, three
hundred millions of orderly, industrious, and intelligent
men live and die in this faith. So powerfully does it act
NATURE OF HOUSE WORSHIP. 41
upon the Chinese mind,* that it is easy to obtain, for about
£33, a man who will consent to be put to death. To such
a sacrifice posthumous honour is attached. The family is
rescued from poverty, and enters on the possession of com-
parative wealth ; and thus provision is made for the constant
performance of the offerings to the Manes. Nor is this
belief confined to the Chinese empire. Numerous other
nations in all parts of the world hold similar opinions.
" In our time," says Mr. Tylor,i* " tlie dead still receive
worship from far the larger half of mankind ; and it may
have been much the same ever since the remote periods of
primitive culture, in which the religion of the Manes probably
took its rise."
§ 2. It is thus certain that the worship of deceased ancestoi'S The Wor-
is a vera causa, and not a mere hypothesis. It has, however, ceased An-
been questioned whether this cause, although it mayvhave Aryan ^^
been elsewhere operative, was influential among the Ai-}1a,n ^^i^"t^io°«
nations. I proceed, therefore, to state briefly the evidence
for the proposition that th is w orship o nce exis ted in every
branch of our rac e. Among the Hindus, the Vedas
distinctly recognize the ancient religion of the Pitris, or
Fathers. The Rig Veda relates^ to the worship of the gods;
but the Sama Veda relates to the woi-ship of the Manes of
the ancestor. " The Pitris," says Professor Max Miiller,§
" are invoked almost like gods ; oblations are offered to them,
antl they are believed to enjoy, in company witli the gods,
a life of never-ending felicity." The offering of cakes and
water is tlie sacrament of the Manes, one of tlio five
great ceremonies which Menuil enjoins. "An oblation by
• Sir. John Bowring, Fori. Jier., vol. i., p. flGS.
t " Primitive Culture," vol. ii., p. 112.
+ Menu, iv., 124. § "Chips," vol. ii., p. 4G,
II iii., 70.
42 THE HOUSE SPIRIT.
Brahmins to their ancestors," says the same authority,*
" transcends an oblation to the deities, because that to the
deities is considered as the opening and completion of that
to the ancestors." In this case the offering to the deities is
merely incidental, and is intended to be " preservative -f of
the oblation to the Pitris ;" or, in other words, to secure to
them the quiet enjoyment of their sacrifices, without
disturbance from their greedy and more powerful neigh-
bours.
Among the Iranians a similar belief prevailed. They
worshipped the Fravashis, or spirits of the dead, and espe-
cially those of their own ancestors. " There cannot be any
doubt," says Spiegel,:}: " that the worship of the Fravashis
played an important part with the Iranians, though, perhaps,
more in private than in public. It would appear that there
were two different sorts of it. General, certainly, was the
hero-worship, the veneration of ' the pious men before the
law.' With this, in some ages, perhaps, the worship of
Fravashis of the royal family was combined. The ancestor-
worship, on the other hand, was of a strictly private
character." The Khordah Avesta§ tells us that, when
water is drawn from the celestial sea, Vouru-Kasha, those
of the bold Fravashis of the pure who come down to earth
" bring water, each of them to his kinsfolk, his clan, his
confederacy, his region, saying thus : ' It is our own region,'
to further it, to increase it. Then if there is an Overseer, a
Ruler of a region, provided with like kingdom, he always
invokes them, the bold Fravashis of the pure, against the
tormenting foes. They come to his assistance if they are
not tormented by him, made contented without revenge,
unoffended : they bring him forward like as if a man were
* iii., 203. t li; 205.
+ See Mr. Spencer's "Sociology," vol. i., appendix A, p. 0.
§ Spiegel's "Avesta," by Bleeck, vol. iii., p. 88.
THE WORSHIP OF DECEASED ANCESTORS. 43
a well-feathered bird. They are his weapons, his defence,
his support, his wall."
It is needless to enlarge upon the domestic worship of
Hellas and of Italy. The facts are sufficiently well known,
and they have been recently discussed -with conspicuous
ability in his "La Citd Antique" — a work to which I gladly
acknowledge my great obligations — by M. De Coulanges.
I will merely recall some of the familiar names. The
Hellenic House Spirits were known by many designations.
They were directly called Saifioveg and iipwec- They were the
deoi i<pi<TTioi, or the Gods of the Hearth ; deol fxvxioi, or
Penates; Q(.o\ irarpuoi, iyyereic, b^oynoi, avranioi, or Gods of the
Fathers, of the kin, of the same race, of a common blood. The
Latin language contains a variety of similar names. We
meet with the Genius, Lares, Manes, Penates, Vesta. Of
these words, Genius is generally taken to mean the spirit,
or guardian angel, of a living man. The Manes, whether the
word means the good people, or, as some suppose, the little
people, are the dead generally. Vesta is the hearth, with its
holy flame. But the Lares and the Penates are the ti-ue
House Spirits, the souls of deceased progenitors that dwell in
the interior of the house, and, along with the holy fii'e, col-
lectively form its protecting deity. Of all the worships of
Rome, as Mommscn* has observed, the worship of these
House Spirits had the deepest hold ; and of all those worships,
as we know, it was the one which lasted the longest. In the
other European nations, the Slavs, the Teutons, and the
Kelts, the House Spirit appears with less distinctness. We
have no early books of these peoples, like the Vedas
and the Avesta, and the literature of Greece and of Rome.
The influence, too, of Christianity has passed with varying
force over each of these nations as we know them. Our
• " History of Rome," vol. i., p. 173.
44 THE HOUSE SPIRIT.
acquaintance, therefore, with their domestic condition is
derived mainly from writers to whom the House Spirit was
an abomination, and who were anxious to bury in total
oblivion all that related to the most formidable of their
enemies. Thus the House Spirit presents himself in these
countries to us merely as a survival, and we have no direct
knowledge of his earlier worship. Yet the existence of
that worship does not admit of doubt. The traces of it
are seen clearly among the Slavonian peoples. Although
Christianity has changed the Lar Familiaris into an uncouth
shaggy demon, and has substituted the holy Eicons for the
ancestral spirits, the old belief is preserved better among
them than in any part of Western Europe. The Slavonian
peasant holds that " each house* ought to have its familiar
spirit, and that it is the soul of the founder of the home-
stead that appears in this capacity." To this belief many
of their customs are due, in the building of their houses, in
the changing their residence, and in many details of
ordinary life. Mr. Ralston has collected a number of
curious and interesting illustrations of this primitive belief.
" There is no doubt," he says,-|- in reference to the old
Slavonians, " about their belief that the souls of the fathers
watched over their children, and their children's children ;
and that, therefore, departed spirits, and especially those of
ancestors, ought always to be regarded with pious venera-
tion, and sometimes solaced by prayer and sacrifice. It is
clear, moreover, that the cultus of the dead was among
them, as among so many other peoples, closely connected
with that of the fire burning on the domestic hearth — a fact
which accounts for the stove of modern Russia having
come to be considered to be the special haunt of the
Damovoy, or House Spirit, whose position in the esteem of
* Mr. Ralston's "Songs of Russia," p. 126. t Ih., p. 119.
THE WORSHIP OF DECEASED ANCESTORS. 45
the people is looked upon as a trace of the ancestor-worship
of olden days."
Among the people of Western and Northern Europe the
House Spirit is reduced, even more plainly than his brother
in the East, to the condition of a mere survival. Yet, not-
withstanding all hostile influences, the Teutonic Haus-geist
has left many traces of his individuality. He is known as
the Husing or Stetigot, the House God or Lar Familiaris.
He is also Ingoumo — a guardian of the inner part of the
house — a term exactly equivalent to the Latin Penas and
the 6t6c fivx^oc of the Greeks. " We can often trace in
them," says Grimm,* " a special relation to the heaiih of the
house, from beneath which they often come forth, and
where the door of their subterranean dwelling seems to
have been ; they are peculiarly hearth gods." In this sense
the Greeks would have called them deoi icmui-^^oi. The
House Spirits had a multitude of other names which it is
needless here to enumerate, but all of which are more or
less expressive of their friendly relations with man. They
always dwell in or about the house, and are, if they are
well treated, always friendly and helpful in the house and
in the yard. " The Kobold," says Grimm,-^ writing of them
under omj of these names, " is thus a useful, industrious
spirit, who takes delight in helping the men and maids in
the housework, and secretly doing a part of it. He gi'ooms
the horses, combs out their manes, gives their fodder to the
cattle, draws water from the well, and cleans out the stable.
His presence brings luck and success to the house, his
departure withdraws them." The name of Kobold:): appears
in Nonnandy, and hence probably in England under the
familiar form of Gol»lin. In the latter country he has
• " Deutsche >[ythologie,-' vol. i., p. 46S. t ^''m I'- -^TS.
t Sec Kcightley, " Fairy My thnloKy," pp. 20S, 358, 171, 139, 140,239,
47G. Grimm's •'Doutacho Mythologie," vol i., p. 468, ct seq.
46 THE HOUSE SPIRIT.
many names. He is the Brownie, or as in Yorkshire he is
called the Bogart, or Hob Goblin, or Robin Goodfellow.
By whatever style he is described, his fee is white bread
and milk; and overnight he does all the household work.
In Scotland this same Brownie is well known. He is
usually described as attached to particular families, with
whom he has been known to reside for centuries, threshing
the corn, cleaning the house, and performing similar house-
hold tasks. His favourite gratification was milk and honey.
In the Orkney Islands a writer in the beginning of the
eighteenth century states that "not above forty or fifty
years ago almost every family had a Brownie, or evil spirit
so called, which served them, to whom they gave a sacrifice
for its service ; and when they churned their milk, they
took a part thereof and sprinkled every corner of the house
for Brownie's use. Likewise when they brewed they had a
stone wherein there was a little hole, into which they
poured some wort as a sacrifice for Brownie." Among the
Scandinavian nations there is, as we might expect, a similar
House Spirit. In Denmark and Norway he is called Nisse
God-dreng, or Good-fellow. The Swedes call him Tompt-
Gabbe, the Toft-Gafier, or old man of the house and its
surroundings. I may add that the Nis, like his brother in
Russia, the Damovoy, often cribs com from the neighbours
for the use of his household's horses ; so that this spirit,
although he is good to those who are under his protection,
does not hesitate to injure, for their sakes, strangers. I
am not aware that the House Spirit has left many traces of
his existence among the Keltic peoples. His Irish repre-
sentative is said to be the Cluricaun. A more trustworthy
analogue is found in the Hebrides. In those islands at the
present day, " The Gael* call their evil spirits Boduchs
* "Lewsiana," by W. Anderson Smith, p. 199.
THE WORSHIP OF DECEASED ANCESTORS. 47
(Boddus), while the word still retains its ancient secondary-
signification of old man, head of the family." It may,
perhaps, be thought that the history of the word has been,
in this passage, inverted ; and that, as in other cases, the
old man of the house had his usual and honourable
designation, until the clergy banished him to the bottomless
pit.
§ 3. The worship of these House Spirits was a veritable House
religion. It was something entirely different from that veritable
mythology which sought to explain the various phenomena ^^ ^^°°'
of external nature. The Aryan, doubtless, like his European
or his Indian descendant, acknowledged the might of the
sea or of th e storm, heard the voice of God in the thunder,
and adored the bright sun-god as he ran his daily course.
But these elemental powers were not his gods. He
recognized their might, and deprecated their wrath ; but it
was not to them that he owed allegiance, or that he looked
for help. They lived, indeed, but they did not care for
man. In their wild caprice, they might benefit or they
might ruin him. But God, even his own God, 'a very
present help in trouble, the Divine and Gracious Protector
who cared, and cared exclusively, for him and his ; whose
welfare depended upon his services; of whose divine
company he would in the course of nature become a part ;
this Father, in the very fullest and most literal sense of the
term, dwelt always at his hearth. To this Father the King
of Men, when he returned victorious to liis native Argos, first
rendered thanks. So, too, Electra prays to the murdered
Agamemnon* — " Have mercy upon me and my brother
Orestes. Bring him home to his country. O my Father,
hear my prayer, and receive my libation. Give me a heai-t
• "ChoephoriE," 122, 135.
48 THE HOUSE SPIRIT.
more chaste than my mother's, and purer hands." In
Rome,* the elder Cato tells us that it was the first duty of
the House Father, on his return home, to pay his devotions
at the altar of the Lares, Virgil describes ^neas as
adoring the spirit of his father Anchises, and seeking from
it protection and aid. If a man be neither forsworn, nor
mean, it is to the propitious Lares — as Horace f tells us —
that his thanks are due.
In this aspect we can appreciate a notable function of
the Lares. The House Spirits were directly charged with
the preservation of the property of the household. They
were, as Horace tells us, the guardians against thieves.
They were, in the words of Tibullus,J " the guardians of
the land." They repelled the thief, so Ovid§ assures us,
and scared the enemy, and warned the trespasser. This
duty was not limited to the house, but was extended || to
every part of the household's property. Their functions,
however, seem to have been gradually specialized. With
the Latins, the Garden Spirit was known as Hercules ; and
before the guardian of the boundary was confounded with
his Hellenic namesake, the wandering son of Alkmene, he
enjoyed under this name a high place in the Roman Pan-
theon. In Athens, these tutelary functions were assigned to
Hermes, and we read of the more general expression,
deoi opioi. Our Teutonic forefathers worshipped Freya, as the
guardian of their boundaries. Throughout all antiquity,
indeed, the landmark seems to have been invariably held
sacred. It is noteworthy that both the Latins IT and the
Greeks recognized divinities for the house and its precinct,
for the cultivated field, and for the woodland. All these
* See Mommsen, "History of Rome," vol. i., p. 173.
t " Satires," ii. 3, 164. t L, i. 23.
§ "Fasti," V. 141, xi. 677. || Cicero, "DeLeg.," ii. 11.
U Mommsen, "History of Rome," vol. i., pp. 173, 174.
HOUSE WORSHIP. 49
deities seem to be included under the general description of
Lares,* and their separate titles afford evidence for the
existence among those peoples of the usual form of cantonal
settlement.
§ 4. Of this tutelary spirit, or company of spirits — the Lar The Wor-
Familiaris, or Man of the Household, as the Romans called Hearth.
him ; the Hero in the House, as he was known to the
Greeks ; the Husing of the Teutons ; the Damovoy, or Angel
in the House, of the Russian peasant at the present day —
the hearth was the altar. There the holy fire ever burned,
and there the gi'oss corporeal substance of the food was
purged away, and its spiritual essence was rendered fit for
the acceptance of the spirit. On this hearth, where, in his life-
time, he had himself so often sacrificed, the departed House
Father received at the hands of his successor his share of
every meal, and heard from his lips, in his own honour, those
familiar words of prayer and praise that were the heirlooms
of his race. Every meal was in effect a sacrifice, and the
Aryan House Father, when he reverently asked a blessing
upon his liumble board, felt that he was not only seeking a
continuance of the divine protection, but that he was
securing the happiness of those who were literally his
fathers and his gods.
The hearth was thus, so to speak, the organ through
which the living maintained their intercourse with the dead.
This relation is expressly stated in the " Rig Veda,"-f- " Thou,
Agni Gatavedas, hast carried, when implored, the
offerings which thou hast rendered sweet ; thou hast given
them to the Fathers : they fed on their share. Eat thou, O
God, the proffered oblation. Our Fatliers wlio arc here and
* "Rcligio Larum posita in fundi villffiquc conspectu." Cic, itbi sujrra.
t Professor Max MuUer, "Rig Veda," p. 24.
5
50 THE HOUSE SPIRIT.
those who are not here, our Fathers whom we know and
those whom we do not know, thou knowest how many they
are : O Gatavedas, accept the well-made sacrifice, with the
sacrificial portions. They who, whether burnt by fire or
not burnt by fire, rejoice in their offering in the midst of
heaven, give to them, King, that life and thy (their) own
body, according to thy will."
We have abundant evidence to prove both the early
worship of the hearth and its connection with the worship
of deceased ancestors : — " Tu quce loca prima tenes" are the
words* in which Vesta was invoked ; and Vesta, as we are
expressly told, was neither more nor less than the living
flame. So, too, Cicero*|* tells us that every prayer and every
sacrifice concludes with Vesta. In India the same word|
(Vastya) occurs in Sanscrit, but is there used in the sense
of house, while the holy fire is worshipped under the name
of Agni. Under this latter name (Agon or Ogon), the
Latin Ignis, the Russian peasant § still worships his domestic
hearth. The ancient Scythians, an Aryan though probably
long extinct people, used, as Herodotus || tells us, to reverence
larlr) Under the name of Tahiti. He adds that they
reverenced her beyond all the other gods. In Hellas, too,
we readll in the Homeric Hymns that 'Eort?? is to be in-
voked beyond all other gods. In the historical times
we know that in every sacrifice to Zeus and Athene 'Eerrlr]
was always first adored. Not less emphatic is the language
of the Vedas**: — "Before all other gods we must invoke
Agni. We will pronounce his revered name before that of
* Ovid, "Fasti," vi., 291, 304. t "De Nat. Deo.," ii., 27.
t Pictet, "Les Origines Indo-Europeennes," vol. ii., pp. 238, 259, 262.
§ Mr. Ralston, " Songs of Russia," p. 86.
II iv., c. 59. See Canon Rawlinson's "Herodotus," vol. iii., p. 166.
IT "La Cit6 Antique," p. 26. Smith's "Dictionary Biography and
Mythology," s. v., ttrriT].
** " La Cite Antique," p. 26.
THE WORSHIP OX THE HEARTH. 51
the other immortals. Agni, whosoever be the god
that we honour, ever to thee be addressed the holocaust."
Nor ought we to omit the Teutonic word, heima.th, the
exact equivalent for that " j^ro aris et focis" of the Romans
which has become with us the synonym and epitome of all
that is dear to man.
There is also a curious Keltic analog}'. Among the
Irish, the expression, 'the breaking of cinders,' "means*
to charfje and confirm faiilt on a man at his ovm hearth,
so that his fire, which represents his honour, is broken up
into cinders. The trampling of a man's cinders was one
of the greatest insults which could be offered to him, as it
conveyed the idea of guilt, and not only on the individual
himself, but also on his family and household." We may
well believe that we have here a memorial of the time
when the hearth was the centre and the shrine of the
family, and when the fortunes of its head brought a like
fortune to every member of the household.
As to the connection of the hearth and the House Spirit,
we know that the Greeks called their House Spirits icjtiaTioi
or iffTtovxnt, the sitters at, or the guardians of, the hearth.
The Vedas constantly speak of Agni as a domestic
deity. He is the lord of the village, of the clan, of the Sib ;
the houseliold one, the member of the Sib.^f- In the
Avesta,:J: Asha-Vahista, the genius of fire, is designated as
" the house-companion of living beings." The Latin \NTiters
use hearth and lar as synonymous. Virgil J5 uses the term
Lares and Penates inditierently, as his verse happens to
require, and habitually associates these House Spirits with
the fire oa tlie hearth anil the " cancc ixyiietralia Vestcv."
• " Dr. Sulliv.in'.s Intrixliicticm, O'Currj- 'a Lectures," I., cclxxviii.
t " I>a C'it<' Anticiuf," ji. .I.'i. I'ictct.^vol. ii., p. (j7S.
X Sjiiugers " Avosta," liy Hlceck, vol. iii., ji. 181.
§ Sec .Km., v., TJ.'}, ix., 259,
52 THE HOUSE SPIRIT.
When the Russian peasant* changes his house, the fire
from the old stove is raked into a jar and is brought into
the new house, where its arrival is greeted with the
significant salutation, " Welcome, grandfather." If the fire
cannot be brought, a fire-shovel, or some other object
connected with the hearth, takes its place, and is welcomed
in the like manner. In the minds of these peasants the
Agon and the Damovoy are the same. So, too, both Hector
and ^neas-f* thought, when, in that vision on the night of
Ilion's ruin, the spectre of the Trojan prince, in his country's
name, committed to the protection of the Goddess-born the
sacra and the Penates of Troy, and accordingly delivered to
him the fillets, and the potent Vesta, and the ever-burning
fire from the inmost shrines.
House § 5. But the fact that the hearth is the seat of the fire,
.ind House and that the fire is the instrument by which the sacrifice is
conveyed to the spirit, is not the only connection between
the worship of the ancestors and the worship of the hearth.
There seems to be a still closer relation. The hearth was
the seat, not of the fire only, but of the spirit himself.
In earlier times, it appears that the bodies of the deceased
ancestors were actually buried within their dwellings. In
later times, although the bodies were removed to some
sepulchre outside the house but within the grounds, they
were first brought into the house, and there laid out for
some time. This formal interment seems to have satisfied
the old feelinof, and the veneration for the hearth remained
undisturbed. The adequacy of this explanation, if its truth
can be shown, is, when we bear in mind the views of
uncultured races about tombs and the presence there of
.spirits, sufiiciently plain. That house-burial is a vera causa
* Mr. Ealston, " Songs of Russia," pp. 120, 138.
t ^11., ii. 292.
HOUSE WORSHIP AND HOUSE BURIAL. 53
is proved by the fact that it is practised at the present day
by multitudes among the inferior races. It exists among
many tribes* of South America. It is also found "f- among
the Fantees, the Dahomans, the Assins, and other tribes of
Western Africa. Among the Aryan nations the practice has
long since disappeared, and its veiy existence has been
disputed. There is, however, direct evidence that at some
remote period our ancestors were accustomed to dispose in
this manner of their dead, Plato J tells us that in early times
the dead were buried in the hoase. Servius,§ an antiquarian
of considerable ability, who \\Tote under the early Emperors,
says — " Among our ancestors, all persons used to be buried
in their respective houses, whence has arisen the domestic
worship of the Lares ; whence, also, we call the shades
Larvae : for the Dii Penates are different." In another
place! I he says — "Amongst our ancestors, wheresoever any
one died, he used to be carried back to his own house, and
there he remained seven days ; on the eighth he was bui-ned,
and on the ninth he was buried. It is to be known that
they were buiied in their own house, whence arose the
custom that the Dii Penates should be worshipped in
houses." It is also a suggestive fact,ir that, in the case of
colonies, which were established with ceremonies similar to
those used in the foundation of new households, the Founder,
or original House Father of the new settlement was buried in
the Forum. A vestige of the same custom is preserved by
Athena'us,** He says, tliat at Tarentum the dead were
buried within the walls, each family having within their
house tombstones witli the names of the deceased, where
funeral sacrifices were perfonned. There is a passage, too,
* Mr. Spencer's "Principles of Sociology," i., 273.
t " Through Fanteeland to Cooniassie, " hy Fretl. Boyle, p. 209.
:J "Minos," p. .315. § In /En., vi., 151. || In .-En., v., C4.
H Hermann, "Grecian Antiquities," p. 138, ii. (3.)
•• xii., 522. Muller's " Dorians," vol. ii., p. 404.
54 THE HOUSE SPIRIT.
in the E,icj Veda * which seems to suo-o-est somethino- of the
same kind. The Pitris or Manes are there called " Gharma
Sad," that is, dwelling in the abode of Yama — i.e., the harmya
or oven.
We may, then, sum up the substance of this contention
as follows. The primitive religion was domestic. This
domestic religion was composed of two closely -related parts :
the worship of deceased ancestors, and the worship of the
hearth. The latter form was subsidiary to, and consequent
upon, the former. The deceased ancestor, or his ashes, was
either actually buried, or assumed to be buried, beneath the
hearth. Here, therefore, according to the primitive belief,
his spirit was supposed to dwell ; and here it received those
daily offerings which were its rightful dues, and were
essential to its happiness. The fire which burned on the
hearth rendered these offerings fit for the finer organs of the
spirit world, and transmitted them to him for whom they
were designed. Thus the w^orship of the Lares was the
foundation and the support of the adoration of the hearth,
which was in effect its altar, and of the holy fire which
for ever burned there.
Kitual of § 6. This domestic worship had, like every other worship,
Worship. / its own ceremonies and its peculiar celebrants. But while
/ the celebrants were defined by an unvarying rule, there was
1 no uniformity in the ceremonies. Each household had its
\ own ritual.-f It had its own festivals, its own forms of
"p^ hymns and of prayers. So far from sharing the forms
adopted by others, every household regarded its special
forms as its own peculiar birthright. They were a precious
secret, carefully guarded and never divulged. In the Rig
YedaJ the Indian says — "I am strong against my foes
* Prof. Max Miiller, " Rig Veda," pp. 205-207.
+ Cicero, "De Leg.," ii., 11. + "La Cite Antique," p. 36.
RITUAL OF HOUSE WORSHIP. 55
by reason of the hymns that I hold from my family and
that my father has transmitted to me." Menu makes
frequent reference to the peculiar rites of each family.
Ovid* tells us that the Lares have sua verba, their appro-
priate modes of address. The rule of Roman law is explicit
— " Sito quisque ritit sacrijicia faciat." There are many
passages in the Greek classics f which, in describing the
reception of suppliants, illustrate both the sanctity of the
hearth and the force of special fonns of adjuration. One —
not the least interesting of them — is the account Avhich
Thuc}'dides gives of the flight of Themistokles. The great
Athenian, close followed by his enemies, reached during the
absence of its master the house of Admetor, the King of the
Molossians, in Epeiros. The wife of Admetor instructed
the fugitive in the proper form of address, and he accor-
dingly, with the child of Admetor in his arms, sat do"\ATi by
the holy hearth. " And this," says the historian, " was the
most powerful form of supplication." In a still earlier time
we find the shipwrecked Odysseus receiving instructions in
the proper mode of supplicating King Alkinoos, both from
the king's daughter Nausikae, and from the bright-eyed
Athene hei-self. In pursuance of these directions the hero,
after he had declared his name and implored relief, sat
/ down amid the ashes on the hearth.
M\^ I have said that the celebrants of this worship were
/ defined l)y a_strict and fundamental rule. All members of
the^ household joined in it, and were, so to speak, bound
together and confederated by this communion ; but it was
the son^th c Hous e Father for the time being , that wa.s
specially charged with its miiintcnancc, and was responsible
for its continuance. A daughter, as we shall see more fully,
could not maintain, because she could not continue, the
• "Fasti," ii,, 512.
t Seo Uroto's •' History of Greece," vol. ii., p. 109 (note).
56 THE HOUSE SPIEIT.
f
i household sacred rites. When she married, she was initiated
' . j"~A i'^_ a^ different cult, and the gods of her husband became
her gods and those of her children. It is, therefore, for sons
that the ancient world habitually craves. " Oh ! may that
man be born in our line " — it is thus that in Hindu belief
the Manes pray without ceasing — " who may give us milky
food, with honey and pure butter, both on the thirteenth
of the moon, and when the shadow of an elephant falls to
the east."* If sons were denied to a House Father in the
course of nature, he acquired them by adoption or some
other recognized method. But we never hear — at least in
any pure genealogic clan — of the adoption of a daughter ;
and the reason is, that an adopted daughter would have
been useless to a man for the purposes that he required.
\ ' It was the son alone who could continue the household.
He was its visible representative and head, and he was
bound not only to administer its temporal affairs, but_
(especially to perform its sacra, and to maintain the purity
of its ritual.
Persis- § 7. There ai'e few facts in history more remarkable than
House the wonderful persistency of the worship of the House
°^^ ^^' Spirit. We meet with it at the earliest period of recorded
time; its traces linger among us even still. Such persistency
is in itself sufficient evidence both of the antiquity of this
worship, and of its hold upon the human heart. We have,
however, positive evidence on these points. That must
have been no feeble growth which Buddhism was obliged
to recognize ; which was unharmed by the spread of the
nature-worship of Olympos ; which was the last of the
forms of the old religion to give way before Christianity ;
which, when proscribed both by Church and by State, yet
* Meim, iii., 274.
PERSISTENCE OF HOUSE WORSHIP. 57
for centuries was not extinguished ; wliicli even at this day
is the belief of the Russian peasant, and defies in China*
the utmost efforts of the missionaries. Nor can we regard
as modern that system which Menu tells us was, CN'en when
he wrote, the oldest religion among men. It is, as we have
seen, mentioned in the Rig Veda, and consequently it
existed when mythology had not commenced. Men
worshipped the House Spirit on the hearth at a time when
they perfectly understood that Dyaus meant the bright sky,
and that Varuna or Ouranos was the arch of heaven.
Centuries after the common apartment of the primitive
house had disappeared, and separate rooms were assigned
in spacious mansions for the various pui-poses of domestic
life, the old altar.-f the sjTnbol of the holy hearth,
survived, as the houses of Pompeii still show, undisturbed,
in the Atrium. All the changes in thought and feeling
which marked the rise of the empire were impotent against
the Lar. Horace, Ovid, Petronius,J free-thinkei-s in
principle and sensualists in practice, duly celebrated the
worship of their hearths. Even among the early Christians
them.selves, the suggestive letters "D.M." upon their
tombs § preserved for many a year the memoiy of the time
when these tombs were avowedly consecrated to the Dii
Manes.
We may, perhaps, trace some of the causes by which..
during so many ages, the Lar maintained his peaceful
existence beneath " the drums and tramplings " of repeated
conquests. Sometimes other deities were added to the
sacrificial list, and a double worship was maintained,
cumulative, but distinct. Sometimes a different course was
• See Doolittle's "Social Life of the Chinese," vol. ii., pp. 424-5.
t Smith's " Diet. Ant.," a. v., Focus.
* " I^ Cit<5 Antique," p. 24.
§ Mr. Tyler's "Primitive Culture," vol. ii., p. 110.
58 THE HOUSE SPIRIT.
adopted, and the names of the new deities were given to
the old familiar friends. Sometimes the old worship was
proscribed, and the House Spirit was not, indeed, abolished,
but degraded. Of the first of these methods an example is
found in India. I have already observed that Menu*
directs that separate offerings be made to the gods and to
the Manes : the oblation to the former always, as a matter
of precaution, both preceding and following the oblation to
the latter. Of the transfer of the names of the new
religion to the old, we have many instances in both Greece
and Rome. We read of Zevg Trarpuiog and of 'AttoWwv TrarpJog,
01 ZevQ kipiarioQ and Xevq kpiceloQ jy of Zevg ofioyriog and Zevq
avraijuoc ; of Zevq (pparpioc and Zevq b^6(i>v\oQ. Medea swears by
Hekate, " My mistress to whom I j)ray, and who dwells at
the sanctuary of my hearth." Athene 'AiruTovpia presided]:
over the irarpai or clans at Athens and at Troezen. Calli-
machus§ identifies Hermes with the House Spirit, rising
from the hearth to frighten a naughty child. I need not
collect cases of Gentile gods — of Apollo,|| the founder of the
Dorians, and Heracles their Genarch ; of the Demeter of the
Eumolpids, and of the Athene of the Butadse. So too
among the Romans we meet Jupiter Familiaris and Jupiter
Penetralis, the recognised equivalents of Zevc e^ecttwq and
Zevq EpKEioQ.*^ Herculcs belonged to the Potitii, and appears
as one of the Penates of Evander.** The Nautii had their
Minerva, and probably the Julii their Venus. In later times
the same custom was continued, and even by individual
* iii., 205.
+ See Odys., xxii., 335 ; Soph. Antig., 487 ; Herodotus, vi., 68.
X MuUer's "Dorians," vol. i., p. 95.
§ Hymn to Artemis, 70.
II Miiller's "Dorians," vol. i., pp. 278, 425.
IF Herceus Ju^Dpiter intra conseptum domus ciijnsque colebatur quern
etiam deum penetralem appellabant. — Festus, s.r., Herceus. So the
Greeks translate the Roman Penates by EpK'eioi.
** Virgil, ^n,, viii., 543.
PERSISTENCE OF HOUSE WORSHIP. 59
citizens the Genius of the Emperor* was by a sort of
adoption constituted an additional Lar. The Emperor was
jKiter ixitricv, and would consequently be entitled after death
to a place in the public lararium, and to the proper offerings.
But even during his life the admiration for conspicuous
success secured him, as a patron saint, a place in many a
Roman hoiLsehold.
These expedients, however, could not be adopted in the
case of Christianity. The God of the Christians is in truth
a jealous God. His worship is both exclusive and aggressive.
The Church, and the State under the influence of the
Church, were little inclined to make any terms with
idolatry. A century after Christianity had become the
established religion of the Empire, Theodosius prohibited,
under extreme penalties, as well the other fonns of Paganism
as also the exercise of tlic worship of the Lares. Yet no
positive law could wholly sever the ties which for countless
generations had bound the people to the guardians of their
Inearths. The disestablished Lar became an evil spirit, as
the Churchmen held ; but to the people he was a friendly
ministei-ing genius, deserving kind treatment, and readily
appreciating it. There is hardly a country in Europe, as I
have ahvady said, where some trace of this once wide-
spread belief does not survive. I have already mentioned
some of the most notal)le instances of this survival in
Slavonic, Teutonic, and Keltic nations. Amoncf the Latin
nations the survival, though in somewhat different form,
is not less marked. The patron saint, the guardian of
the house, of the street, of the bridge, of the ship, is not
unfamiliar in Southern Europe. So, too, in regard to a
• To iiiulta prcce to prosetjuitur iiioro
Dofuso patoria : ct I>aril)U8 tiium
Miscot noiiicii iiti (inL-cia C'a.storis
Et inagiii inemor Hcrculia. — Horacr, Odes, iv., T), ,33.
60 THE HOUSE SPIRIT.
cognate but somewhat wider subject, the Church has
accepted what it could not prevent, and sanctified the
sentiment which had for its object the general worship of
the dead. Even as the good Pope Gregory the Great
permitted the newly converted English to retain their old
temples, and their accustomed rites, attaching, however, to
them another purpose, and a new meaning, so his successors
found means to utilize the simple beliefs of early animism.
Long and vainly the Church struggled against this irresistible
sentiment. Fifteen centuries ago, it was charged against the
Christians of that day that they appeased the shades of the
dead with feasts like the Gentiles. In the Penitentials we
find the prohibition of bui'ning grains where a man had
died. In the " Indiculus superstitionum et paganiarum,"*
among the Saxons complaint is made of the too ready
canonization of the dead ; and the Church seems to have
been much troubled to keep within reasonable bounds this
tendency to indiscriminate apotheosis. At leng-th a com-
promise was effected, and the Feast of All Souls converted
to pious uses that wealth of sentiment which previously
was lavished on the dead. Amongst the Slavic peoples, we
are told,-|- the custom prevails of holding an annual feast
for the dead. At this feast, which is not meant for any
special person, but for the dead generally, they believe that
the souls are personally present. Silently, little bits of
food are thrown for them under the tables. People believed
that they heard them rustle, and saw them feed upon the
smell and vapour of the food. Among the peasants j of the
Tyrol, old Bavaria, the Upper Palatinate, and German
Bohemia, special preparation is made, as All-Saints' Day
approaches, for the reception of their disembodied visitants.
* " Canciani Leg. Barb.," iii., 76, 106.
f See Mr. Spencer's "Sociology," vol. i., Appendix A., p. 1.
J Jl)., vol. i., p. 322, and the authorities there cited.
PERSISTENCE OF HOUSE WORSHIP. 61
" In every house a light is kept burning all night. The
lamp is no longer filled with oil, but with fat. A door, or
at least a window, remains open, and the supper is left on
the table, even with some additions : people go to bed
earlier — all to let the little angels enter without beinof
disturbed." In Italy,* the day is given to feasting and
drinking, in honour of the dead ; while skulls and skeletons,
in sugar and paste, form appropriate children's toys. In
the simple villages of Brittany ,-f- " the crowd pours into the
churchyard at evening, to kneel, bareheaded, at the graves
of dead kinsfolk, to fill the hollow of the tombstone
with holy water, or to pour libations of milk upon it. All
night the church bells clang, and sometimes a solemn pro-
cession of the clergy goes round to bless the gi-aves. In no
household that night is the cloth removed, for the suppei'
must be left for the souls to come and take their part ; nor
mu.st the fire be out where they will come to warm them-
selves. And, at last, as the inmates retire to rest, there is
heard at the door a doleful chant — it is the souls, who,
borrowing the voices of the parish poor, have come to ask
the prayers of the living."
It is stmnge to turn from this vivid picture of the simple
and tender superstitions of our ovm day, and to listen
to the distant cry of the Fravashis of Ira,n,:J: when, at
the close of the year, on the intercalary days adde<l to it,
they assembled for ten days upon earth in quest of their
wonted worship. " Who will praise us, who will ofler to
UH, who will make us his own — who will bless us, who will
receive us, with hand provided witli lltsh, provided with
clothes, with prayer wliich desires purity ? Who.se name of
us will one utter liere, to whose soul of \'ou offer, to which
of us here give gifts, so that there may be to him there-for
• Mr. Tyloi's " Primitive Culturt'," vol. ii., p. .34. t lb.
J Spiegol'a " Avcsta," by Blecck, vol. iii., p. 87.
m THE HOUSE SPIRIT,
eatable food, imperishable, of eatable things for evermore ? "
And when the flesh, and the clothes, and the pious prayers
have been offered, the strong Fravashis of the pure — con-
tented, not revengeful, not oflended — bless him, and declare
that " in this dwelling shall be the fulness of cattle and men ;
there shall be swift horses and a Arm chariot ; the man
shall be esteemed, the head of a congregation." Thus every
Parsee who still makes, after the manner of his fathers, the
yearly feast, and offers the usual clothing for the souls of
the departed, every Spaniard who, on the anniversary of
his bereavement, brings to the tomb of the lost one his
offering of bread and of wine, every Parisian who, with
loving hand, lays upon the grave the garland of immor-
telles — unconsciously continues the tradition of the times
when Zeus, and Jupiter, and Indra were not ; when there
was neither Persian, nor Goth, nor Kelt ; but when, on the
plains of Bokhara, or on the rich pastures of high Pamir,
the common progenitors of our race did homage to the
dwellers in the spirit-world, and, above all, offered their
daily orisons to their own forefathers upon the holy hearth.
CHAPTER III.
THE HOUSEHOLD.
§ 1. One of the chief clitHculties in the study of history TheCor-
is the tendency to judge early men and early institutions by char^ter
the standard and the" lights of our own day. This tendency Household
is indefinitely strengthened if we use the same name for
both the ancient and the modern institution. There is, for
example, little hope that we shall understand the nature
of the archaic family if we permit ourselves to call it by
that name. It is not only that the word family, or
Familia, is hopelessly ambiguous,* but also that the archaic
Household is essentially different from the family, as we
understand the term. Bpyond the external resemblances
that exist from the very nature of the case, that Household
had little likeness to anything that is found "in modem
, society. It rested upon a theory abhorrent to our beliefs.
It aimed at an object ■which we can witli (lilliculty com-
prehend. It used a macliinery which we have long out-
grown. The theory upon which it rested was the paramount
and continuous obligation of anceslraF'^orship. Tlie
practical^obJecT at which it aimed was the regular and
proper perform ance of the sacra — that isj of the worship
peculiar to the Household. The machinery by which the
sacra were maintained was the coi'porate cliaracter of the
Hou sehold, and the pei -pctual succession of the House
Father^
• See for the various meanings of Familia, Dig. L., xvi., 105.
64
THE HOUSEHOLD,
At the present day, the word family, or Household,
denotes in English law no jural personality, but merely
certain relations of individuals. These relations give rise
to some simple general duties of forbearance, and to certain
obligations. Except marriage, they are transient. The
duties arising from the parental relation last only until the
children have attained a specified age. During its con-
tinuance, the parental authority is subject to the control of
the sovereign, whenever such interference appears to be
beneficial to the children. The relation of the master to
his servants rests entirely upon contract : his relation to
his guests or other inmates has the same foundation,
Marriao-e alone retains the character of a status. Even as
regards succession, it is only in the absence of any
disposition to the contrary that parents and children have
towards each other any legal rights. Collateral relatives,
although they have in their degree similar rights of
succession, are not now regarded as belonging to the family
at all. We may then say that the modern family has no
separate legal existence, but is merely a collective name for
certain definite individuals ; is limited in its duration ; has.
no present property, but only expectations, which may be
defeated by the caprice of its master ; and extends to lineal
descendants alone.
From such a family the archaic Household was in every
respect dififerent. It formed an organized permanent body,
distinct from its individual members, owning property, and
havino- other rio-hts and duties of its own, ^li it~all its
members, whatever might be their position, had interests^
according to their rank. Over it the House Father
presided with absolute power, not as owner in his own
right, but as the ofticer and representative of the corpora-
tion. With his discretion no external authoiity was
competent to interfere ; and the interest of the corporate
ITS CORPORATE CHARACTER. 65
body, not that of any individual member, was the sole
object of regard. The tie between the members was neither
blood nor contract, but com munity o f domestic worship.
Contract, indeed, between membere of the same Household
was impossible. Even when an artificial group was formed,
the contract in which it commenced immediately merged, as
in the case of a modern mari-iage, in the status to which it
gave rise. The termination of the Household was not only
not expected, but was regarded as both a public and a
private calamity. Further, the Household, if no separation
had taken place, extended not only to lineal but to
collateral relatives. It included servants and dependents.
It included children by adoption. It excluded children
who were emancipated. Its one great aim was the per-
petuation of the sacra. The sacra were essential both to
the unity and the continuity of the Household. If they
ceased, the Household was gone. The existence of a House-
hold without sacra was inconceivable. Each term connoted
the other. But the sacra could be performed only in a
particular way. It wa s a worship^f males by males, of.
past Fathei-s by present Fathers. After his death, not less
than duiing his life, the Pater represented in the Spirit-
world all those who on earth had been under his Hand,
and required that the offerings due to him should be made
by his successor and representative alone. Thus the House
Father for the time being was the visible representative
and head of the Household ; and was bound not onl}'
to administer its temporal aflaii-s, but to perform the
ceremonies of its religion, and to maintain the purity of
its ritual.
These principles serve to mark, both positively and
negatively, the Household and its limits. All those peixons
who were under the authority of the same House Father
were members of the HousehoM. Every member of a
6
66 THE HOUSEHOLD.
Household shared in that Household's sacra, and was under
the protection of its House Spirits. No person who was
not, either in consequence of his birth or by special favour,
brought under the House Father's authority, was
included in the Household, or could participate in its
sacra. Thus the Household was not the result either of
birth or of natural affection. It might contain a son who
was such merely by adoption. It must exclude the most
dearly-loved daughter who had become a wife, or the son
who had been emancijiated. Its foundation was ne ither
consanguinity nor love, but religion. Its test was the com-
munity o f s acra, as ^evidenced by the' subj ection to a
common authority. Every person who was in the Hand of
the same Father was a member of the Household, and
offered his vows at the same heai-th and at the common
tomb.
The Household was thus an association formed upon
religious belief, and contemplating religious objects. But it
was something more. It was a permanent association. It
was not intended to pass away and be i^e^ormed like the
generations of men. It was constructed, and was meant, to
endure for ever. It was, in our technical language, a
corporation. It ha^Derpetual succession^ It included in
its members both th e liviiig_j jid thedead. These members
had various degrees of rank ; but the whole number, taken
collectively, formed one well-defined and distinct individ-
uality. Of this corporate entity the Hquse Father for the
time being was the head, or, as we might say, the managing
director. As against the living members of his Household,
his authority was absolute. But he held himself responsible
for his conduct to his divine predecessors, whose servant
and interpreter he was. He held, if I may so speak, the
property of the Household in usufruct, but not in dominion.
When he died, his pre-appointed successor at once stepped
ITS CORPORATE CHARACTER. 67
into his place. There was no devolution, but, to use the
lanofuaore of the Roman law,* there was a continuation of
own ership . That which is now the prerogative of Royalty
was then the rule in every House. The House Father never
died. In the order of nature he was removed, indeed, to >*
join his predecessors ; but, simultaneously with his removal,
^is gla ce wa s filled by his heir. Thai' Ttelr retained, of ^^
.Course, all the Household's property, which it was his
special function to admin ister.
§2. It is not easy to ffive a succinct and orderly proof Historical
'' o J r examples
of the Statement that the Household was a coi-porate body, o^ ^^^^
'- "^ Corporate
Such a statement is, in truth, only a summary of many character.
particular facts ; and the generalization is, in our
authorities, implied rather than expressly stated. I shall,
too, have occasion to state the evidence in some detail, both
in dealing with some of those particular facts, and also
when we consider the nature of that joint undivided
family which has sui'vived to our own day. Still, I am
reluctant to make, even provisionally, any largo assertion
without supporting it by proper historical evidence ; and
the principle in question is so important that I may be
pardoned for a little repetition. I will endeavour, then, to
minimize this unavoidable inconvenience by, in this place,
citing, not the original authorities, but the conclusions of
modern writers of repute.
Thus, in reference to the Hindu family, Sir H. S. Mainei*
says that "although the modern law of India gives such
facilities for its dissolution tliat it is one of the most
unstable of social compounds, and rarely lasts beyond a
couple of generations, still, so long as it lasts it has a
legal coi-porate existence." Of the Teutons the same
• Dig., xxxviii., 2, 11.
f "Early Hist, of Inst.," p. 78.
68 THE HOUSEHOLD.
wiiter* says, " All the Germanic immigrants seem to have
recognized a coi-porate 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."
Of the Slav family, M. de Laveleycf* thus wiites — " The ties
of the family have preserved among the Russians, as
among the Slavs of the Danube and the Balkans, a power
that they have lost elsewhere. The family is a kind of
corporation which perpetuates itself, and is governed with
an authority almost absolute by the chief called the Elder.
All their property rests in common. There is in general
neither inheritance nor partition." If we look to the
western extremity of Europe, we find a similar state of
things amono- the ancient Irish. The learned editor of the
third volume of the " Ancient Laws of Ireland,"! observes
that " the several families who formed a tribe, although
possessing common property, and united defensively as
against their neighbour, occupied, inter sese, the position of
independent communities : there existed no sovereign bound
to see that justice was done, no common tribunal to which
an appeal might be had." In a subsequent passage,§ the
same very able writer remarks that, " in the early Irish, as
in other archaic societies, the nexus of the family was not
marriage, but acknowledged actual descent from a common
ancestor, and participation in the common duties and
property of the family."
The corporate character of the Household, both in Greece
and in Rome, is so well known, that little illustration of
the subject is needed. " At Sparta," says K. 0. Muller,||
" the family, together with the estate, formed an individual
whole, under the control of one head, who was privileged by
* "Anc. Law," p. 143. f " De la Propriete, " p. 23.
t Litroduction, p. Ixxix. § /Z»., p. cxliv.
II "Dorians," vol. ii., p. 204.
ITS CORPORATE CHARACTER.
69
his birth." Of Roman law, M. Ortolan* says: — "The
family, considered with reference to the jus jyt'ivatum, was
the aggregation in which property, the effects of obligation,
the right of inheritance and of succession — that is to say,
the right of taking and of continuing in the State the
persona of the deceased — all centred." The last authority
which I shall cite is valuable, not merely as that of a very
careful and cautious wiiter, but as showing the extent to
which these views as to the Household are now generalized
-and accepted. ]\Ir. Justice Markbyf says : — " According to
the first notion of society — certainly, according to the first
Aryan notion — owTiership was not individual, but coi-porate.
Property belonged, not to an individual, or a determinate
set of individuals, but to an aggregate of indeterminate
persons, such as a family or tribe."
^juaiTiage.
^/§ 3. The first step in the formation of a Household was Tbcfouu-
' marriage! The Ti\uos~ayrip, the jinished m an, of the Greeks, the^Housc-
bieant what we should call a family-man. The co/ioc yi^ireXtft^^^^''^ '"''^^
that adds a new pain to the sad tale of the gallant Protesilaosj-
meant a marriage, of which the wished-for fruit had not
been, and never could be, attained. " Then only," says Menu,§
" is a man perfect, when he consists of three persons united,
his wife, himself, and liis son." To our remote ancestors
marriage presented itself in a very different light from that
with which we are familiar. It was sought, not as in itself
a good, but as a means to an end. That end was the birth
of a son^_ It was the son alone who could continue the
Household- It is for sons, theiefore, that tlie Indian Pitris
in their spirit-home continually do cry. It is the sonby
whose birth, as Menu|| teaches, the father discharges his
• " Hist, of Roman I-iw," p. ')77. f " Klemcnts of Law," sec. 549.
X II., ii. 70. ^^ X., 45.
II ix., 106, 107.
70 THE HOUSEHOLD,
jjjlt.y— t.n his pvno'Am'fnvs!^ fi,r)rl hy ^i^^hnrr\ Itp ^.f.ffiins iinmor-
_±ali±^L_ It is the son who, in the words of ^schylus, is the
saviour of the hearth of his fathers. But it was not every
son that was sufficient to continue the Household. It must
be a son born of a woman whom his father might lawfully
Sarry, and wliom^in fact he h ad ma rried. It must, too, be
such a son, begotten for the express purpose,* and with tE^
distinct intent of his^ assuming, i n duje timej__his. father's
place. An illegitimate son was not only not acknowledged,
but was excluded from the Household. " Those animals,"
says MenUj-f* " begotten by adulterers, destroy, both in this
world and in the next, the food presented to them by such
as make oblations to the gods and to the Manes." The
rule of Attic law| was clear, "r6du> fn) dyxiort'tav eivai fx{]ff lepihv
/x?;9' oaicor." Neither in the worship of the Household nor in
its property had the bastard any place. An illegitimate son
was, by the Roman law, not in 'patria potestate, and conse-
quently was not a member of the Household. The German
rule was exactly similar. " Illegitimate children," says
Grimm,§ " were considered to be neither in true sippe, nor in
the father's power." The old Norse law in reference to a
Btesingr, declares || "That child, also, is not entitled to inherit-
ance." So the illegitimate son of an Irish woman IT by a
stranger, unless he were begotten with the assent and the
knowledge of the tribe of the mother, would have no status
in either the family or the tribe of the mother, and would
be considered by them as a stranger and a trespasser.
A legitimate son, therefore, every House Father must have ;
and as he could not have a legitimate son without having a
wife, he took a wife, not for his own pleasure, but in f ulfil-
* Menu, ix., 107, 147. t iii., 175.
X Demos, against Makartatos, 1067.
§ " Deutsche Eechts Alterthnmer," p. 475.
II " Cleasby-Vigfusson, Icelandic Diet.," p. 92.
H "Ancient Laws of Ireland," vol. iii., Introd. p. 146.
MAKRIAGE. 71
inent of a sac red obligation . He married for duty, not for
pleasure. The Roman bridegroom swore* that he married
liherorum qucerendorum causa. The Greek's single aim*f*
in^jweddedjife was naicwv i-K aporu) yrrfaJwy. " Mistresses,"
says Demosthenes,! " we keep for pleasure, concubines for
daily attendance uponour persons, wives to bear us legitimate
children and to be our faithful housekeepers." Tlje man
who fntends to marry for the sake of having issue is one
of the nine classes that Menu§ recognizes as vu*tuous
mendicants.
The personal motives, therefore, which led to marriage
were, in the early world, very strong. The popular senti-
ment is emphatically expressed by Isaios|| when he says,
" No man who knows he must die can have so little regard
for himself as to leave his family without descendants, for
then there would be no one to render him the worship due
to the dead." A remarkable illustration of this sentiment
occurs on a memorable occasion in Grecian history. When
Leonidas arrived at the scene of his desperate defence of
Thennopyla.', he was accompanied, says the historian,*! " by
the three hundred men which the law assigTied him, whom
he had himself chosen from among the citizens, and who
were all of tliem fathers with sons living." According to
modern notions, a forlorn hope would naturally be composed
of men who had not given hoi?tages to foi-tune. Such, how-
ever, was not the light in which the matter presented itself
to the Greek mind. Tlie luunan plant had flowered. The
continuance of the House was secure. It was, therefore,
comparatively of little moment what bcfel the man whose
duty to liis ancestors liad been fulfilled. In the aspect
of the case now before us, the fact that a man married, or
* Becker's "Gallus," [>. 17-. t IJccker's "Charicles," p. 474.
* Against Nca-ra. § xi., 1, 2.
II vii. 30. H " Herodotus," vii., 205.
72 THE HOUSEHOLD.
that he remained single, was not a matter which affected
himself alone. The condition of his ancestors, the per-
manence of his Household, depended upon his conduct.
We cannot, therefore, doubt that celibacy was regarded as
a deadly sin. Even the State, although it was slow to inter-
fere in matters merely privati juris, lent its aid to enforce
this primary duty. Solon* prohibited celibacy. The laws
of the Dorians,"f- the most conservative of the Hellenes, con-
tained similar provisions. Criminal proceedings might be
taken, both at Athens and at Sparta, against those who
married too late in life, against those who married beneath
them, and against those who did not marry at all. There
is evidence that a prohibition to the same effect existed in
early Rome ; and Cicero | notices, as a part of the duty of
the Censors, the imposition of a tax upon unmarried men.
In the laws of Menu,§ too, the marriage of the younger
brother before the elder, and the neglect of the elder brother
to marry before the younger, are regarded as crimes of the
third degree.
The Kite § 4. It follows from this corporate character that a c hild
tion?^*^^" is not born into the Household. The infant does not by
the mere fact of birth become a member of the corpora-
tion. It must be duly admitted. It must be formally
accepted by the House Father, and be by him initiated
(into the domestic worship. This rule of special admission,
which, as we shall presently see, was applied to all
persons, had a special reason in the case of sons. Such a
son as the. Household required was not any spurious off-
spring, or even any son that the House Father might
* See Becker's " Charicles," p. 475, and the authorities there cited,
t Miiller's "Dorians," vol. ii., p. 307.
J "DeLeg."iii., 3.
§ xi., 61.
/
THE RITE OF INITIATION. 73
happen to beget. He must be a genuine or kindly son,
Tralc yrvTioQ, one bom in lawful marriage, and even begotten
with a special intent. Accordingly it was among all the /^
Aryan nations necessary* that when a child was born it
should be forthwith presented for acceptance to the House
Father. It rested with him to recognize its claims to
admission or to reject them. In the former case the new-
comer was initiated into the domestic worship ; in the
latter it was either at once killed or was exposed. But if
the least morsel of food or the least particle of drink-f- had
touched the child's lips, the discretion was at an end, and
the child was held to have shared in the meal, and so
to be duly recognized. It is probable that the paternal
recognition was followed by other ceremonies. At Athens,
at least, a special festival^ was held on the fifth day,
it is said, after the birth. There the child was carried
round the sacred hearth, and was presented, in the sight of
all its relatives, to the Spirits of the House and to the
Household. Its name was then given to it, and of this
presentation and this name the guests then assembled were
witnesses. At Rome a similar ceremony was performed on
the eighth or ninth day, A lustration was celebrated, and
the pra-nomcn was given.
The rule which "Overned the admission of children
applied to persons less closely connected. Even in the case
of slaves II some introductoiy ceremony appears to have
been observ^ed. When any suppliant or guest sought the
protection of the hearth, a formal recognition of his claim
was needed. It was in the discretion of the House Father,
subject only to his own sense of religious duty towards the
* Grimm's "Deutsche Rcchts Alt." p. 455; Grotc's "Hist. Greece,"
vol. iii., p. 1.3G.
t Sec (irimm, uJii siijirn, \^. 45S.
♦ Smith, "Diet. Ant." n.v. Afi<f>iCiKifit(i
II M, do Coulaiiges' " La Cit6 Antique," p. l.'ll.
74 THE HOUSEHOLD.
House Spirit, whose protection was invoked, to accept
or to refuse tlie appeal. If, however, he once gave his
consent, the suppliant ceased to be a stranger, and was, like
the other members of the Household, initiated, at least to a
certain extent, into the Household cult, and placed under
the protection of the benignant Lares.
The Pro- § 5. The Corporate character of the Household enables us
the House- to understand its rules of property. Over all movables,
over the family and the stock, over the produce of the land,
and the labour of his subjects, the power of the House
Father was absolute. Although, in the cultivation of his
land, he was bound by the customary rules of his community,
he could determine to what use he would apply the produce.
But he could not sell or charge the land itself. The land
belonged to the Household ; and the continuance of the
Household depended upon the maintenance of the hearth
and of the tomb, and of the offerings at them, which formed
the first charge upon the common property. Of this
primitive inalienability of land there is little doubt. In
India* every such transfer is permissible only in case of
extreme necessity, or with the consent of the collective
communities. " Among the Hajputs," says Colonel Tod,"f*
" no length of time or absence can aftect the claim to the
hapota (i.e., hereditary land) ; and so sacred is the right
of absentees, that land will lie sterile and unproduc-
tive from the penalty which Menu denounces on all
who interfere with their neighbours' rights." In the
earliest Sclavonic | laws it is a fundamental principle
that the property of families cannot be divided for a
perpetuity. Among the Teutons § the sale of the alod
* Sir H. S. Maine, " Early Hist. Inst.," p. 109.
+ "Rajasthan," vol. 'i., p. 526.
t Sir H. S. Maine, " Anc. Law," p. 268.
§ See M. de Laveleye, "De la Propri6t6," p. 168.
THE PROPERTY OF THE HOUSEHOLD. 75
seems to have been unknown until they had become
acquainted with the Roman hiw. In Greece, Aristotle*
tells us that " formerly, in some states, no one was allowed
to sell his original lot of land ;" and he elsewhere f specifies
the Locrians and the Leucadians as having this law. A
like restriction was in force in Spai-ta. It was there
considered:!: to be discreditable to sell any land ; but to sell
any part of the hereditary lot was absolutely forbidden.
Among the Irish § the tribe land " could not be sold or
alienated, or given to pay for crimes or contracts." So, too,
Sir H. S. Maine !1 observes that the rule requiring the
consent of the collective brotherhood to alienation, which
is found in the Brehon law, constantly formed part of the
customs of Indian and of Russian village communities.
The Welsh law on this subject is worth transcribing in
full.lT " The father is not to deteriorate nor dispose of the
rights of his son for land and soil, except during his OA\ni
life ; neither is the son to deprive his father, dui'ing his
life, of land and soil ; in like manner the father is not
to deprive the son of land ; and though he may deprive
him, it will lie recoverable, except in one case, where there
shall be an agreement between father, brothei-s, cousins,
second cousins, and the lord, to yield the land as blood-land;
and that the son cannot recover, for peace was brought to
the son by that as will a.s to the father; for these persons
are grades without whose consent land cannot be assigned.
And though such a person have no land, he is not an ' alltud '
nevei-theless, but an innate ' lioneddig.' " This passage
illustrates several points in a)chaic usages: — Fii-st, the
inheritance of the land was, as a general rule, inalienable,
• •• Politics," vi. 4. t Ih., ii. 7.
X Grote's " Hist, of Greece," vol. ii., p. .')5.3, note.
§ "Ancient I>aw8 of Irelaml," vol. ii., p. 283.
II "Fairly Hist. Inst.," p. 10".).
IT "Ancient I^wa of Wales," vol. i., p. 177.
76 THE HOUSEHOLD.
but the House Father might part with his life-estate;
second, the exception to this general rule was where the
land was given as compensation for a blood-feud, in which
case the benefit attained by the sale extended alike to all the
parties liable to bear the feud ; third, such a transfer
required the consent of all the parties interested — that is,
of the male relatives up to and including second cousins,
and of the lord where such a person existed ; fourth, the
second cousin marks the limit of the Household, or Familia,
or Mseg, or near kin, by whatever name they be de-
scribed ; fifth, the rank of the individual was determined
by his birth, and not by his possession of land, since the
ex-landowner, even after the loss of his hereditary estate,
remained " an innate boneddig," that is, a gentleman by
birth, a member of his Household and of his kin.
In Roman law we have no such direct proof, because in
this case, as in so many others, the earliest customs of Rome
are hopelessly lost. But we can trace various changes in
that law which seem to be modifications of the original rule,
and can readily be explained upon the assumption of its
existence, although not by any other mode. Thus, by
early Roman law, a magistrate gave execution, not against
a man's property, but against his person.* Thus, the Twelve
Tables provided that the tomb must remain with the
Household, even though the surrounding land be sold. So,
too, Cicero "f" notices the rule that the principle of usucapion,
or, as we should call it, prescription, should not apply to the
tomb or its vestibule.
That danger to the Household which could not be caused
directly, could not be incurred indirectly. Thus, the mort-
gage of land, in the sense with which we are familiar, was
unknown, nor was the land regarded as assets in the
* Mr. Hunter's "Roman Law," p. 807.
t "DeLeg.,"ii., 24.
THE PROPERTY OF THE HOUSEHOLD. 77
payment of debts. It was, indeed, easier to deprive a man
of his liberty than of his interest in his land. His labour
might, at least, be mortgaged during his life, but the land
was never regarded as his individual property. It belonged
to his Household, and no act of his could permanently afiect
their rights. Nor could a House Father, of his o■s^^l mere
motion, devise his property to strangers, or even alter its
devolution among his children. He was the officer of his
coi^poration, the steward or manager of the property, with
all the powers needed for the efficient discharge of his duties,
but in no sense its absolute owmer. " It is doul)tful," says
Sir Henry Maine,* " whether a true power of testation
was kno'WTi to any original society except the Roman." This
opinion seems to be too cautiously expressed ; and even in
Rome that fonn of the testament from which the modem
will is descended was certainly of comparatively recent
date. " Testamenti fadiof non privati sedpuhlici juris est!'
It is not upon the custom of the kin, but upon the law of
the State, that the power of testation depends. It is, there-
fore, only where the State has become developed that wills
are found. A cuiious trace of the old custom lias been
noticed by Niebuhr,:J: in the customary law on the extreme
border of Genuany. " In the island of Fehmem, he who
belongs to a sept, if he makes a will, nuist pay the sept a
certain sum of money. This is clearly a compensation for
the right of inheritance ; and the like custom would have
been introduced at Ron)e, liad not the gens been incluiled in
other more comprrhensive bodies." Perhaps there is no
fulkr statement of the feelings of the ancient world upon
this subject than the dialogue which Plato § supposes to
take place Ijetwccn a Citizen and the Legislator. It marks,
of course, a time when the old rules no longer commanded
• "Anc. Law," p. I'JG. t "I%," xxviii., \, 3.
X "Hist, of Rome," vol. ii., p. 338. § " Uws," xi., 923.
78 THE HOUSEHOLD.
an unmurmuring obedience, and when the predominance of
the State was established ; but still it shows the sentiments
which, even at the close of the great career of Athens,
retained their effective power. The old rule was so far
relaxed, that Plato would consent to give the power of
nominating the heir from among the children. But his
Legislator sternly represses the claim for uncontrolled
testamentary power, and declares that " neither you nor this
property belong to yourselves, but to your entire kin, as
well that which was before as that which is to come after ;"
and, in a still greater degree, he adds, " the whole kin and
the property belong to the city."
We may thus, perhaps, explain a distinction which Gains*
makes, and which otherwise is somewhat obscure. He is
describing the different classes of Things, and after distri-
buting " res divini juris" into "res sacrce et religiosce" he
defines these terms in the following words : — " Sacrce sunt
quae Diis superis consecratce sunt: religiosce, quce Diis
manihus relictce sunt." It is not at once apparent what
distinction is intended between "consecratce" and "relictce."
The form of the sentence suggests a contrast, and Gaius,
when Avriting on a technical subject, was not likely to use
words at random. I understand the passage to mean that
"I'es sacrce" required a special act of dedication, which, as
Justinian ■{- tells us, was performed " rite et per pontifices"
in the form prescribed by law, and by proper officers
authorized thereto. No such positive and formal act was
required in the case of " res religiosce." They were simply
left for the Manes. That is, the Manes and their living
descendants were — as Plato, in the j)assage I have above
cited, describes them — joint owners of the property of the
Household. So much of this property as they required for
ii., 4. + "Inst.," ii., 1, 8.
THE PROPERTY OF THE HOUSEHOLD.
79
their own use, the living men took. So much as they did
not use, they left, as their rightful share, to the Manes.
§ G. Between the property of the Household and the per-
formance of its sacra there was an indissoluble connection.
The two things always went together. The o ne su pplied
the means for the accomplishment of the other. The person
who was charged with the performance of the sacra was
■CfEe^eir. The heir was the personjwho was ^undjto per-
for m the sacra . " The funeral cake," says Menu,* " follows
the family and the estate." " The person who inherits," says
the same authority, " whosoever it be, is bound to make the
offerings on the tomb." Cicero,f in equally distinct temis,
tells us that the obligations of the sacra devolve upon those
who inherit the family estates. So, too, Gaius,:J: when com-
menting on the rule which made an inheritance an excep-
tion to the necessity of bond fide possession for the purposes
of a succession, explains that " the motive for permitting at
all so Unscrupulous an acquisition was the wish of the
ancient legislator to accelerate the acceptance of successions,
an<l thus provide persons to perform the sacred rites to
which in those days the highest importance was attached."
In Athens the rule was not less explicit. The heir was, in
the language of Plato,§ the successor to his ancestor's gods.
To this day, "among the HindusH the right to inherit a
dead man's property is exactly co-extensive with the duty
of performing his obseiiuics. If the rites are not properly
perfoiined, or not perfoi-med by the proper person, no rela-
tion is considered as established between the deceased and
anybody sui-viving him." The (lucstion, therefore, ari.ses,
Who is tliL' ])r«)per person to ])erfonii the sacra, and conse-
• ix., 142. t " I»e !>«),'." ii.. 19.
X "•, ^T). § " Law», " v., 740.
II Sir H. S. Maine, " Aiic. I^w," p. I'.M.
I^he Suo
essioD.
80 THE HOUSEHOLD.
quently to hold the property ? On this matter there is little
room for doubt. From what I have already said, it is
apparent that, unde r the p rimitive custom, a daughter could
never inherit. She might, in certain circumstances, bring a
son who would, in contemplation of law, be regarded as
though he were the actual son of his maternal grandfather ;
but she herself could never fill the place of the head of the
Household. The son, therefore, was the lieres situs et
necessarius, the person who continued upon earth his
father's existence after that father had joined the House
Spirits. But which of the sons, if there were more than one ?
To this question Menu* again supplies the answer: "By
the eldest, at the moment of his birth, the father, having
begotten a son, discharges his debt to his own progenitors ;
the eldest son, therefore, ought, before partition, to manage
the whole patrimony." So, too, the same authority f tells us
that " a man must regard his elder brother as equal to his
father." That the eldest son was in ancient times the heir
among the Teutons appears from the exception that Tacitus]:
notes in the case of the Tencteri. He says, in effect, that
in this tribe, which was especially famed for its cavalry,
horses were regarded as objects of inheritance ; and that,
while all things else went to the eldest son, the heir of the
horse was the bravest soldier. Among our immediate
ancestors, Bede{$ tells us that parents were accustomed to
recognize the eldest son as the head of the family, and to
give him the preference in the division of the inheritance.
In the cases of Greece and of Rome our evidence is less
obvious. Sir H. S. Maine,] | indeed, asserts that the
privilege of the eldest son was unknown both to the
Hellenic and to the Roman world. But this proposition, so
* ix. 106. + iv. 184. ix. 108.
X "Germania," c. 32. § "Vita, S. Ben." ii.
II "Early Hist. Inst.," p. 198.
THE SUCCESSION. 81
far at least as regards the foniier, cannot be supported.
The older Greek customs, if they do not in express terms
state tlic rule, recognize it by necessary implication.
There was a constant effort of the Hellenic conservative
party in Sparta, in Thebes, in Corinth, and other cities, to
revert to the old practice of a determinate number of lots
or hereditary properties in each city ; or, as it is sometimes
expressed, of having only a given number of families.
Such an attempt shows that the right of the eldest had
existed, and that it was at that time in a state of decay.
If we do not find similar evidence in the history of
Rome, we must remember that our knowledge of Roman
law commences at a comparatively late period of its
development.
"Wlien the original Household separated into several
related but independent Households, the reason of the rule
as to the succession of the eldest ceased, and consequently
the rule itself was disused, if there were several sons,
each of whom became a House Father, and was therefore
charged with the care of the sclera of the House, the
performance of their separate 8iicra necessitated the
division of the property. We are, therefore, prepared to ^
cgnd that in societies where the divis ion of the Household
was habitual, tlie custom of the succession of all the sons
'should have been _esJaiLliiJiud- ^Yet even in these cases we
find vestiges of the archaic system. The eldest son has
usually some advantage in thc_distribution. Among these
advantages we sometimes meet with tme that is espcciallv
significjiiit. He rrtuins the holy hearth. Tims in India,
Menu* directs that the eldest son, on a ]);utition of the
inheritance, shall have a double slmre. The Greeks had a
special Word (rrniTiVin) to denote the jirivilcges of the elder.
At Athens, -f- this privilege consisted in liis retention, as an
• ix., 117. + Sco "IaCIW Antique," p. 02.
7
82 THE HOUSEHOLD.
extra share, of the paternal house. In the Sclavonic
family we can trace a similar rule. " On the death of the
House Father," says M. de Laveleye,* " the authority and
the administration pass to the eldest of the house ; in some
districts to the eldest son, in others to the eldest brother of
the deceased, provided that he dwells in the same house."
The House must in all circumstances be maintained. In
the Keltic nations *|* the rule is still more explicit. In
Wales, the brothers divided the paternal inheritance ; the
youngest, however, who, as we shall presently see, was
there the heir, took the principal place, Tydden — literally,
a residence, or house, with the buildings belonging to it,
and a certain amount of land, probably the precinct or
court-yard. In Ireland, the cattle and the land were
•equally divided ; but the house and offices with their
appliances went, in addition to his share, to the eldest son.
He was regarded as " the stem of the family," and had, as
such, certain responsibilities. There is, in England, a
remarkable custom, which seems exceptional, but the
•exception belongs to that class that proves the rule.
According to the Kentish gavelkind, and the custom
known as Borough English, one son, indeed, is secured
in the succession to the hearth and forty feet round it.
This son, however, is not the eldest, but the youngest.
We have just seen that a similar custom existed in Wales.
It was in general use:|: among the Frisons. Under the name
of Mainete, or the succession of the minor natu, it
prevailed in Picardy and Artois. It can be traced § in
.several parts of Germany. It exists at this day|| among
* " De la Propriet6," p. 24.
+ "Sullivan's Introduction to O'Curry's Lectures," clxxix., et seq,
J Robertson, " Early Kings of Scotland," vol. ii., p. 266.
§ Grimm, " Deutsche Rechts Alt.," p. 475.
II Sir H. S. Maine, "The Nineteenth Century," vol. ii., p. 809.
THE SUCCESSION. 83
some of the Southern Slavs. Various explanations, all more
or less fantastic, of this singular custom may be found in
Blackstone. Blackstone himself seems, although he Avas
not acquainted with all the facts, to have perceived its true
nature. As the elder brothers grew up they were initiated
into the community. They thereby, in the words of
Tacitus,* ceased to be " pars doniils " and became " pars
reipiMlcoi." In this capacity they acquired a right to an
allotment of the public land. Thus the youngest remained
with his father, and in his mund or hand. He was the
person who was to carry on the paternal Household, and he
was the heir of the family. Of him it might be literally
said, " Son, thou art ever with me, and all that I have is
thine." " The prevalence,""f says Mr. Robertson, " of such a
custom amongst a numerous class evidently implies the pro-
existence of a state of society In which the eldest-born, as
they attained manhood, became ' members of the state ' and
Avcre provided fcjr accordingly — in other words, the existence
of a ' community.'!^
It must, however, be borne in mind that this succession
of the elde.^t, or, as the case might be, of the youngest, was
something altogether different, bothTn its nature and its
origin, from tHafwhich we ^nbw call primogen iture. The
latter form is of comparatively modern date, and probably
was due to feudal arrangements. In archaic days the heir
did not take the pro^jei-ty for his own use: he merely
acquired the defined and well-undei-stood position of
managt r of the conunon property. He succeeded to an
otHce, and not to an estate. The Household with its
property, upon tlie demise of its chief, remained as it was
before. A new chief succeeded to the position of his
father, and that was all.
• "Germ.," c. 13. + Ubi stij/ni, p. 269, note.
CHAPTEK IV.
--^— THE DISTINCTION OF RANKS IN THE HOUSEHOLD.
The House §1. Every organism impl ies a distinctio n and correla-
Father. . i ^
tion of parts. The extent to whieli this process is carried
ietermines the relative position of the organism. We may,
therefore, expect to find in the Household, as the elementary
form of the social organism, a certain degree of differen-
tiation and subordination, even thouo^h that deg-ree LeTyuI"
_ — _ . ^_ o O
limited. The description of the various members of the
Household, and of their mutual relations, is sufficiently
familiar. On its visible and exter nal part, the House Father
^tands_cons]Dicuous_a^ His authority, however,
is exercised unde£j^ constant sense of his responsibility to
his House Spirits, and ischecked and regulated thereby.
By his side s tands the Hou se Mother, the functionary
charged withthe care of the holy hearth — the natural
head, subject to_J ier hu sbamjlj^ command, of the internal
economy of the family ; and, above all, the mother of the
House Father to be. Then follow the sons, the hopes of
the House ; and after them, but on^ a lower footing, the
daughters^ If "nature have denied the gift of sons, expedients
may be adopted to supply the want ; and the adopted, or
otherwise recognized son, is accepted as fully as though he
were natural-born. In the lo\^.^artr'place stand the slaves,
and those outsiders who, while they more or less depend
upon the Household, are not full members of it, but are
associated with it for some particular purpose or some
THE HOUSE FATHER. 85
temporary object. Of each of these classes I propose in the
present chapter to treat.
The wor d father was , in its original sense, a title of
diVnit-y. It^ denotes nofa physical relation, but an office.
So clearly was this conception marked, even in the full
development of the Roman law, that, as Ulpian* tells us,
a childless man, or even a ward, might be a pater familias.
The office of father implies the exercise of two leading
functions. One of these functions was (Spiritual ; the
other was t^einporal^ One related to that portion of the
affairs of the Household which concern ed the dead ; the
ot her, to that which concerned the living. The House
Father had, on the one hand, the charge of the sacra;
on the other hand, the general administration and control
of the corporate body of which the performance of these
sacra was the object and the bond. The nature of the
former function I have already considered. The House
Father was responsible for the due peiformance of his sacra
and for the purity of his ritual. He had, accordingly, full
control over the property of the Household, and over the
acts of all its members. He was charged with the duty of
determining, subject to the customs of the Household, what
persons should be admitted to membership, and so should
be initiated into the sacra. He was bound to provide for
the continuance of his office, and to give to the Household,
^ther by birth, or, in default of birth, by adoption, or some
other recognized means, a proper successor. Thu s his
.authority in his own house was supreme; and all
the subordinate members of the Household were, to use the
expressive phrase that seems to have been common
to most of the Ary an races, in his Hand. But the origin of
the aut hority w as, as I have already observed, religion, and
not either natural afi'ection or superiority of physical
• "Dig.," L., IG, 19.".
86 DISTINCTION OF RANKS IN THE HOUSEHOLD.
strength. Whatever might have been the degree of affec-
tion between a married pair, or whatever might have been
their relative strength, the wife did not come under the
Hand of her husband unless anTTuntil she had, by the
jDToper form, been initiated in th e_Household worship.
A concubine or an illegitimate son was not, as such, a
member of the Household, or within the regular scope of
the paternal power. A groAvn-up son, even after his own
marriage, remained until his formal emancipation as subject
^0 his father asi?~he~were still a child. We can perceive
the aspect in which the Roman regarded this power by
the name potestas w^hich they applied to it. This term
means an office or delegated authority, and is rarely
used to express independent or physical power. The patria
potestas was, in the Roman mind, analogous to the potestas
consularis or the potestas tribunitia. It was created by
law, and it was limited by law. That law indeed was not
one which proceeded from the State, or with which the State
had any direct concern. But the authority came from with-
out, and was in its nature j ural. Its foundation was something
much more secure and much more exalted than the caprice
of scarcely developed sentiment, or the brutality of force.
It rested on that which is the basis of all political legitimacy*
^^ — reason, justice, and right. It is true that our views of what
is reasonable, just, and right, differ in many cases from those
oTour^fofefathers ; but,~at least, thefe~is~at the bottom one
co mmon s entiment, the submission of the will to an
authority that it believes to be its supeiior, and the sacri-
5ce of personal desires and personal interests to the
prevailing, though it may be mistaken, sense of duty.
The House § 2. The history of the word mother resembles in some
respects that of father. Like father, it marks an office^
* See Guizot, "Hist, of Civilization," vol. i., p. 48.
THE HOUSE MOTHER. 87
Like father, it was used as a title of dignity. It occurs in the
Rig Veda, in conjunction with the equivalent for genetrix.
It is applied by the Greek poets to virgin goddesses, such as
Athene and Ai-temis. The later Roman law declares that
mater familias may even be an unmarried woman. In one
notable particular, however, " mother" differs from its cor-
relative term. Father, as I have said, is simply a title of
dignity, and has no procreative signification. But mother
is both a title, and also a word of procreation. Its root is
ma, to fashion ; for the main function of the mother is to
bring a son to the Household. Her title, therefore, was not
the wife, not the mistress, but the mother. Apart, however,
from this primary duty, she exercised in the administration
of the Household certain independent functions. It was
her duty to keep, or cause to be kept, the fire ever
burning upon the holy hearth. Of necessity, too, she
directed the duties of the female children and dependents,
and controlled the domestic arrangements^ The importance
of her position, and the necessity that she should be duly
qualified to fill it, appears from Menu.* He is speaking of
a Brahmin who has married a wife from the Sudras, or
inferior population. " His sacrifices to the gods, his
oblatioi^s to the manes, and his hospitable attentions to
.strangers," must be supplied principally by her ; but the
gods and manes will not eat such offerings, nor can heaven
be attained by such hosjjitality."
In a ll the principal Arj'an countries, -f- of which evidence
as to the primitive form of marriage remains to us — in
India, in Athens, and in Rome — the ceremony of marriage
^ems to have consisted of three essential parts. The first
was in substance the abandonment of, or at least the agree-
ment to abandon, his auth ority by the House Father of the
• iii., 18.
+ See M. Do CouLingcs' " La Citu Antique," p. 44, vt acq.
S8 DISTINCTION OF RANKS IN THE HOUSEHOLD.
bride . The second was the formal deliveiy of the bride to
thebridegro'oni'. Thet^ third was the presentation of the bride
to the House Spirits in her new home. Just as the Chinese
bride at the present day worships in company with her
husband his ancestors, so the Aryan_bride -did homag e to
the_gods oLi lie Hou sejtq^ which she was^ introduced, and
entered into formal communion with them. To this end
she was presented, upon her entrance into the house, with
the holy fire and the lustral water, and partook along with
her husband, in the presence of the Lares, of the symbolic
meal. So essential was this part of the ceremony that, at
Rome, it gave its name, confarreatio, to the whole pro-
ceeding. By these means the new House Mother was
installed in her office ; and, thereupon, she passed into her
husband's Hand, with all the consequences, both as to person
and to property, of that position. From this ceremony, as
I have thus described it, se veral impor ta nt conse q uences
followed as to the status of the wife. In the first place,
she left* her own Household. She ceased to be a member
\(_ of her father's house, and to worship her father's gods.
«^ Aj'^V^ ^ "This result was an inevitable consequence of the exclusive
"^O^Ni character oiTthe domestic worship. No person couldTliave
two Households. He must cleave to the one, and leave the~
other. A woman, therefore, on going forth from her
father's house, renounced her former gods, and was admitted
\
^f
to- another and a different worship. She thus entered
another family^ but inTa sense very different from that in
which we at this day use the expression. She ceased to be
a member of the one c orpor ation, and she became a member
of anot her and a different corporation. In the second
* 'Ou yuf) tTi Twv TruTpiu)TiKU)v Itpiji' ii^e Kuirwi'iay ?/ ZoQtiaa aX\'
£tC Tiiv Toi) XuJMVTOc avT))v (jvvtTiXti nciTfJuy.
Dictearchus in Stepli. Byzant. in v. irarpa.
See also SoiAocles Fragm., Tartns.
THE HOUSE MOTHER. 89
place, wh en she was adm itted to the new Household, the
b ride came un der the Hand of the Father oftliat Household.
She was in the Hand of her husband — not because he was
her h usband, but because he was, if_ indeed he was, the
House Father, If an unemancipated son married during his
father's life-time, the wife came not into his Hand but
into the Hand of his father. If, on the other hand, the
House Father died, his widow, like every other member of
the Household, came into the Hand of the new House
Father. That this new House Father was her own son did
not alter the case. He was his father's successor, and con-
tinued that father's authority. The corporation remained
as befoie, although its management was changed. Thirdly,
we can thus understand some rules of early law that are
otherwise perplexing. A wife is not related to her own
nearest kin. She is a mere stranger to her father and her
mother, her sister and her brother. She cannot inherit
from themj and they cannot inherit from her. The original
tie was, as I have said, not blood but relig ion ; and a nun
in a Roman Catholic country is not more dead to her family
now than in old times was every married daughter. Again,
a widow is som etimes described as h aving been, in contem-
plation of law, the daughter of her own son. This is merely
a forcible mode of stating the doctrine that a woman was
always in the H and o f some House Father,^ whether he was
fathe r, or husband, or son, or some remoter kinsman. The
widow was "fil'toi loco" — tliat is, she ranked as a daughter ;
not that she was really legarded in every sense as a
daughter, but that she was subject to Hand in the same
way as a daughter or any other member of the Household
was subject.
.4_jnarriagc formed lor .such objects, and with such
solemnities, could not easily be dissolved. For any mis-
conduct on the par t of th e jwife,^ she waiLanswerable in /oro.
90 DISTINCTION" OF EANKS IN THE HOUSEHOLD.
domestico, and not elsewhere. But while she continued free
from blame, she was a member of the Household, was under
the protection of the House Spirits — to whose service she in
a special manner administered — and could not be displaced
Avithout deep guilt on the part of him who abandoned her.
We are told that a process did exist at Rome by which
divorce could be effected, but that it involved ceremonies of
a frightful character. Probably in early times, and it is of
those times only that I write, divorce was unknown for any
other cause than either^^rossmisconduct or sterility. That
the barren wife was put away or superseded we cannot
doubt. She was wanted for a specific purpose, and, if she
jailed to fulfil that purpose ^ it was not likely that any con-
cern for her feelings would prevent the accomplishment of
that which was essential for the well-being of the collective
Household. We find, both in Greece and Rome, occasional
notices of divorce upon this ground. In Menu* there is
distinct evidence upon the point. It is there provided that
the barren wife may be superseded in the eighth year ; the
mother of children who have died, in the tenth year ; and
the mother of daughters only, in the eleventh year. On
the other hand, when a m arried man died without children,
his brother, or the next agnate who succeeded to the inherit- — -^
v_ance, succeeded also to his wife. The death of the former _
jiciter familias made no change in the form of the House- ^
r^-^old. His pre-appointed successor stepped instantly into
his place, that he might raise up seed unto his brother. So
absolute was this rule of succession that the succeeding
agnate, if he were already married, was compelled to leave
his own wife, and to take the materf who, so to speak, ran
with the inheritance. Personal feelings and personal
interests could never compete with the welfare of t he
* ix., 81. + See Smith, " Diet. Ant.," s. r. £7r//:X?jpoc.
THE HOUSE MOTHER. 91
HousehiiliL Its continuity must at any cost be maintained,
and the marriages of its subordinate members must give
way to the higher duty of providing a representative of the
deceased House Father in the right line. For that purpose
a woman had been duly chosen and admitted into office, and
s he was not to be displaced so long as there wa s a reason- ~^
_a ble prospect that she might fulfil he r missio n.
^ 3. " The heir, as Ions: as he is a child, differeth nothing xhe
from a servant, though he be lord of all." This statement
— addressed, I may observe, to a people among whom the
patria potestas was tixceptionally* recognizedr-was at one
time true, even without the limitation which the apostle
attaches to it. No difference existed, or indeed^ould exist,
between the position of the various classes ol persons und
the Hand of a House Father. The description of their
condition consists entirely of disqualifications. The reason
is that " Hand," in its technical sense, is equivalent to
sovereignty in its fullest meaning, and that sovereignty in
that meaning; does not admit of deg-rees. What I have
already said respecting the authority of the House Father,
and the position towards him of the wife, i-enders any
description of the condition of the son almost superfluous.
We may, however, illustrate that condition from the Roman
law,-f where the primitive rigour of the doctrine of the Hand
longest lingered. The Hou.se Father had the jus viUn
oieclsque — the power of life and death over his children.
He could remove them from the family, either without
further provision or by way of sale. In matt ers of
property, whatever the son acquired was held for his
father's use. If _a legacy were left to him, the father
received it. If he made a contract, the benefit of that
* See "(Jaiua," i., ^^5.
t See Mr, Poste's "Gaiua," p. G5.
92 DISTINCTION OF RANKS IN THE HOUSEHOLD.
contract, but not its burthen, enured to the father. The
son was bound to marry at his father's command, but his
_wife and childi-en were not in his own Hand. They, like
himself, were subject to the_al l-pervading rule of the
father^ Whatever the soik had that he called his own, he
held on the same terms as a slave held his property — that
is, by the consent of the House Father and during his
pleasure. In_a word, the son had no remedy, either civil or
criminal, against his father for any act, forbearance, orJ^
omissi on of_an y kin d whatever. Such were the provisions
of the early Roman law, which, though gradually modified,
continued during many centuries to colour family life at
Rome. It has been sometimes thought, from a miscon-
ception of a passage in Gains,* that this remarkable
system was peculiar to Roman jurisprudence. But
we have evidence of its general prevalence. " Of the
exposure of children," says Grimm, "f" " all the sagas are
full, not only Teutonic, but Grecian, Roman, and Eastern.
There can be no doubt that, in the early days of Heathenism,
this horrible practice was. lawful." The Hindu House
Fathers appear J to claim, and, so far as they dare, exercise
the ^11 paternal power, although such claims have never, of
course, been recognized by the British Government. The
early Greeks did not hesitate either to expose or to
sell their children. C?esar tells lis that the Kelts exercised
a similar power. In England, even as late as the end of
the seventh century, and after Christianity had been
established for nearly one hundred years, Mr. Kemble§
cites from the ecclesiastical books of discipline very distinct
and clear recogTiitions of this right. Among the continental
* " Gaius," p. 55.
t "Rechts Alt.,"p. 455.
t SirH. S. Maine, " Vill. Com.," pp. 113, 115.
§ "Saxons in England," vol. i., p. 199.
THE CHILDREX. 93
Teutons,* even late in the middle ages, the father's power
of sale, in case of necessity — but not that of the mother — is
recognized, although the exercise of the power seems to
have become obsolete. Among the Russians, the power of
the House Father is without any check. " The House
Father," we are told,"!* " makes a match for his son, without
consulting him, and mainly with a view to his own con-
venience. The bri<le lives under the common roof and the
common rule. She is, in fact, a servant to the old man.
Her husband does not venture to protect her as against his
father. A patriarch Ts lord in his own house and fandly,
and no person has a right to interfere with him ; not even
the village elder and the Imperial jvidge. He stands above
oral and written law. His cabin is not only a castle, but a
church ; and every act of his, done within that cabin, is
supposed to be private and divine." Generally, it may be
said,:j: that agnatic relationship implies the existence of
the paternal power, and that agnatic relationship is discover-
able everywhere. That, indeed, such a power must in
early times have existed, we may infer upon general gi'ounds.
There was no person who was entitled to interfere with the
acts of the House Father. The State was not then orsanized ;
and, when it was organized, it was not, as we shall hereafter
see, disposed to interfere on behalf of persons whom it did
not recognize as its members. The duty of vengeance rested
upon the next of kin, that is, in the case supposed, upon the
House Father himself. In a word, the House Father was
sovereign, and, consequently, possessed over his subjects all
the powers of sovereignty. And such is the meaning of
Plutarch,§ when, in ivlating how, in a season of trouble,
* (Jrimni, "Deutsche Rechts Alt.," p. 4()1.
t Mr. Dixon'a "Free Russia," vol. ii., p. 40.
t Sir H. S. Maine, " Ancient Law," p. 150.
§ Solon, c. i;{.
94 DISTINCTION OF RANKS IN THE HOUSEHOLD.
many persons were compelled to sell even their own children,
he adds the emphatic words, " for there was no law to
prevent them."
The preceding remarks apply to all the sons during the
life of the House Father. There was, in this respect,
no difference either between themselves or between them
and any other subordinate mejnber of the Household- It
was upon the death of the House Father, when the
question of succession arose, that differences in the
condition of the sons Itoth as between theiiiselves and as
against their former lellqw_ subjects began, as we shall
presently see, to arise. The description, therefore, of
inanus, includes both sons — without distinction of age —
and daughters. In dealing with the latter, the House
Father probably allowed himself a little more latitude than
with the former. The sale of daughters seems not to have
been uncommon in early times. In the Odyssee* we read
that Eurykleia had been purchased by Laertes from her
father in her childhood, although the names of both her
father and her grandfather are mentioned in the usual form
in cases of noble birth. Solon prohibited the sale of
daughters, a prohibition which, as Mr. Grote"f- remarks, is
strong evidence of the prevalence of the antecedent
j)ractice. At Rome we find a similar prohibition, but
limited to the case of the eldest daughter. No hesitation
seems in either country to have been felt in exposing an
infant daughter, for no other reason than that her presence
was not desired. Among the Kelts we read, in the " Life
of St. Bridget,"! ^^^^^ ^^'^^^ saint was carried away by her
father for sale as a slave to grind at the quern, because he
was displeased at the amount of her charities.
* i., 429.
t " History of Greece," vol. iii., ]). 188.
J Dr. Sullivan's " Introduction to O'Curry's Lectures," p. ccclxi.
THE CHILDREX. 95
Further, a daughter could not inherit the Househpld
e state, or s uc ceed t ojbhfi-jiaternal power. She could take
neither familiain nor pecimiain. It was a son whom the
Manes required, and the sacrifices offered by a daughter
would have been ineffectual and absurd ; consequently,
since the property went with the saci'a, and since the sacra
could not be performed by a daughter, the daughter could
not hold the property. For the same reason she must be _
always under power. If she were not under power, she
must be the head of the Household. But that was from
the nature of the case impossible. If, therefore, she were
married, she was in the Hand of her husband or of his
House Father. If she were not married, she remained in
the Hand of the House Father for the time being of her
^lormer. HousehohL If she were a widow, she was in the
Hand of her husband's successor. She could not, like her
brothers, be emancipated on her father's death, because she
could not perform sacra of her own. But she was, never-
theless, a member of the Household, and Avas therefore
entitled to her share in its property. It was the duty of
the House F ather to make pim ^ision for her maintenance;
and, if she ma rried, to provide her w ith a suitable dowry.
In the case of a sole surviving daughter, the next agnate,
on accepting the inheritance, was required to marry the
heiress who ran with it. With this olject he must, if it
were necessary, divorce his own wife. If he failed to marry
her, he was bound to provide a dowiy, but upon such a
scale, at least- in Athens, as to indicate the intention of the
legislature that the heir should derive no pecuniary benefit
from his want of appreciation.
The incapacity of women to inherit the property of the
Household or any part of it, and their liability to perpetual
tutelage, are, in effect, conse([uences of the same principle;
and the proof of the one assists to establish the proof of
96 DISTINCTION OF RANKS IN THE HOUSEHOLD.
the other. Of their incapacity I shall, in a subsequent
chapter, have occasion to treat at large. Of their liability
to tutelage, well known though it be, it is fitting that I
should here present briefly some of the leading proofs. " In
childhood," says Menu,* " must a female be dependent upon
her father ; in youth, on her husband ; her lord being dead,
on her sons. A woman mus t never seek independence."
These words miglit be applied without change to ^e
position of women at Rome — " According to the old law,"*f*
says a recent writer on the subject, " a woman never had
legal independence. If she was not under the j)otestas she
was under manits or tiitela. Between the potestas, manus,
or tutela, women were n^v^r IPj'^l^y th<^i>' oy- n mflstpvs."-
There was thus a specific name for each class of the relation ;
but the Roman woman, like the Hindu woman, whether
maid, wife, or widow, " must never seek independence."
So, too, it Avas with the Hellenic women — " Women | were,
in fact, throughout their life in a state of nonage, and could
not be parties to any act of imjjortance withou t the
concurrence of their guardians, whose place the husband
naturally supplied duringTiisTifetime." The laws of the"
Lanefobards, of the Alemanni, and of the Saxons declare, in
the most distinct terms, the permanent disability of women.
" It shall not be lawful," says the first of these codes, " for
any free Avoman, Avho lives according to the law of the
Langobards,§ to live under her own power — that is, in
her own remind ; but she must always live under the power
of men, or at least of the king. Nor shall she have the
power of alienating any property, movable or immovable,
by gift or otherwise, without the consent of the person in
whose mund she is."
* v., 148. + Mr. Hunter's "Roman Law," p. 548.
+ Hermann, " Grec. Ant.," p. 238.
§ Canciani, "Leg. Barb.," iii., 5L
THE CHECKS UPON PATERNAL POWER. 97
§ 4. The House Father, as I have said, was supreme The checks
within his owti House. What he did there was no matter Patemal
of concern to any pereon outside. He was amenable to no
earthly tribunal. No authority, either public or private,
could stay his hand, or punish his severity. He might
divorce his wife or kill his son, and no person could
question his conduct. The loss would fall upon himself
alone, and upon his Household ; and his neighbours were no
more concerned in it than they were in the burning of his
dwelling or the loss of his cattle. Yet we should greatly
err in our conception of archaic life, if we were to suppose
that the power of the House Father was the mere caprice
of a despot. He governed — perhaps according to settled
and general customs — certainly under the strictest sense of
responsibility to his House Spirits. For any cruel or
improper exercise of the paternal authority, either the
offended House Spirit exacted punishment, or the offender
was liable to the vengeance of the spirit of the person
whom he had wronged. A House Father had the power of
exposing his children after their birth ; but, although the -^^
law did not interfered) prevent or to punish him, he was
held to be accursed if he exposed any son unless the child_ ~^
were de formed, or his dau ghter if .she were the eldest. A
House Father might sell his son, but he who did so was
accui*sed if the son were married. A House Father could
kill his wife, but he must first, under penalty of the curse,
establish her guilt in the domestic tribunal;* and must
execute its sentence in the presence, and with the consent,
of its members. The House Father might wring the last
farthing from liis dependent, but, although the law refused
to intei-fere, the vengeance of the House Spirit did not
sleep. So Menuf declares, that " when females arc
• (Jrimni, "Deutsche Rechts Alterthiimer," p. 450.
t iii., 5G, 57.
98 DISTINCTION OF RANKS IN THE HOUSEHOLD.
honoured, then the deities are pleased ; but when they are
dishonoured, then^all religious acts become fruitless," And
he proceeds to describe the calamities that befall the
House Father_wlien female relatives are made miserable.
Thus, in Hellas the Erinyes visited with prompt and
terrible punishment the misdeeds of men in their own
house. When Orestes killed his mother, Klytemnestra, the
community was powerless to reach him, and the kin of the
murdered woman were not entitled to avenge one who had
passed out of their Household. The act of Orestes was
lawful, whether we regard him as the avenger of blood for
his father, or as himself the House Father. But the
Erinyes of his mother, nevertheless, avenged an act, shocking
to natural feeling, although done in obedience to what
seemed a higher, and yet a conflicting, duty. A striking
illustration of the House Father's power may be gathered
from the tragic story that Herodotus* tells of Periander
and Melissa. With the details of that tragedy I am not
concerned. It is enough to say that Periander, the
Tyrannos of Corinth, murdered his wife. No popular
indignation, much less any legal retribution, followed this
act. His position may, perhaps, have shielded him. But
what I desire to notice is, that his wife's father, Prokles,
the Tyrannos of Epidauros, seems both to have resented
the deed, and to have been unable to punish it. The
utmost that he could do was to suggest the truth to his
grandsons when they visited his court. Thus the husband
must be assumed to have had the right, however cruelly he
may have exercised it. There is no trace of the blood-feud,
for the wife had passed out of her father's Hand, and was
no longer a member of his kin. The natural sentiment,
indeed, remained, but its existence only serves to illustrate
* iii., 50.
THE CHECKS UPON PATERNAL POWER. 99
the absence of all legal, and even customaiy, protection to
the wife. If any such protection had existed, her father
was both from his position able to defend his daughter;
and, if he had the right, was willing to enforce it. But
neither the State nor the wife's kin was entitled to inter-
pose, and the conscience of the House Father was a law
unto himself.
It seems, however, that the House Father, in the exercise
of his authority, was expected to act in a judicial capacity.
He was not to follow his own caprice, but he was the
administrator of the customs of his clan. He usually
acted with the advice and consent of a forum domesticuni,
or family council. Even when he proceeded in a summary
manner, as in the case of offending slaves, the severer punish-
ments — if, at least, we accept the elder Cato's practice*
as evidence of the general sentiment — were not capri-
ciously inflicted ; but sentence was pronounced and executed
after a semi-judicial investigation. But in the case of any
serious offence by the wife or the children, the House Father
acted — or, rather, perhaps, was expected to act — with the
aid of his family council — that is, of his near relatives.
We know little of the council, and less of its procedure.
But at Rome L. Antonius was, by the censors, removed from
the senate"!* because he had repudiated his wife, " niUlo
amicorum in conciliuvi adhihito." In the well-known
case of Sp. Carvilius Ruga.J the divorce is said to have taken
place /'c?c amicoriLni sentcntla." In a case mentioned by
Tacitus,§ Plautius, according to ancient custom, in the
presence of his near relatives, tried for her life liis wife,
Pomponia Griecina, a woman of rank, who was accused
• See Mommsen's " Hist, of Rome," vol. ii., p. 405.
t " Val. Max.," ii., 9, 2.
J " Au. Gell.," xvii., 2.
§ " Annals," xiii., 32.
100 DISTINCTION OF RANIvS IN THE HOUSEHOLD.
" siiperstitionis externce" and found her not guilty. Seneca*
calls the 23a^er familias "judex doviesticus" and "magis-
tratus domesticus." In a case-f* where a father, who had a
good cause of complaint against his son, killed him when
they were out hunting, the Emperor Hadrian declared that
the father had killed his son by the right not of a father,
but of a brigand, and sentenced him to deportation. The
son may have been guilty, and the punishment may have
been not excessive ; but the deliberate severity of justice is
a different thing from assassination. At a much earlier
period of Roman history, we meet with an incident which
seems to illustrate this regulated exercise of the paternal
power. After the famous combat of the Horatii and the
Curiatii, the victor, exasperated by her lament for her
fallen lover, killed his sister. For this deed he was brought
to trial ; and his father ;{: contended on his behalf that he
(the father) adjudged that his daughter was rightfully
slain : had it been otherwise, that he, by a father's right,
would have punished his son. Thus the pater familias,
although he does not speak of a council, claims to pronounce
a formal judicial sentence. He claims also, as of course,
the power of life and death over his son. It is re-
markable that, notwithstanding this protest, the State
proceeded to try the offender whose act had shocked public
morality ; and yet the force of this plea to the jurisdiction
was so strongly felt that, partly from this cause, and partly
from a sense of his recent service, the offender, though the
fact was undisputed, was acquitted.
It is probable that we meet in Athens with a trace of the
same domestic tribunal, when it is said that a man ought not
* Mr. Hunter, "Rom. Law," p. 45,
+ "Dig.," xlviii., 9, 5.
J " Moti homines sunt in eo judicio maxime Publio Horatio patre procla-
mante se filiam jure cresam judicare : iii ita esset, pati'io jure in filium
animadversurum fuisse." Livy, i., 26.
THE CHECKS UPON PATERNAL POWER. 101
to have recourse to the inroKiipv^ic, or public declaration of
disherison, without having previously consulted with his
friends. Among the Teutons, Tacitus* tells us that the
husband was required to inflict punishment upon the
unfaithful wife coram proinnqids — that is, with the concur-
rence of his family council. But the neglect of the House
Father to convene this council did not render his act
unlawful, or expose him to any legal penalties for its
commission. In the case of L. Antonius, which I have
mentioned, the proceeding of the censor was not a legal
penalty, but merely an official mark of moral disappiobation.
The true sanction, in these cases, was the religious one. The
offender was, by the Romans, termed sacer — that is, he was
regarded as under the curse of his angry gods. It is note-
worthy that all the cases to which this curse was applied
were breaches of domestic duty. No legal consequences
seem to have followed from it. But as Mommsen'f' observes
— " the pious, popular faith on which that curse was based
would, in earlier times, have power even over natures
f nvolous and wicked ; and the civilizing agency of religion
nuist have exercised an influence deeper and purer, precisely
because it was not contaminated by any appeal to the secular
arm."
Tacitus:): tells us that among the Germans it was regarded
as a public scandal {jiiujltlmn) to limit the number of their
children or to put to death any of a man's agnates ; and in
that country, he adds, good customs are of more avail than
good laws elsewhere. In this brief description we can trace
with sufficient clearness both the existence of the House
Father's power, or perliaps we should rather say, of his
exemption from any legal restraint, and the practical
• "Germania," c. 19.
t " Hist, of Rome," vol. i., p. 1S4.
X Ubi supra.
102 DISTINCTION OF RANKS IN THE HOUSEHOLD.
limitation of that power. We cannot indeed suppose that
the jus vitce necisque was harshly or capriciously exercised,
when we find that full-grown men, with full personal and
political rights, were willing to abandon those rights and
formally to consent to place themselves under this
tremendous power. Yet this was done* in every case of
adrogation, a proceeding which was of ordinary occurrence
at Rome. Nor can we think otherwise of the power of sale,
when we remember that even under the Republic this
power was used merely as an instrument of conveyancing.
Men rarely do all that they have the power to do, and it is
not likely that the archaic House Father was in this.
respect exceptional.
Theprovi- § 5. We have seen that the primary object of eveiy
default of Household was the maintenance of its succession. In other
words, it was necessary that the House Father should have
a legitimate son. For this purpose it was essential that he
should marry ; and if his wife failed, from any defect on her
part, to give the Household a son, that failure was a suffi-
cient ground for divorce. Sometimes, however, this remedy
mi<xht be ineffectual or inconvenient. In these circum-
stances, various other expedients were adopted to secure the
desired succession. It would seem that, originally, a brother
or other near agnate was commissioned to raise up, even
during the husband's lifetime, seed unto his brother. On
this subject the laws of Menui* are curiously precise. The
privileges, or I should rather say the duties, of the substi-
tuted husband are strictly defined in time, and circumstances,,
and duration. The utmost care is taken to describe such
a commission as a solemn and sacred obligation, and to-
guard against the slightest laxity of the domestic tie. In.
* See Mr, Poste's "Gaius," p. 89, aud the authorities there collected,
t ix., 59-60.
THE PEOVISIOXS IN DEFAULT OF SONS. 103
like manner we find* at Athens, in the law of Solon, that
when the heiress of a property (iTrtVXjjpoc) was claimed by a
kinsman whose age or infirmities precluded the hope of off-
spring, the husband's place was supplied by his next of kin.
We may notice the width of the moral gulf between the
age of the biogi'apher and that of the illustrious subject of
his memoir. Plutarch calls this law "absurd and ridi-
culous," and mentions various ingenious explanations, upon
utilitarian principles, that had been suggested to account
for so strange a provision. But when we remember
that Solon, like a true statesman, professed not to have
made the best laws, but the best that his people would
accept, we may understand both the motive for his legisla-
tion and the depth and persistency of the sentiment which
it recognized. So, too, if an Athenian died intestate, leaving
no son, but an unmarried dauohter, the next of kin who
claimed the inheritance was bound to marry the daughter.*!*
So imperative was the rule that the lady had no choice in
the matter, and that the man, if he had been previously
married, was obliged to put away his former wife that he
might enter upon this new marriage. The son of the heiress
took the name of his maternal giandfather, and became his
lieir. Similar rules were in force among the Dorians, by
whom the heiress was called not iTrkXijpoc but eimraiiaTic.
" Regulations concerning heiresses," says K. 0. MUller,:|: " were
an object of chief importance in the ancient legislations, on
account of their anxiety for the maintenance of families, as
in that of Androdanuis, of Rhegium, for the Thracian
Chalcidians, and in the code of Solon, with which the
Chalcidian laws of Charondas appear to have agreed in all
essential points."
* " I'lutarcli'a Lives," Solnn, c. 20. See also MiiUcr'a "Dorians,"
vol. ii., p. 21 L
t Smith's " Diet. Ant.," x. r. f.niK\r]por.
X "Dorians," vol. ii., p, 209.
104 DISTINCTION OF HANKS IN THE HOUSEHOLD.
There was another Indian expedient,* of a less question-
able character, which also finds its direct parallel at Athens.
A man who had a daughter, but no son, might give his
daughter in marriage on the express condition that the son
of that marriage, or one of its sons, should belong to him.
Thus his grandson became, in contemplation of law, his son,
without adoption or any other process. So common was
this custom at Athens that a special name (dvyarpiSovg) was
used to express the relationship.
The most general method, however, of providing for the
continuity of the Household in cases where nature had
denied an heir was adoption. By this practice, the adopted
son left his own Household and his own House Spirits, and
became a member of the Household and a worshipper of
the House Spirits of his adoptive father. When his
initiation into the new worship had taken place, he became
as much a member of the Household as if he had been
born in it. Even though he had previously been sui juris,
he and all those, if any, who had been under his Hand
came under the Hand of the new House Father. Like the
wife, the adopted son, when he passed out from his former
Household, ceased to have any connection with his former
relatives. He was no longer of kin to his natural father or
to his brothers in the flesh. He could not inherit from
them, nor they from him. He was no longer responsible
for their actions, nor they for his actions. He could no
longer offer the old prayers at the old tombs. He was a
stranger in his father's house, his inheritance lay with
another kin, and his kin were descended from a different
blood.
Adoption was only an expedient, and its practice was
consequently subject to several limitations. It was admis-
* Menu, ix., 177.
THE PROVISIONS IN DEFAULT OF SONS, 105
sible only when the necessity for it actually existed. The
adoptor must have been luanied, must be without sons, and
must be without any reasonable hope of having a son. If a
man had, or was likely to have, a son of his ovm. blood, it
was not competent for him to disinherit that son by the
adoption of a stranger. Nor, on the other hand, could a
man pass by adoption into another Household, or if once
adopted, return to his original Household, unless sufficient
provision were made for the continuance of the sacra
which he abandoned. Subject, however, to these conditions,
the process was twofold. There was the relinquishment of
the original Household, the detestat'io sacrorum, as the
Romans termed it ; and there was the transitio in sacra,
or the formal initiation into the new worship. By the
fonner proceeding, the natural House Father released his
son from his riianus, and discharged him from his House-
hold. By the latter proceeding, the adoptive House Father
received the person so discharged, and admitted him to the
new allegiance.
Another method of supplying tlie want of a natural heir
wa.s appointment. I use this word in preference to testation,
because the latter term suggests iiTCsistibly the idea of a
modern will ; and because a modem will is not only in its
nature but in its history distinct from the method which I
am about to describe. Failing all other heirs, whether by
nature or adoption, a man was pennitted, with the consent
apparently of his kinsmen who had a reversionary interest
in liis property, to declare his wish that some person whom
he mentioned should be his successor, and should continue
both his duties and his riirhts. We are not told what was
the precise legal effect of such a declaration. But we may
infer that no imme«liate relation was created between the
parties, and that the grant was, in fact, conditional upon the
death of the grantor. Probaljly the transaction bore some
106 DISTINCTION OF EANKS IN THE HOUSEHOLD.
resemblance to that famous conditional gift of Telemaclius
to Eumseus, on which Justinian* relies for his enactments
respecting donations inortis causa. Such a form of appoint-
ment was known to the Hindus. We find among the
Norsemen-f- a similar custom in the ' Brande Erbe', or the
inheritance for burning, when the kinless man left, for the
performance of his funeral rites, his land to some friend who
pledged himself to perform the duties of an heir. It is
probable that the earliest form of this method occurs in
Rome. The appointment was there made in the presence
of the army when marching out to battle,;|: and was called
" testament U7)i in procinctu." We may trace in this declara-
tion in the presence of the embattled clan the characteristics
that I have indicated. It was made in the presence of the
clan because the consent of the kinsmen was required to bar
their rights as remainder-men ; and the proceeding was
adopted when the declarant was about to go upon a danger-
ous service, and there was neither leisure nor opportunity
for the negotiations that the method of adoption must have
involved. The practice was extended to times of peace
at the comitia calata — the Bod T}iing,§ or bidden meet-
ing of the Frisons — that is, the assembly of the Curies
specially convened for the particular purpose. It may be
doubted, however, if the proceeding at these comitia was
ever a favourite method at Rome. Certainly it had become
obsolete in the time of Cicero. Long before that time other
modes of legal procedure had been introduced by which the
ingenuity of lawyers contrived to make, in a more convenient
manner, sujEhcient provision for the devolution of the
property of the childless.
* Inst., ii., 7, 1.
f Robertson's " Scotland under her Early Kings," vol. ii., p. 323, n.
t Mr. Poste's "Gains," p. 101.
§ "Ediu. lleview," vol. xxxii., p. 9.
THE PROVISIONS IN DEFAULT OF SONS. 107
I have described these several proceedings as expedients
in default of a lesfitimate son. That this was their true
character is readily apparent. They were all contrived for
the benefit of the grantor, and not of the grantee. It was
plainly for the sake of the son-less House Father, and not
for that of his agent, that the commission to the Levir or
other agnate was given, or that the daughter's son was
reserved. It is true that adoption was, in time, regarded*
as an important means of providing for younger sons. But
its original character is distinctly shown by Isaios.f In a
case where he was opposing an attempt to invalidate an
adoption, the orator's contention was that, if the process
were set aside, an injuiy would be done, not to the jjerson
adopted, but to the adoptive father. An adverse judgment
woiUd result in the adoptive father having died with<jut a
son ; and, consequently, no pei-son would offer sacrifices in
the dead man's honour, no pei-son would oft'er him the
funeral repast, and he would be without worship. Nor
can we suppose that a donee in pi'ocinctv, was regarded in
the same light as we now regard a legatee. He was, in
truth, a trustee, who in an emergency undertook for his
friend an onerous duty; and who, if he received any
advantage, received it only Ijccause the estate of the donor
was held to be indivisible, and tlie property was inseparable
from its burthens.
§0. It is needless to describe the position of a slave. The Dc-
In the goMen days of Greece and of Rome, he had no
lights, but was merely subject to duties. He was an
ifi\pvxoy Krt'ifia, a vocalc inatnimentam, a human chattel, or
a tool that speaks ; and, in contemplation of law, he in no
way difftTed from a Imllock. Yet, in early days his lot
• riato, Laws, xi., 92:}
t ii. 10, 46.
108 DISTINCTION OF RANKS IN THE HOUSEHOLD.
was not so hard. He was, in his humble way, a member oi'
the Household. He was under the protection of the House
Spirit. His entrance upon his service was marked by a
formal ceremony in the nature of an initiation. He joined
in the same devotions. He shared the same sacrificial meal.
He was laid in the common tomb. The place where a
slave was buried was declared by the early doctors of the
Roman law* to be " religiosiis." The religion of the Lares,
as Cicero "f" assures us, was established alike for masters
and for slaves. This religion, indeed, was the slave's true
and only religion, and that which was his great safeguard
against his master's tyranny. Cato,j in describing his
model villicus or steward, represents him as never troubling
himself about any other worship than that of the gods of
the hearth and of the field ; and as leaving, like a true
slave, all dealings with gods, as well as with men, to his
master. It is true that the slave was in the Hand of the
House Father. He could acquire no j)roperty. He might,
without any redress, be beaten, or sold, or put to death.
But in these respects he was not in a worse position than
the son of the house. All members of the Household,
without exception, were subject to the one sovereign ; and
in sovereignty, as I have already stated, there are no
■ degrees. But under this outward resemblance there was
necessarily a broad distinction between the son and the
slave. The authority was alike in both cases, but the
spirit in which it was exercised was widely different. How
much broader the distinction grew when the limits of the
Household were overpassed, and the son became the member
of that State-community from which the slave was
excluded, I shall have occasion in a subsequent chapter to
consider.
* " Dig.," xi., 7, 2. t De Leg., ii., 11.
+ Mommsen, "Hist. Rome," vol. ii., p. 369.
THE DEPEXDEXTS. 109
The Household contained another class of persons which
requires our notice. It had not only its children, and its
slaves, but also its dependents. From various causes free
men came under the Hand of the House Father. In other
words, persons who were not included in the classes already
mentioned were admitted as a kind of inferior members of
the Household. They were duly initiated. They shared
in the common worship, and were buried in the common
tomb. It followed that, even though they did not live
under the same roof, they were subject to the House
Father. In return for his protection they owed to him
allegiance. This class was composed, in the first instance,
of emancipated slaves. If a slave received his lil)erty, his
connection with the Household did not thereby cease. If
it ceased, liberty would, in archaic society, have been
equivalent to a sentence of outlawry and starvation. The
manumitted slave remained a member of the Household,
although in a somewhat different character. He was free,
but he was dependent. His servile status was removed,
and, as against strangers, he was free ; but he still had a
right t<j the common tomb,* and he was still in the Hand of
his former master. Custom, however, required that the
master's power should be exercised in a difierent way, and
upon different principles from those which had guided it
before the lilxjration.
Another division of the .same cla.ss consisted of refugees,
especially of refugees for homicide. It seems to have been
an ancient lieliof that the stain of human blood, liowever
incurred, required purification. There was also the danger
of the blood-feud from the kinsmen of the deceased. The
homicide, therefore, generall}' Hod from his liome, and sought
a pei^son who could botli purify him from his sin, and also
• Niebuhr'a " History of Rome," vol. i., p. .T20.
110 DISTINCTION OF RANKS IN THE HOUSEHOLD.
protect him from the avenger of blood. If such a suppliant
applied to a House Father in the proper form, as recognized
by that House Father's worship, and addressed him by the
proper adjuration, such a request could not be refused.
The stranger had brought himself under the protection of
the House Spirits, and they would resent any wrong done
to their suppliant. Away from his hearth, indeed, and
without the appropriate ceremonial, the House Father
might at his pleasure grant or refuse his mercy to any
person who sued for it. But the suppliant in the technical
sense of the term, the kirrjc or man who came to the holy
hearth, was a different case. Him the House Father was
bound to receive ; and when he had received him the
stranger was initiated, and became, at least for the time, a
member of the Household.
There were other classes, too, of persons who must be
ranked as members of the Household, although their
presence was not essential to it, and was probably rare in
earlier times. There were, first, those free men who volun-
tarily attached themselves to some wealthy man and
followed his fortunes, sharing his wealth, aiding him in his
troubles, and faithful to him to the death. Although the
relation between the House Father and these his com-
panions, or followers, was of the closest and most intimate
kind, it was the necessary consequence of that relation that
these persons were not less subject to their House Father
than were his own sons. Secondly, there were the resident
aliens, or outsiders — men who, in pursuit of gain or from
motives of convenience, had settled in a community which
was not their own ; and who were obliged, for the purpose of
obtaining legal recognition, to place themselves under the
protection of some House Father, Thirdly, there were
those persons of free birth but inferior condition, usually
the remnant of a conquered population, who, under the pro-
THE DEPENDENTS. Ill
tection of a conquering chief, cultivated, for in a great
measure his benefit, the lands that were once their own. It
may be doubted whether these cla,sses, or any of them, were
found — at least to any considerable extent — in the archaic
Household. That at an early period of history they
make their appearance, and that at a later period they
largely modified the course of events, is certain. In any
case their place in the Household was from the first dis-
tinctly marked. Over all of them the paternal authority
existed in full vigour. But custom and a sense of justice,
besides those other considerations to which I have already
referred, modified its exercise ; and relations of semi-freedom
that extended over several generations necessarily tended
to produce some fixed and not wholly intolerable rules.
Thus there grew up in the Household, or by its side, a
body of men — not servile, and yet not fully free, having
among themselves important difterences of condition, clearly
distinmiishable from the slaves, but distinrjuishable also
from the immediate members of the Household.
CHAPTEE Y.
THE CLAN.
Descrip- § ^- Whether our ancestors at any time actually lived
tion of the jj^ families which ended with the death of the parents or
the maturity of the children, and without any further or
other organization, is a question which I do not venture
even to discuss. There may have been such a time, just as
there may have been a time when they had a distinct
consciousness of the meaning of each element in every
composite word. Such a state of existence is certainly con-
ceivable. But we have in our race no direct evidence of such
a state. Among the Aryans the history of society, like the
history of language, begins at a much more advanced stage
of development. It is, indeed, to the evidence of language
that we are indebted for much of our knowledge of pre-
historic society. We cannot, therefore, trace that society
beyond a period when an inflexional — that is, a com-
paratively well-developed — form of speech existed. What-
ever may have been their condition in some remote past,
our ancestors, at the time when our knowledge of them
commences, both spoke a well-developed language and
possessed a clear and well-marked social organization. The
Household, not in its rudimentary stage, but in the advanced
form that I have attempted to describe, existed in full
force among them, but it was not the sole institution that
they possessed. It was the unit of a larger and more
complex body. That body was the Gens, or Kin, or Clan.
DESCRIPTIOX OF THE CLAX. 113
I proceed, then, to inquire into the structure of this larger
organism.
In every Aryan country, and in every age, we find men
living together in communities of considerable size. These
communities are generally known as tribes, clans, peoples,
or by some similar expression. They were distinct from
that other association which is familiar to us as the State.
Their members always assumed the fact of their con-
sanguinity. They did not assert exclusive jurisdiction over
any considerable territory, or over all persons within such
territory as they possessed. They were simply the o"\vners
of, it might be, a few square miles on which dwelt men of a
comnion lineage with their dependents and followers.
Generally, but not necessarily, they were surrounded by
neighbours whose blood was more or less kindred with
their own, and with whom they recognized some slender
community of worship. But as regarded their neighbours^
the several clans were strictly independent ; no common
authority controlled their actions. They might be friends,
or they might be enemies ; but their choice of these alter-
natives rested with their own free will. Between membei*s of
the same clan, indeed, very intimate relations existed. The
clan had a common woi^ship and a common tomb ; it had
common property; its members had mutual reversionary
rights in their separate property ; they took charge of the
person and the property of any clansman that was under
any incapacity ; they exercised full powers of self-govern-
ment, and maintained for the purpose a suitable organization ;
they acted together in avenging wrong done to any of tlieir
members ; they rendered, in case of need, mutual help and
support. Further, although upon these points I shall have
occasion subsequently to treat, they obeyed and honoured a
common head, the representative of their founder, and the
nearest to hiin in blood ; and in the course of time they
9
114 THE CLAN.
branched out into numerous sub-clans, each of which was
in its turn subdivided, and tended to become a separate
and independent community.
In those societies with which we are best acquainted, the
clan system has long since disappeared. No record of
its peculiarities has come down to us. Save a few casual
allusions, we know nothing of the constitution or the
functions of the Hellenic yerij, of the Roman Gentes, or of the
Kins of our own forefathers. Those who might have observed
the Keltic clans in the British Islands suffered, for the most
part, the opportunity to escape. It is but lately that the
old wi'itings of the Hindus and of the Persians became
known to us, and their incidental notices of the clans were
strange and unfamiliar. The living clan society, either
among the Rajputs or the Slavs, was, until lately,
practically unintelligible to us. Yet it is even still possible
to obtain some description of clan relations which, however
incomplete, will assist us to realize their position.
A writer in the last century,* who had travelled in the
Highlands of Scotland and observed the manners and
customs of the Gael, thus describes them : — " The High-
landers are divided into tribes or clans under chiefs or
chieftains, and each clan again divided into branches from
the main stock, who have chieftains over them. These ai'e
subdivided into smaller branches of fifty or sixty men, who
deduce their original from particular chieftains, and rely
upon them as their more immediate protectors and de-
fenders. Next to the love of their chief is that of the
particular branch whence they sprung, and in a third degree
to those of the whole clan or name, whom they will assist,
right or wrong, against any other tribe with which they are
at variance." This description accords with the old High-
* "Letters from an Officer of Engineers," cited and adopted by Mr.
Skene, " Higldanders," vol. i., p 15G.
DESCRIPTIOX OF THE CLAN. 115
land genealogies. They represent the country as divided
originally among five great divisions or tribes, each of them
tracing descent to a common ancestor, and each containing a
number of kindred but independent clans. Thus the Mac-
Donalds, the MacDougalls, the MacNeils, the MacLaughlans,
and some other clans, although they were severally inde-
pendent, traced their descent to a common Epon^onous hero,
or, as Ave should perliaps rather call him, Genarch — Conn of
the Hundred Battles. They were, consequently, distinct from
the descendants* of another archaic hero — Ferchar Mac-
Faradaig. Of this hero the descendants multiplied exceed-
ingly. From him sprang the old Maormors of Moray, the
Macintoshes, the MacPhersons, and the MacNaughtons.
What is still more to our purpose, they include the newer
Houses of the Camerons,-f the Nasicas of the North, the Mac-
Leans, the MacMillans, and the Munroes. These Houses
again were subdivided, as some leading Eponym arose, and
as fortune favoured ; but I need not repeat such well-known
names as Glengarry, Keppoch, or Lochiel.
If from Scotland we turn to that distant eastern land
wliere so many Scot names have acquired additional lustre,
we .sliall find in tlie description of the RajpiitsJ a similai*
state of sijciety. There are thirty -six Raj-Kulas or royal
races — that is, I presume, pure-blooded clans, of the Rajputs.
Most of the.se Kulas are <livided into numerous branches
called Sdehds, and these sachas ai"e subdivided into
innumerable clans or Gofras. A few Kulas have never
ramified, and the.se are termed ehi, that is, single. From
the gotra or gote comes the patronymic ending oti', equiva-
lent to tlie icii<: of the Greeks, the Latin ins, and oui- own
in<j. Thus, of the Sooryavansas, or sun-race, the llajput
• Mr. Skene's " Higlil.uulers," vol. ii., p. 'Jll.
+ y//., pp. 100, 10.1, '2Cu. The name C'.iiiRniii imaiiH " crniiketl nose."
X 'See Tod'a " llaja-'itlmn," vul. i., p. S'2.
116 THE CLAN.
Herakleids, as we may term them, one Kula is called from
a famous chief, the Grahilotes, or Gehlotes. This Kula com-
prises twenty-four sachas, two of which — the Aliarya and
the Sesodia — have at difierent times given their name to
the entire clan. When a kingdom was formed, the founder
of the kingdom seems usually to have become a new
Eponym. Thus, in the district of Murwar,* which was
separated from Melvar, Rao Rimmell had twenty-four sons,
each of whom obtained a separate grant of land and became
the founder of a clan. Twelve of these clans maintained
their position, and the others became dependent upon some
greater clanships.
Similar divisions may be traced at Rome. The Xoinen,
or Gentile name, marked the main stock, from which
branched various Cognomina or Familice. In some cases
these Familipe grew into sub-clans, from which in turn
Agnomina or secondary Familise were produced. Sometimes
the word Agnomen is used in a different sense, and denotes
merely a title, or personal dignity. Thus, Caius Julius C?esar
Augustus corresponds precisely with another celebrated
name, Siddharta-f* Gautuma Sakya Buddha. In both cases
there is the name first of the individual ; next, of his clan ;
then, of the branch of that clan to which he belonged.
Finally, the person thus described bears the complimentary
designation of, in the one case, the August; in the other case,
the Enlightened. It is, however, with the former meaning of
the Agnomen that we are now more particularly concerned.
The Virginian Gens, for example, was divided into two
Familise, called respectively RufFus and Tricostus. The
Tricosti produced three secondary branches, C?elimontanus,
Esquilinus, and Rutilus. So, too, the Servilian Gens com-
prised the two Familije, Priscus andVatia, each of which gave
* Tod's "Rajasthan," vol. ii., p. 17.
+ This name is equivalent to Desiderius.
DESCRIPTION OF THE CLAN. 117
rise to a secondary Fainilia, called respectively Fidenas and
Isauricus. The orimnal Amiomen of the Familia Prisons
was Structus, but, as we have seen that the Rajputs do, its
memljers changed that title for that of Fidenas, in honour of
the success, at the capture of Fidena', of a distinguished
clansman. Thus, the Dictator P. Servilius Priscus Structus,
the conqueror of Fidenae, became, so to speak, a new
tertiary Eponym. His name marks an era in the Familia
of the Structi, who were a branch of the Prisci, who were
a sub-clan of the gi-eat Servilian Gens, which Gens
belonged to the tribe of the Ramnes, one of the three tribes
of which the Roman State was originally composed. Such a
desciiption, though to us it conveys little significance,
would be readily intelligible to a Rajput. He would at
once recomiize his Gotra, and his Sacha, and his Kula ;
while the Ramnes and the Titles would remind him of the
Sun division and the Moon division of his race. So, too,
the Hymans, tlie Dymans, and the Pamphylans of Laconia
coiTespond to the five gi'eat tribes of Scotland. The Trarpat
were the analogues of the MacDonalds and the MacNaugh-
tens. The w/3at were the branchlets that formed among
themselves special and closer combinations. Even in modem
Ithaca the old divisions that existed in the days of Odysseus
still linger. The three principal clans * into which the
Ithacans are divided are called Pctalas, Karabias, and Den-
■drinos. The chief families of the island all either bear these
names, or, wherever branches of tluin have tiikt'U other
appellations, the new patronymics were generally ilerived
from some whri(juct applied to one of their ancestoi"s. For
instance, the family of Zabos is a principal branch of the
Petalades, and came to be <lesignated l)y its present name
because its immo<liat<' foumlci" ha<l that epithet given to him
((Ca/3oc, in modern Greek, meaning awkward, gauche).
• Sir G. F. Bowcn, lUmca in 1850, p 17.
lis THE CLAN.
The Sacra § 2. Of the Gentile sacra we know but little. There
Ciau. appears, indeed, to have existed throughout the ancient
world a profound reserve and reticence as to all matters
connected with their domestic life, a reticence which to this
day is observable in India, and among races of low culture,*
and which is probably a survival of the special and
exclusive worship) of the hearth. Unhappily, too, that part
of Gaius's work in which he treated of the Roman Gentes,
and which doubtless contained, if not a full account of
them, yet much that would have been very precious to us,
is illegible. Through this thick darkness we can, however,
dimly discern that these Gentile sacra, like the corresponding
festivals among the Chinese, f were held annually at stated
periods ; that their expenses were charged^: upon- the
property of the Kin, or were defrayed § by joint contri-
butions; that attendance 1 1 at them was compulsory upon
every member of the Kin; and that the objects^ of the
worship were the founder of the Kin** and his successors,
and pei'haps also some divinity or hero that had been
adopted as a patron saint. With this worship and these
festivals no external authority was competent to interfere.
In the celebration no stranger was allowed to participate..
The place of their celebration was probably at the common
tomb. Such a tomb we know to have existed, and in it
were exclusively laid the remains -|"f- of those who in life
* See Sir H. S. Maine's "Village Communities," p. 114; and Professor
Max Miiller's "Science of Eeligion," p. 58.
t See Mr. Doolittle, " Social Life of the Chinese," vol. ii., i^p. 45-7.
t Smith's "Diet. Ant.," s. v. Gens.
§ Grote, "Hist. Greece," vol. iii., p. 75.
II Niebuhr, "Hist. Rome," vol. i., p. 315.
IT Willems's "Le Droit Public Eomain," p. 24.
** So of the public worship, Ovid says :
Mille Lares Geniumque ducis qui tradidit illos
Urbs habet et vici numina trina colunt.--i^os^/, v., 146.
++ Jam tanta religio est sepulchrorum ut extra sacra et gentem inferri
fas negent esse. — Cicero, De Let/., ii., 22.
THE SACEA OF THE CLAN. 119
had taken part in the common \vorship. It seems as if this
tomb were to the Kin what the hearth was to the House-
hold. It was the abode of the Gentile Lares. It was — at
least in early times — situated in the eonniion land of the
Kin, and from that resting-place the Lares watched over
and protected their own fields. These tombs were in-
violable and inalienable. They could not be applied to any
other purpose. They were excepted from any conveyance
of the land.* A right of way to them, if the land were sold,
was reserved by necessary implication. No title to them
could be acquired b}' any adverse possession. No stranger
could be buried in them. Severe penalties were attached
to any trespass upon them. "Where is the man," asks
Demosthenes, -f "who will allow persons having no connection
■with the family to be placed in the ancestral tomb ? " So
exclusively were they reserved for the Kin that the Attic
orators :!: constantly adduce as evidence in support of the
claim for admission to a Gens the fact that the claimant's
father was buried in the Gentile tomb.
We have some evidence of the strength and the persistence
of the feeling which, on this matter, influenced the archaic
world. Among the Romans it was told,§ with admiration
indeed, l)ut yet with a full belief in the fitness of the act,
that when the Capitol was l)eleaguered by the Gauls, a
Fabius, in his sacrificial costume, and bearinrj in his hands
whatever was needed for his rites, crossed the enemies' lines
to ofier on the Quirinal the sacrifices of the Fabian clan.
Whether the occurrence <lid, or did not, actually take place,
is not material for oui- present purpose. The story is good
evidence of the belief, if n<»t of tlie fact; and it is Avith the
♦ " Dig.." xlvii., 12, 5; viii., 1, 14.
+ Against Euliulitlus.
♦ fSee Becker's "Cliariclea," p. '.VM, and tlie authorities there cited.
§ Livy, v., 4G.
120 THE CLAN.
belief that we are now concerned. At a time more within
the sphere of recorded history,* but at a conjuncture hardly
less critical, another Fabius, the great Cunctator, was
watching the movements of the terrible Carthaginian, and
was carrying out, in circumstances of the utmost difficulty
and danger, his famous policy of delay. Yet even then,
when the day approached for the annual sacrifice of the
Fabian clan, the dictator left his army, and returned to
celebrate the worship of his Kin upon the holy ground of
the Quirinal. Long after the introduction of Christianity,
we find"f" popes and councils vainly denouncing these
offerings to the dead. The repression of them among our
own immediate ancestors j seems to have formed a leading-
part of ecclesiastical discipline. And even at the present
day the feasts for the dead continue, as we have seen,§ in
full force among the simple peasants of most countries on
the continent of Europe. Not the least noticeable trace of
a survival of what once were Gentile sacra, is found in
Croatia, where it is said|| that, at the present day, after the
division of a joint family, the newly formed families
continue to recite their prayers in common.
That Gentile sacra existed, there is no room for doubt.
But that these sacra implied the worship of the common
ancestors of the Kin, I have yet to show. If indeed it be
true that the Kin was merely the expansion of the
Household, this further consequence would follow as of
course. It is therefore satisfactoiy to find that the facts,
so far as we can ascertain them, correspond with this
expectation. Writing of early India, Professor Max
* Livy., xxii., 18.
t Caiiciani, "Leg. Bar.," iii., 78, 106.
+ Kemble's "Saxons in England," vol. i., p. 525.
§ See snpra, p. 60.
II "Law Magazine and Eeview/' Feb., 1878, p. 205.
THE SACRA OF THE CLAX. 121
Miiller* observes : — " It is probable that ditiercnt families
had their own heroes, perhaps their own deities, and that
they kept up the memory of them by their own poetic
traditions. It is true that such a view is merely conjectural.
But when we see that in some parts of the Veda, which are
represented as belonging to different illustrious and noble
families, certain gods are more exclusively celebrated ; that
names, which in Vedic poetry are known as those of heroes
and poets, are afterwards considered as names of infidels
and heretics ; we have a right to infer that we have here
the traces of a widely extended practice." In India, at the
present day, it is said t of the village communities in Orissa
and Bengal, that " the common people have no idea of
religion but to do right and to worship the village god."
Among the members of a pure Rajput clan, too, Mr. LyalliJ:
tells us that " the ultimate source of all ideas upon things
political, social, and even religious, is their Eponymous
ancestor." AVe have similar evidence in the case (^f
the early Persians. The AvestaJij lionours its Gentile
heroes. " The bold Frava.shis of the pure fight in the
battle at their place, at their spot, as each has a place and
a .spot to watch ovur, like as a strong man, a warrior, keeps
guard for a well gathered kingdom, with weapons ready
for war." So, too, in reference to Greece, Professor Curtiusl
says : — " Every noble clan comprehended a group of
families which either actually descended fiom one common
ancestor, or had in ancient timt'S united in one body of
gossips. They were united by the connnon worship of the
divinity of the clan, and its heroic founder : all its members
were united by the oltligation of avenging the violent death
• " History of Ancient Sanacrit Literature," p. 5.").
t Mr. Hunter's "Orissa," vol. i., p. 95.
t "Fort. Kev.," No. 121, N.S., p. 100. >
§ Spiegel's "Avesta," by Hleeck, vol. iii., p. 88.
II " Hintory of Greece," vol. i., p. ;iOG.
122 THE CLAN.
of any one of their number, by a common sej)ulclire and by
mutual rights of inheritance ; every clan had one common
place of assembly, and one common sacrificial hearth, and
constituted one great House, a strictly exclusive and sacred
social community." To the same effect is a striking'
^^ passage in a Delphic oracle, which Demosthenes,* in one of
his orations on a case of disputed inheritance, cites as
confirmatory of the laws of Solon. The Athenians had sent
to consult the oracle as to a sign which had appeared in the
heavens, and to know what they should do, or to what god
they should pray, in order that the sign might turn to their
advantage. After directinof certain sacrifices to the deities
of Olympos, the oracle thus proceeds : — " And it is meet
that ye ofier sacrifice and gifts, according to the custom of
the country, to your hero-founder from whom ye derive
your name ; and that honours should be paid to the manes
of the departed, on the proper day, by the relatives, according
to received usage." Thus, too, in Rome, the clan worship
had a specific name, sacra Gentilitia. The connection of
these sacra with the heroes of the clan is expressly stated.
DionysiuSji" when writing of the Roman Gentes, notices
their worship of " the daemons of their forefathers : " and an
inscription:): is extant which commemorates the " Lares
Volusiani," the House Spirits, as it were, of the Volusian
Gens.
The lube- § 3. I have already said that the possession of the
ritance of ' t ^ n c ^ j.m i
the Clan, property and the performance of the sacra were convertible
expressions ; whoever had the one had also the other. The
right to the property correlated the duty of the sacra. The
duty of the sacra gave the right to the possession of the
* Against Makartatos.
+ xi., 14.
t Gruter, Iiiscrii^t., 319,9.
THE INHERITANCE OF THE CLAN. 12a
property. No sacra, while there was any property to
maintain them, could be allowed to fail for want of an heir.
Consequently, when the children an<l the innnediate rela-
tives failed, the kinsman succeeded to the vacant property
and to the duties with which it was charged. On this
point we have the express testimony* of the Twelve
Tables : — " Si intestato moritur cui suus heres ncc escit,
adgnatus proximus faniiliam habeto. Si agnatus nee escit,
gentilis faniiliam nancitor." To the same efiect Menu*)*
enacts that, failing the Sapindas, the Samanodocas shall
inherit. In Athens,;J: if a deceased person left neither
children nor agnates, the inheritance went to his yiroQ or
clan. Nor can we doubt that a similar custom prevailed
among the Teutonic§ tribes.
This right of inheritance in the clan has been sup-
posed to l)e analogous to the modern escheat. In the
absence of any known heirs, the property now goes to
the State ; but in earlier times the ultimate body was
not the State, but the clan. The motive, however, of
the arrangement was very ditlerent in each case. The
original principle of the escheat was the return to
the donor of his gift when its conditions could no
longer be fulfilled. At the present day it is merely
a method to avoid the inconvenience and possilile
confusion that would arise from the presence of vacant
possessions. But the object of Gentile inheritance was the
continuance of the sacra in, so far as it was possible,
kindred hands. Accordingly we tind in eaily history, tii-st,
that the utmost diligence was used to prevent any failure
in the succession ; and second, that in these arrangements
• Tab. v., fr. 4 and Fi.
t ix., 187.
X See Grote, " Hist, of fJreccc," vol. iii., p. 18G.
i Sec Grimm, *' llechts Alt.," pp. 4G7, 478.
124 THE CLAN.
no notice is taken of the State. " Nothing," says K. O.
Miiller,* " was more dreaded by the early Greeks than the
extinction of the family and the destruction of the house,
by which the dead lost their religious honour, the house-
hold gods their sacrifices, the hearth its flame, and the
ancestors their name among the living." Against this evil
provision was made in Sparta by various regulations, but
all these regulations related to heiresses, adoptions, and
similar forms of succession. The Attic mind"f" seems to have
abhorred the desolation, as it called it, of any House, and
insisted upon some person being found who should succeed
to the property and the duties of the deceased. But it
never thoua^ht of vestino- the ultimate remainder in the
City. So, too. Menu;]: directs that, upon failure of the
Sapindas and the Samanodocas — that is, of the Agnati and
the Gentiles — the property shall go to the religious teacher
or to the Holy Brahman. " Thus the obsequies cannot fail."
Herodotus § tells us that the ancient Persians considered the
possession of many sons to be, next after military prowess,
the greatest proof of manly excellence. Even at this day
the greatest misfortune that can befal a man in Persia is to
be childless. When a chief's " hearthstone is dark " —
such is the usual exj^ression — he loses all respect, and hence
the custom of adoption in such circumstances is universal.
A similar feeling prevailed at Rome. " A house of his
own," says Mommsen,|| " and the blessing of children,
appeared to the Roman citizen as the end and essence of
life. The death of the individual was not an evil, for it
was a matter of necessity; but the extinction of a
household or of a clan was an evil, even for the com-
* "Dorians," vol. ii., j). 202.
t Smith's ' ' Diet, of Antiq. , " s. v. Heres.
t ix., 188.
§ Canon Ilawlinson's " Herodotus," vol. i., p. 221.
II "Hist. Rome," vol. i., p. 59.
THE INHERITANCE OF THE CLAN. 125
munity." It seems, however, to have been thought
sufficient to vest the ultimate remainder in the Kin, with-
out attempting to prolong the existence of a clan by trans-
ferring its ritual to strangers. In India, indeed, the
religious teacher and the Holy Brahman are introduced;
but we cannot doubt that they made their first appearance
in the revision of the laws which belonged to the Brah-
manic period. In practice, if a family become extinct, its
share returns to the common stock of the village — in other
■words, to its Gentiles. In the maturity of Roman law* we
meet, as we shall hereafter see, with a true escheat, or
political remainder ; but it was not until the time of the
Empire that this change was effected. Whether the Gen-
tiles were interested in their collective capacity, or in
some way acquired individual rights in the property, we
cannot tell. It seems probable -|- that there was no general
law upon the subject, and that each Gens dealt with the
propei-ty that fell to its sliare, and its attendant burthens,
ax;cording to its o^\Tl rules and views of expediency.
{5 4. As tlie clan was an expansion of the Household, the The prga-
organization of the one may be expected to resemble the the Cbu.
organization of the other. Tliis organization, indeed, is
common to the Household, to the Clan, and to tlic State.
Each of these bodies J had its chief, whether he was
hereditaiy or elective. Each had its council of advice.
Each had its^j children, its slaves, its frecdiiicn. Even in
their external relations the same resemblance may be
ti*aced. The various relations of clients, of friends, and of
guests, may ho found in the State and in the Kin as well
• See Ulpian " Reg.," 2S, 7 ; "Caiu.s," ii., 150.
t See Smith, " Diet. Ant.," n. >: Cen.s ; Niebuhr, " Hist. Rome," vol. ii.,
p. 157, H.
* Dean Merivale's " VaW of the Roman Republic," p. 155.
§ See Niebuhr, "Roman Hist.," vol. iii., p. 520, u.
126 THE CLAN.
as in the Household. Of these inferior, or extraneous parts,
I do not now speak. It is the organization of the Kin
itself that we have in this place to consider. First and
most prominent in the clan, as in the House, stands the
chief. He was the person who was nearest in blood to its
Eponym, or founder. In other words,* he was the eldest
male, or the heir of the eldest male, of the eldest branch.
He, like the House Father, was the religious head of his
special worship. He was the person whose duty it was to
oifer the customary sacrifices to the dedi Trarpwoi, the gods of
the Kin. He was the natural leader of his kinsmen in war,
and the administrator of their customs in peace. In all
external relations he was their spokesman and repre-
sentative. In domestic afiairs, rank, and, consequently, a
share in the public property, was, at least in some nations,
determined according to the nearness to his blood. He was
usually more wealthy than his kinsmen ; because, in
addition to his household property, he enjoyed a special
endowment, and also certain lucrative incidents, such as
customary gifts, fees of office, and license fees from such
strangers as resorted, for pui'poses of trade or otherwise, to
his district. But the chief was essentially one of his people.
He ruled according to the customs of his clan. His
authority rested not upon any external force, but upon the
willing obedience and reverence that he received. " Nothing,"
says Mr. Freeman,-}* " of the pomp and circumstance either
of modern or of eastern kingship surrounds him. His
house is accessible to all : his personal life is spent in the
same way — at once simple and public, as the life of any
other members of the commonwealth. Divine as he is, no
barrier parts him ofi:' from the other chiefs of his people.
He is perhaps only one among many bearers of the kingly
* See "Ed. Rev.," cxliv., 187.
t ' ' Comparative Politics, " p. 145.
THE ORGAXIZATION OF THE CLAX. 127
title.* Even within the narrow bounds of Ithake, there
were many kings besides the divine Odysseus." It is not
difficult to understand how accidental personal differences
necessitated, in the interest of the general welfare, some
modification in the functions of the chief ; and how, from
the primitive simplicity of general and of judge, and of ruler
and of priest, special organs were with the growth of the
community developed. One function, however, survived
€very change, and by its persistency proved its antiquity.
None but its accustomed head could perform the religious
rites of the clan. Consequently, the name and office of
Basileus and of Rex, although shorn of their original glory,
long lingered among the Gentes of Athens and of Rome.
We have seen in the Household some traces of the family
council. The presence of a similar body is observable also
in the clan. I do not speak of the Boule, and of its later
political developments. But in the Gens, as it co-existed
with the State, we find plain marks of independent
legislative authority. The laws of Romulu.s,-|- and the laws
of NuiDa, prolialtly indicate the clan laws of the Ramnes,
and of the Tities ; and subsequent so-called legislation
probably points to the similar rules of the Luceres and of
the Plebs. So, too. Menu* enjoins a king, " who knows the
revealed law, to incjuire into the particular laws or usages
of districts, the customs of trades, and the rules of ceitain
families, and to establish their particular laws." We read
• " Kings were formerly as j)leiitiful in Scandinavia as dukes at
the present day at Naples ; the sou of a king, though without territories,
hearingthe same title as his father. In the Dronthcim district alone, Harald
Harfagra defeated and slew no less than eight kings." — Mallet's "North.
Anti(|.," p. '2~'.), nod'. For the number of kings in early England, see
Kemhle's "Saxons in Knglan<l," vol. i., p. 148 ; and for a lively description
of a Itajpiit Chief, see .Mr. Lyall, " Foi-t. JJcv.," No. 121, N.S., p. 99.
+ Niel)ulir, " Kuman History," vol. ii., p. 284.
t viii., 41,
128 THE CLAN.
in later times* of a decree of the Fabian Gens prohibiting-
celibacy and the exposure of infants. The Manlian Gens
expressed its abhorrence of the political conduct of an
eminent kinsman by forbidding the use of the pronomen
Marcus. The Claudian Gens forbade the use of the pronomen
Lucius, because two kinsmen bearing that name had been
convicted — the one of highway robl)ery, the other of murder.
The familia of the Serani, a sub-clan of the Atilii, had a
rule that their women should abstain from the use of linen
garments."!* At Athens,J the Eumolpid?e and the Butadae
are mentioned as having unwritten maxims of great
antiquity. In cases of impiety, particularly in offences
against the Mysteries, the Eumolpidse had a peculiar
tribunal of their own number, and exercised a special
jurisdiction. We may, perhaps, compare with this council
the Russian § senate of Village Starostas, who, under the
presidency of their Starshina, make laws for the good
government of their Volost, or township. "We find traces
also of councils apparently of this kind among the Hindus,
the Kelts, and the early English. It is remarkable that in
nearly all the Aryan communities both a council of this
kind is found, and that the number of its members is
almost always the same. So far as I know, in Wales
alone, probably from some accidental circumstance, the
number of the council is seven. In all other cases it is
five. Why that particular number should have been
chosen I cannot tell, unless it be due to that primitive
numeration upon the hand which has left its mark all over
the world. In India, the custom appears with a persistency
that affords strong proof of its high antiquity. " The
* See Willems's "Le Droit Public Eomain," p. 25, and the authorities
there cited.
+ Plin., xix., 1, 2, 8.
J Grote's " History of Greece," vol. iii., p. 90, note.
§ M. de Laveleye, " De la ProiDriet(i," p. 11.
THE ORGANIZATION' OF THE CLAN. 129
Village Council," says Sir Henry Maine,* " is always
viewed as a representative body, and not as a body
possessing inherent authority ; and whatever be its real
number, it always bears a name which recalls its ancient
constitution of Five persons." In Irelantl, we read of the
Cuicer na Fine, the five pledges of the Fine or Familia.
Dr. Sullivan t describes these persons " as a kind of Family
Council composed of five men, who regulated everything
connected with the rights and responsibilities of the
family." To this body, as the same wi-iter;}: suggests, the
Reeve and Four Men of the old English township cor-
responded. That is, the Council of the M;i?g became, when
the cantonal element predominated, the representatives of
the township. We may, I think, detect traces of a similar
number in the Gentile institutions at Rome. It is saidsij
that, while a father could order the exposure of his other
daughters, he could not expose his eldest daughter or any
son, unless tlie child were condemned, as monstrous weak
or exceedingly deformed, by the judgment of five neigh-
bours. Again, in the ceremony of mancipation, the number
of witnesses, exclusive of otiicial persons, was five. But
mancipation was the solemn customary form by which the
property of the Household was sold. It seems, then, not
an unreasonable guess, although it is only a guess, that the
sale may liave originally taken place before tlie Council of
the Agnates, whose presence both attested the fact and
expressed their consent, at a time when that consent was
essential to the transfer. Perhaps, too, a trace of this
custom may be found in those five goo<l House Fathers who
were wont to go from Homce's Sabine FaiTn'l to Varia. The
• " Vill. Comm.," p. 12.3.
t " Introduction to O'Curry'a Lectures," i., cciii.
* 76., ccv.
§ Dion. Hal, "Ant. Rom.," ii., 1.5.
II "Quinfjuc bonos aolitum Variam dimittcro patrea." — Ep., i., 11, li.
10
130 THE CLAN.
passage has occasioned among the critics some controversy ;
and in the absence of definite information on Italian local
self-government, I am not disposed to give way to fancies.
But some future Horatian commentator may possibly think
it worth his while to compare the Punchayets and the
Cuicer na Fine, and to extend his inquiries to the Four
Men and the Reeve, those five good House Fathers who
used to go to their folkmote to represent their township.
In Greece, too, the Court of Five seems not to have been
unknown. In the inscriptions still extant of some Hellenic
cities, the number five frequently recurs in their legal
business. Thus in Petelia,* an Hellenic city of Southern
Italy, a deed of conveyance is attested by the signatures of
the chief magistrates and of five proxeni, or citizens who
represented foreign communities. Again, when much litiga-
tion prevailed in Calymna,*!' the people of that city, accord-
ing to a practice very usual among Greek cities, sought
judicial assistance from without. They obtained from the
people of lasus the desired help ; and an inscription records
that the people of Calymna honoured with a crown the five
judges whom the people of lasus had sent them.
We find also, in the archaic community, vestiges of an
elaborate organization of inferior offices. Every Indian
village contains a number of hereditary trades, which seem
to be the relics of such a system. It is noteworthy that
there are some trades in these villages which are not heredi-
tary. The exceptions include those which belong to com-
merce rather than to trade — that is, which involve a supply of
goods from distant markets. These employments, although
lucrative and respectable, do not appearj to be regarded
as customary offices, or to confer any status in the com-
munity. Such, for example, is the business of the
* "Contemp. llev.," vol. xxix., p. 76. t Ih., p. 85.
X Sir H. S. Maine, " Village Communities," pp. 124-126.
THE ORGANIZATION OF THE CLAN. m
grain-dealer. In early Greece the ^rjfiioepyoi seem to be
the analogues of these Hindu officials. Homer mentions
the herald the prophet and the bard, the cai-penter
the fisherman and the leech, all of whom, although
we cannot trace their exact position, appear to have
exercised some kind of public function. Among the Keltic
clans similar classes are known to have existed. It is
probable that the Teutonic settlements were similarly sup-
plied. We can, on this supposition, account for the
abundance and the persistence of surnames taken from the
names of cei*tain trades, and for such expressions as the
" Smith's Acre " and other local names. These names
indicate at once the public function and the remuneration,
in the form of a ri^uog or sitndergut, by which its exercise
was rewarded.
{:j 5. I have already said that, even in cases of children, Acimis:#ion
and much more so in the case of strangei-s, a special Departiuo
initiation was re(|uired before any person could be cLm.
admitted as a member of a Household. The same rule
applied with respect to the admission to a clan, and to the
withdrawal from it. No pei"son could enter a clan or leave
it at his ovm will merely, and without the consent of its
members. If he sought to enter it, he must be accepted as
a worshipper of his new gods. If he desired to leave it,
care mu.st be taken that lie did not thereby imperil the
worship of his former gods. Fuilher, the person who
entered a community actjuired therel)y a share in certain
substantial benefits. On the other hand, by liis withdrawal
he weakened /)ro tanto the power and the repute of his
clan. We find, accordingly, that this power of admission
on the one side, and on the other side of expatriation, or,
perhaps, I should rather say of exfamiliation, even when
the change was absolute, and not merely a transfer from
132 THE CLAN.
one Household to another, were always solemn public acts
requiring the consent of the community. We read of the
ceremonies with which the Greek and the Eoman and the
Teutonic youth were respectively presented to their kins-
men, and received from them a recognition of their claims.
We know that at Rome adoption took place with the
consent of the Gentile Parliament ; and that at Athens,
even in late times, every admission to a Clan was jealously
scrutinized by its members. The process of abandonment
was similarly guarded. Among the Greeks a man could make
himself in their expressive language kiroirjToc, but formal
proceedings were necessary to effect this object. The old
German law * tells us that when a man wished to leave his
2yarentilla, or m?eg, he was to go into the iiiallus or place
of public assembly, with four alder sticks, and to break
them into four pieces and to throw them into the mallus,
and make his renunciation in a prescribed form of words ;
and thereupon his power of transmitting an inheritance to
his former Kin, or of receiving it from them, ceased ; and
they were no longer liable for, or entitled to, his wer-geld.
In our own early law,-|- traces of a similar custom exist in
the process known as foris-familiation. A son was said to
be foris-familiated if his father assigned him part of his
land, and gave him seisin thereof, and did this at the
request, or with the free consent of the son himself, who
expressed himself satisfied with such portion. The heirs of
the son could not afterwards claim any greater portion of
their gi-andfather's estate. So, too, we read of the cere-
monies that attended the expulsion of an offending
Gesith. He was escorted by a guard to the verge of the
forest, and there they watched in silence his departure so
long as he could be distinguished. But when he had at
* "Lex Salica," s. 63. Cane, "Leg. Barb.," ii., 107.
t Reeves, "Hist. Eiig. Law," vol. i., p. 110 (first ed.)
ADMISSION TO AND DEPARTURE FROM THE CLAX. 133
length disappeared, the whole body raised three times a
loud sliout, partly perhaps as the final vale to their former
comrade, who was now dead to them, and partly, as it is
said, lest the fugitive might wander Lack to the point from
which he had set forth. " Some such process," says a
learned writer,* "must have been absolutely necessary in
every archaic community. Some circumstances must have
been held to justify the expulsion, and probably some
ceremony may have indicated that the member of the
community who rebelled against the custom was cast out,
and had become ' friendless,' ' flyma,' or ' exlex.' "
Wu may, perhaps, obtain a somewhat clearer notion of
the exclusive character of these old Kins by obsei-ving the
accounts given of the Swiss cantons at the present day. A
Switzcr cannot move from one canton of the Confederacy
to another, as an Englishman moves from one shire or one
colony to another shire or another colony. Each canton
has its own property, to which various lucrative incidents
are attached. A tariff of admission -f to these advantages is
in each case established, and thus each canton becomes
a sort of joint-stock company. In the case of married
couples the rate of admi.ssion is considerably higher than it
is for single persons, l)ccause the danger of their increasing
the divisor of the communal property is more imminent.
The celibates must obtain pennission to many, and this
permission it is often difficult to procure.
§ (J. The nmtual obligations that j^rovailed between The IIclp
clansmen were of the closest kind. Eveiy clansman was ,ucn .^nd"
bound ^ to assist and support, in all his difficulties, every j^^g/^'
other clansman. It is mainly fiom later times, when the
• " Anc. I^W8 of Irolaiul," vol. iii., p. 107.
t Mr. Dixon's " Swit/x-rs," jip. 74-bO.
t Niebuhr, " Itoiii. Hist.," vol. i., j). 315.
134 THE CLAN.
clan was comprised within the State, that we derive our
knowledge of these kindred duties. It appears* that, if a
man were condemned to pay a fine, or if he incurred expense
in any public office, or if he were taken in war, his kinsmen
ouffht to contribute to his needs. If he were accused,
they attended in court to maintain his cause. If he were
wronged, they helped him to procure redress. No clansman
was competent to give evidence against another. If a
clansman were advanced to honour, his whole clan, or at
least that portion of it which was more directly connected
with him, shared in his advancement. If he were punished,
the penalty extended to all that belonged to him. Thus,
in the old English poem, " Beowulf," -f certain warriors are
described as having deserted their prince in the time of
trouble. The punishment which his successor awards to
them is not that they, individually, but that the whole
msegsceaft, or near kindred, of each of them should be
deprived of their folk-right. It is probable that, in our
day, it was the application of this principle of root and
branch punishment that furnishes the true explanation of
those massacres, in the form of public executions, which the
Chinese Government perpetrated under the superintendence
of Commissioner Yeh.
Even still, where the Clan society survives, this essential
incident survives with it. " I have," writes Dr. Faucher,:|:
" been witness (in the Government of Moscow, in the
summer of 18G7) to the fact that a whole village, which had
been destroyed by one of the numerous conflagrations of
that year, and which had lost everything — whose inhabi-
tants, besides not feeling at ease where they were, resolved
to return to the mother village of their village, situated
* See "La Cit^ Antique," p. 118.
f Kemble, " Saxons in Eng.," vol. i., p. 235.
j Cobden Club Essays, "Systems of Land Tenures," p. 355.
(The passage is quoted without grammatical alteration.)
THE HELP TO CLANSMEN AND THEIR REDRESS. 135
two hundred and fifty miles off, and which they or their
ancestors had left nearly fifty years ago. They collected
money for this pui-pose from the neighbouring gentry ; and
even the neighbouring villages, which fully appi-eciated
the resolution, contributed their share." It is probable that
these poor Russian peasants would have felt less difficulty
than some leai-ned critics have felt in the narrative of
Herodutus* respecting the immigration of the Minyiy from
Lesbos to Lacedsemon. The Lacedaemonians, seeing that
strangers had occupied Mount Taygetum, sent to ask who
they were and why they came. The reply was that,
" driven from their own land by the Pelasgi, they had come,
as was most reasonable, to their fathers ; and their wish
was to dwell with them in their country, partake their
pnvileges, and obtain allotments of land." The Lacedie-
monians acknowledged the claims, and received the Minya3
into full citizenship. The tale may, or may not be true ;
but the sentiment on which it depends must have appeared
worthy of respect.
If one kinsman wronged another, the remedy must be
sought in the foimvi dornestwum. If, however, the ^\Tong
were inflicted or sustained by a stranger, the case was
ditterent. The clan was collectively liable for the wrong
done by any of its members ; and was, on the other
hand, bound to redress any wrongs that any of its mem-
bers might have endured. If a bone were broken or a
lind) were lost, the wrong-doer was liable to the like
infliction ; and it was the duty of the next agnate to inflict
the retaliation. -f- Jf a clansman were killed by a stranger,
it was tlie duty of the clan to take vengeance upon the
homicide or upon some of his Kin. When the action of the
• iv., 145.
t "Si (juis mcnibnim nipit aut dm frcgit, talionc proxiinus ngiiatus
uIciBcitur." — C'alo, Orig. apuil rriaciuiiuiii, vi., p. 710.
136 THE CLAN.
State had withdrawn from private hands the execution of
the vengeance, it was the duty of the clan* to put the law
in motion against the offender. When compensation was
made for homicide, it was to the Kin of the slaughtered man
that the money was paid ; and it w^as upon the Kin of the
Avi'ong-doer that, either wholly or in part, the burthen of
making that compensation fell. Nor was it among men of
the Aryan race exclusively that this rule as to homicide
prevailed. No rule in the ancient world was more rigorous,
or more widely spread. None occupies a larger space in
legal history. But the question of the blood feud —
important and interesting though it be — is only incidental
to my present undertaking.
Theories § 7. Much has been written concerning the origin of the
the Origin clan, and various theories on the subject have been proposed.
Clan, Two only of these require our present notice. Some
writers have thought that the gens, at least as it existed at
Athens and at Rome, was a merely artificial association, the
work of some forgotten legislator, united by the tie of a
fictitious consanguinity. Others have regarded it as the
aggregation, whether spontaneous or artificial, of several
originally independent Households. I do not propose to
enter at any length into these controversies. As to the
former theory, it is needless to resort to a mere unsupported
hypothesis, which hardly, if at all, accounts for the
phenomenon, when we have a ve7'a causa that affords a
simple and complete explanation. That institution cannot
have been the work of any particular legislator, which was
as general among the Aryans as is the verbal root by which
its meaning was expressed. The kin was not a fictitious
but a real relationship. Its members thought so themselves,
* Canon Rawlinson's "Herodotus," vol. iii., p. 308 ; Miiller's "Dorians,"
vol. ii., p. 234.
THEORIES RESPECTING THE ORIGIN OF THE CLAN. 137
and acted upon that opinion. Tlie word itself, or its
equivalent, implies connnunity of Llood. The kinsmen, as
we have already seen, bore a common name, and that name
was a patronymic. They had a common worship of a
common Eponym, they held their land in common, they had
reciprocal rights of tutelage and of inheritance. For the
proposition that their relationship was merely imaginary,
there is absolutely no proof. It seems to rest partly upon
a misconception of early relationship, and partly upon a
consequent misconstruction of certain passages in Greek and
Roman authors. Archaic men did not, as we do, understand
descent in the light of a purely physical fact. There is no
doubt that with them the kin both included persons whom
we should regard as strangers, and excluded persons whom
we should regard as our nearest relatives. This result,
which is equally and even more conspicuoasly true of the
Household, was produced by the two well-known principles,
agnation and a<^loption. The inference is, not that the kin
was an artiticial combination, but that it was founded on a
principle difierent from that with which we are familiar.
Ancient kinship, in short, consisted not in community of
blood, but, as Plato* expressly tells us, in commmiity of
worship.
The other tlieory to which I have alluded, relates not to
the motives which led to the association of kinsmen, but to
the actual structure of the institution. This theory holds
that the clan or kin was an aggregation of independent
Households. It supposes that so many separate House-
holds combined to form a kin ; tliat so many kins combined
to form a tril>e; that so many tribes combineil to form
a State. There is a regularity in this theory that rendei-s it
at first sight agreeable, and it is not without some amoimt
• "I>aw8," v., 723.
138 THE CLAN.
of plausibility. But it is essentially misleading. It re-
sembles the famous doctrine of the social compact, and it
is open to similar objections. It was probably suggested
by the supposed relation of the gentes and the familise at
Rome, although it is readily refuted by the ordinary facts
of Roman history. The Roman gentes were older than the
familire : the latter were merely branches of their respective
parent stocks. There were many f amilise of the Claudii and
of the Cornelii ; but there were Claudii and Cornelii before
any of those f amilise came into existence. On the other hand,
there were gentes — such as the Manlii and the Marii, who
never seem to have branched into any f amilise. Thus, there
were gentes before there were familise, and even after familise
were known there were gentes without familiee. The clan
separated into Households, but the separate households did
not, by any voluntary association, form a clan.
That, also, is an erroneous representation of the true
theory of the gens, which describes* the gens as "merely
the patriarchal family in a state of decay." Except so far
as decay is incidental to growth, there is no decay in this
case. The gens is the patriarchal family, in a state not of
decay, but of development. It arises from the natural
growth of such a family. It reproduces many such families.
There is, indeed, change ; but the change is not that of death
and decay, but of life and expansion. From the simple
homogeneous Household are evolved numerous distinct and
related Households, which, in the aggregate, form a whole,
and that whole is the sfens.
Most of the controversies relating to the gens have
assumed that the gens was of one kind only. As usually
happens where such an assumption is erroneously made,
there is much truth on both sides of the question. These
* Mr. Hunter's "Roman Law," p. 658.
THEORIES RESPECTING THE ORIGIN OF THE CLAN. 139
conflicting aroruments are reconciled when it is understood
that there are two classes of gentes — similar, but distinct.
One is the gens in the strict sense of the term, the pure
genealogic clan which bond Jide springs, or believes that it
springs, from some common ancestor, and in which the rules
of descent are — at least in its perfect condition — scrupulously
observed. The other is the non-genealogic clan or tribe,
where men of different origins voluntarily unite for some
definite purpose in a brotherhood which simulates the gens,
and yet preserves, in the several branches of that brotherhood,
traces of their descent. It is easy to see that much that
Niebuhr and Grote have said as to the artilicial origin of
the gens may apply to these non-genealogic tribes, while it
does not apply to the pure clans. So, too, Mr. Lyall has
shown how that large intermixture of foreign elements,
which embarrasses Sir Henry Maine and Mr. McLennan
from the point of view of the genealogic clan, can be
explained when the process of formation of a non-genealogic
tribe has been recognized.
The Household, as I have attempted to describe it,
has a natural limit, which is soon reached. That limit, indeed,
LS not in nature marked by any definite line. It is not
determined by the life of the House Father, or by any term
of years, or by any particular numl»erc)f tlie niembei"sof the
Household. On all these points we must, as we shall
presently .see, admit that the arcliaic Household difiered
widely from those modern families of which alone the
nations of Western Europe and their descendants have
experience. Yet, sooner or later, a time must come when
the original Household can no longer hold together. Its
bulk l)ecomes unmanageable. Like the primary cell in
organic nature, it divides into a number of distinct cells.
Each new cell goes through a similar process, and all these
cells are related lK)th t(j the parent cell and to one another.
140 THE CLAN.
Thus, whatever may be the rate of this development, a homo-
geneous body, after attaining a certain bulk, spontaneously
divides, as we might expect, into several similar bodies, and
among these cognate bodies a relation exists. The aggregate
of these related bodies is called the kin, or clan. That such
a body, distinct from the Household, and yet including it,
and similarly organized, did actually exist, is not a matter
of dispute. The difficulty is to account for its existence,
not to prove it. I hope to be able, in a subsequent chapter,
to show the point at which archaic custom drew the line,
and the reason, as founded in the old religion, why it
should be so drawn. But, given a body like the Household,
held together by its domestic religion, the production of a
larger body similarly united follows from the known laws
of evolution. The anticipated operation of these laws is
verified by the existence, in all the Aryan nations, of such
a body as that which we were prepared to expect. Or if
we accept the clan as a fact, we can account for its existence
by showing that it proceeds naturally from an institution
which — at least in our present state of knowledge — we
must accept as an ultimate fact in the history of those
nations. In either aspect of the question, it follows that
the clan must be regarded as the natural development of the
Household.
Many circumstances tend to support this proposition.
The clan was an original institution common to all the
Aryan races. Its rights and duties, as they survived in
those later times when we are best acquainted with it, were
a development of the rights and duties of agnation — that
is, of the Household related in the male line. We may,
therefore, reasonably infer that agnation was the principle
upon which the clan was founded. Its structure and its
functions, too, pre-suppose and depend upon that Lares-
worship which, as we have seen, was the corner-stone of the
THEORIES RESPECTING THE ORIGIN OF THE CLAN. 141
Household. Afrain, a familia, as such,* had no special
sacra. Its worship was included in that of the gens.
There was, indeed, a ditference in the form of the otiering
to the nearer and to the remoter ancestors ; but this
difference was a part of a common ritual, and did not
amount to a distinct operation. There was nothing between
the worship of the Household and the worship of the gens.
Further, when we examine the definitions of the gens
which the early Roman lawyers have left to us, they
furnish stronir confirmation of these views. According to
Cicero,f the Pontiff Sca^vola, in discussing the learning of
inheritance, defined in effect ' Gentiles' to mean those free-
bom persons who bore a common name, who had not in
their pedigree any servile taint, and who had not themselves
incurred any legal change affecting their personal condition.
The force of these limitations will become more apparent as
we proceed. It is now sufticient to observe that they were
meant to cut do^vn a too general proposition. All kinsmen
bore the same name ; but all who bore the same name were
not necessarily kinsmen — or, at least, had not the jura
Gent'ditia, with \v\\\c\\ the Pontiff was then concerneil. It
was necessary' to except — first, the clients or other depen-
dents, all of whom l>ore the name of the clan ; second, those
members of the clan wlio were not "perfect in their
generations;" thirdly, those who had left the clan, or
othcnvLse underffone those chancres of status that the Roman
law grouped together under the title " DcvilnuA'to Ctipit'iK."
But the common name, as other Roman writers J expressly
admit, implied and recognized a common descent, that is
according to the rules which in those days regulated descent.
• Seo Smith's "Diet. Ant.," /». r. mcra.
t Top., vi., 29. See Nielnihr, vol. i., p. 321.
t " Gentilis dicitur ct ox eodem gcncro ortns, ct is rjui simili nomino
appcllatur, ut ai^t Cincius." — Paulua Diaconus, p. 94. Sco also Varro,
"Dc Ling. Lat.," viiL, 2.
142 THE CLAN.
That name was always a patronymic. It never was
suggestive of local origin or of political contrivance. But it
in plain and unambiguous terms declared that those who
bore it were the children, or if he were then alive would
be in the manus, of the pater familias, whether actual or
adoptive, whom the clan adored as its founder.
This resemblance of the Household to the clan suggests
itself even to the contemporary observer of Slavonic life.
" The peasant family of the old type," says Mr. Wallace,*
" is a kind of primitive association in which the members
have nearly all things in common. The village may be
roughly described as a primitive association on a large
scale." Mr. Wallace proceeds to show the points of resem-
blance and of difference between the two institutions. In
both there is a principal personage, who is the ruler within
and the representative without. In both the authority of
this ruler is limited ; in the one case by the adult members
of the Household, in the other by the heads of Households :
in both there is community of property: in both there is
common responsibility. In both protection is given, in case
of insolvency, by a rule corresponding to the wainage of our
old law, by which the house and implements, in the one case,
and the land in the other, are exempted from seizure. On
the other hand, the commune is much larger and the
relation is less close. The partnership, too, in the House-
hold extends to every kind of gain, while in the commune
the Households farm separately, and pay into the common
treasury a certain fixed sum.
* "Russia," vol. i., p. 183.
CHAPTER VI.
THE SYSTEM OF ARCHAIC KINSHIP.
s!) 1. Kinship implies a reference to some standard. Two Kinship
men are related to each other because they are severally f^om the
related to a third. As we determine the likeness or the iin- Epo°y™*
likeness of two terms, or of two propositions, by comparing
them with a third term, or a third proposition, so we affirm
or deny kinship by a reference to a common ancestor.
Lawyers still look with respectful admiration upon the fii*st
purchaser. But among archaic men the position of the
apXiyoc, or Pi-eepositus, awakened, for reasons that I shall
presently endeavour to explain, a far deeper feeling. With
them kinship comprised every social relation, every tie that
binds man to life ; and with tliem kinship implied a con-
stant and vivid reference to the founder of their kin, the
Eponymous hero of their clan, or of their race.
There is ample evidence as to the existence of the belief
in these Eponyms. They were indeed the crown of the
system of House-woi-ship. The Eponym was the original
House Spirit, and was often regarded as the representative
of the spirits that were descended from him. His name —
that by which he is now generally known — proves the
prevalence of the belief among the Greeks. There is, how-
ever, more direct evidence in the case of that people. " In
the retros]»ective faith of a Greek," says Mr. Grote,* "the
ideas of woi-shij) and ancestry coalesced. Every association
• •' History of Greece," vol. i., p. 110,
144 THE SYSTEM OF AECHAIC KINSHIP.
of men, large or small, in whom there existed a feeling of
present union, traced back that union to some common
initial progenitor, that progenitor being either the common
god whom they worshipped, or some semi-divine person
closely allied to him."
The same remarks are equally applicable to the Romans.
Among them the senior House Spirit appears very con-
spicuously as " Lar Familiaris." It is noteworthy, too, that
the Roman writers rarely use, in reference to an individual
Household, the plural Lares, but usually speak of the Lar as
if he were a single person. In India, at this day, the
members of the genealogic clans are always careful to refer
their position to their Eponym, and speak of him with a
certitude that, as Mr. Lyall observes, "would impress
Niebuhr."* " It does not follow," says the same acute
observer,-f " because a tribe claims its descent from a god,
that the divine founder is a personage entirely mythical, as
certain comparative mythologers do vainly imagine. He is
quite as likely to be a real hero deified, for the founder of at
least one Rajput State, who is as authentic as any historic
personage can be in India, is freely worshipped by his clan
to this day." It is still a fundamental article of belief | with
every Russian peasant that every family must have a House
Spirit, and that that spirit is the founder of the family.
The Persians § derived their three orders of priests, and
warriors, and husbandmen from the three sons of Zara-
thrustra, just as the Norsemen || derived their three classes
of society from Thrall, Karl, and Jarl, the three sons of
Heimdall. It may, indeed, be said IT generally that the
* "Fort. Eev.," No. 121, N.S., p. 100.
t "Ed. Eev.," cxliv., p. 183.
X Mr. Ealston, " Songs of Eussia," p. 126.
§ Spiegel's " Avesta," by Bleeck, vol. iii., j). 92.
II Mallet's "North. Ant.," p. 366.
IF Niebuhr's "Hist. Eome," vol. i., p. 13.
KINSHIP TRACED FROM THE EROXYM. 145
names of countries and of settled districts are derived from
those of their inhabitants, and that the names* of these
inhabitants are always patronymics. Mr. Kemble"f* enu-
merates 1,329 names of places in England that are either
patronymics or directly formed from patronymics, and every
patronymic implies an Eponym. So we arc told that the
Picts called themselves Cruithneach, and that their Eponym
was Cruithne. Of the Gaelic clans and their Eponjans I
have already spoken. In short, wherever there was a clan
there was an Eponym, or founder, whether real or legendary,
of that clan.
To this original chief or genarch, the nearest in blood was
the natural successor. This nearest pei'son was generally the
eldest son of the eldest branch. Disputes, indeed, long
prevailed as to the course which should be pursued when the
eldest son pre-deceased his father, Ijut left a son surviving
him. In such circumstances, it was doul)tful whether the son
of the deceased elder brother or the living younger brother
was nearer to the Eponym. In Germany this perplexing
question was, in the 10th centur}', in the reign of Otho I.,
determined,^ " inter ghuliatores" that is, l)y the conclasive
method of trial by battle. In political affaii-s, however,
such a decision is not often accepted as linal. Even in our
own historj', the Wars of the Roses attest the fierceness of
the (juan-els between the representatives of the elder and of
the younger generation. Yet, in that struggle, and even
two centuries afterwards, at the time of the Revolution, no
person wished to go out of the royal line. For, in a large
community, the dispute was not, as in matters of private
riglit, between individuals, but between corporate House-
holds, or even between clans. Little regard was paid in
• Keiiiblc, "Saxons In England," vol. i., p. (il.
t If>., Api)en(lix A.
X Grimm's " Deutsche Hcchts Alt.," p. 471.
11
146 THE SYSTEM OF ARCHAIC KINSHIP.
times of difficulty to the rights of the elder or the rights of
the younger. It was not the interest of the individual for
M'^hich men were solicitous ; they sought the assurance that
a man of the founder's blood sat in that founder's seat. If
only the founder's kin was represented, it was little matter
what particular member of that kin was the representative.
Thus all the difficulties about succession are easily explained
when it is understood that the standard was proximity to
the Eponym ; and that proximity was usually satisfied by a
reference to the corporate House or kin, and not to the
individual heir.
In the same line, however, there may be many Eponyms.
When, from any cause, a man breaks away from his own
clan, and makes a fresh start elsewhere, if he distinguish
himself in any conspicuous way, he forms, as it were, a new
point of departure, and founds a new clan of his own. Like
Napoleon, he is his own ancestor. Thus, Battos, of Kyrene,
belonged to the Minyan family of the Euphemid?e.* That
is, he was descended from the Eponym, Euphemus, one
of the Argonauts who belonged to the great clan of the
Minyse. Here we find two new Eponyms. The original
Eponym was Minyas, or, perhaps, Menu — the Adam, if I
may so speak, of the Aryans. Euphemus founded a clan
among his kinsmen ; and, many generations after him,
Battos succeeded in repeating the process. But the kings
of KjTrene were always known as Battiadse, and, except on
special occasions, would not be called Euphemids, much less
Miny?e. So, too, Alexander the Great traced his descent to
Perdikkas, who claimed f to be a Temenid from Argos ; and
the Temenidse were a branch of the Herakleidse. Had
Alexander founded a dynasty, he would probably have
become in his turn a great Eponym ; and the Herakleids,
* Herodotus, iv., 150.
+ Ih., viii., 137.
KINSHIP TRACED FROM THE EPONYM. 147
the Temenids, and the Perdikkids would all have been
merged in his absorbing renown.
§ 2. There are three possible ways in which consanguinity Kinship
may be traced. One is, through the father alone ; the second ^an
is, through the mother alone ; the third is, through both the A'r^a^fc.
father and the mother. Again, the line so traced may, in
each of these cases, be the male line or the female lino, or
both the male and female. Of these forms, the last is that
with which, under the name of cognation, in modern times,
and among races of European descent, we are familiar.
The second form, that of uterine succession, still prevails
among many of the less advanced races. With these two
forms I am not now concerned. The former belongs to the
history of law ; the latter is, at least at the present time,
peculiar to races different from our own. It is to the first
form — or, rather, to a l)ranch of it — that I desire to call
attention. This form at one time prevailed among all the
Aryan nations, and, from its name in Roman law, is usually
called ai/nation. Afjnation, as distin<'uished from cojjnation,
means relationship through the male line only. It traces
through the father alone ; and it traces through his sons,
not through his daughtere, A man's brother's son, for
example, is his agnate ; his sister's son, or his mother's
brother, is his cognate. In .in agnatic system, therefore, the
descendents — male or female — of a sister were not related
to the brother or his descendents. In like manner, tw(3
half-brothers ])y the same father were as fully agnates to
each other as if they were of the whole blood ; but two half-
brothei-s by the same mother were not related to each other
at all. Thus the agnates were properly a part of the
cognates, although, when the words are contrasted, the one
denotes kinship through males, the other kinship through
females. But while agnati(jn had niucli narrower limits
148 THE SYSTEM OF AECHAIC KINSHIP.
than those which our modern notions assign to kinship, it,
in one respect, exceeded those limits. An adopted son was,
for all purposes, deemed to have been naturally Ijorn in the
Household that he entered. Consequently, an adopted son,
although we should not regard him even as a cognate, was
always considered as an agnate of his new family.
It is easy to accumulate evidence to show the prevalence
of agnation among the nations of the Aryan race. Although,
at a later period of the history of each of these nations, the
more liberal principle of cognation has been established, yet,
in the earlier stages of their development, agnation was
universal. Everywhere we find the descent from a common
male ancestor, the succession of males, the exclusion-^some-
times absolute, sometimes relative — of females from the
inheritance. It is remarkable that, in the folk-lore* of all
the Aryan nations, the House Spirit is always masculine.
In the immense assemblage of spirits that, in the imagina-
tion of archaic men, peopled earth and sea and sky, the
division of the sexes is usually observed. But it was not so
with the House and its precinct. We read of Oreads, and
Dryads, and Naiads, besides the gods and the goddesses of
Olympos ; but we never hear of an Oikad. It was to his
father's spirit, and not to his mother's, that the Aryan man
offered sacrifice. It was his father's spirit, not his mother's,
that ruled over the Household ; just as, in life, it was his
father, and not his mother, that was that Household's
acknowledged head. We read, too, of disputes as to
succession between the sons of deceased elder brothers and
their paternal uncles ; but we never hear of such disputes
where the paternal aunt or the maternal uncle is a party.
Even where daughters are admitted to the succession, there
is a tone of apology for what is clearly an innovation, or the
* Grimm, "Deutsche Mytliol.," vol. ii., p. 467.
KINSHIP AMONG THE ARYAN NATIONS AGNATIC. 149
compromise of a marriage with the next agnate is required.
" In Hindu law," says Sir Henry Maine,* " which is satu-
rated with the primitive notion of family dependency,
kinship is entirely agnatic ; and I am informed that, in
Hindu genealogies, the names of women are generally
omitted altogether." At Athens, Demosthenes f cites the law,
which provides that, in case of intestacy and failure of issue,
the property shall go — first, to the father's next of kin, as far
as the children of cousins, " and males, and the children
of males shall have preference if they are from the same
ancestors, even though in degree farther removed." Second,
failing the paternal relatives, the mother's next of kin to the
same limit succeeds. Finally, failing both these, the succes-
sion goes to the clansmen of the father.
For the Roman law, it is enough to cite the words of the
Twelve Tables, " Si intestato moritur cui suus heres nee
cscit adgnatus proximas familiam habeto." So, too, among
the Teutons^: the words of the Salic law may be taken as
representing that of all the other nations, " De terra Salica
nulla portio hereditatis mulieri veniat." It is noteworthy
that, in Germany proper, this restriction applied only to the
"alod," or hereditary propez*ty. In all other kinds of
property, the daughters inherited with the sons, share and
share alike. Among the Norsemen, however, even this
relaxation from the rigour of the old rule found no favour.
In Scandinavia anil, as it seems, in old Friesland, the
universal maxim was, without any (|ual ill cation — "The
man goes to the inheritance ; the woman from it. " In the
Slavonic house conniumities of the present day,5;j the
woman is alwavs under ward, and is entitled, Jiot to the
• *' Ancient Law," p. 150. t Against Makartatos.
+ See Canciani, "Leg. liarh.," iii., oO. Crinun, "Deutsche IJechts
Alt.," pp. 407, 472.
§ M. do Lavcleyc, " Dc la rropriete," p. 24.
150 THE SYSTEM OF ARCHAIC KINSHIP.
inheritance, but to receive a dower. So it was also with
the Keltic nations. The Welsh laws* declare that "a
woman is not to have patrimony." We meet with similar
provisions in the Brehonf laws. It is not yet fifty years
since the last trace of this venerable principle, that rule of
inheritance which excluded the half-blood, was removed
from the law of England. Originally J this rule, as it was
known in Normandy, was limited to the case of uterine
brothers. But by a subsequent mistaken extension, at a
time when the reason on which it rested had been
forgotten, it was applied to all half-brothers, without
distinction ; and philosophic lawyers racked their brains for
reasons to vindicate the wisdom of a rule of which history
alone furnished the true explanation.
Alleged § 3. The universality of agnation among the Aryan
opposite nations has not been undisputed. Certain facts have been
-ys em. supposed to contradict this rule, or at least to indicate an
earlier and a different state of society. Of these facts, the
most noteworthy is the case of the Picts. Csesar§ describes
a system of polyandry, generally among brothers, as existing
among the inland tribes of Britain. A later historian, Dio,
attributes a similar custom to the Caledonians and Ma?atse,
that is, the Picts of Scotland. Bede|! tells us that the Picts
of his day were accustomed, in cases of doubt, to elect their
king from the female line of the royal house, and not from
the male line. Other ancient authors also notice this Pictish
right of succession on the female side. In the list, too, of
the Pictish kings, brothers, sons of the same father, often
* " Anc. Laws of Wales," vol. i., p. 175.
+ "Anc. Laws of Ireland," vol. iii., p. cxiv. " 'Curry's Lectures,"
vol. i., p. clxx. ; vol iii., p. 183.
t See Sir H. S. Maine, "Ancient Law," j). 151.
§ "DeBel. Gal.," v., 14.
II "Hist. Eccl.,"b. i., c. 1.
ALLEGED TRACES OF OPPOSITE SYSTEM. 151
succeed each other ; but there is no iastance throughout the
whole period of the Pictish kingdom of a son succeeding his
father. It is alleged that this form of succession is the
natural result of such a system as that which Ca?sar
describes, and that it Ls always found where polyandry
exists. There is also a statement of Polybios,* that three
or four Spartan brothers had often one and the same wife,
" the paternal land being just sufficient to furnish contribu-
tions for all to the public mess, and thus to keep alive the
citizen-rights of all the sons." Several passages, too, have
l)een collected from the old Hindu writings that allude, or
appear to allude, to a similar practice. But polyandry is
inconsistent with agnation, and is the foundation of that
widely diflerent system of relationship which traces descent
through the mother and not through the father. There is,
therefore, evidence that among some Aryan tribes agnation
did not exist, or, at all events, during one period of their
history did not exist.
Uterine succession — that is, succession through the mother
alone — is contrasted not only with agnation, but with
cognation. It ditiers both from the earlier and more rigid
form of agnation, and from that later fonu of it under
which daughtei-s were, in defaidt of male heirs, allowed to
succeed to their father's inheritance. It differs also from
cognation, that is, from the modern mode of including as
relations all the kin, whether male or female, of both the
parents alike. It ignores kinship through the father, just as
a"-nation i<Miores kinship throui'h the mother. For the
proof, therefore, of this principle, it is not enough to show
succession through the mother, for such succession is con-
sistent with cognation. The further negative must be
prove<l. that succession did not take place through the
• See Groto's " Hiat. Greece," vol. iii., \>. rM'i.
152 THE SYSTEM OF ARCHAIC KINSHIP.
father, or, at all events, that in matters of succession the
maternal line was preferred to the paternal line. If, then,
Mr. McLennan's contention* be true — which, however, I by
no means admit — that the kinship of the " Eumenides " is
later than the kinship of the Iliad, this fact does not even
tend to prove the existence in early Greece of uterine
succession. It would be, indeed, a very remarkable fact, if
Mr. McLennan could prove that the blood feud in the time
of Homer-f- extended to relatives on the female side. But
even if it did so extend, we know that it also included the
agnates. If the universality of such an extension could
be established, it might affect our views as to the relative
priority of agnation and of cognation, but it would not
prove that cognation was a development of a polyandrous
system. Although, in theory at least, uterine succession
does not necessarily depend upon polyandry, it is certain
that neither agnation nor cognation can exist without
marriage. Marriage, indeed, is of itself insufficient to
account for agnation, and the explanation of that pheno-
menon must be sought in the worship of the House Spirit.
According to the principles of that religion, kinship was
established, not necessarily between the descendents of the
same couple, but between one sex of such descendents,
actual or constructive, traced through persons of that same
* " Fort. Rev.," iv., 580.
t Tlepolemos, a Herakleid, killed his mother's brother, Likymnios, and
was, consequentlj^ obliged {II., ii., 665) to fly, " for the other sons and
grandsons of the mighty Herakles threatened him." It is not easy at
first to see what concern the Herakleidaj had with a mere connection by
marriage. But as the Herakleidaj were a separate people, they would have
married among themselves, but in different clans. Likymnios, therefore,
would have been a Herakleid, and his avengers of blood would, of course,
have been vueq viwvoi te [ditjc UpaKXrjeiTjc. Mr. McLennan describes
Likymnios as the brother (rather, the illegitimate brother) of Alkmene,
the mother of Herakles. But this statement rests on the authority of
later writers. Homer does not make it.
ALLEGED TRACES OF OPPOSITE SYSTEM. 153
sex. But this religion, in which marriage formed one of
its most important rites, was, as we have seen, of the very
essence of arcliaic Aryan society. It is, therefore, difficult
to admit, unless in some exceptional circumstances, the
existence among any Aryan population of a contradictory
system.
So far as my present inquiry is concerned, it is of little
moment whether at some remote time the progenitors of the
Aryans were, or were not, polyandrous. It is with the
Aryans themselves, as they are actually known to us, that I
have to deal. Within the time of which any record of them
exists, they have been monogamous. Marriage was an
institution of the race before its dispersion. It is at that
point, at the clan life on the banks of the Oxus, as compara-
tive philology reveals it to us, that I pause. What may
have been the previous history of the race I cannot tell.
Some history doubtless there was, but we have at present
no certain means of tracing it. For my purpose, therefore,
I may accept man-iage, and recognized paternity, and descent
through fathers, as ultimate facts. ^Vll that I have here
written might well stand, although at some distant time our
institutions were in a much lower state of development than
that wliich I liave assumed. We are not absolved from
the necessity of the study of both the body and the mind
of the Aryan iiian becau.se liis ultimate progenitor may
have bt'L-n an Ascidian ; and we nmst trace the history of
Aryan institutions, even though they may liave originated
in Ascidian liabits. I do not desire to enter into any
controversy on the subject of primitive marnage. Yet, I
will say that we ought not, without very conclusive proof, to
accept a hypothesis that agnation is merely a development
of polyandry. I venture to think that, beyond some ingeni-
ous conjectures, no evidence has on tins subject been hitherto
a<ldufcil ; and that the diflerence Itetween the two systems,
154 THE SYSTEM OF ARCHAIC KINSHIP.
the one arising from monogamy, and the other from
polyandry, is fundamental. I may add that this hypothesis
merely assumes that kinship through the mother gave rise
to, or at least preceded, kinship through the father ; but it
does not explain why kinship through the father was limited
to males, or why this limited form preceded instead of
following the more general form under which daughters
were first admitted in the absence of sons, and ultimately
admitted upon an equal footing. But these questions are,
as we shall presently see, answered by the theory of House-
worship.
When we examine the j^roofs upon which we are required
to believe in Aryan polyandry, there appears little reason to
alter the conclusion to which general reasoning has led us.
Small reliance can be placed upon the practice of a countr}^
so exceptional as Sparta, even if the evidence for that
practice were wholly free from doubt. The passages from
the Indian writings, in some instances at least, censure the
acts in question as a scandalous breach of public morality.
Those passages in Menu that relate to the duty of the
childless husband's brother, depend, as we shall presently
see, upon a wholly different principle. There remains, then,
only the case of the Picts. So doubtful a case will scarcely
be supposed to be sufficient to contradict the unanimous
testimony of ancient writers, and the still stronger, though
silent, witness of national customs and institutions. It may
have been that, as Mr. Skene supposes, Csesar and Dio were
mistaken or misinformed. It may have been that Csesar's
information applied to some aboriginal tribes, and not to
Kelts. Certainly Tacitus knew nothing of the custom
which Caesar described, and the evidence as to the succession
does not go beyond the case of the royal family. Even if
we admit the facts, it is reasonable to suppose that, in all
the cases, whether in Sparta, or in India, or in Britain, local
ALLEGED TRACES OF OPPOSITE SYSTEM. 155
circumstances such as the pressui'e of population, and perhaps
the example in some cases of Turanian neighboui-s, may
have induced certain tribes to deviate from their ancestral
customs. In such circumstances,* acts are often alleged to
have been done in pursuance of immemorial custom, when,
in truth, the origin of the practice can be proved to be of
very recent date.
As to the peculiarity of the royal succession, we know
how readily, especially in the ease of great men, accident
is converted into a custom, and a theory is supplied to
explain that custom. Thus the Moghul Emperors,-f-
al though they were Mohammedans, were not circum-
cised ; and the belief was generally accepted that there
was a law of the House of Timour that no person with
any mutilation should sit upon his throne. No such law
ever existed, and it is known that the custom originated
in a mere accident. When, however, it was once established,
it prevailed even against the general rule of their religion.
But this exceptional case does not prove either that the
^loghuls were not Mohammedans, or that circumcision was
not an ordinance of the Mohannnedan creed. So, too, the
peculiarity of the Pictish succession, whatever its origin may
have been, does not disprove the general prevalence in that
people of agnation.
§ 4. Assuming the principles of Eponjnny and of The pria-
agnation — that is, assuming descent from a conniion male Exogamy,
ancestor, and the limitation to iiialcs^hrpugh the male lino
of the resulting relation — we have yet to take into account
another influence. Tlie lines of descent are marked out as
I have described th<'in, but fiirtlier provision is necessary to
keep them distinct. 'J'liat jnovision is found in the
• See Sir II. .S. M.iincs " Vill. C'oinin.," p. 17.
t See Sir .1. \N'. Kaye's "Sepoy War," vol. ii., p. G85.
156 THE SYSTEM OF ARCHAIC KINSHIP.
principle of e xogam y. It cannot be supposed that, in any
'Aryan Household, so important a duty as the selection of
the mother of the future House Father would be left t o
chance. Two fundamental rules — one positive, the other
negative — regulated the bridegroom's choice. He nrust
marry a daughter of his owli people : he must not marry a
woman of his ownTcin. The race on the one side, and his
own "name on the other side, marked the limits^of his
, selectJQiL ^ Tn j^thpv words, the law of marriage was that
every man should take his wife from some cognate clan.
This~Ta7vv^ iiivoTves two propositions. All marriages must
take place within the people. No marriage must take place
wdthin the kin. As to the larger division, endogamy was
the rule ; as to the smaller division, exogamy prevailed.
To the rule of endogamy an exception was made in favour^
of those communities between which an alliance was
, established, and the right of intermarriage was, by special
lavmif 7 conceded. TBut, as regards exogamy, the ruleTat;^
least in the pure clans, wa s imperative, j j o man could
lawfully marry a woman who bore his name.
The first portion of these rules can be readily proved.
In India,* it is a universal law that no legitimate marriage
can take place between members of two entirely different
castes or tribes. Menu, in a passage I have already cited,"f*
indicates the reason of this rule. It is the duty of the
wife to prepare the proper sacrifices and oblations, but
neither gods nor Manes will eat offerings that have been
defiled by a stranger's hand. At Athens, the law, at least
in its later history, was equally imperative. Those only
were Athenians j who were born from two Athenians. If an
alien lived as a husband with an Athenian woman, he was
* Mr. Lyall, "Fort. Rev.," No. 121, N. S., p. 101.
+ Supra, p. 87.
J Plutcarch, "Ferikles." Becker's " Charicles," p. 477.
THE PRINCIPLE OF EXOGAMY. 157
liable to be sold as a slave, and to have his property con-
fiscated.* If an Athenian lived with a foreign woman, she
was liable to the like proceedings, and he to a penalty of a
thousand drachma.\ The person, too, who gives a foreign
woman in marriage to an Athenian, representing her as
belonging to himself, was liable to disfranchisement and the
confiscation of his property. At Rome the capacity for civil
marriage "f* was restricted to either a Roman citizen or a Latin
or foreign woman who had received the jus connuhii.
Tacitus + observes that the Germans abstained from marriages
with foreign nations. Other authorities § have incidentally
noticed the same practice among the Goths and the Saxons.
Nor is the prejudice, amongst ourselves, against a foreign
man-iage so long extinct that we can have much difficulty
in comprehending this restriction. The proof of the rule as
to exogamy II is more difficult. The words of Menu,!!
indeed, are precise. " She who is not descended from his
paternal (or maternal) ancestoi's within the sixth degree,
and who is not kno\\Ti by his family name to be of the
same primitive stock** with his father (or mother), is eligible
by a twice-born man for nuptials and lioly union." The
present practice of the pure Indian tribes accords with
this rule. " We begin to appreciate," says Mr. Lyall,"f~|*
" the immense influence of the idea of kinship upon
* See the text of the law in the Oration against Neaira.
t "Gains," i., 5G.
t "Germania," c. 4.
§ See Canciani, "Leg. Barb.," iv., 88.
II Writing of the Chinese, Sir .John Davis observes : — "Marriage between
all persons of the same surname being unlawful, this rule must, of course,
include all desoendents of the male branch for ever ; and, as in so vast a
population there are not a groat many more than one hundred surnames
throughout the empire, the embarrassments that arise from so strict a
law must be considerable." — China, vol. i., p. .32().
tiii., 5.
•* Tho Hindu word is " gotram," literally a cow-stall.
ft "Fort. Kev.," idn svpra, p. 102.
158 THE SYSTEM OF ARCHAIC KINSHIP.
primitive minds, when we perceive that widespread and
numerous clans in Central India are nothing else but great
circles of affinity, including, perhaps, a hundred thousand
persons who cannot lawfully intermarry." But although
this evidence is, so far as it goes, conclusive, it is the only
direct evidence that we possess. It is by this one example
that we must reconstruct the custom as it probably once
existed throughout the Aryan world. For such a recon-
struction something more than the Indian precedent is
required. Some explanation should be given of the dis-
appearance of the rule in other countries. Some vestiges,
too, however faint, of its former existence in some at least
of those other countries should be traced. Both of these
conditions can, I think, be fulfilled. The disappearance of
exogamy is probably due to the action partly of the State
and partly of the Church. Wlien a State is formed, the
rule of exogamy is not likely: to find_favQm\ _I,t_tends to
cre ate an d to maintain internal divisions^ which it is the
policy of the State to efface. As the Gentile lines gradually
disappear, so the importance of the rule diminishes, until
it at length vanishes because nothing is left for its opera-
tion. The State absorbs the clans, and the decay of the
clans involves the decay of the rule. In Christian times,
too, and in countries where the action of the political
solvent was not felt, the whole question of marriage fell
into the hands of the Church. There the canons effaced
the rules of kin. Christians, indeed, must intermarry with
Chi'istians ; but within the Church there were no clans, and
there was no sympathy with clans. The whole system of
the Churchy lilve tliat of_ thfi_State,^rested upon the reeognir,
bion of individual action, and was inconsistent with
Several traces of the law of exogamy may, I think, be
observed, although I must acknowledge that they are not
THE PRINCIPLE OF EXOGAMY. 159
very distinct. Mr. McLennan, in his " Primitive Marriage,"
with much ingenuity urges in its favour the maiTiage
ceremonies indicative of capture, and the legends which
point in the same direction. I cannot persuade myself to
accept his evidence, or his conclusions, with the same
unwavering faith that animates Mr. McLennan ; and I
should much like to have some proof of the operation of
the rule at a later period than that to which he seems to
refer. I will add, therefore, a few examples which may,
perhaps, be thought to have some relevancy, Herodotus*
tells us that the Minya?, who had been settled in Lemnos,
were driven from that island, and came to Sparta, and
sought admission theie on the ground of a common descent.
The claim was recognized, and the newcomers were
admitted to citizenship. Thereupon "the Minya3 forth-
with married Spartan wives, and gave the wives whom
they had married in Lemnos to Spartan husbands." Of
course the truth of the story is, for our present purpose, not
material. The evidence as to the custom is e:ood, even if
there liad been neither Miny?e nor Spartans. But it is
difficult to account for the supposed exchange, and I have
not met with any explanation of it. To me it seems a case
of exogamy. The Minyre were bound to marry within
their people, that is, after their adoption among the Lacedne-
inonians. Their former marriages were therefore void, or,
as we should rather say, were voidable. But their former
wives were in their onanus, and were assumed to be, whether
by ademption, as in the case of the Indian Mconas.-f* or other-
wise, membei*s of their kin. It was thus the duty of the
Minyiie to many, and to many Lacedivmonian wives ; whiU'
the women of their kin were in their tuin available for
marriage by their Spartan cousins. In Rome, under the
♦ iv., 145.
t See Mr. Lyall, "Fort. Rev.," No. 121, N.S., p. lOG.
160 THE SYSTEM OF ARCHAIC KINSHIP.
later republic, the line of forbidden degi^ees was dra"\ATi* at
the seventh degree, that is, marriage was prohibited within
the limits of the agnatio, or, as it was then called, under the
more extended sense given to it in the Prietorian juris-
diction, the cognatio. It is not improbable that by this
time the cognatio may have practically superseded the
gens, although the latter institution lingered for many
years afterwards. It may also be observed that, in recalling
the names of those Roman matrons of whom we have
knowledge, we do not find any that bore her husband's
Gentile name. Cornelia man-ies a Sempronius, Fulvia an
Antonius, Calpurnia a Julius. But such an induction, ^^er
enumerationem siniplicem, is not very strong, and is
always exposed to its characteristic danger of the contra-
dictory instance. It would be very difficult to establish
conclusively this negative proposition, yet in the absence of
better evidence it ought, until it is rebutted, to have some
weight. Happily there is direct evidence in support of
these probabilities. Plutarch,"^ writing of the Romans,
says that in former days men did not marry women
of their own blood, or as he in the preceding sentence
calls them, kinswomen {(Tvyyevioao), as in his own day
they did not marry their aunts or their sisters ; and he
adds that it was long before they consented to wed with
cousins. Tacitus j tells us that the Germans were usually
contented each with a single wife, except in the case of a
few who, on account of their nobility, were courted for
many nuptials. This result is one of the usual consequences
of stringent mariiage rules. The very poor clansmen §
cannot procure marriages for their daughters ; and the rich
* See Willems's " Le Droit Public Piomaiu," p. 67, note.
f " Qusestiones Romana;," c. 6.
J ** Germania," c. 18.
§ See Mr. Lyall, "Fort. Eev.," uhl supra, p. 111.
THE PRINCIPLE OF EXOGAMY. 161
clansman is incessantly importuned to take a portionless
girl, if only nominally, off the hands of a poor and proud
neighbour. That which produces this result among the
Rajputs of this day may, in a similar state of society, be
resrarded as the cause of the like effect amoncr the Germans
in the days of Tacitus.
There is, however, in this matter a distinction which it is
material to note. The rul e of ex ogamy applied only to the
formation of a new Household. When a Household was
already established, a different principle came into
operation. In that case the object was to maintain the
existing House, and the heir succeeded to the wife as a part
of the " Familia." It was a case of inheritance, and not of
marriage, in the proper sense of the term. The Household
must be carried on ; and the heir stood, in all respects, both
as regards his duties and his rights, in the place of his
predecessor. One of these duties was to raise up male
issue for the House by the woman who had been specially
jippointed for that purpose. The marriage of the heir with
the widow did not, in principle, differ from the Levir's
comi)u.ssi(jn. Both cases were consequences of the
corporate character of the Household, and of the disregard
for the individual in the desire to promote the welfare of
the general body. A wife must be chosen from a different
clan ; l»ut the rule, when properly construed, was not
inconsistent with the other rule wliicli prescribed the
universal succession of the heir. The same principle
applied also to the succession of the heiress. This also was
a rule of inheritance ; but as the former case suggests the
Levirate, so this case suggests the reservation of the
daughter's son, the dvyarpihivc. The heir took the inherit-
ance as it stood, with all its advantages and all its encum-
brances. His duty was to provide the House with ason,who
should have the right to pertorm the sdci-a and the means
12
162
THE SYSTEM OF ARCHAIC KINSHIP.
of performing them. Whether the woman were maid or
widow was not material. In the one case by right of
selection, in the other case by right of birth, she was the
proper mother of the desired son. In her case, therefore, it
was not the law of exogamy, but the law of inheritance
that prevailed.
§ 5. It is not difficult, when we have realized the nature
of an arcliaic Household, to account for the prevalence of
the system of agn ation . Kinship was based, as we have
seen, upon a community of j worship, and not necessarily
upon a community of blood. But the community of
worship could be perpe tuaifid-Jx^z-jnales-only. The sacra
were offerings made to deceased House Fathers ; and they
could be performed by sons, whether actual or constructive,
and by no other persons. If a woman remained in the
Household, she could not have a legitimate child. If she -^
liad a legitimate child, she must have passed into another
Household, ^andjanother worship. No f emal e was counted
in the ser ies of des cents, because no offering was made to a
female ancestor. "No sacrifice," says Menu,* "is allowed
to women apart from their husbands — no religious rite, no
fasting : as far only as a woman honours her lord, so far
she is exalted in heaven." The Hindu,"f* at stated times,
makes his offerings to his father, his father's father, and his
father's grandfather ; but he has no offering for his mother,
or his mother's father, or for any person in the maternal
line. It was the House Father, too, that made these
offerings, and not his wife or his daughters. None but
males could present the funeral repast to the Manes. None
but males, therefore, could, as regards each other, be fellow
partakers of the cake, or fellow givers of the water.
* v., 155.
t Menu, ix., 186.
THE THEORY OF AGNATION. 1G3
gnation was a consequence of the d octrine of House-
ip in the male line . But what was the cause of that
^particular form^f House-worship ? Admitting the worship
of the House Spirit, why was that spirit always a male,
and never a female ? Why, too, was the celebration of his
worship always limited to males ? Until an answer can be
given to these questions, our explanation of the subject,
although it may be true so far as it goes, is obviously
incomplete. We must connect our theoiy with some
principle of human nature, or at least with some ultimate
form of Aryan belief. I do not entertain any such
ambitious desifjn as that of establishino- a natural law of
religious development. All that I shall endeavour to do, is
to carry our inquiries a step further, and to connect this
worship of males with a certain theory of archaic
physiology."^ ""
Tlie the ory to which I refer is thaij:if_generation. '^ It was,
and in some countries still is, a c ommon belief, that a child
proceeds from h is fatherj,lone ; a nd that the mother supplies
to it nutriment and gi ves it birth, but nothing more. Many
of the lower races* hold that there is an intimate pln'sical
c onnection between father and child. They hold that what
is done to the body of th e one djrectly affects the body of
the other. Hence, they infer that the food, or the exercise
ta jven by the father, materially afl'ects the he alth of thc-
unborn, or newly-born child . When a child is born among
these people, the Jather is alway s subject to numerous and
severe restrictions, both as to his food and his c onduct.
Some tribes of cannibals have been known -f- to procure from
their own women children by their prisoners, and to bring
up these children for the shambles, like bullocks, as being
the flesh and blood of their enemies. Among many tribes,
* Mr. Tylor's " Early History of Mankind," p. 298.
f Southey's "History of Brazil," vol. i., p. 218.
164 THE SYSTEM OF ARCHAIC KINSHIP.
in various parts of the world,* in both Americas, in the West
Indies, in West Africa, in the Eastern Archipelago, among-
the Dra vidian tribes of South India, in parts of Eastern
Asia, among the Basque population of Europe, the doctrine
culminates in a less horrible but sufficiently grotesque form
— that of\the co%fc^'ac?e. Of— this custom, it is in this place
enough to say, in the words of the widow to Sir Hudibras,
that, under it —
" Cliineses go to bed,
And lie-in in their ladies' stead."
No traces of any such custom are found, so far as I know,
among any Aryan people. But although the Aiyans early
abandoned, if ever they entertained, any notion of a direct
physical connection between father and child, they, for some
purposes, held the t heory of paternal g ene ration in i ts fuU —
extent^ "The son of a man," says Menu,-f- "is even as
himself ; " and his daughter " is closely unitfid_Hdtli_hiajQWii__
soul." The same authority j tells us that " the woman is con-
sidered, in law, as the field, and the man as the grain."
Euripides uses the same metaphor when he makes Orestes
defend his preference of his father's claims upon his duty to
those of his mother. In the " Eumenides," in reference to the
same famous case, -ijEschylos discusses the question at large.
Klytemnestra, having murdered her husband, Agamemnon,
is herself slain by her son, Orestes, as the avenger of blood.
This conflict of natural and of legal duty is the subject of
the drama. Orestes is pursued by the Furies, and is ulti-
mately tried before the gods at the Areopagus. His defence
is, that his mother was not of his blood ; and, on this ground,
judgment is given in his favour. Perhaps Justinian alludes
to this theory when, in describing certain changes § made by
* See Mr. Tyler, uhl siq^ra, p. 800. + ix., 130.
+ ix., 32. § Inst., ii., 13, 5.
THE THEORY OF AGNATION. 165
him in the law of disherison, which placdd both sexes on the
same footing, he somewhat ostentatiously assigns as the
reason of his reform, that each parent is equally concerned in
the procreation of the race. This theory, therefore, is one
upon which large bodies of men have for ages acted, and still
habitually act. It was recognized in India, in Greece, and
probably in Rome. If we do not find it among other Aryan
nations, its absence is readily explained by the scantiness of
our evidence. It is, in these circumstances, no imreasonable
inference to conclude that this theory was part of the Aryan
stock of beliefs. Assuming, then, the existence of this
premise, wemay trace t he course of thought in some such
direction as the following : — A male was the first founder of
th e House. His^escendents have " the nature of the saine
Wood " as he. They^n common, possess the same mysterious
principle of life. The life-spark, so to speak, has been once
kindled, and its identity, in all its transmissions, must be
greserved. But the fatlier is the life-giver. He alone
transmits the life-spark which, from his father, he received..
The daughter receives, indeed, the principle of life, bu t she
cannot transmit it. She can, at most, be the medium for
transmitting another, and quite different, life-spark. ]S"one
but males possessed this capacity of transmission. None
but males, therefore, could maintain the identity* of the
• "It ajipcars to me, however, at least open to question, whether tlic
continuation of existence in the person of the heir, which we now call a
tiction, was nnt, in earlier times, stated as a solemn physical truth. It is
difhcult otherwise to account for tlie broad and general terms in whicli tliis
continuation is appealed to as a fact, not only by Koman lawyers, Init by
lawyers of other countries. The Hindu lawyers, when discussing tlie rights
of succession, seem to assert tlie physical identity of father and son, and
also of father and daughter, quite as strongly ; and, whenever they have to
deal witli a disjjuted question of succession, treat this identity as a self-
evident truth." — Mr. JuMicc Markhi/'s Elements of Law, sect. 552. So also,
an Afghan poet, complaining of his traitorous sons, writes: — "My hand
could reach them even now : But I will not destroy my own soul." —
Elphinstunta Caubul, vol. i., p. 285.
1G6 THE SYSTEM OF ARCHAIC KINSHIP.
original life-principle, or could perform the worship of which
that principle was the centre. Thus, males were exclu-
sively the lineal representatives of the founder of the kin ;
and as collateral kinship means only the fact that certain
persons are alike lineal representatives of a common ancestor,
it follows that all relationship, whether lineal or collateral,
so far at least as it implied the possibility of celebratirig-
the House- worship and the consequences of that worship,
was confined exclusively to males. ^
CHAPTER YII.
THE NEAR KIN.
§ 1. Between the equal members of the same kin, Nature TheAgnati
placed an obvious distinction. The descendents of common Gentiles.
ancestors are usually brought more closely together in
proportion to their nearness to the common stock. In
ordinary circumstances the descendents of a common father
have stronger associations, and acknowledge a closer tie,
than the descendents of a common grandfather ; and the
descendents of a common grandfather than the descendents
of that gi'andfather's grandfather. This feeling of propin-
f[uity may be indefinitely strengthened by that kind of
partnership, with unlimited liability, which appears in
certain forms of archaic society. But although com-
munity of property acts as a powerful cement to hold
together a relation that has been already established, it is
not the cause of the union. The sentiment of consanguinity
exists prior to it, and independently of it. Whether the
family partnership be prolonged, or whether it terminated
in the death of the first House Father, or even before that
event, the custom of the Aryan race has always recognized
the mutual obligations of those who were nearest of kin.
The associations thus formed were, however, mere subdi-
visions of the larger body, and were not substantive
institutions. They had, as I have already said, no exclusive
worship. The gens, indeed, had its special sacnf, but a
familia, as such, had none. There was, as we shall see, a
168 THE NEAR KIN.
difference in the character of the offerings made to the
nearer and to the more remote ancestors ; but the kindred
Penates seem to have been comprised in the general worship
of the clan. The offerings to the common ancestor probably
were taken to include all his descendents who were them-
selves House Fathers. In this way the various sections of
the kin reciprocally adored, although with the more distant
form of veneration, their respective House Spirits.
The t^^ical example of this division of the clan,
as of so many other of our early institutions, is found
in India. In that country the degrees of kindred,
as I have already observed, were determined by the nature
of the sacred rites in which the kinsmen shared. The
nearer relatives offered to their deceased ancestors the
pinda or sacrificial cake. The more distant relatives made
an offering of water. The former are called " Sapindas,"
or persons connected by the cake. The latter are called
" Samanodocas," or persons connected by equal oblations of
water. The relation* of the Sapindas ceases with the
seventh person, that is, with the sixth degree of kindred.
The relation of the Samanodocas ends only when their birth
and their family name are no longer known. The Sapindas
have the primary right"f of inheritance to a deceased person;
and failing the Sapindas, the Samanodocas succeed. In
other words, all those persons are Sapindas who have a
common great-grandfather or other nearer ascendent, that
is, second cousins and all nearer relatives. All those persons
are Samanodocas who have a common great-great-grand-
father, or other more remote ascendent, that is, third cousins
and all more distant relatives. In the former case, the
common ancestor who marks the limit is the father's grand-
father. In the latter case, it is the grandfather's grand-
* Menu, v., 60. + Jb., ix., 187.
THE AGNATI AND THE GENTILES. 169
father. Thus, the Prince of Wales and the Ex- Crown
Prince of Hanover are Sapindas, because they trace
descent from the same oreat-m-andfather Kmcf Georo-e III. .
but their chikh-en fall into the wider circle of Samanodocas
or more remote kinsmen.
A like distinction, although we are not fully acquainted
with its details, existed among the Persians. The Zend
Avesta incidentally notices, in an ascending scale, four classes
of society, houses, kins, villages, and provinces. Taking as the
social unit the house, and omitting (partly in the absence of
further information, and partly as dependent probably upon
local conditions) the provinces, we have the two forms, the
less and the greater, the zantu, or kin, and the wih, or
village. The account that Herodotus* gives of the Persian
social system confirms this view. He tells us that there
are many yirta of the Pei-sians, and he enumerates ten.
" Of these, the Pasargadae (or more coirectly the Parsagadae)
are the best; and amongst them there is a ^p^wpv, the
Achit'menida>, whence tlie kings of the Persians are born."
It thus appears that the Persians consisted of a number of
clans ; that these larger clans contained sub-clans ; that the
Greek names for these divisions were respectively, yeVjj and
<f>pdTpai ; and that the arrangement seemed to Herodotus to
be in no way unusual, or to call for any special observation.
This distinction also prevailed in Greece and in Rome.
The Iliadf tells us that the warriors of old time fought
marshalled in their <pv\a an<l their (ppi'irpai. These terms, at a
later period of Athenian pi^Htical history, acquired special
meanings ; but when used of the primitive order of battle,
they are generally acknowledged to imply combinations
.similar to those known to have in the like circumstances
existed fls( -where. In the Odyssce| we meet with what
• i., 'J J. t ii., 3G2. t XV., 273.
170 THE NEAR KIN.
appears to be a similar distinction expressed by the words
en<pv\oi on the one side, and Kaaiyyrjrai re e'rai re on the other.
In Sparta we read of the Trarpai and the w(3ai. In the Attic
orators the nearer relatives are usually called dyx'Trac, as
opposed to eyyevEic. Sometimes* the contrasted terms are
avyyevEic and yevvijrai. At Rome the Familia, or Cognatio,
as in later times it was called, was lono^ distincfuished from
the gens. In the Twelve Tables,*!- as we have already seen,
the distinction between the agnates and the Gentiles
appears as shai-ply as it does in Menu. Ulpian, too, in
discussing I the various senses in which at different
periods the word " Familia " was used, expressly notices
this division. He says that Familia in one sense included
all the agnates, and in another sense included all those who
"quasi a fonte quodmn mevioinca" were descended from
the blood of the same remote ancestor, such as the Julian
gens.
Among the northern nations a similar division may be
observed. We know from Caesar § that the Germans
occupied their lands " secundum cognationes gentesque."
We know from Tacitus |] that they were arranged in
battle according to " familice propinquitatesque." The
difference which the great Roman writers thus described
was expressed by the Germans themselves in the words,
Mseg, or Sib, and Kin. The Norsemen, while they
retained the word kin, appear to have called the smaller
divisions fr8endr,1[ and to have specialized the word sib, or
sif, and confined it to relatives by marriage. Among the
Slavs the name for the " Familia" is " Bractwo," a form,
apparently, of (pparpa, while the kin or clan was, at least
* See Grote's "Hist. Greece," vol. iii., p. 88, n.
t Tab., v., fr. 4 and 5. X Dig. L. xvi., 195.
§ "DeBel. Gal.," vi., 22. || " Germaiiia," c. 7.
H See " Cleasby-Vigfusson Icelandic Diet.," li.vv.
THE AGNATI AND THE GENTILES. 171
in the old language,* called Rod.^f" Among the Keltic
nations the division was familiar. I have already cited
the passage from Captain Biui;, which notices this division
among the Highlanders of Scotland. Among the Welsh:}:
the Aelodeu appears to have been equivalent to the Maeg,
while the Kin, or Gentiles, were called Boneddigion.
Among the Irish, the " Fine" was the smaller division, and
those who passed its limits were included in the " clan,"
or " cinel."
§ 2. Between these distinctions thus existing throughout The boun-
the Aryan nations there are, besides the mere coincidence in tween the
the division itself, other points of resemblance. Even the very amTthe^
names of the Indian classes find their analogues in Rome ^°^"
and in Greece. The Sapindas remind us of the Confarrei —
the companions, or those who shared the holy bread — and
of the original form of marriage j^er confai^^eationem. The
Samanodocas suggest the true meaning of the o/uoydXafa-ec
of the Greeks. A Greek writer§ of high authority tells us
that the members of a yiroc were called yei'irjTai and
o^oyaXatcrec, not that they were related by birth, but they
were so called from their festal assembly. I think that
the true meaning of o/ioydXaK,r£c in this passage is those who
ofier the same milk, and not those who arc nourished by the
same milk. The latter meaning is inadmissible — first,
because it woulil then apply only to brothers, and there
is no reason to assume any such limitation ; on the contrary,
the term yeyyfirai implies much more distant kinsmen.
* Mr. Ralston, "Songs of Russia," p. 8.3.
t Tlius, in a recent novel, we read tliat "The House (Bractwo) of
Malinofski belongs to the Roily or clan of Zailora. — Blue /i'oacs, p. 31.
+ Robertson's " Scotland under her Early Kings," vol. ii., p. 322.
§ Ot ixtTiy^Dirtr tdv yii'ovc IkuXovvto yeiiirai Kut (iftayaXaKTtc,
ytret fxiy ou irixxriiKoyTiQ, iK Ct r»/C (Jvt'oCuv ovtw TTpoffayofJiVufxeioi. —
Pollux, viii., 9, ill.
172 THE NEAE KIN.
Second, because the degrees of kindred were counted through
the male and not through the female line. Third, because
the idea of relationship is expressly excluded, and the name
is said to have been given lie rfjc arvvodov. Further,
milk was a common offering both with the Greeks and the
Italians. Thus the ojuoyaXa^Tec correspond to the Samano-
docas, just as the Sapindas find their equivalent in the
Roman " Confarrei." In each case a like relation was
expressed by a name denoting community of oblation,
although in one country the oblation was of water, and
in the other it was of milk.
There is, however, a resemblance between the practice
of the various Aryan nations in this respect far more
important than any of these fainter analogies. In all
cases, so far as we know the facts, the smaller division
merges into the larger at the same point. That point is
the sixth degree of kindred. The sixth degree repre-
sents second cousins, that is, those persons who are
descended from a common great-grandfather. This rule is
a consequence of that other rule under which the Hindu
makes his offerings, not only to his father, but to his
father's father, and to his father's grandfather. As to
both these rules, the Indian evidence* is precise. One
kind of offering is made to the three immediate paternal
ancestors ; another kind of offering to their three prede-
cessors. To this distinction, as we have seen, the rules of
inheritance correspond. It is also noteworthy that the
Hindu had special names for his ancestors up to his great-
grandfather, but not beyond him. Thus the oflering
to the great-grandfather, and the priority of the second
cousin in inheritance, went together. The rule at Rome
was similar. I have already noticed the distinction
as to the right of inheritance between the agnati
* See Menu, iii., 21G, 284 ; ix., 186, 187.
BOUNDARY BETWEEN THE AGNATIC AND THE GENS. 173
and the Gentiles ; but in Roman law* the agnates were
counted up to the sixth degree — that is they included
all the male descendents of a common great-grandfather.
In later times, when the principle of cognation superseded
that of agnation, the Pnetor, acting apparently on the
principle that equity follows the law, counted the degrees
of cognation in the same manner. In Athens-f* the right
of collateral descendents ended with second cousins, that is,
the children of irdi^eg a%'£\piwt' were e^u> rf/c ayxK^riiac, outside
the Mii^g. Among the Teutonic nations^ this " Sipzal," or
system of relationship, had specific names up to six
degrees. These names were taken from the head and the
joints of the ann and hand. Head, shoulder, elbow, wrist,
first finger-joint, second finger-joint, were all specific ; but
the seventh degree, and all subsequent thereto, are
described under the general name of Nagel Kyn, or
nail-kin. In the laws of the Langobards,§ to take but a
single instance, it is provided that, " omnis parentcla in
septimum genuculum numerctur," the Mveg shall be
counted up to the seventh person. So it is said in
the Welsh laws, " The ancestors of a person are his father,
and his grandfather, and his great-grandfather: the co-
inheritors are brothers, and cousins, and second cousins."||
We may observe, I think, a similar rule in the difiicult case
of the Irish IF Fine. The ingenuity of the Brehon pro-
fessors multiplied distinctions wdiich are not found in the
laws of other countries, and it is not easy distinctly to
understand their waitings on this subject. I venture, how-
ever, to suggest that " Fine," like Familia, was used in various
• "Inst.," iii., 0, 8. ;
t Hermann, " Orcc. Ant.," p. 2^5.
X See Robertson's "Scotland under licr Early Kings,'" vol. ii., j). lW^,
§ Canciani, " Leg. Barb.," i., 73.
H ".f\jic. Laws of Wales," vol. ii., p. 427.
IT See Dr. Sullivan, " Introduction to O'Curry's Lectures,"' i., clxiii.
174 THE NEAR KIN.
senses, and included both the more limited and the wider
bodies ; that, of the six kinds of Fine enumerated in the
Brehon laws, the first three include the Sui heredes and
Agnafi, and that the remaining three are subdivisions, how
far practically important we cannot tell, of the Gentiles.
The Geil-Fine included the fifth descent, which, if the Ego
were not counted, brings us to the sixth degree, as in other
cases. The other three Fines, taken together, extend to the
seventeenth degree, at which point all traces of kinship
are assumed to be lost.
I must point out, however, that there is some diversity,
or apparent diversity, in the practice of the Teutonic
nations. Thus the Salic law extends the parentela, or
Mseg, " usque ad sextum genuculam." The law of Rothar
and that of the Bavarians prescribe " usque ad or in
septmxuTii genuculutn." This difference may be easily
explained by supposing that the former excludes, and the
latter includes, the seventh degree, or nail-kin. But the
Bipuarian law and the Anglican law fix the limit, " usque
ad quintmn genucvbluni" and the old Saxon Mseg ended
at the fourth degree. Probably this case resembled the
former one, and the " fifth knee" marked, according to
this computation, the nail-kin ; and the Miieg would, there-
fore, have terminated " ad quartum gradwrn" If this
were so, the old Mseg would have ended with first cousins,
and would subsequently have been extended to include
second cousins. This is the view taken by Mr. Robertson,
who compares the ' near kin ' of the Hebrews. There is
also some, although not conclusive, philological evidence,
as we shall see in a subsequent chapter, in favour of this
contention. But the difficulty admits, I think, of a simpler
explanation. The Saxons may have commenced to count,
as Grimm* hints, with first cousins — that is, the father
* " Deutsche Rechts Alt.," p. 469.
BOUNDAEY BETWEEN THE AGXATIO AND THE GENS. 175
and the son were not included in the Msecr. To use the
language of a different, and perhaps more familiar system,
the Siii heredes were distinguished from the agnates, and
the agnates only were reckoned in the Mieg. The whole
Teutonic system would, on this supposition, be consistent
in itself, and would coincide with the practice of the other
Aryans.
There is thus some apparent diversity as to the precise
point at which the Gentiles begin. There is a similar
discrepancy as to the precise point at which they end.
Generally, six degrees of lineal ascent were counted, that is,
the last recognized collateral relation was the fifth cousin.
Thus Menu * says " to three ancestors must water be
given at their obsequies ; for three is the funeral cake
ordained." With this statement a^a-ees the assertion of one
of the commentators on Menu, that the Samanodocas end
with the fourteenth degree. That degree means that the
relatives were fifth cousins, and descended from a common
third grandfather. In the Roman law the six generations,
both upwards and downwards, are clearly marked, and
have their appropriate names. It is sufficient here to
describe the ascending members — as the grandfather, or
" Avus ;" the second grandfather, or " Abavus ;" and the
third grandfather, or " Tritavus." Beyond the Tritavus the
Roman lawyers declined to proceed. All the ancestors
beyond him were includedf under the general term
" Majores ;" and all the descendents beyond the Trinepos,
or third gi'andson, were classed as " Posteriores." To
this rule some exceptions are found. The Welsh counted
seven degrees — that is, they went one generation higher
than the Tritavus, and thus extended their kinship as far as
sixth cousins. The Irish Fine extends collaterally to the
♦ ix., 18G. + Dig., xxxviii., 10.
176 THE NEAR KIN.
seventeenth degree, and this system, computed lineally,
gives, exclusive of the seventeenth person, the same number
of ascents as that which the Cymry used. We have an
unexpected parallel in Greece, where Plato * described the
pride that the Athenian aristocrat felt in the enumeration
of his seven wealthy ancestors. It is probable that these
rules were of less practical importance, and, consequently,
were more liable to variation, than those which marked the
boundary of the agnates. The superior limit of kinship
was not, at all events, connected with the religion of the
clan. There was no such distinction as regards sacrifices
between any of the Samanodocas as there was between
them and the Sapindas. It is not, therefore, surprising
that some variations should have arisen in the practice of
the various nations. Perhaps a more reasonable cause of
surprise is their uniformity.
The .Toiut 8 3. I have now to describe another institution, which.
Undivided ^ , . . ,
FamiiT. although it may seem to have required an earlier place in
these pages, I have, for reasons that will presently appear,
reserved for consideration in this place. I mean that
continuation of the archaic Household which is known to
Indian lawyers of our day as the Joint Undivided Family.
The notices of it in ancient writings are few and obscure,
but modern instances are not uncommon. In some of
the more remote parts of France,"f* far into the eighteenth
century, and even within the last forty years, survivals, sO'
to speak, of the corporate Household have been observed.
There is a Swedish | proverb — " it is good for brethren to
dwell together " — which seems to indicate a conflict between
custom and law, and a desire to retain undivided the common
* Theset., p. 174 E. See also Hesychius, in " Wachsmutli," vol. i., p. 247.
+ See M. de Laveleye's "De la Propri6t6," 288, et seq.
X Geijer, "Hist, of the Swedes," vol. i., p. 83.
THE JOINT UNDIVIDED FAMILY. 177
property . But the principal living examples of the system
are Jouiid among the Hindus and the Slavs. The Joint
Undivi.i.d Family of modern Indian law is described by
the Judicial Committee of the Privy Council* as "Joint in
food, wurship, and estate." Its members have a common
worsiiip, a common meal, and a common purse. On the
deatli of the House Father, the eldest son, as a rule, succeeds
to thu management ; and the family keeps together, gene-
rally, ti ! 1 the third generation. The facilities for separation
are now so great, that its duration seldom exceeds, seldom
indeed attains, that period. Its existence, however, shows
that in the earlier law the chiefship — subject, doubtless, to
some nr,t clearly defined power of election — continued in
the eldest male heir. It is rather the fact of such chiefship,
than the mode of deternuning it, with which I am now
concerii'-d. By whatever method the new pater familias
was ascertained, his authority, and the consequent subor-
dination of his younger brothers, followed as of course upon
his recognition. And so we can appreciate the force of
Menu's -|- injunction, "A man shall regard his elder brother
as equal to his father." In Rassia,J the family is a kind of
corporation with perpetual succession, and governed with an
authority tliat is almost absolute by its chief, who is styled
" Elder." All its property is in common. There is, as a
rule, neither inheritance nor partition. The house, the
garden, the implements of husbandry, the cattle, the crops,
the cliattels of all kinds, remain the collective property of
all the members of the family. No one thinks of clainung
an iiidi\ idiial share. On the death of the House Father,
the authority and the administration pass to the eldest of
the Household, in some districts to the eldest son, in others
• See Moore's " Indian Appeals," vol. ii., p. 7').
t iv., 184.
+ M. lie Laveleye, " De la rroi)ricttV' P- '-•'^•
13
178 THE NEAR KIN.
to the eldest brother of the deceased, provided that he
occupies the same house. Sometimes the members of the
Household elect a new chief. If the surviving members of
the Household are all under age, some relation comes to live
with them, and becomes a co-proprietor.
A similar custom,* with, in some cases, the succession to
the youngest, not to the eldest son, prevails among those
Southern Slavic tribes that spread from the Danube to the
Balkan. In an old national poem-f- entitled " The Judgment
of Libusa," the ancient constitution of the Household is
clearly laid down. Two brothers, Staglav and Hrudos,
dispute over their inheritance — a contest which is described
as something unnatural and monstrous. The matter was
referred to Queen Libusa, whose judgment was delivered in
the following terms: — "Brothers, sons of Klen, descendents
of an ancient family which has arrived in this blessed
country under the leadership of Tchek, after having set
free three rivers : You must agree, like brothers, on the
subject of your inheritance, and possess it in common,
according to the holy traditions of our ancient law. The
House Father governs his House, the men cultivate the
land, the women make the garments. If the chief of the
House dies, all his children keep the property in common,
and choose a new chief, who, on the great days, presides
in the council with the other House Fathers." So well
have the national customs been maintained, that a learned
Slavonian author J observes, that, at this day, Queen Libusa
might set up her throne of justice anywhere in Southern
Slavonia, and pronounce, amid the applause of the village
chiefs, the same judgment that, in days of old, upon the hill
of Visegrad, determined the contest of the mythical brothers,
Staglav and Hrudos. In these southern countries, indeed,
* Sir H. S. Maine, "The Nineteenth Century," vol. ii., p. 809.
t M. (le Laveleye, uhi supra, p. 202. J lb., 204.
THE JOINT UNDIVIDED FAMILY. 179
the Household sovereignty is less strict, and the rule of
election appears to be more common, than it is in the north.
Still, whether the House Father be the eldest son as of
right, or the eldest son subject to confirmation, or some
agnate whose title rests upon election only, he is the House
Father; and the other members of the family are subject to
his authority, and are concluded by his acts. He is the
administrator and the speaker of the Household. In their
private affairs he governs according to the usages of the
House. In public affairs, and their dealings with other
Houses, he is the organ by which his Household expresses
its opinion.
I pass over the notices in Greek writers of the avcrcririat
or common meals, which were found in many Hellenic
States. They are more likely to receive, than to afford,
light, in the course of modern inquiries. But it is possible
to trace in that country vestiges of such an association, and
even of its struggles with a stronger system. From some
observations of Aristotle, scanty indeed and obscure, but still
precious, we learn that in Massalia, Ister, Heraklca, Knidos,
and other cities, disturbances arose because one person only
of each Household had any share in the government.
" Those," he says,* " who had no share in the government
ceased not to raise disputes till they were admitted to it —
fii-st the elder brothers, and then the yoimger also ; for in
some places the father and son are never in office at the
same time, in others the elder and younger brother." This
passage seems to point to a time when the head of the
House alone took part in public business, and when all
those who were in his Hand, whether they were his sons or
his brothers, were bound by his acts. But it implies the
continuance of the headship in the elder brother as against
* "Politics," v., G.
ISO THE NEAR KIN.
the younger. "We read, too, of the large increase in the
number of citizens that in some places occurred, and it is
not unreasonable to suppose that this change was effected
by the emancipation of the younger sons. In opposition to
these movements, Philolaos* is said to have made laws for
the Thebans, in order that the number of the lots, that is, of
the original properties, might be preserved. A similar
enactment is ascribed -f* to Pheidon the Corinthian, " one of
the oldest of legislators," as Aristotle observes. The restora-
tion of the original lots was also a favourite object with the
conservatives of Sparta. But this restoration of the lots
implies, or rather means, the restoration of the system of
the Joint Undivided Family. At E.ome, when oiu' know-
ledge of its history commences, the law of division was
firmly established, and only a few hints suggest the former
existence of the corporate system. We know that land was
held in common, that the persons holding :j: it were called
consortes, or joint-lot owners, and that this tenure was
different from the condominium, or joint ownership of later
times. Further, the actio herciscundcv faniilice, that is,
the legal mode of dividing a Household and making parti-
tion of its goods, seems to have been in early times an
important part of legal business. This verb, " herciscere" or
" ercisccre," for both forms seem to have been used, is a later
compound ; and its component parts although obsolete in
the times of the classical writers, help us in the present
inquiry. "Erctum" appears to mean§ an inheritance taken
as a whole, and " ciei'e " means to divide. Hence it is
probable that the expression Joint Undivided Family is a
sufficiently accurate translation of the old Roman " Familia
ercta non cita." But when we look at the Roman doctrine
* " Politics," ii., 12. t Ih., ii., 6.
+ See the authorities cited in Smith's " Latin Dictionary," s. v. Consors.
§ Heineccius, "Ant. Rom.," p. 581,
THE JOINT UNDIVIDED FAMILY. ISl
of inheritance, at the "successio in iiniversmn jus quod de-
funetus habuit," there is no room for doubt that there are
before us the remains of the law of a corporation ; and if a
coi-poration, the principle of the Joint Undivided Family
must have once applied. The original corporation might at
an earlier or a later period have been made to reproduce
other coi-porations like itself, but there must have been a
time in which it was undivided.
s^ 4. We are now in a position to estimate the relation identity of
Ix'tween the Household and the Clan. The household Family
tends to expand into the clan. The clan tends to reproduce ^"^1- kIh.
new households. Further, the point at which the house-
hold passes into the clan is fixed. It occurs in the fourth
L'eneration. The Household includes the descendents of a
common great-grandfather, but goes no fui-ther. The
reason for the selection of this particular point is connected
with religion. Up to this point there was only one form of
ancestral worship. Beyond this point a second form
appeared. What was the cause of this religious ditiereiice,
I cannot tell. I can only conjecture that the line of
separation marks the extreme limit at wdiich men can have
any personal knowledge of their forefathers. Archaic men
may have thus expressed the distinction between those
whom they knew and loved, and those more shadoAV^
ancestral fcjiins of whom — like the poet* uninspired by the
Muse — they heard merely a report, and did not know at all.
But the clan, when it was once formed, was maintained by
the constant reproduction, not of individuals, but of house-
holds. These households repeated the same process until
they produced new or secondary clans. Thus there were
two, and only two, archaic institutions. There was the
* 'll/iug Be kXt'oc o'loi' incovEjxiv uvcl n 'icfiif. — II., ii., 4S(;.
182 THE KEAR KIN.
Household, and there was the clan. These two shaded
into each other. There was an enlarged Household, and
there was a smaller clan. For each of these minor forms,
special names have been invented. But, in fact, neither of
them Avas an independent institution. There was nothing
liut the Household and the clan, and the transition
between them. The process of transition might, indeed, be
viewed from dift'erent aspects. It might be regarded as the
upward j^assage of the Household. It might be regarded
as the downward passage of the clan. Still, under any
aspect, it remained one and the same, its structure uniform,
and its functions unchanged.
There has been some speculation as to the supposed
sequences of these bodies, and it has been thought that the
Patriarchal or Natural Family, the Joint Family, and the
Tillage Community, mark separate stages of social develop-
ment. To me these social forms appear, at least among the
Aryans, to be not successive, but simultaneous. When
outside of a community a new Household is formed, it is
Natural Family, Joint Family, and Clan all at once. I
mean that it is the only social tie which its members are
supposed to recognize ; and that it expands until, in its
natural course, it, so to speak, bursts and forms several
similar households. These related households are thence-
forth called a clan. The households of which the clan
consists are, or become, some larger, some smaller. To the
larger households, which are on the way to become separate
sub-clans, the name of Joint Family is given. The newly-
formed and, therefore, smaller households are sometimes
called Natural Families, by which expression is meant the
presence of a living House Father and his descendents.
But the latter households are corporate as well as the
former ; and will, in due time, become, unless they are
interrupted. Joint Undivided Families. Interruption, how-
IDENTITY OF JOINT FAMILY AND NEAR KIN. 183
e\er, may occur ; and, in such cases, the Joint Family is not
permitted to complete its coui-se. This interruption
generally takes place when the Household is drained of its
members — that is, when the sons are emancipated and leave
the Household, one only remaining to cany on the old stock.
The result is, the increase of the number of smaller house-
holds in the community. In a clan, on the other hand,
every clansman has not only his distant but his near kin,
because he is the member both of a clan and of a Household.
In due coui-se that Household, which may at first be merely
a small or so-called natural Household, gi'ows into a large
houseliold — that is, into a Joint Undivided Family ; or, as it
is called in relation to the clans, a M?eg. This body, in its
turn, is developed into a Kin or secondaiy clan. In this
new clan a similar process may take place, and thus con-
centric circles of kinship are estal)lished.
Sir H. S. Maine* observes that " there can be no reasonable
doubt that the House Community of the Slavonians is the
Roman gens, the Hellenic yt'j-oc, the Celtic sept, the Teutonic
kin. It is also the Joint Family of the Hindus." With
tliis idea, as thus expressed, I cannot agree. 1 think that
tlie Joint Undivided Family coiTesponds to the Familia,
not to the Gens. I trust, however, that the difference between
Sir Henry Maine and me on this subject is only verbal, and
that 1 may chiim the weight of his authority in support of
my contention. He seems to use the term gens and its
equivalents in a less definite sense than I do. He did not
think it necessary in this case to distinguish between the
near kin and the remote kin of Greece and of Rome. But
that he contemplates the former and not the latter body
appeals from his identification of the House Community
with the Joint Family of the Hindus — a body which, as I
• "Tho Nineteenth Century," vol. ii., p. 709.
1S4 THE NEAR KIN.
may observe, lie elsewhere rightly compares with the
Agnates or Familia, and from the distinction which he draws
between the Slavonic institutions and the Village Com-
munity, If we compare the Slavonic and the Indian
Family with the Mseg of Western Europe by the same tests
which Sir Henry Maine uses in comparing the two families
with each other, we shall find that they agree in having
a thoroughly ascertained common ancestor, a genuine
consanguinity, a common property, and, if not a common
dwelling, at least adjacent dwellings. I may add that they
had a common worship, a corporate character, reciprocal
rights of inheritance, of tutelage, of aid and defence. In
both cases, too, there were the agnatic system, the authority
of the chief, and the semi-hereditary, semi-elective, mode of
appointing a new chief. It is true that the men in Western
Europe ceased to inhabit a common dwelling, but this
circumstance did not affect the closeness of their relation in
other respects. In one point, indeed, the proof is defective.
There is no direct evidence as to the time at which the Joint
Undivided Family ends. Sir Henry Maine speaks of
several generations. M. de Laveleye thinks there are
usually three generations. But the members* in the
Slavonic communities rarely exceed sixty persons. And it
is elsewhere said that they vary from ten to about that
number. The Highland sub-clans contained forty or fifty.
These numbers are about those which, in the fourth genera-
tion, a man, his wife, and and all their descendents might in
favourable circumstances attain. An incidental observation
of Sir Henry Maine supplies better evidence. He says*!*
that " the Joint Family of the Hindus is that assemblage of
persons who would have joined in the sacrifices at the
funeral of some common ancestor, if he had died in their
* "The Nineteenth Century," vol. ii., p. 810.
t ".Early History Inst.," p. 107.
IDENTITY OF JOINT FAMILY AND NEAR KIN. 185
life time." In other Avoids, as I understand him, the Joint
Family consists of the Sapindas. If this be so, the argument
stands thus. The Slavonic House Community coincides with
the Joint Family of the Hindus, That Joint Family is the
Sapindas. The Sapindas, as we have seen, are the Agnates
or Familia or M.ug. Therefore the Meeg and the Joint Undi-
vided Family are one and the same institution.
§ 5. I have assumed that a clan society exists, and that The deve-
corporate Households are formed within the clan. In the Joint
such circumstances, and apart from any question as to the ''°^^ ^'
beginning of society, the difference between the Joint
Family and the so-called Natural Family is, that the one
runs a cei-tain definite course, and the other arises from an
interruption of that course at an early period. Thus the
Joint Family is the older form of the two. In the natural
order of events the change is from the homogeneous to the
heterogeneous, from the simple undivided family to the
complex group of related Households. We consequently un-
derstand and expect the change from the Indian household
to the Roman, but in ordinary circumstances a change from
the Roman to the Indian would be inexplicable. There is,
too, the notable fact that the differentiation proce^ed only
so far a.s the males were concerned, and did not originally
affect the females. The daughters, unless they had left the
Household, remained under Power; and, so far as they
were concerned, the House! i old always continurd undivided.
Further, in those countries where it has been superseded,
traces of the archaic system may be observed. In those
countries where that system yet lingers, the process of dis-
integration may be seen in actual operation. There is his-
torical evidence that, where the two systems were known to
exist, the system of separation was regai'ded as an innovation.
Nor can we feel surprise that the archaic system is little
186 THE NEAR KIN.
known amongst us, or that our scanty information respecting
it has as yet been scarcely digested. It is from Rome and
Germany that we derive our domestic law. It is from
these countries, and from Athens, where the State at an
early period asserted its supremacy, that our knowledge
of antiquity has been mainly obtained. Partly from these
causes, and partly because the older variety now vanishes
when it is brought into contact with modern ideas, and
still more with modern law, we have become accustomed
to regard the family, in its modern form, as an institution
of Nature, and coeval with it. The existence of any different
form is thus almost inconceivable to us. Yet it is certain
that the family, as we now know it, is not the only form of
domestic relation ; that it is not the earliest form; and that
it is a development from a much earlier state.
It is a question of some interest to ascertain the circum-
stances which led to this modification in the archaic system.
In the normal state of that system, the Joint Family or
M^eg remained undivided until it formed a clan. Then,
within the clan, the same process was continued until sub-
clans were produced ; and this process, so long as external
circumstances were favourable, might be repeated indefi-
nitely. Two modifications of this system, as regards its
duration, are possible. One relates to the continuance of
the Household, the other to its close. Either a separation
of the Joint Family may take place at some period, whether
it be on the death of the House Father or during his life,
earlier than its natural termination. Or the Joint Family
may continue for its full term ; but upon its dissolution
no further relation between the separating parts is recog-
nized.
When a Joint Family, outside of a clan, coheres until a
clan is formed, its function has been fulfilled. It then
enters the conditions of clan life. But when, within a clan,
THE DEVELOPMEXT OF THE JOINT FAMILY. 1S7
a Household is established, there are reasons why its
cohesive tendencies should be reduced. The imperative
need for mutual support no longer exists. The larger body
aflbrds sufficient protection and assistance. Nor is there
any religious motive to remain in the same dwelling. Menu
recognizes * not only the innocence but even the advantage
of separation. " Since religious duties are multiplied in
separate houses, separation is legal and even laudable." The
continuance of the Joint Family thus became a question of
convenience, and this was in a great measure detennined by
the form which the clan had happened to assume. If that
form were a community, the clan, as we have seen, under-
took to provide for each of its members ; and the son of a
Household, on attaining the proper age for admission to the
clan, received his allotment of public land, and was hence-
foi-th in a position to take care of himself. If the form of
the clan were that of a chieftaincy, the practice was, as in
a subsequent chapter I shall moi'c fully show, to grant to
each House Father a certain portion of land, out of which he
was bound to maintain his relatives up to the sixth degree.
In other words, the principle of the Joint Family continued
to operate, and m* disturbing force intervened. But,
whether the separation took place sooner or later, the custom
of the Household was in other respects michanged. The
Household was still a corporation, and its government was
still the rule of the House Father. Many small households
took, in certain circumstances, the place of a few large
households, and that was all. If, however, from any cause,
the relation of the several households, after their separation,
were inteiTupted, and the formation of the clan were thus
checked, tlie results would be different. Each Household
would tlien be compelled to perform for itself those functions
• ix., IOC.
188 THE NEAR KIN.
wliicli otherwise would have belonged to the elan. In
these circumstances, all tendency to early separation would
be checked, and the cohesion would continue to the end.
Each Household would thus be a clan in a state of arrested
development.
Thus the Joint Family and the Clan may co-exist on equal
terms, or the family may be weakened while the clan is
increased, or the clan may be repressed while the family
continues to flourish. The two forms are rarely at their
best together. There is a tendency that one should
increase at the expense of the other. With these views the
facts appear to coincide. " In India," says Sir H. S. Maine,*
" the Joint Family and the village community are often found
side by side ; sometimes, indeed, bound together by complex
common relations. Even there, however, it has been
observed that when joint families are abundant, the village
organization is weak and village communities are rare ; and
this is notably the case in Lower Bengal." But the most
conspicuous example of the natural development of an
archaic society is Bussia. In that country the process has
o'one on for a lono- time, under favourable conditions and
with little external interruption. There, with land in excess
of the demand of its population, the village or clan con-
tinues to reproduce itself indefinitely. In these circum-
stances society has undergone no structural alterations.
When the pressure of population in any village is felt, a
swarm is thrown off", and a new village is formed, which
maintains relations of filial affection with its metropolis or
onutter-dorf. When combined action against the Eastern
nomads became necessary, Russia assumed the sole form in
which, with her experience, co-operation seemed possible.
She appeared as a great village, governed by its chieftain
* " The Nineteenth Century," vol. ii., p. 820.
THE DEVELOPMENT OF THE JOINT FAMILY. 18£>
or clan father, occupying land which was common
property, self-sufficing in all respects, and dealing with
strangers in its corporate form. " This," says Dr. Faucher,*
" is still the conception which the Russian people entertain
of their State." Such a society is substantially the archaic
form carried out upon a large scale. Probably a similar
and not less instructive example will be found in the
history of China. Probably, too, the socialistic and
nihilistic agitation of which we hear in Russia is only an
attempt to resist the external tendency to convert an
archaic into a political society. It seems incredible that
reasonable men should desire the destruction of all govern-
ment; but it is not at all incredible that many persons
should prefer the old system of clan society to the Imperial
government of the Tsar. However this may be, the history
of the Southern Slavsf is very different. With them the
Joint Family has taken the place of the village. They had
been subject to Mohammedan rule. The effect of this
influence is easily traced. It has repressed all tendency
towards independence, and consequently all Gentile develop-
ment. It has not afforded, at least to its Christian subjects,
that protection for person and property under which, in well-
governed countries, the free action of the individual is
rendered possible. It has at the same time, for its own
convenience in fiscal and other matters, encouraged the
formation of smaller associations, just as in the middle ages
associations of villeins were encouraged on the feudal
estates. The Mohammedan government seems to have
been well contrived for pui'poses of repression. It was good
enough to maintain a fair amount of peace. It was bad
cnoufjh to check all economic advancement. Thus the
Southern Slav — prevented from expanding, secured from
* "Cobden Club Essays," vol. i., p. ^.IS.
t See Sir H. S. Maine, ubi supra, p. 798.
190 THE NEAR KIN.
the dangers, both of war and of peace, that usually beset
archaic societies, excluded from the benefits of a political
organization, yet required to maintain some collective
character — retained the form of the Joint Family, because,
by external disturbing forces, the natural course of its
development was interrupted.
The pro- § 6. It is difficult to give an adequate description of the
prietary
rights "of Joint Family or Mseg without some reference to its pro-
bers, prietary relations. This subject, however, requires full and
separate treatment. While, therefore, I must reserve to an-
other chapter the consideration of the evidence, I may in this
place venture, by way of anticipation, to present a summary
of the conclusions at which, upon this subject, I have arrived.
The settlement of Europe was made by clans. Each clan
occupied a certain territory — much, I suppose, as an Austra-
lian squatter takes up new country. The land thus occupied
was allotted by metes and bounds to each branch of the clan ;
the remainder, if any, continuing the property of the clan.
Each branch thus set up, as it were, for itself, and dealt with
its own members as if it were an independent community.
It distributed to each Household, according to the number of
adult males therein, an allotment of arable land. To this
allotment certain grazing and other rights on the other parts
of the property of the branch clan were appurtenant. The
Household cultivated this land in common, and for their
common advantage. If an adult member died, the
allotment was reduced by his share. If an adult
male member were added, either by adoption or by a
boy being admitted as of full age to the clan, he, or the
Household for him, became entitled to a further propor-
tionate share from the public estate. When a division of
the property of the Household took place, each member
received an equal share, but the shares were calculated i')er
THE PROPRIETARY RIGHTS OF ITS MEMBERS. 191
stirpes and not jDer capita. That is, each person in respect
of whom a portion of land had been received was, for
the purpose of distribution, reckoned a member. But the
young man who had not been admitted into the clan and
still remained in his father's Hand — the hnecht, or knahe,ov
sven, for by these among other names he was called —
succeeded to his father's share, or if he was one of several
such sons, to a share of that share. His elder brothers,
however, for whom provision had already been made, and
who had left their father's hearth, had no portion of the
inheritance. While the Household held together, the
property was, in effect, vested in the House Father in trust
for the joint benefit of himself and his companions. Each
person, as he married, received a separate house and
lararium: but the land was cultivated by their common
labour, and its proceeds went into the common purse. The
general management rested with the House Father. He,
according to the customs of the family, could assign the
separate severalties, if any, and from time to time alter
their distribution. He was bound to provide maintenance
for each member, if he needed it, from the common fund.
When the limits of the Mceg were reached, the retiring
members of the family, if I may so call them, were entitlcMl
to receive for their separate use a final share of the House-
hold estate, and to commence each for himself the founda-
tion of a separate family. If such a man died childless, his
lot reverted to the Household from which he had received it
If a Household became extinct, that is, if a man dii-d without
either children or near kin, its territory went back to the
clan.
CHAPTEB VIII.
THE DISTINCTION OF RANKS IN THE CLAN.
The divi- § 1. The clan was, as we have seen, built up of separate
Free Popu- though related Households, in each of which were various
decrees of rank. The whole must exhibit the character of
its component parts, and, consequently, traces of these
differences may be expected in the composite body. As
the Household had its House Father, his sons, and his
dependents, so these several classes find their place in that
ao^oxewation of Households which is called the clan. There
is the Clan Father or chief ; there are his relatives,
according to their respective degrees of nearness ; and there
are the outsiders, or the inferior population. Thus, a sort
of double aristocracy presents itself. The House Fathers
formed a privileged class as against the unenfranchised
members of their respective Households ; and the whole
body of the race, the Patricians as distinguished from the
Patres, formed an aristocracy as compared with their freed-
men or other dependents, or with the metics or strangers
that sojourned among them, or with the alien population
that were permitted, on terms more or less hard, to
cultivate their lands.
The Irish language has special terms to denote these
various relations. " Cin^l," or, as the Welsh called it,
"Ceneal," comprised* "the several Houses deriving from
* Dr. Sullivan's "Introduction to O'Curry's Lectures," vol. i., jj. Ixxviii.
THE DR'ISION OF THE FREE POPULATION. 195
a common ancestor or head," that is, the men of pure
descent. " Cland or clann," that is, " the children,"
included both the "cinel" and also their clients and
retainers. A similar distinction is expressed in the Roman
phrases,* habere gentem and in gente esse, expressions
somewhat similar to the more familiar distinctions between
servire servitutem and in servitute esse, and between
possidere and in possessione esse.'f
These distinctions are sufficiently clear ; but there is
another distinction, which, though not less important, is
less readily intelligible. Among the members of the clan
itself, within the " cinel," in the strict sense of the term,,
and apart from the exceptional privileges of the royal
house, there was a well-marked difference. That difference
was between the noble and the free, or, as it may otherwise
be expressed, between gentle and simple. Both classes
were equally members of the clan, and, to a certain extent,
had equal rights. But both by public opinion, and by the
custom which supplied the place of law, certain sections of
the connnuiiity possessed, in comparison with other sections
thereof, an acknowledged superiority. Their descent was
purer; their wealth was greater; their wer-geld was higher ;
their share in the public lands, or in the distribution of booty,
was larger ; they were the natural leaders of the community
in war, and its natural councillors in peace. Accordingly,
we observe in the early history of all the Ai-yan nations the
presence of what may be called a natural aristocracy as the
leaders and the kinsmen of a natural democracy.
It is in Greece and in Germany that this division is
most conspicuous. Evury rea<ler of the " Iliad" is familiar
with the broad line which separates the kings and heroes
of kin to Zeus from their followers. In the " Odyssec," too,
* See Heineccius, " Aiit. Itom.," Muiilonbcrg's note, p. 480.
+ Mr. Poste's "Gains," p. 041.
14
194 THE DISTINCTION OF EANKS IN THE CLAN.
the princes and the sceptred kings are carefully distin-
guished from the ordinary freemen. Among the continental
Teutons there are the Adeling and the Friling : among our
own ancestors, the Eorl and the Ceorl. To these correspond
the Primus Mediocris and Minor of the Burgundians and of
the Alemanni, and the Holdr and the Odel Bondr of the
Norsemen. But the other nations also exhibit similar
phenomena. I do not speak of the Populus and the Plebs,
for that gTeat division may be placed in a class different
from that we are now considering. But the Roman
analogues appear in the Ingenuus, in the old sense of the
word, and the Liber; or, in a different aspect, in the
Adsiduus and the Proletarius of the Twelve Tables. In
India, setting apart the Brahmans as a literary or profes-
sional class, and taking the Sudras as an inferior and
conquered population, there are* the Kshatriyas or nobility,
and beneath them the Veisyas or free cultivators. The
Zend Avesta speaks of the Qaetas or owners of the land,
with their attendant friends, and the Verizenas or actual
workers of the soil. In other passages of the same work,
the Atharvas appear to occupy *}• a position similar to that
of the Brahmans ; while the " Rathaestras" and the
" Vastrya-fshuyans" correspond to the Kshatriyas and the
Veisyas respectively. Perhaps the Avesta | indicates a
similar distinction in the different consequences of giving
bad food to the owner of a noble house, and to the owner
of a middling house. Among the Kelts a like division
prevailed. The Irish had their Flaths and their Bo-aires.
The Welsh had their Breyr and their Boneddigion. The
Highland distinction § between the Duine Uasals and the
* See Dr. Muir's "Sanscrit Texts," vol. i., p. 292,
t Ih., vol. i., p. 293 ; vol. ii., p. 454.
J Spiegel's " Avesta," by Bleeck, vol. i., page 105.
§ Robertson's "Scotland iinder her Early Kings," vol. ii., p. 303;
vol. i., p. 237.
THE DIVISION OF THE FREE POPULATION. 193
ordinary clansman is well known. Even in the case of the
Slavs,* who now show this ditierence the least among all
the Aryan nations, there seems reason to suppose that,
before the levelling force of the Tatar invasion, they
resembled in this respect their brethren in Western Enropf.
^ 2. I have next to inciuire into the cause of this wide- The causes
... . . . ofNobihty
spread distinction. It is not difficult to understand that
some Households should be more prosperous, more
numerous, and more wealthy than others. Yet these
advantages are rather the effects than the causes of such
a difference as that which we are considering. Even if
there were no evidence that, in at least certain societies,
land was distributed according to the rank of its
holders, they are inadequate to explain all the facts
of the case. They may account for the differences in
modem society, where individuals rise and fall with a
rapidity foreign to archaic nations. But they do not
explain the strongly marked lines, so difficult, if not impos-
sible, to cross, which intereected the society of the ancient
world. The preceding inquiries into the structure of
archaic society point, for the cause of this difierence, to
some sentiment connected with the peculiar religion of our
forefathers, and consequently affecting their descent. The
facts correspond to this expectation. A certain series of
pure descents was sufHcient to establish freedom and a
share in the government of the connnunity, and in the
distribution of its lands ; but another and a lar<rer series
was nece.s.sary for the full enjoyment of all the lionours
and all the ccjiisideration that the connnunity could
give. A minimum of four ilegrees of kinship, traced
collaterally, secured to a man the protection and support
• llobcrtson's "Esanya," p. xliii.
196 THE DISTINCTION OF EANKS IN THE CLAN.
which a Mcug or Sipsceaft was able to afford. This
meant two generations in lineal succession, or, including the
person himself, three descents. But even the Mfegman — much
less the man who, from whatever cause, failed to attain his
Mcegthum — was not the foremost in his community. That
place was reserved for those who could trace their M?eg three
times : who not only themselves had their free grandfather,
but whose grandfather and whose grandfather's grandfather
had severally their Mseg. Thus freedom, and the practical
rules as to the succession to property, and as to the wardship
of women and of minors, were determined by collateral
kinship ; but lineal descent was the test of nobility. The
man who could trace his six uninterrupted degrees of
unsullied lineage was not merely free-born, but full-born.
His birth entitled him to land and office ; but neither land
nor office, even if they could be otherwise acquired, could
compensate for any deficiency in his birth.
This rule of nobility seems to be the result of two other
rules. One is that fundamental principle which I have
already noticed, of taking the common great-grandfather
as the stock, or founder, of the Joint Family or M?eg. The
other is a rule which, in the present chaptei', I shall more
particularly consider, known as the custom of the Three
Descents. The effect of this latter rule was that, for the
purpose of acquiring full rank in any particular status, the
claimant must show that his father and both his grand-
fathers had held that status. Consequently, a man who
claimed to belong to the nobility of his clan must show
that his grandfather was noble — that is, that his grand-
father had a kin, or in other words, had a great-great-
OTandfather who was a freeman. Therefore, a nobleman
must trace, at least, five ancestors — that is, must be the
sixth in lineal succession of freedom. I have already
mentioned the double set of three ancestors in India and in
THE CAUSES OF NOBILITY. 197
Rome, and the still more extended pedigrees of the Greeks
and of the Kelts. But, however strong the probability
may be, direct evidence has hitherto been wanting to
establish that the completion of such a pedigree was
essential to nobility. I think that the uniting link is
supplied by the Athenian practice. An old writer* states
that " the Thesmothetie are Eupatrids, eta -fr-apwj-." That
is, it was not sutticient that a candidate for the office of
Thesmothete should be himself a Eupatrid, but his fatlu'r
and his mother, and both his grandfathers must also have
been Eupatrids. But the position of a Eupatrid implies,
a.s we have seen, the presence not only of a near kin, but
of a full or remote kin ; and as the near kin terminated at
second cousins, the full kin implies an additional step —
that is, it requires a minimum of four lineal descents. If,
therefore, the grandfather of the candidate was a Eupatrid,
and if a Eupatrid was a man who could show his grand-
father's grandfather, it follows that the candidate himself
must have been re([uired to prove his third grandfather —
that is, to name his Tritavus. At Rome, again, all the
elements of the ca.se exist. The Tritavus was known t(3
the law : every Patrician had a gens. The rule of the
Tiu-ee Descents was, as I shall presently show, recognized.
It is not, then, an unreasonable inference that the test of
nobility was the same in Rome as it was in Athens. In
modem timesf the system of heraldic quarterings, once a
mattt'r of great practical iuqjortancc, indicates the existence
in Western Europe of a similar practice. The latest actual
example of the rule seems to be that of the Norsemen.
Among thesi; people, tlie sixth inlieritor of an Odel
property was an 0<lel Btmdr; but it was only the sixth
inheritor of such a property, who could trace his descent
• See Hermann, "CJrec. Ant," p. 2!I7.
t Uoliertson'B "Scotland under licr l^^ly Kings," vol. ii., pii. ?i'2\, '^■2^^.
198 THE DISTINCTION OF RANKS IN THE CLAN.
through the maternal as ^Yell as the paternal side, that was
perfect in his generations and so entitled to rank as an
Holdr.
The Chief- s 3_ In this nobilitv there were degrees. There was one
taincy. '' ,
branch nobler than the noble, and in the nobler branch there
was one person noblest of all. Amongst all his clan the
chief stood proudly eminent. Their nobility, indeed, was
not due either to his favour or to any popular grant. It
was the result of birth alone. The clansmen were their
chief's brothers* and kindred. He w^as their chief, their
acknowledged senior and first man, but in no sense their
master, or the source of their honours or of their wealth.
He was their natural leader in war, he was the natural
arbitrator of their disputes in peace. Above all, he -was
charged with the care of the Gentile worship. This last
function, indeed, was that which was specially character-
istic of archaic royalty. Generals might be chosen for
special services, if occasion so required. Judicial business,
if archaic proceedings deserve that name, might be transacted
before officers appointed for the purpose. But the worship
of the Gens, like the worship of the Household, required the
services of a particular celebrant. That celebrant should
be the heir of the Eponym — that is, he ought in strictness
to be the eldest male, or the representative of the eldest
male, of the eldest branch. Thus, Mr. Lyallf assures
us that, in "Kajputana, the chief is supposed to be the
nearest legitimate descendent, in direct line, from the
founder of the State, according to the genealogy of the
tribe ; and the heads of the branches from this main stock
are the leading Eajput nobles, the pillars of the State."
Such were those hereditary kings with definite prerogatives,
* Tod's "Eajasthaii," vol. i., p. 198.
t "Edin. Review," cxliv., p. 183.
THE CHIEFTAINCY. 190
of whom Thucydides and Aristotle speak. Such were the
Hi<;hland and the Irish chiefs. Such were the kinj^s whom
the Teutons chose by reason of their nobility, while they
chose their generals, or herzogs, for their valour. Such
are, at this day, the Rajas of Jodhpoor and Jeypoor. " In
the actual condition," says Mr. Lyall,* " of the Rajput clan
society, with its tribal chief at the head of a cliLster of
families and sub-families, each having a separate represen-
tative, we find .... the conception of an aristocracy
deriving from blood alone, the families being noble according
to the degi-ee of the nearness of their consanguinity with
the pure blood of their chief, and nobility depending entirely
upon a man's position in his own clan ; while, outside of all
the clans, there is no nobility at all."
In all large genealogical communities amongst the Aryan
nations there was a clan to which the royal dignity was
exclasively attached, although, within the limits of that
clan, the right of election was more or less freely exercised.
Such, amonj; the Pei-sians,+ was the fireat clan of the Acha'-
menidjL', to which King Darius, in the Behistun inscrip-
tion, boa.sts that he belonged. Such, in the view of Homer,
were the Pelopidie in Greece and the Dardanida- in Troy ;
and such, in post-Homeric times, was the illu.strious race of
the Herakleida'. We read in Herodotus,^ to take but a few
of the less familiar examples, of the royal tribe of the
Kinniierians, and of the Heraklei<l kings of the Scyths ; of
the Herakleids and of the Mermnadie in Lydia, of the
Battiadiu of Kyrene, and of the Aleuadaj of Larissa,
Multitudes of other examples have been collected§ by
writers on Grecian antitiuities. Of Ireland, Dr. Sullivan ||
* "Edin. Review," J.. I'll. t Herodotus, i., 12.').
: i., 7 ; iv., 10, 11, IW.
g See WacliBinutli, " Hist. Ant. of Greece," vol. i., p. 2'2.'>.
II " Introduction to O'Curry's Lectures," vol. i., p. cexx.xii.
200 THE DISTINCTION OF EANKS IN THE CLAN.
thus writes : — " The clescendents and relations of a king
formed an exclusively royal class, analogous to the Anglo-
Saxon Athelings or Clitones, the descendents of Woden, and
the Bavarian Agilofings. The story told by Tacitus of the
Cherusci sending to Italy for a Romanized Cheruscan, after
the extinction of all the members of the royal family at
home, may be paralleled by similar instances of a strict
adhesion to the royal line in Ireland." Among Teutonic
nations this practice* seems to be universal. All the reigning
families in Northern Europe — Anglican, Saxon, Dane, and
Norwegian — traced their descent from Odin. Among the
Ostrogoths the clan of the Amali was pre-eminent ; among
the Visigoths, the Balthse ; among the Bavarians, the Agi-
lofings ; among the Franks, the Merwings ; among the
Vandals, the Asdings ; among the Lombards, the Gungings
and the Lithings. Among the Indian clans of the present
day, the royal houses, as we might expect, are carefully
defined. Thus, to take but a single instance, the Rana of
the Rajputs*!" iii^^st belong to the Sesodia Sacha of the
Gehlote Kula of the Sooryavansas.
I have said that the Genius of the Founder became the
Lar of the Household. The same principle continued to
operate when the Household had expanded into the clan.
This spirit was in some way supposed to dwell in the House
Father or the Clan Father for the time being. That chief
continued upon earth the existence of the sainted Genarch.
How long this belief actually continued, or whether it ever
were practically driven out by beliefs that logically were
inconsistent with it, it is hard to tell. At all events, the
sentiment which it had generated remained unchanged.
We may thus, to some extent, comprehend the deep feeling
of devotion with which the son regarded his father and the
* Prof. Stubbs's "Const. Hist, of England," vol. i., p. 142.
+ See Tod's " Eajastlian," vol. i., p. 82, et seq.
THE CHIEFTAINCY. 201
clansman his chief. " A father," says an old Slavonic
maxim,* "is like an earthly ^^od to his son." " The ordinary
Highlanders," says Captain Burt-f- in 1730, " esteem it the
most suhlime degree of virtue to love their chief, and pay
him a blind obedience, although it be in opposition to the
Government." I need not cite authorities in support of so
well known a fact as the absolute self-abnegation of the
Keltic clansman. But as a proof of its persistency I may
observe that, so lately as three and a half centuries ago, this
sentiment was in full force, not only among the Keltic Irish,
but amonrf the EnMish settlers, in favour of a fuffitive child
who was sprung from a gi'eat Anglo-Irish line. An English
officer :J: in Ireland thus writes, in the year 1538, to his
superior officer in London : — " I assure your Lordship that this
English Pale, except the towns and some few of the posses-
sioners, be so affectionate to the Geraldines, that for kindred,
mairiaije, fosterin*;, and adlierin<f as followers, they covet
more to see a Geraldine to reign and triumph than to see
God come among them ; and if they might see this young
Girot's Vjanner displayed — if they should lose half their
substance, they would rejoice more at the .same, than other-
wise to gain gi-eat good."
A strange case of the same kind, from Rajput history, is
nannted by Colonel Tod.iij When we remembertheinten.se
superstition of the parties, and the teiTor which such super-
stition excites even in the liuldest among uncultured people,
the devotion of the Rajput chief will probably be thought to
desen'e no mean rank among the recorded deeds of self-
.sacrificing heroism. Jeswunt Sing, the Raja of Marwur, a
celebrated Rajput prince, Itjst his senses in con.sequence of
* Sir II. .S. Maine, "The Ninotecntli Century," vol. ii., p. SOI.
t Mr. Skene's " Highlanders," vol. i., p. 15(1.
t Professor I'ichey's " Lectures on Irish History" (2n(l scries), p. 115.
§ " linja-ithan," vol. ii., p. 3G.
202 THE DISTINCTIOX OF EANKS IN THE CLAN".
the alarming apparition of a Bi-ahman to whom, when in
life, he had given just cause of offence. " He was generally
believed to be possessed with a wicked spirit, which,
when exorcised, was made to say he would only depart on
the self-sacrifice of a chief equal in dignity to Jeswimt.
Nahur Khan, ' the tiger lord,' chief of the Koompawut
clan, who led the van in all his battles, immediately offered
his head in expiation for his prince ; and he had no sooner
expressed this loyal determination than the holy men who
exorcised the spirit caused it to descend into a vessel of
water, and, having waved it thrice round his head, they
presented it to Nahur Khan, who drank it off, and
Jeswunt's senses were instantly restored. This miraculous
transfer of the ghost is implicitly believed by every chief
of Rajasthan, by whom Nahur was called the ' faithful of
the faithful.' Previous to dying, he called his son, and
imposed on him, by the solemnity of an oath, the abjuration
of the office of Purdhan, or hereditary Premier of Marwur,
whose dignity involved such a sacrifice ; and from that day
the Champawuts of Ahwa succeeded the Koompawuts of
Asope, who renounced the first seat on the right for that on
the left of their prince."
The Cus- S 4. Between the two extremes, the noble and the slave,
torn of the "^
Three there were some intermediate conditions. There was the
Descents.
freeman, who was below the noble. There was the freed-
man, who was but little above the slave. The freeman,
too, was either full-born or merely free-born, as he was, or
was not, a member of a M?eg. The question, to which of
these classes any man belonged, was determined by his
pedigree. The general rule seems to have been that a man
was held to possess the full rights belonging to any condi-
tion, if his father and his grandfather, with their respective
wives, had occupied the same position, although with
THE CUSTOM OF THE THREE DESCENTS. 203
imperfect rights. Thus, although the freednian liad ceased
to be a slave, and was for certain pui-poses free, it was not
until the third generation that his grandson acquired the
full ri<dits of a free-born man. So, too, three rrenerations of
freedom were required for a full-l)orn man — that is, a man
whose Miieg, or family association, was complete. In like
manner, three generations of full-born men must be com-
pleted before a gentleman was made — a man perfect in
his generations, the member of a gens, or kin, or cinel,
and one of the Eupatiida^ of his community. Thus the
minimum space between a noble and a slave was, counting
inclusively, ten generations. The noV)le himself marked
one generation, his ancestors up to and including his
" Tritavus " counted six, and this " Tritavus " was the
fourth in descent from the Libertas, or emancipated slave.
In other words, there were before the " Tritavus " three
generations of semi-freedom. Questions of descent are so
pei'plexing to those who are not familiar with their intri-
cacies, that I make no excuse for treating this subject in
some detail.
When a slave was emancipated, he did not thereby
become at once independent. Independence, indeed, so far
as individuals were concerned, was in early times unknown.
A man must belon<x to some a<f}^re<fation of men, or at least
to some i)erson who did so belong. The freedman, there-
fore, remained in his old Household. But he had obtained
promotion in it. His person was now safe. His pro-
prietary rights were acknowledged. He was, indeed, still
under the authority <tf the Hou.se Father; but however
absolute this .sovereignty might in theory be, in practice it
was exercised in a very ditierent spirit over the freedman
and over the slave. But still the former slave was far
below the free born. Not only was his social estimation
less, but his share of tlie corporate property and the estimated
204 THE DISTINCTION OF RANKS IN THE CLAN.
value of his life and limb were also less. He might
even, in case of misbehaviour, be reduced once more to
the servile ranks. On his death, if he had no children,
his property escheated to his Patronus, because, as having
been a slave, he could have no agnate either near or remote
by whom he might be represented. The like conditions
attached to his children. The sons of the freedmen, the
Libertini, lingered, to use the expressive phrase of the
Roman law, in the same state of imperfect freedom as their
father. It was not until the third generation that the first
free-born man of the race made his appearance. He, although
he did not himself possess all the rights of freedom, was
capable of transmitting them. Accordingly his son, that is
the fourth in descent from the freedman or emancipated
slave, was both free by inheritance, and was the stock to
which his free-born posterity traced their descent. Still, the
free-born man was far from attaininsc to all the rig-hts and
privileges of perfect birth. He was free-born, but not
full-born. A full-born man must have an independent
family association ; and for such an organisation the presence
of two living generations of free-born men was essential.
Thus a full-born man must have at least two pure descents.
His grandfather and his grandmother on each side, as well
as his father and his mother, must have been free-born. As
the Liber was the third in descent from the Libertus, so the
Ingenuus was the third in descent from the Liber. The
full Mpeg or " Cognatio " as the later Roman writers call it,
was thus formed, a body capable of protecting its members,
and answerable jointly and severally for their misdeeds. It
was upon this Ma?g that the duty of waging the blood feud
for a slain kinsman devolved. It was to the Mai'g that the
wer-geld of such a kinsman was paid. It was the Mpeg of
the homicide that had to make or to guarantee the proper
compensation, and against every member of which, in the
THE CUSTOM OF THE THREE DESCENTS. 205
absence of .such compensation, tlie avenger of blood miglit
lawfully extend his hand.
There was, however, a further distinction. The Mregman
or Ingenuus possessed, indeed, full heritable blood, and
formed one of a distinct self-soverninij association. But he
did not thereby acquire in the fullest degree all the advan-
tages that resulted from such a position. It was not
reasonable that a newly-formed Mseg should have the same
power or the same importance as one which had l)een
established for many generations. We thus arrive at a
difference between full-born freemen. Maegs were older and
younger. The younger ^Iieg stood by itself, and had within
the community to which it l>elonged no further or other
special connection. It was only an inchoate kin. But the
older Ma'g, that which had continued for three descents of
Ma'gthum, expanded not only into a kin, but into a kin of a
very high rank. That is to say, the full-born mendjer of a
Mseg, whose two grandfather had been themselves Miegmen,
was thereby the member of a kin, the most advanced and
highest form of blood relationship with which the ancient
world was ac(|uainted. But the clansman who could reckon
his six ancestors upon both sidcsof miMtinislK <1 drscrut, was
not only free-bom, but full-born; and not only full-l>oni,
but well-born.
5^."). I now })roceed to state the evidenci- in support of j{i,torical
the existence (^f this custom of the Three Descents. The the Thre"^
Romans had specific names for each step in the first part of L>t'^^'*^"t*-
the progression, Libertus, Libertinus, and Liber. It is ex-
pressly stated* that the class Libertini fonneily inchidcd
both the Liberti and the sons of Liberti. There is also the
custom of the Fasti.i* in which the names lioth of the father
• SiKt., "Cliuiil.," '24.
t Nicliuhr, " History of IJomc," vol. iii., ^i. 'J'.i.').
206 THE DISTINCTOX OF RANKS IN THE CLAN.
and of the grandfather are recorded. Further, in a
speech in Livy,* the speaker, Appius Claudius Crassus,
contrasts with the men of Patrician descent the ordinary
Quirite, the descendent of two free men. The Greeks had
the remarkable word rpiyoiia, which implies, in its secondary
sense, fulness of the condition described ; and the force of
this evidence is not weakened by the fact that, in the great
orators and poets, the use of the word is generally figurative.
Thus Demosthenes describes an opponent as evil from the
third generation ; that is, he alleges that this opponent was a
free citizen of Evil, and could show his " Vier ahnen " in
crime. So, too, the unhappy CEdipos,-f- when, in his misap-
prehension at the cause of her alarm, he strives to encourage
locaste to proceed with the terrible inquiry, assures her
that her nobility will remain unstained, even though he
should be proved thrice a slave from the third mother ;
that is, even though his servile state were established by
laM^ul inheritance, and he were a slave not merely of the
third, but of the fourth generation — not merely capable of
transmitting slavery, but actually inheriting it as a right.
In like manner, Euripides :): speaks of a man as thrice a
bastard ; that is, as one in whom base descent had become
hereditary. It is noteworthy, too, that Homer usually gives
the names, not only of the father, but of the grandfather, of
his heroes. At Athens § it was necessary that the Archons
and the Priests should prove their descent as citizens for
three generations. So, too, Strabo|| states that among
the Massiliots three generations were necessaiy to qualify
* An hoc, si Claiidipg familife iion sira nee ex patricio sanguine oi'tus seel
nnus Quiiitiiim qnilibet, qui modo me duobiis ingenuis ortinn et vivere in
libera civitate sciam, reticere j)ossim ? — vi., 40.
t CEd. Tyr., 742, 10G3.
t Androm., 637.
§ Hermann, " Grec. Ant.," p. 296, and note (5).
11 iv., 179 c.
HISTORICAL EVIDENCE OF THE THREE DESCENTS. 207
a man of alien origin for ailniission among those \vho were
capable of municipal honoui-s.
Among the Gothic nations the custom of the Three
Descents appears to have been universal. Among the
Scandinavians,* the three gi-adations of the Frigiven man,
his son, and the Bondr, were marked as clearly as the
corresponding ranks were marked by the terais Libeiius,
Libertinus, and Liber, in early Rome. In the Sachsen
Spiegel, the rule is laid down in precise terms : — " Si qui
in quatuor suis generationibus, hoc est ex duobus avis et
duobus aviis, ac patre et matre indiffamati juris est, ilium
injure suo nemo infamare potest." So among the Franks,
if a man was claimed as a culonus, and alleged in defence
that he was an higenuus, he had to prove that his father
and his grandfather were inr/enui on both sides. The
whole system of succession to property -f* among these
noithern nations seems to have been based on this principle.
Three descents of freedom were necessary to give the riglit
of inheritance in allodial propeily. Tliree descents of
military service were necessaiy to give the right of
succession in benefices. Three descents were, in like
manner, necessary to establish " native right" in tlie inferior
cla.sses that were attached to the soil. Among ourselves,
some curious cases of survival in this matter may be
noticed. In the first place, tliere is the old proverb, that
" it takes three generations to make a gentleman." In the
second place, when the order of liaronets was established,
it was, among other tilings, recjuired that each candidate
should prove that he was descended in the male line from
a grandfather at least who had borne coat ainiour. Again,
under an Act of Parliament* which long regulated the
subject, the test of I»ritisli nationality was that a man's
• Rolwrtson's " .Scotl.aiitl uiuUt licr Early Kings," vol. ii., p. ,322.
t lb., vol ii., p. 3i:j. : 13 Ceo. III., c. 21.
208 THE DISTINCTION OF RANKS IN THE CLAN.
father and grandfather had been natural -born subjects of
the Crown. I do not mean that the framers of that Act, or
even the law officers of King James the First thought of,
or perhaps knew anything of, the old rule of the Three
Descents. But to stand on the old ways is very dear to
the legal mind ; and it is not unreasonable to believe that
these lawyers followed in both cases the traditionary rule.
The Keltic nations also exhibit traces of a similar custom.
In Cymric law, the descendent of the original AUtud, or
stranger to the district, was, after the lapse of three
generations, ranked as a "Briodwi-;" and thenceforth
became irremovable, and was entitled to his share in the
land of the " vicinity." In Scotland, a similar rule applied
to serfs, although it is possible that in this case the rule
may have been introduced from England. In Ireland, *
the descendents of a Bo-aire, or Ceorl, might, when they
possessed land for three generations, aspire to become
Flaths. So, too, a " Fuidir Family, -f in the fourth
generation — indeed, in the third, for the Daer Bothach
had also right of settlement — could not be ejected from
the land." That is, the third descendent was capable of
transmitting heritable right, and the fourth of acquisition
by virtue of such right. There is a curious application of
this rule in early Irish church affairs. If a churchman
left his original church and went to another, where he died,
his " clan-naighe " goods were divided in certain fixed
proportions between his old church and the new. " The
rights of the original church," observes the learned editor^
of the Ancient Laws of Ireland, " did not cease with the
division of the clan-naighe property of its former member,
but, although in a decreasing ratio, affected the similar
property of the two first generations of the descendents of
* Dr. Sullivan's " lutroductiuii to O'Curry's Lectures," vol. i., p. cix.
•f Ih., p. cxxi. X vol. iii., p. Ixix.
HISTORICAL EVIDENX'E OF THE THREE DESCENTS. 209
the deceased. It may be conjectured that the next
generation would be wliolly discharged from the claims
of the church of their ancestors of the third generation,
and that the church in whose district they resided would
then be considered as their original or native church."
^ G. These consideration>s indicate the triple distinction of
.*■ . . Theimpor-
the ancient free population. It consisted of freedmen, of tance of
freemen, and of nobles. The distinction rested exclusively gies.
upon blood, and could not, therefore, be removed by grant
either of people or of king. By the operation of time, if
there were no disturbing influence, each lower class
naturally passed into the one next above it. Each step of
promotion brought with it increased consideration, addi-
tional strength and influence by reason of a more
numerous kindred and more extended alliances, and no
small material advantage, both direct and indirect. At a
later period, when the dependent portion of the Household
became developed, and the Gasindschaft was established,
other vai-ieties of rank arose. Nobility was then derived,
not from birth, but from oflicial position and attendance upon
the throne. But, even in these circumstances, native right —
the right of a bent-ficial interest in the public land that the
chief held and distributed — was determineil by the rule of
the Three Descents. The same principle, too, established the
right of the lord to the pei-sonal services of his dependent.
Hence the preservation of pe<ligi*ces and their accuracy —
mattei-s which now seem merely solemn trilling — were
duties of urgent practical importance. They were the
evidences of a man's social position at a time when social
position implit'd much more than it now implies. Whether
they Were long, or whether they were short, they were alike
es.sential, according to the nature of the case, for the
establishment of rights. Wiiting of the Rajptits, Colonel
15
210 THE DISTINCTION OF RANKS IN THE CLAN.
Tod* tells us that " each race (sacha), has its Gotra Acharya,
a genealogical creed describing the essential peculiarities,
religious tenets, and pristine locale of the clan. Every
Rajput should be able to repeat this, though it is now
confined to the family priest, or genealogist." " India," says
another writer,"^ " singularly barren of authentic historical
records, has preserved, by oral tradition and with scrupulous
care, the genealogy of even obscure families. In every
village the mirasi, or bard, can repeat the names of every
proprietor who has held land in the village since its founding
hundreds of years before ; and the proof of the correctness
of the genealogy is the fact that the village lands are to-day
held in the very shares which the descendents of the
original founders represent." So it is saidj that, in Ireland,
the genealogies of the royal houses " appear to have been
critically examined and discussed at the general conven-
tions of the states and provinces of Erin. When revised
and approved of, they were recited at the fairs, so that they
should be preserved in the memory of all, and be subject to
the control of public opinion," The same care, and for a
like reason, was taken as to the pedigrees of low as was
taken of the pedigrees of high. In the old English and
Scoto-Norman charters, the pedigrees of serfs, traced with
much care, frequently occur.§ It is probable that it was in
the interest of the lord, and not of the serf, that this care
was taken. But whatever may have been the motive, the
rule of law at that time was, that the mutual rights and
duties of the parties were determined by the fact of the
descent.
* " Rajasthan," vol. i., p. 82.
t Griffin's "Rajas of the Punjab," p. 451.
J Dr. Sullivan's "Introduction to O'Curry's Lectures, " vol. i., p. ccxxxii. ;
see also, Sir John Davies's " Historical Tracts " (Ed. 17S7), p. 258.
§ Robertson's "Scotland under her Early Kings," vol. ii., p. 314;
Kerable's "Saxons in England," vol. i., p. 225.
THE IMPORTANCE OF GENEALOGIES. 211
But if pL'digi-ees were in fomier days numiments of title,
it was necessary that the proper chain of title should be
complete and unbroken. This necessity suggests the
explanation of another phenomenon of early society. We
can thus appreciate, not only the impoi-tance that our fore-
fathers attached to pedigrees, and their anxiety for their
preservation, but also the extreme rigour sho^vn towards
mesalliances and to any lapse from female virtue, and the
inditlerence with which masculine aben-ations were regarded.
It was not the immorality of the act that shocked our
ancestoi-s, but the blot that it might cause in the family
pedigi'ce. The restriction, therefore, did not extend beyond
its cause. The apprehended danger to the House* was
sternly forbidden and mercilessly punished. But the
wandering loves of the men were of no interest to their
archaic companions. It was upon considerations of expedi-
ency, and not upon considerations of morality, that the
rules relating to the intercovn-sc between the sexes were
originally founded. Of this state of things there are two
curious survivals. One is the difference in the legal con-
se(|uences between adultery on the part of the husband and
adultery on the part of the wife ; the other is the history of
the word libertine, a word which originally denoted the son
of a free<lman, and, afterwards, a freedman himself, but
whic^i — because the conduct of the freedman was unre-
strained either ])y public opinion or Ity law — subsequently
acjjuircd Its pri'scut meaning,
• Grote's "Hist. (Jrcccc," vul. ii., p. 115.
CHAPTER IX.
COMMUNITY.
The tern- ^ 2. The kin, or gens, or clan, was thus a body of men
lations of of common descent, so far, at least, as its principal members
Clansmen, _ ...
were concerned, and united by a common religion which
was essentially commemorative of that descent. But it
was something more. These kinsmen or fellow-churchmen
— although the latter term now describes all too feebly the
closeness of the old religious tie — were also settled on the
same land, and were joint-owners of it. The primary bond
of kindred union was, indeed, the community of their
worship. But in addition to this tie, and dependent upon
it, was the further tie to which the community of their
land gave rise. The land belonged to the clan, and the
clan was settled upon the land. A man was thus not a
member of the clan, because he lived upon, or even owned,
the land ; but he lived upon the land, and had interests in
it, because he was a member of the clan. This secondary
tie, which survived, and even superseded, the earlier relation,
was originally threefold. The clansmen lived together :
they held joint interests in landed property : they managed,
for certain purposes, that property in common. Thus they
were at once kinsmen, neighbours, co-owners, and partners.
But intimate as their connection thus was, their individuality
was not lost. In the next degree of kinship after brothers
the House Spirits began to differ. Uncle and nephew,
much more first cousins, had no longer the same Lares.
THE TERRITORIAL RELATIONS OF CLAXSMEX. 213
Even Lrotliers, wlien they were separated, may liave had
some difference of rituah Thus, each Household had its
separate worship, and, consequently, its separate hearth,
its separate property, and its separate administration of
that property. There were, therefore, in an archaic
township two distinct classes of conditions. These con-
ditions may, in the expressive language of the middle ages,
be described the one as immunity, the other as community.
In the ibrmer case, the House Father was absolutely free
from all external control. So long as his Household
remained, he could Ao what he likeil with his own.
Neither the community as a whole, nor any UK'nilter of it,
had any concern with his domestic affairs. These affairs
belonged to his particular House Spirits, whose will it was
his duty to ascertain and to express. No other pereon,
therefore, ought, or wished, to intermeddle in them. Such
an inteii'erence would have seemed to the archaic mind
something much more serious than a mere unauthorized
intrusion. It would have been an offence to the House Spirit
who was thus approached by stranger liands, and would
have challengetl his just resentment. But outside the
authority of the special House Spirit, mattei-s were changed.
There the authority of the common spirits of the clan began.
The House Father was no longer independent, l)ut was, on the
contrary, Ixjund in every act and in every forbearance l»y
stringent rules frjinicd in the interest of other persons. The
tie between him and them, at least in secular matters, was
the community <»f their land. But this community varied
accttrding to circumstances. 'J'hei-e were always the
community of neighbourhood and the commtniity of joint-
ownershii*. In other wort Is, the clansmen always lived
in the same village, an<l owned collectively the sanu;
tenitory. But the management of that land by the
kinsmen, ami, c(»nsenuently, the conditions <jf their part-
214 COMMUNITY.
nership, varied according to the nature of the property.
Sometimes some portion of the land was required for the
cultivation of cereals, or for meadow lands, or for planta-
tions. Sometimes all these purposes were in demand ;
sometimes none of them. The conditions of production
differed in different soils, and climate, and circumstances ;
and the conditions of the partnership varied accordingly.
But whatever the difference in the details might be, some
kind of partnershijD always existed ; to this extent, at least,
that interests in the common property were not enjoyed
without reference to other proprietors, but could be used
only under precise and rigorous rules.
The L.'iud § 2. It was in this manner, by independent groups of men
as regards United by some personal tie, whether of blood or of religion
' "^ " or of both, and also occupying collectively each its own
portion of land, that entire countries * were originally
inhabited. The names by which we now know the great
European monarchies were once mere geographical
expressions, and did not denote political societies. These
countries were inhabited throughout their whole extent by
a multitude of small independent organized bodies, of which
the boundaries of one ceased when the boundaries of
another began. There was no land, whether it was cul-
tivated or was in its natural state, that was not included
within the boundaries of some community. Of course, each
larger community had its sub-divisions ; and the right to
its OAvn portion of land was guarded by each branch
against other branches of the same clan, as carefully as
the whole territory was protected from the intrusion of
strangers. But the fact that a certain portion of public
* See " Einleitung zur Geschicte der Mark-Hof-Dorf-und Stadt-
Verfassuiig und der oifentlichen Gevs^alt." — Von Georg Ludwig Von.
Maurer. Sect. 3.
THE LAND OF THE CLAN AS REGARDS STRANGERS. 215
land had not been granted to any such sub-division, raised
no presumption of its abandonment. It remained, as before,
a part of the original patrimony of the whole community.
Thus a question was lately raised in India as to the extent
of waste land in that country. The answer* in efi'cct was,
that there was no waste land in India, none at least in the
sense with which we are familiar when we speak of the
waste lands of the Crown. Of uncultivated land there is
aliun< lance ; but, with some trifling exceptions, the entire
country is appropriated and is divided among the diflbrent
village communities. These local bodies, as we should call
them, whether they be communities or clans under chieftains,
are entirely independent. None of them admits any right
of any other to control its conduct. " Eveiy State," Colonel
Tod -f writes of the Rajpiits, "presents the picture of so
many hundred or thousand minute republics without any
connection with each other, giving allegiance and rent to a
prince who neither legislates for them nor even foi-ms a
police for them," What is still true of India, was once
true of the most famous communities of Europe. To
take but a single instance, Mr. Kemble^: in describing
early England, observes that " the country was covered
with a net-work of communities, the principle of whose
being was separation as regarded each other, the most
intimate union as respected the individual members of each."
As to the size of these primary cells of the political or-
ganism, there was nothing even like uniformity. Some of the
old German marks were very large. Others, again, contain
only some liundred, or perliaps some thousand acres.
Mommsen calculates that the original Ager Romanus com-
piT-scd. at the utmost, 1 1 .'> sijuan' miles, that is 7.*?, 000 acres ;
• Sir H. S. Maine, " Vill. Com.," p. IJl.
+ " Hajosthan," vol. i., p. 495.
J "Saxons in England," vol. i., p. 70.
216 COMMUNITY.
but this area included the territories of several cantons.
Mr. Hunter* describes the remote district of Parikud, in
Orissa, as "exhibiting an almost perfect picture of the
primitive Aryan commonwealth. A Raja is at the head,
and exercises unquestioned hereditary control. His domains
extend over 70 square miles, divided into 54 communities of
agriculturists, whose homesteads, 900 in number, cluster
together into villages ; each village having a perfectly
defined extent of land attached to it. In these rural com-
munes the distinctions of caste are rigidly preserved, and
the gods are worshipped according to the ancient rites."
This statement gives a territory of 44,800 acres which forms
the original mark, containing 54 separate and kindred marks.
The average size of each of these smaller marks is about 830
acres, and the average number of houses in each village is
about 17. Such was the Patria of the Romans, the Ethel of
our ancestors, the true Fatherland that held all that was dear
to its sons. How deeply rooted in the popular mind was
this form of society, we may judge from its persistency.
Thucydides describes the grief of the Attic peasants, long
after the political integration of Athens, when they were
forced to abandon their villages, and to take refuge from the
invading Spartans within the walls of the city. The Gas,
or political divisions of England before the consolidation
of the Monarchy, have long ago disappeared, and left
not a trace behind them. But the marks, which were a
natural-}- and not an artificial division, retained their
individuality under every change that has befallen our
race. To this day traces of the old marks may be found
in most of the countries of continental Europe. For India
I will repeat an often cited extract from the writings | of
* "Orissa," vol. i., p. 32.
+ Kemble's " Saxons in England," vol. i., p. 81.
+ Elj)hinstone's ' ' History of India, " p. 64, citing Sir C. Metcalfe.
THE LAND OF THE CLAN AS REGARDS STRANGERS. 217
a great Indian statesman, approved and confirmed by tlie
experience of another not less eminent authority : — " The
village comnumities are little repuhlics, having nearly
everything they can want within themselves, and almost
independent of any foreign relations. They seem to last
where nothing else lasts. Dynasty after dynasty tumbles
down : revolution succeeds to revolution. Hindu, Pathan,
Mogul, Mahratta, Sik, English, arc all masters in turn ; but
the village community remains the same. In times of
trouble they arm and fortify themselves : a hostile army
passes through the country; the village comnumities collect
their cattle within their walls, and let the enemy pass
unprovoked. If plunder and devastation be directed
against themselves, and the force employed be irresistible,
they flee to friendly villages at a distance ; but when the
storm has passed over, they return and resume their occupa-
tions. If a country remain for a series of years the scene
of continued pillage and massacre, so that the villages
cannot be inhabited, the scattered villagei's, nevertheless,
return whenever the power of peaceable possession revives,
A generation may pass away, but the succeeding generation
will ntuni. The sons will take the places of the fathers;
the same site for the village, the same positions for the
houses, the same lands, will be re-occupied by the descen-
dents of those who were driven out when the village was
depopulated : and it is not a trilling matter which will
drive them out, for they will often maintain their post
through times of ilisturbance and convulsion, and ac(juire
strength sufficient to resist pillage and oppression with
success."
v^ .*{. As between meiiil'ers of the same clan, land was xho Kind
held not as each man thought fit to occupy it, but according j^ ijctwceu
to certain deliuite rules. Hut, in the <listnbution of its ''"'''"<=°«
218 COMMUNITY.
land, the clan did not deal directly with the individual or
even with the Household. If there were a people, that is, a
combination of several clans, each clan received its grant.
If there were merely a single clan, it made its grants to its
several sub-clans. The latter bodies dealt with their
respective households. Thus the land of the whole com-
munity was divided into portions of suitable size ; and
these portions were assigned to the several branches, sub-
clans, or villages. This assignment was, according to the
ancient practice, regarded as temporary; and a redistribution
of lands took place at certain intervals, with the object of
establishing equality in their respective shares. Each
village, upon the assignment to it of its share, proceeded to
distribute its proper share to every Household, according to
its rank. The chief received the largest share ; the clans-
man who was perfect in his generations received more than
the ordinary freeman. Such was the mode in which, in
Caesar's* time, their lands were distributed, gentihus
cognationihusque, to the Cyns and the M?egs of the
•Germans. Such was the modei* in which the first settlers
in New England organized themselves. Such, at this day,
is the mode in which the Afghan clans j distribute and
redistribute their lands.
A well known passage of Tacitus, § which has given rise
to much controversy, thus finds its explanation. Writing
of the early Germans, the historian says — " Agri pro
numero cultorum ab universis in vicos occupantur, quos
mox inter se secundum dignationem partiuntur. Facilitatem
partiendi camporum spatia prtiebent. Arva per annos
mutant ; et superest ager." For the words " in vicos,"
* ' DeBell. Gall.," vi. 22.
t Sir H. S. Maine, "Vill. Com., "p. 201. Merivale's "Colonization," p. 96.
+ Elphinstone's "Caubul," vol. ii., p. 15.
§ "Germania," c. 20.
THE LAND OF THE CLAN A8 BETWEEN CLANSMEN. 211)
some editions read " in vices." On critical grounds this
lection is ol)jectionabIe.* According to the text above
given, the passage seems to suggest some impoiiant infer-
ences. In the lii"st place, the occupation of the land was
collective, ab univo'sis — that is, the whole land was the
property of the entire community. Secondly, the land
was occupied in vicos, so as to form villages — that is,
as Ciijsar tells us, by Cyns and Miegs. Thirdly, the
quantity of land granted to each Mieg was propor-
tioned to the number of households which that Mjeg
contained. Fourthly, after the grant had been made
(max), the Cyn or Mieg which had received it proceeded to
distribute it amonir its households, according to their
recognized Gentile rank. Fifthly, the great extent of
available land gave facilities for distribution. Thus the
Miegs are able to take up new ground for cultivation every
year, and still the connnunity has land to spare.
The actual use of the land by the householders of each
Miug was regulated by definite u.sages. These u.sages may
be briefly stated. The whole land was divided into three
parts — town lands, arable lands, and pasture lands. To
the.se was, in some cases, atMcd a fourth division — uanifly,
meadow lands. Within the limits of the town or village
all the kinsmen dwelt. Each habitation was separated,
and was s»inoun<le<l l>y its own enclosure. Each Household
had, in absolute property, its own hearth, and the area
that was reijuisite for its dwelling and its yard. It was
further entitled to its due share of the arable land of the
community, as the usages of the clan might from time to
time determine. It was also entitled to its .slmre of the
gi'ass and other natural products of the pasture lands.
Thus, to use the language of our own legal system, every
• See Hitter's Note ad locum.
220 COMMUNITY.
House Father held his house and garden in fee ; was
entitled, subject to certain reservations, to a lease renewable
for ever — for one, three, or four years, as the case might be,
of a shifting portion of the arable land; and was also
entitled to certain rights of common appurtenant, and other
similar rights in the waste land of the community.
These various rights, and the duties that they imply,
were regarded as forming parts of a whole. Each light
depended upon the other. It was not that one man had a
right to a house and yard, another to a share in the
cultivated land, and a third to a given amount of grazing.
But the owner of the house, or, rather, the family of which
he was for the time being the organ, was entitled to a
definite share in each part of the common property. That
share was called icXrjpoc, or sors, or loos, or ethel, or alod —
terms which always indicate an aggregate of rights and
duties in regard to the patrimony. This aggregate the
Northmen called Tompt, or, as we retain the word, Toft,
and the Germans, among many other names, Pfiug. What-
ever variety of names may have been used, the fact itself
is clear. There is an old maxim of Germanic law* which
declares that " the tompt is the mother of the field." The
house determines the share of the field; the field deter-
mines the share of the pasture ; the pasture determines the
share of the forest ; the forest determines the share of the
rushes to thatch the roof ; and the rushes determine the
share of the water for the nets. In old documents,"!* separate
mansi, in different villages, each with its proper accessory
rights, are expressly declared to be resTpeciWeljanintegritas
or independent whole. It is certain that the two jiigera, the
customary allotment of the Romans, although somewhat
larger than the courts of the Teutonic dwellings, were by
* Grimm, "Deutsche Eechts Alterthumer," p. 539.
+ Von Maurer's " Einleituiig," sect. 57.
THE LAND OF THP] CLAN AS BETWEEN CLANSMEN. 221
themselves insufficient* to maintain a Householtl. It Is
only on the assumption that this allotment was the repre-
sentative of other sul jsidiary rights that we can regard the
statements of the Roman historians as cominfj within the
limits of physical possibility. Our o^\ti law,-f- too, preserves,
in the doctrines of common appurtenant and common ^^lu*
vicincuje, some curious relics of this mutual dependence of
rights. In the former case, the right of the commoner to
depasture his stock in the summer was limited by the
number of stock that he could maintain during: winter, a
number which was necessarily regulated by the extent of
his farm buildings and the produce of his cultivated land.
The latter form is substantially the result of commonable
rights over lands for certain purposes held as separate
property. But the law carefully distinguished between
rights of common of pasture which arise out of some other
holding and ai'e incident thereto, and rights of pasture in
gross which result from an ordinaiy agreement between
parties in respect to grazing.
Jlj 4. The town was simply a collection of houses, and not TheTown-
in ail}' way a coi-porate Vjody or independent existence. Houses.
It was not the l»asis of the community, but merely that
portion of tlui clan's land which was used for purposes of
residence. In addition to the several houses and their
respective gardens, it contained lines of streets giving access
to the varicnis dwellings. It contained also a public space
in which meetings were held, and public business transacted.
It was surrounded by a wall, or a hedge, or some similar
enclosure. Within it, oi* near to it, was the stronghold, a
place more or less fortified, in which the inhabitants might
find slieltcr in time of need. Sometimes, thou'di not as it
* Momni8cn, "Hist. Rome," vol. i., p. 104, note.
t See Cruise's " Digest," Title xxiii.
222 COMMUNITY.
seems necessarily, the sacred places of the clan were within
this fortress. The houses stood each in its separate enclosure.
No buildings were erected with party walls. No person was
even allowed to build or to cultivate up to the very edge of
his land, but a space* of at least two feet was left for eaves-
drip, or, as the Twelve Tables call it, Ambitus. In later times,
however, when towns, in the modern sense of the term,
grew up, and space under the pressure of population became
valuable, this rule seems to have been relaxed. Each
enclosure had, like the village, its separate hedge or other
fence. The Greek classical writers call this enclosure 'ipizoQ.
The same word occurs in Roman authors, under the form
herctiim, and with the like meaning. Tacitus notes the exist-
ence of the custom among the Germans, who called the space
surrounding the house hof or curt. Among the Northmen
it was known as the toft ; in the Brehon laws, where it is
the subject of much minute legislation, it is styled Maighin.
In Russia it still exists as Isha. In India the same
phenomenon also survives, with an additional peculiarity. In
that country not only the precinct, and its inviolability,
continue, but also an extraordinary secrecy of domestic life, a
secrecy which is said to be maintained even by people in very
humlile circumstances, and in conditions of the utmost
difficulty. It is probable, as Sir Henry Maine -f- observes,
that this custom of secrecy will explain much that seems
strange to us in primitive society. But it receives its own
explanation in that separate character of the Household
worship to which I have already adverted. Everything
done in the house or its precinct was private because it
was holy : and it was holy because it was under the care of
its own especial House Spirit.
There is little room for doubt that the sanctity which,
* See Kemble's " Saxons," vol. i., p. 45.
+ " Village Communities," p. 115.
THE T0\VXSHIP AND ITS HOUSES. 223
as I have shown, belonged to the hearth, extended to the
enclosure within which that hearth was erected. The House
Spirits that guarded the one guarded also the other. The
Greek poets speak of the Upoy 'ipKog, the same epithet
(qualifying the enclosure which is connnonly used to qualify
the hearth, whether domestic or puljlic. So that when the
authority of Zeus was adopted among the ordinary house-
hold gods, ZevQ tpvttoc took his place alongside of
Zevc tfitTTtoc. The Greek writers translate the Latin term
Penates by fp^aot. I liave already observed that Jupiter
Herceus, of whom Ovid and Lucan write, was called
by the Romans, Jupiter Penetralis. If, then, the enclo-
sure were holy, that is, were under the protection of
the Lares, it might be expected that the house and its
precinct were descendible according to the rules which
determine the succession of the House Father. This
expectation is fully realized. " In horto herediwni "
was tlie Roman maxim. I have already noticed the
stiict rules of inheritance in nearly all the Aryan nations.
I have also said that the inheritance included the collection
of rights of whatever kind arising out of the land, that the
clansman enjoyed. It was not merely that the hortus
de.scendcMl to the clan ; but all the jar(f in re, or
interests in and upon the common land, ran with the
hoi'tus, and were enjoyed by its owner.
§ '). I have said that, so far as related to his house and its The Amble
Land,
enclosure, the House Father was al)solutely independent.
His actions, even those which would now come under
the cognizance of the State, were subject to no control.
Like the Cyclopes of the poet, he there laid down the
law to his wife and his children, ami cared not for other men,
as other men cared not for him. Hut outside the charmed
circle his position was very different. In every single
224 COMMUNITY.
act he was bound to care, and to care very much, for other
men. These others, in their turn, took a very lively interest in
his proceedings. He was no longer at liberty to do what
he liked with his own. On the contrary, it was his duty to
do with it what the custom of the community required.
He held certain rights in the arable mark — that is, in the
agricultural reserve of the community ; but both these
rights, and the modes of his enjoyment of them, were strictly
defined. Out of the public land a certain portion was
set apart for purposes of cultivation. This portion
was divided, somewhat like shares in a company, among
all the households of the village. The size of these
reserves, and of the allotments into which they were
divided, varied in different places. The rules of cultiva-
tion in like manner varied according to local requirements,
but in each community they were uniform.
The allotments were held subject to an elaborate code of
minute regulations, of which the object* was to secure
uniformity of cultivation among the several proprietors.
Thus, among the Teutonic tribes, the arable mark was
divided into three fields. Of these fields, one was left
fallow, one was used for wheat, and one for some spring
crop ; but the whole of each field was, at the same time,
either left fallow, or cultivated with the same kind of crop.
In these circumstances, the lot of each household was divided
into three parts — one for each field. Each of these parts
was, from the nature of the case, at some distance from the
other parts, and never formed one consolidated property.
These allotments were granted for agricultural purposes, and
for none other. Consequently, when the crop was removed,
the rights of the commoners to the use of the soil revived.
After a given day, the temporary fences were removed, and
* Sir H. S. Maiue's " Vill. Com.," j). 109.
THE ARABLE LAND. 225
the cattle of all the clansmen* were allowed to depasture on
the stubble. On the fallow field, on the baulks of land
dividing the fields, and on the meadow lands after the hay
harvest, the right of common pasture in like manner
prevailed.
If it be asked how the original distribution of the arable
mark was determined, the answer must be that it was
settled at the first formation of the community. If the
community were in the nature of a colony, or of the settle-
ment of a branch or sub-clan, its portion was assigned to it
by the formal act by which the colony was established or
the branch was endowed. If it were an original settlement,
the land was " roped out" by the elders or the chief, as the
case might be, with reference, doulitless, to some custom
which existed, or was assumed to exist, amonfj the settlers,
or was simply assigned by lot. Sir Henry Maine -j- describes
the curious growtli of what was practically new legislation
in Indian villages, where the village authorities have been
compelled to develop imaginary customs for the novel
business of retailing water supplied to the community by
the State, just as English judges were forced to apply the
rules of the Common Law to the modein exigencies of
railways or of insurance. In no circumstances, however,
• "The fields of arable land in this county (Xorfolk) consist of the lands of
many and divers several iK-'raons lying intermixed in many and several small
[tarccls, so that it is not possihlo that any f)f them, witliout trespass to the
others, can feed tlieir cattle in their own lan<l ; and, therefore, every one
tloth put in their cattle to feed ]>r(>ini«ciie in the open field. These words,
* to go sliack,' are as much as to nay, 'to go at lil)erty,' or 'to go at
large,' in which tlie feeling of old times is to he observed, that the severance
of fields in such small parcels to so many several i>ersons wjis to avoid
enclosure and to maintain tillage. . . . Noln. — A good resolution, which
Btands with reason . . . which I thought fit to Imj reported, because it
is a general case in the said county ; and, at first, the court was altogether
ignorant of tlic nature of this common called 'sliack.'" — .SVr MIUh VorbcVs
C'nxf, 7 Reports, 5«.
t " Vill. Com.,'" p. 110.
16
226 COMMUNITY.
do the duties and the rights of these joint purchasers of
water depend, directly or indirectly, upon mutual agreement.
" Authority, custom or chance," Sir Henry Maine well
observes,* " are, in fact, the great sources of law in primitive
communities, as we know them, and not contract." If we
may rely upon the evidence of language, chance has been
the prevailing power among the three great races of Western
Europe. Certainly, such words as KXijpoQ, sors, loos — all
indicating primarily lot, and, secondarily, a portion of
freehold land with its accompanying rights — point in that
direction. But whatever may have been its title, the
partition, when once it had been made, remained constant.
The original number of lots continued unaltered, notwith-
standing any changes that time may have made in their
holders. Thus, in the Punjab, where the village is said"f- to
exist in its strongest and most complete form, every villager
has his share, which is generally expressed in plough lands.
A plough land is not a uniform quantity of land, but a share
in the particular village. There may be 64, or 128, or any
other number of shares ; one man has two ploughs, anothcj'
a plough and a half, another half a plough, and each holds
land representing his share.
Early in the present century, in Friesland, in the baili-
wick of Norden and Bertum, land customs were still observed,
which take us far back in the history of our race. I cite at
length the following passage]: from the pen, it is said, of the
late Sir Francis Palgrave, because it illustrates not only
my pre ent subject, but also other matters which are
discussed in these pages. " The land is considered as being
divided into portions or TJieels,^ each containing a stated
* "Vill. Com.,"p. 110.
t Sir George Campbell, " Cobclen Club Essays," vol i., p. 156.
J "Ed. Rev.," vol. xxxii., p. 10.
§ " Frciin the Frisick Tcllan, Eng. to till.''''
THE ARABLE LAND. 227
<iuantity : the owners are calleil Tlieel-men, or Theel-boors ;
but no Theel-boor can hold more than one theel in severalty.
The undivided or common land, comprising the theels not
held by individuals, belongs to all the inhabitants of the
Theel-land, and is cultivated or farmed out on their joint
account. The Theel-boor cannot sell his hereditary theel,
or alienate it in any way, even to his nearest relations. On
his death, it descends to his youngest son. If there are no
sons, it descends to the youngest daughter under the restric-
tions after mentioned ; and in default of issue, it reverts to
the commonalty. But elder sons are not left destitute.
When they are old enough to keep house, a theel is assigned
to each of them, be they ever so many, out of the common
lands, to be held to them and their issue, according to the
customary tenure. If a woman who has inherited a theel
becomes the wife of a Theel-boor, who is already in possession
of a theel, then her land reverts to the connnonalty, as in
case of death without issue."
5;j (j. I have said that the main bon«l of union among the The Wa^te
clansmen, so far as their pi-operty was concerned, was neither ^
mere neighbourhood nor the unifonn system of tillage, but
the joint ownership and occupation of their territory.
Althougli of late yeai-s scholars have given to the history
of the arable mark an almost exclusive attention,
yet in many places where pasture and not tillage
was re(|uired, no eoiiiimuiity of cultivation existed; and
even among cultivating comnmnitii's the waste land seems
to have played no inconsiderable part in their development.
From what I have already said, it follows, first, that none
but members of the kin were entitled to d(ri\f any adva)i-
tage from the use of the ptiblie ten'itoiy ; and, second, that
the extent of any individual interest therein depende<l
upon the gi'ant of the whole connnunity. The fii-st pro-
228 COMMUNITY.
position, indeed, may be somewhat modified. In those
cases where the land had been acquired by conquest, there
were generally some remains of the conquered population
who retained more or less interest in the lands that were
once their own. But as between the conquerors themselves,
it was the clansmen, and the clansmen only, who were
entitled to derive any advantage from the land that the
clan had acquired. The outsiders, the men who lived with
the clan but who were not of the clan, were no part of the
folk, and had no share in the folcland. No services
rendered, no participation in the common danger, no
endurance of the burthen and heat of the day, could create
in an outsider any colour of right. Nothing short of
admission to the clan, and of initiation in its worship,
could enable him to demand as of right the grass of a
single cow, or the wood for a single fire. He was per-
mitted to reside among the clan, and that was all. What-
ever advantages he derived from that residence were
matters of grace, and were neither rights nor the foundation
of rights. We may perhaps deri^'e some assistance in
forming an idea of this system, which exercised so great an
influence in the early world, from the curious survival of
it which is at this day found* in Switzerland. In that
country every commune has its separate property, and
declines to admit any stranger to a share in its privileges
without due consideration. Every commune, therefore,
charges an entrance fee. Many communes have regular
tariffs, adjusted according to market rates. Of late 3'ears,
a party has arisen which seeks to remove these internal
distinctions, and to allow a Switzer free right of settlement
in any part of Switzerland. But this innovation is far
from popular. " Vaud's communal revenues are vast, and
* Mr. Dixon's "Switzers," p. 7-4, et seq.
THE WASTE LAND. 229
she imagines that revision will compel her to admit the
Bernese settlers, who are very numerous in her hamlets,
to a share in all these village gifts."
Among those persons who were entitled to the use of the
public land, there seem to have been three principal modes
of enjoyment. The land was occupied in common, subject,
of course, to regulations for its reasonable use ; or it was
gi'anted to some individual or some community in absolute
property ; or it was so granted during a term for purposes
more or less restricted. The first mode was the general
rule, to which special grants to individuals were the
exception. Every householder* had, by virtue of his
position, the right to depasture upon the public lands —
subject, as I have said, to what may be called the close
season of tillage or of meadows — a certain number of
cattle, probabl}'' as many as he could otherwise maintain
duiincr the winter. These cattle fed togfether, according; to
their kind, each under the charge of a common herdsman.
Every householder was entitled to use the connnon ways,
and to cut wood in the public forest. He had, in like
manner, the right of fishing in the public waters, and of
hunting and of fowling over the public land. All these
rights belonged as of course to every clansman, without
any grant, and were, as I have said, appurtenant to his
town lot.
It is probabh' that, in cases of conquest, allotments of
arable land were assignoil in absolute property to the
con(|ueroi"s and their heirs, and that the size of these grants
was proportioned to the rank of the gi-antee. In time of
peace, however, public services were sometimes rewarded
by a special grant of ]nd)lic land. In Greece, such a grant
was called riynyot. The Ttfjieyoc occurs in Latin under the
• Von Maurcr's " Einleitung," sections G7, dS.
230 COMMUNITY.
form templum , a word, however, which was soon specialized.
In Germany we meet with tlie significant terms Sondergut
and Soiider-cigen, denoting arable land or forest or hof
cut ofl' from the public land, and carved into a separate
and individual property. In England, where such lands
were more frequent than on the Continent, they were
called " Boc-land," or land conveyed by special grant, and
not held under the ordinary custom. They seem to have
originated in grants made to the Church ; but the practice
was afterwards extended to lay grantees, and especially,
after the power of the Crown had become developed, to
the Royal Thanes. Their devolution was determined
either by the form of the grant or by the declaration of
the original grantee ; and, if he so desired, they might be
subject to a kind of perpetual entail. The reason of admitting
such a perpetuity was probably the desire to follow the
analogy of the Ethel or primitive allotment. Boc-land
was, from the nature of the case, a " conquest " or private
acquisition, and so did not come within the rules which
regulated the "heredifas aviatica," or family estate. But
the analogy of that estate was readily applied to it, and the
character once impressed could not by any subsequent
process be effaced. When, however, the grant was made by
the king alone, without the action of his great council, under
whatever name that council was known, grave doubts seem
to have been entertained for many centuries as to the legal
effect of such a grant as regarded either the heirs of the
grantee or the successor of the king. The opinion seems to
have long lingered that the heir succeeded only by the
assent of the grantor, and that a new king was not neces-
sarily bound by the grants of his predecessor, and might
consequently revoke them at his discretion.
A method, more usual than that of Boc-land, of creating
separate interests in the waste lands was by way of tenanc}-.
THE WASTE LAXD. 231
The land still remained public property, but was occupied,
with the consent of the community, by some kinsman, with
or without some compensation in the form of service or rent.
The tenure of such an occupier was, as regards the com-
munity, a mere tenancy at will ; but as regards other
persons, amounted to the full rights of ownership. Such
was the i^ossessio of the Roman law, a principle which had
its origin in the PuhliciiK Ager, first of Rome, then of Italy ;
and which, when the doctrine of the Puhlicus Ager was
extended to the Provinces, became the basis of the law of
Real Property in the greater part of Europe. The Teutonic
tribes* seem to have followed a similar practice in their
" gewere," a term which denoted the protection given by the
community to the tenant of public land in respect of his
tenancy. Such a tenancy was probably temporary in its
origin ; but, by a development that is almost inevital>Ie,
it gi'ew in course of time into a hereditary right.
* Von Maurer's " Einleitung," sec. 44.
with Com-
munes.
CHAPTEK X.
IMMUNITY.
Indepen- § L I liave hitherto described the association of freemen
House- whose rank was equal, or but slightly different, and who
existed " lived together upon terms of equality. Outside this
association there were two other forms of society. There
was the Household, considered as a corporate body, without
any relation to other Households. There were the relation
of the Household to its inferiors, and the mutual relations of
these inferiors arising from their common subordination.
This independent position of the Household may be called
Immunity, as opposed to the Community. It implies the
possession of property, both real and personal, held by
separate right, and without either the benefits or the
burthens arising from association. In such circumstances,
relations, unmodified by external control, necessarily arose
between the House Father and his unfree dependents.
These dependents might be relatives for whom, by the
custom of his clan, he was bound to provide ; or might be
friends who lived in his house on terms of acknowledged
intimacy ; or might be settled as an inferior class in their
own dwellings upon his land.
I do not think it can be successfully maintained, although
at fii'st sight the theory is very alluring, either that private
property was evolved from communal rights, or that the
modern king was a development of the Fiirst or Aldei-
man. That for the most part the immunity gradually
INDEPENDENT HOUSEHOLDS. 233
superseded the community is certain. But I think that
this result followed rather from the survival of the fittest,
than from any natural process of evolution. The
' Gasindschaf t,' in my opinion, arose spontaneously, side
by side with the ' Gemeinde.' Its development was later ;
but gradually it absorbed the older and at one time more
important form. The two organisms were closely con-
nected. The one was the Household itself, under conditions
favom-able to its growth. The other was the development
of the relations between several associated Households. It
was by the advantages derived from this association, that,
in many cases, the development of the independent House-
hold became possible.
The clan, as I understand the matter, assumed one of two
forms. Either the Household from which it sprung kept
together, or it dispersed. In tlie latter case, the result was
a community such as in the last chapter I described : in
the former case, the result was a chieftaincy. The type of
the chieftaincy was thus, of necessity, the Household ; and its
standard of rank was the nearness of kin to the chief.
Like the House Father, the chief had the management of
the corporate property. Like the House Father, he held
the property, not for his exclasive use, but for the benefit
of the entire body. Important practical consequences
in the history of the society followed from this original
difference in form. Sometimes the two systems, to some
extent, co-exist even in the same society. There may be
chieftaincies in the sub-clans, while the headship of the
clan is in abeyance. The clans may assume the form of
communities, and yet may combine in their devotion to a
single chief. Of tlie former case, Mr. Lyall* mentions an
example in Rajpvitana. There the eldest branch of the
* " Edin. Review, ' vol. cxliv., p. 195.
234 IMMUNITY.
great Ratliore clan has sometimes assumed the form of a
commmiity — or, rather, of a number of households more or
less loosely connected. It has thus failed to retain its
natural headship, or even to grow into a separate power.
The only use that these Rajput Legitimists make of their
birthright is to decline all obedience to a younger branch of
the clan, the Raja of Jodhpoor, who is now the acknow-
ledged political head of the Rathores. Of the opposite form,
a form much more consistent with political advancement,
the most remarkable example is Russia. In that countr}',
as I have said, the type of society is the village
community, or, as we might call it, the democratic clan.
But every clan, and every member of every clan, whatever
may be their equality among themselves, recognizes, without
a limitation and without a murmur, the Patria Potestas of
the Tsar.
Assuming the existence of an immunity — that is, of a
Household, either wholly or in part, not included in any
commune — it is not difficult, when it assumes any degree of
importance, to predict either its character or its conditions.
Its possessions must, in such a state of society as we are
now supposing, consist in a rude plenty rather than wealth.
In the absence of any disturbing influence, this state implies
a number of persons who will consume that plenty, and
sympathize with and assist the person who bestows it.
Those persons will be in the hand of the House Father —
that is, they will owe him allegiance and be subject to his
authority. If they had previously been members of a com-
mune, or of other households, they will abandon that position
as involving rights and duties inconsistent with their present
relation. But there is a second consideration. Whence does
this plenty arise ? Cattle must be tended, and fields must be
cultivated. Abundance, at least in temperate climates,
means labour ; and labour is not usually agreeable to the
INDEPENDENT HOUSEHOLDS. 235
class of men who live at other men's expense. There is no
reason to suppose that the Gesiths in any Aryan people
were an exception to this rule. There must, therefore, have
been, under some form, a labouring population, who, upon
whatever terais, supplied the wants of the House Father
and his friends. I have, thus, after I have traced the rise
of the immunity, to consider — but only so far as the
inniiediate subject is concerned — first, the position of the
free-born retainers ; secondly, the sources of the inferior
population ; and, thirdly, the relation of that population to
their respective superiors, especially with reference to the
tenure of land.
§ 2. The structure of the commune affords little room Distinc-
for progi-ess. The limits of its growth were soon attained ; tween in-
and its powers were expended, not in its owm increase, but and Acqui-
in the work of reproduction. When in a connnune the ''^ ^°'^'
pressure of population is felt, if there be vacant territory,
the people fonii new communes ad Injimtum. If there
be any other availal)le outlet, they seek their fortunes in
that direction. If there Ije neitlier land nor outlet, popula-
tion adapts itself to the exigencies of the case. The death
rate increases, ami the birth rate diminishes, until
e(iuilil)rium is restored between the mouths and the means
of feeding them. But, although the constitution of a com-
mune is not favourable to any gi-eat increase of wealth, it
generally provides means of escape from its restrictions.
Under its slielter tlie infancy of industry is nurtured ; but
when the plant lias taken root, it must be speedily planted
out into some freer soil. It is not worth while to examine
the causes which render one household in a comnumity a
little richer than another. The true point of interest is
the method by wliich escape has become possible from the
restrictions both of tlie Household and of the clan. This
236 IMMUNITY.
method consisted in the recognition of the difference
between things* patrimonial and things not patrimonial —
in other words, between inheritances and acquisitions.
At an early period of communal history, if not from its
commencement, a distinction was drawn between property
included in the partnership or directly derived from its
funds, and pi-operty acquired by a partner in some separate
operation. The property of the corporation, or the natural
proceeds of that property, whatever may have been the
purpose for which the association was formed, belonged, as
I have said, to the corporation ; but property otherwise
acquired was at the disposition of the individual who
owned it. If, indeed, the property were acquired by the
exercise of the calling which was the ordinary business of
the corporation, that property formed part of the inherit-
ance ; but if it were acquired in any other manner, the
corporation had no claim upon it, except in the way of
ultimate remainder. I shall now state the evidence as to
the universality of this distinction — a distinction which,
like several others that I have noticed, has an importance
in the history of law far beyond that which in these pages
I have attempted to trace.
Menu,-f- in reference to the Joint Undivided Family, says
— " What a brother has acquired by labour or skill, without
using the patrimony, he shall not give up without his
assent ; for it was gained by his own exertion. And if a
son, by his own efforts, recover a debt which could not be
recovered before by his father, he shall not, unless by his
free will, put it into parcenary with his brethren, since in
fact it was acquired by himself." In a case where a
dispute had arisen respecting the gains of a dancing-girl,
* "Res vel in nostro patrimonio sunt vel extra nostrum patrinionium
habentur." — Gaius, ii., 1.
t ix., 208.
INHERITANCE AND ACQUISITION. 237
the High Court of Madras* recently decided that " the
ordinary gains of skill belong to the family, when this skill
has been imparted at the family expense, and -while
receiving a family maintenance. But the case is otherwise
where the skill has been imparted at the expense of others,
not members of the learner's family."
In the Odyssee, we find Laertes in the possession of an
estate which he had aci quired by the produce of his own
exertions,"!* antl which seems to be distinct both from the
ordinary share of a member of a community, and from the
special estate attached to the Crown. In Sparta:]: it was
discreditable to sell any land, but the sale of the ancient
lot was illegal — a distinction equivalent to that between
the Terra Alodls and the Terra Comparata of the Franks.
The most notable illustration of this subject in any Grecian
city is foimd at Athens, under the legislation of Solon.
Plutarch § tells us that the great Athenian lawgiver
acquired reputation by reason of his law respecting wills.
" For, fonnerly, it was not lawful to make a will, but the
jjoods and the house mast remain in the ijens of the
deceased person ; but he (i.e., Solon) permitted a man, if he
had not children, to leave his property to whomsoever he
wished, and thus honoured friendship more than kinship,
and favour more than oldiijation ; and made the jjoodsli to
l)e the acquisitions of their holders." In other words, he
enabled the heads of houses to deal with their hereditary
property as they would havo done if that property had
been acquired ]>y tlu'ir own labour or their own capital.
Thus alienation was facilitated, since the consents pre-
* See Sir H. S. Maine's " Early History of Institutions," \>. 110.
t See Mr. filadstone's "Homer and Homeric Age," vol. iii., p. .">!).
J (Irotc's " Hist, of (Jrccce," vol. ii., p. b'td.
§ "Solon," c. 21.
238 IMMUNITY.
viously required were no longer necessary, and the power
of testation in its modern sense became possible.
At Rome, the operation of this distinction was felt in
the limitation, or rather the evasion, of the paternal power.
The person in manu* whether he were son or slave, could
neither own nor possess anything in his own right. What-
ever he acquired, he acquired for his Hovise Father. If
property were bequeathed to him, his acceptance of it
depended upon the direction of his House Father. If he
did accept, his possession was held to be for the use of his
House Father. All the produce of his own labour in like
manner went to the same ever present authority. Thus
the acquisition of separate property by the son was, at
least in ordinary circumstances, impossible. His House
Father might allow him to use certain property, which
was termed his pecidiuiin ; but of this the son had
merely the administration. The ownership, and even the
possession,"!- were in the House Father. But there was one
direction in which the authority of the House Father did
not operate. That authority arose jivve privato ; but out-
side the House, and in the service of the State, the son was
piMici juris, and was then on an equality with his father.
What the son acquired in war was not the result of any
capital or skill that belonged to the Household. Besides,
booty was the property not of the captor but of the State ;
and the son's share of it was given by the State to him, as
one of its citizens, in consideration of services rendered by
him in the performance of a public duty. Accordingly it was
held that, so far as i-egarded his jyecitUarn cast reuse — that is
the property he had acquired in war, a Films familias was
to be regarded as though he then were a Fate)' familias.
By a well known hction of law, this principle was gradually
* "Gains," ii., 87.
+ 10., iv., 148.
INHERITANCE AND ACQUISITION. 239
extended. In the case of certain civil offices and liberal
professions, the ^^ecfth'iM??, was said to be quasi-cast reuse —
that is, it was dealt with as it would have been dealt with
if it had been acquired by a soldier in war. Justinian*
legislated directly in the case of property that came to the
son by bequest or other similar means. This property was
called l^ecidmni advent if i am, Sind was distinguished from
2)eculium lyrofectitium, or property derived from the gift
or consent of the House Father. In regard to the latter,
the old law remained unaltered. In regard to the former,
an estate for life was given to the House Father, but the
son had a vested remainder.
With respect to the Teutonic races, it is sufficient to
observe that Sir H. S. Maine "f considers that it is among
them that the most extensive use of this classification of
property has been made. In England, the laws J of Henry 1.
provide — " Let the eldest son succeed to his father's fee :
his purchase, and all that he may have acquired, let the
father bequeath to whom he will." In the assizes of
Jeinisalem, and in the old customary law of France, the
same distinction prevails. Tlie provisions of the Brehon
law are strikingly similar. The oldest rule on the subject
in that law appears to be expressed in the words — " The
proper duties of one towards the tribe are, that when he has
not bought he should not sell." Various modifications of
this rule were at different times introduced, mainly in favour
of the Church. It recognizes, however, the two principles,
that the acquisitions might, and the inheritance might not,
be sold. " As to acquired property," says the learned editor.ij
" a distinction was drawn between the case in M'hich the
• "Tn.st.," ii. <», 1.
t "Ancient Law," p. 2S1.
: Ixx., 21.
§ "Ancient Laws nf Iiclaml," voL iii., ji. Ixiv.
240 IMMUNITY.
means of acquiring additional property arose from the
industry of the owner, and the produce of the land in the
ordinary course of husbandry, the power of alienation
naturally being greater in the former than in the latter
case. Property acquired by the exercise of an art or trade
was placed in almost the same position as property the
result of agriculture — two-thirds of it were alienable ; but
in a state of society in which the exercise of particular arts
and professions were caste privileges, the profits of any such
social monopoly were naturally distinguished from those
acquired solely by individual ability ; and, therefore, the
emoluments accruing to any man by the exercise of ' the
lawful profession of his tribe,' were subject to the same
rio-hts, for the benefit of the tribe to which he belono-ed, as
ordinary tribe land."
The evidence which the Slavic nations give us on this
subject is very instructive. With them the rule of the
freedom of acquests has been less strictly observed than in
other European countries, and with them, accordingly,
the community continues in its fullest vigour. I do not
mean that the rule is unknown to the Slavs. The contrary,
indeed, is stated * on good authority. But the application,
at least, of the rule has been strict, and the consequences of
this strictness are very striking. The villagers argued, and
not unreasonably, that a son of the village, who had left
home with the consent of the village, and had been educated
at its expense, ought not exclusively to profit by oppor-
tunities which, without the aid of the village, he could
never have enjoyed, or could never have turned to account.
It is, therefore, the established custom that, if any villager
becomes prosperous abroad, the profits of his industry
belong to the village. Further, where a particulai- foim of
* See Mommsen, "History of Eome," vol. i., p. 75.
INHERITANCE AND ACQUISITION. 241
industry is establislied in a village, all orders obtained
abroad by any villager are held to be orders not for himself
but for his village, and the execution of them is distributed
among the villagers by common consent. From this system
two remarkable consequences have followed. One is, that
a peasant who emigrates from his village to a city must
account to the village for his earnings, or must pay to it
a rent for his own labour and his own skill. The other is,
that in Russia the ordinary process of the division of
employments has adapted itself to the requirements of the
form of society there existing, and has taken place, not
individually, but by villages. Hence arises the explanation
of that singular economic phenomenon — the existence of
entire villages engaged exclusively in a single occupation.
There are villaofes in Russia * in which the inhabitants
make nothing but boots. There are others in which they
are all smiths, or are all curiiers. In others, again, they
make exclusively tables and chairs, and in others
earthenware. In one particular village all the inhabi-
tants are employed in training birds, and in the bird
trade. Some prosperous connnunities follow the lucrative
occupation of begging. That is, where an Englishman
follows, for his own advantage and at his own risk, a
certain trade, that trade is in Russia carried on by
an entire community. These trading villages arc not
assemblages of artisans that have become integrated, and
simulate the form of a community. They are ordinary
communities in which a particular industry is carried
on in common. " T]\v associations," says Baron von
Haxthausen.f " are (jpcn to all, and the members are
united only by the bonds of comimuial life' lliey are not
artisans who are associates, but a.ssociates who have become
* Haxtliausen's "Ku.s.siaii iMnpiri-," vol. i,, pp. Hi, Sfi, 141, l.")4, lOO.
t Il>., p. l.')4.
17
242 IMMUNITY.
artisans. Their trade is not the foundation of their union,
but merely one of its effects. Among the Southern Slavs,
the same rule, although perhaps not to the same extent,
appears to operate. " In Montenegro," writes Sir H. S.
Maine,* " the dominant notion is that, as the community is
liable for the delinquencies of its members, it is entitled
to receive all the produce of their labour ; and thus the
fundamental rule of these communities, as of the Hindu
joint families, is, that a member woiking or trading at a
distance from the seat of the brotherhood ought to
account to it for his prohts. But, as in India, all sorts
of exceptions to this rule tend to grow up ; the most
ancient, and most widely accepted, appearing to be, that
property acquired by extremely dangerous adventure
belongs independently to the adventurer. Thus, even in
Montenegro, spoil of war is retained by the taker ; and on
the Adriatic coast, the profits of distant maritime trade
have, from time immemorial, been reserved to sea-faring
members of their brotherhoods."
The Extra- S 3. When, from any cause, a family was established on
communal "^ *^ ...
House- its own property apart from a community, if it possessed
sufficient coherence, its development might assume a non-
communal form. It might prosper so as to become a
considerable body ; and yet the relations of its members
among themselves would, for a long time, be different ;
and might, by proper means, be kept different from the
relations which existed among members of separate but
associated Households. The property of the single House-
hold would, of course, be vested in its chief for the time
being ; subject, however, to certain trusts for the benefit of
his relatives. These relatives were those who formed his
* "The Nineteenth Century," vol. ii., p. 805.
THE EXTRA-COMMUNAL HOUSEHOLD. 243
Agnatlo, or Mccg. They were all entitled — not to an in-
heritance in the land, but to a maintenance from it, whether
that maintenance was provided by the occupation of some
portion of the land, or, if need were, at the personal expense
of the chief. When a man's father an<l grandfather were
so entitled, his hereditary claim was established ; and, by
the rule of the Three Descents, he acquired a right to a
definite share in the land itself. AMien this right accrued,
the kinsman was no longer in the Mceg of his chief, and
fell into the position of an ordinary clansman. He was no
longer an agnatus, but a gentllls. If, then, the affairs of
such a society were reviewed upon the death of its chief, its
continuance on the Househohl type might be indefinitely
prolonged. The new branches that from time to time were
formed recognized the primacy of the parent stock. Like
adult and emancipated sons of the Household, they were
freed from parental control ; but they willingly accepted
the paternal advice and direction. Thus, the chief of such
a society was bound to maintain his kinsmen up to the
degi-ee of second cousin. His relatives beyond that degree
were not entitled to maintenance. In lieu of it, they
received, as it seems, in discharge of all claims, a definite
allotment of land in absolut<? ownership ; and thereupon
they commenced to form, upon similar principles, a new
branch of the clan. This allotment was not a mere town-
ship or building lot, but a portion of territory suflicient for
the use of the entire H(jusehol<l, and capable of being
organized in the same inannei- as the clan itself had been.
Thus, the Ma'g, or near kin of the chief, stood to him in a
veiy close and intimate relation. They were, in a certain
sense, the members of his (jwn family ; and the permanent
establishiiK-nt of their descendents depended upon the
proof of their kinship with him. The two systems,
that of a coimnunity and that of a chieftaincy, appear
244 IMMUNITY.
to have co-existed in most Aryan countries. In India,
we have, on the one side, the village communities of
Bengal, and, on the other side, the Rajas of the Rajput
clans. In Hellas, the Homeric kings seem to have closel}^
resembled the Rajas and the Keltic chieftains. In Germany,
Tacitus distinguishes the gentes qua' vegnanhir from the
cli'ifates, or communities. In England, the communities
are found* in Kent and the eastern counties, while Wessex
and Mercia were true kingdoms. Among the Keltic peoples
the same distinction may be observed, only that the Cymry
seem to have preferred the community, while the kingdom
Nourished among the Gael. Of the interest of the chief's
kin in the public land, as I have above described it, I shall
cite proofs from India at the present day, and from
mediaeval records of Western Europe.
Writing of certain princes in Oude, Sir William Sleeman
observes — " His brothers do not pretend to have any right
of inheritance in the share of the lands he holds ; but they
have a prescriptive right to support from him for them-
selves and their families when they require it.""f* And
again, in another case, he oljserves — " He was succeeded by
his brother Sookraj, whose grandson, Madhoo Persand,jiow
reigns as Raja, and has the undivided possession of the
lands belono'ino; to this branch. All the descendents of his
grandfather, and their widows and orphans, have a right to
protection and support from him, and to nothing more."
In Europe, there is a remarkable illustration of the same
principle, in the Tenure by Parage — a mode of tenure
noted, indeed, by Glanville, but which at an early date died
out in England, although it was widely prevalent among
the Continental noblesse. I translate its description from
* Robertson's " Scotland nnder her Early Kings," vol. ii., p. 264.
+ "Journey through Oude," vol. i., pp. 169, 173.
THE EXTRA-COMMUXAL HOUSEHOLD. 245
the old* Norman Fiencli — " Tenure in parage is that in
which the person who holds, and the person of whom he
holds, ought, by reason of their lineage, to be peers and
parties in an inheritance which descends from their
ancestors. In this manner, the younger holds of the elder
up to the sixth degree of descent ; but, thenceforward, the
younger are boimd to do fealty to the elder. And in the
seventh degree, and thenceforward, tliat will be held in
homage which previously was held l)y parage." That is,
the tenant who, up to the sixth degree, or the limit of the
Ma3g, was the peer or «/Jotoe of the lord, ceases, when he
passes that degree, to retain that position ; and becomes his
" man," under the obligation not of agnation, but of
pledged fidelity. Mr. Rol >eitson f remarks that this
principle was widely prevalent, if not universal, amongst
nearly every people of Celtic as well as of German origin.
Its application gave no little trouble to the Anglo-Irish
lawyers. An old i-ecord:[: recites that The O'Callaghan is
seized of several large teiTitories, as lord and chief of
Poble {i.e., people) O'Callaghan, and that by custom there is
a Tanist who is seized of certain lands, and then proceeds
— " The custcjin is, further, that every kinsman of The
O'Callaghan had a parcel of land to live upon, and yet no
estate passed thereby, but that the lord and O'Callaghan
for the time being may remove the said kinsman to other
lands ;" and that certain persons were seized of several
plough lands according to the said custom, "subject, never-
theless, to certain seignories and duties payable to The
O'C'allaghan, and reiiiovablt! liy him to other lands at his
pleasure. "
* "Grain! Coiituinior," c. 30.
t "Hist. Essays," p. Ixii. Ami see "Scothiiul uiuler lier Early Kiiiys,"
vol. ii., p. 258, tt Met/.
X "Inquisition taken at Mallow," Harris's Ware, vol. ii., p. 72.
24C IMMUNITY.
I add another witness concernino- Ireland, partly on
account of the trustAvorthiness of his evidence, and partly
because he incidentally illustrates some observations that,.
in other parts of these pages, I have made. Sir John Davies,
then Attorney-General of Ireland, writes, in the year 1C07,
to the Earl of Salisbury a report of his inquiries " touching
the state of Monaghan, Fermanagh, and Cavan." From that
report* I extract the following passage — " We had present
certain of the clerks or scholars of the country, who knew
all the septs and families, and all their branches, and the
dignity of one sept above another, and what families or
persons were chief of every sept ; and who were next, and
who were of a third rank, and so forth, till they descended to
the most inferior man of all the baronies : moreover, they took
upon them to tell what (quantity of land every man ought
to have by the custom of their country, which is of the
nature of gavel-kind, whereby, as their septs or families did
multiply, their possessions have been from time to time
divided and subdivided, and bioken into so many small
parcels as almost eveiy acre of land hath a several owner
which termeth himself a lord, and his ]30ition of land his
country. Notwithstanding, as M'Guyre himself had a
chiefry over all the country, and some demesnes that did
ever pass to himself only who carried that title, so was there
a chief of every sept who had certain services, duties, or
demesnes, that ever passed to the tanist of that sept, and
never was subject to division."
Several points in this passage deserve notice. First, the
scholars of the country, like the Indian baids, profess tO'
know both the genealogies of every person in their clan, and
the quantity t)f land to which each clansman is entitled.
Secondly, the land-right of the country was in the nature
* Sir Juliii Davies, "Historical Tracts," (ed. 1787), p. 258.
THE EXTRA-COMMUNAL HOUSEHOLD. 247
of gavel-kind — that is, the chihU-en inherited in equal shares.
Thirdly, this system led to a gi'eat subdivision of property.
Fourthly, each of these small estates was held by a ' lord,'
and was regarded as his ' country ' ; that is, it was not an
estate, in our sense of the term, but was an allotment for a
Joint Family or Mieg. Fifthly, both the chief of the clan,
and the head of each sub-clan, had certain lands and lucrative
incidents pertaining to their respective offices, which were
not subject to the ordinary rule of distribution, but, as the
endowment of the office, passed to their successors, and not
to their heirs.
§ 4. There is a diffi.'renco, although there are many points TheComi-
of resemblance, between a chieftain and a lord, and conse-
quently between the near kin of a chief and a comitatus.
Any person who had sufficient reputation to attract followers,
and sufficient means to provide for them, could form a body
of retainers. The chieftaincy, although it was favourable to
the existence of a comitatus, and generally gave rise to it,
primarily depended, as I have shown, not upon its depen-
dents, but upon its kinsmen. The latter form rested upon
birth, the former upon personal fpialities and wealth. It is
obvious that the maintenance of a lai'ge number of non-
producing able-bodied men involves not merely political
but economic considerations. I proceed, therefore, to examine
the circuiiistauct's which ai'f favourable to the development
of this remarkable institution.
The economic conditions of the comitatus, or gasindschaft,
or thanehood, are not difficult to detenuine. A wealthy
and unoccupied class ; a class less wealthy, but t([ually
accustomed to rely upon thr labour of an inffrioi- ])opula-
tion, and, consequently, holding industry disgraceful ; the
natural increase of a proud and poor 3-outh, ready to tight,
but not ready to work ; the absence of manufactures and of
248 IMMUNITY.
commerce, and of the liberal professions which successful
industry maintains ; the absence of a strong central govern-
ment — such are the elements out of which retainers are made.
The rich chief and the bold and needy youths gravitate to
each other by a silent but irresistible attraction. The
former cannot spend his means exclusively upon himself ;
and is, therefore, not averse to share them with others, on
whose help, when he needs it, he can depend. These others
are not unwilling, in effect, to transfer their services for
pay. Yet it would be a false and imperfect explanation, to
describe the conduct of either party as exclusively influ-
enced by these or any similar motives. It would be nearer
to the truth to say that the chief spends his money upon
those objects which his education has taught him to admire,
and which the public ojDinion of his own world approves.
The retainer follows a gallant leader with an open hand,
in a spirit of generous loyalty and self-sacrificing devotion.
If the lord ought to be liberal to his poor gesith, the gesith
must fight to the death for his lord. For his lord's honour
and renown he must sacrifice all, even life itself. It was
infamy to survive the fall of his lord : it was worse than
infamy to abandon him in his peril. If the gesith's kins-
men fought on one side, and his lord on the other, it was to
his lord* that he must cleave. All that the gesith won, he
won for his lord ; and the lord, in no churlish spirit,
rewarded, of his own bounty, the bravery and the honour
of his true gesith.
I have said that the gesiths were in the hand of their
lord. They were, therefore, not sui juris ; and they lived,
not under the pi'otection of the conununity, but at the
personal will of the House Father. All their property, and
all their possessions, were his ; whatever they used they
* See Keinble's "Saxons in England," vol. i. , p. 172.
THE COMITATUS. 249
derived from his bounty, and they had the administration
of it — not the ownership. If they committed any offence,
it was to his justice that they were amenable ; and over
them he had the power of life and death. In other words,
their relation to him was the relation of the son to his
House Father, as I have already described it. The war-
gear* and the loaned land, the heriot and the benefice, were
in the nature of the pecidiiiin. They belonged to the lord,
and reverted to him when the relation, in view of which
their use had been permitted, was dissolved. The gesith
could make no will, because he had no property to bequeath.
He could not marry, for he had nothing wherewith he could
endow his Avife. If he acquired property, or married a wife,
or left his goods to his children, he could only do these
things with the consent and assistance of his lord. But
still the gesiths, although they were thus dependent, were
of noble birth. They were free to come or to go at their
pleasure. If they were ill-treated or dissatisfied, they could
enter the service of another lord. In time, they might
become lords in their turn ; and even if their former position
cuntinued unchanged, they could hold a benefice, or grant,
of a portion of their lord's land, out of which they could
maintain their own dependents and establish a gasindschaft
of their own.
I do not know to what extent the comitatus is noticed in
early Indian writers. Its main features, however, may be
traced in the Sepoy army. Writing of the Sepoy,
Sir John Kayei* observes — "His predominant sentiment,
indeed, was fidelity to his salt ; or, in other words, to
the hand that fed him. But if he thought that the
hand was unrighteously closed, to withhold from him
what In; b('licvc(l to bi' his due, he shoWi'il himself tO
• See KeniMo, iilii Mii/irn, j). IT'.*.
f "Hist, of Sepoy War," vol. i., p. 20(!.
250 IMMUNITY.
be most tenacious of his rights, and he resolutely asserted
them." In the whole history of the Sepoy force that
Sir John Kaye narrates, it is clear that the Sepoy is not
merely trustworthy, but as devoted as any true gasind,
when two conditions are fulfilled. His master must be
successful, and must be liberal. In such circumstances,
the Sepoy will give his whole heart. He will be faith-
ful even to an abstraction, such as the Company was, if
it realize his ideal. He will be true to his salt — a
significant expression — even though the hand that gives
it, so it be open, is invisible. The same writer*
notices clear indications of the comitatus among the
native princes. Scindiah, the Maharajah of Gwalior,
had a body of Mahratta liorsemen of his own
kindred or caste. These men are described as Scindiah's
companions by day and night, inseparable from his
pleasures and his state. So too, the Talookhdars, of
Oude, are described*!* as having large bodies of armed
retainers, whose position and functions seem closely to have
resembled those of the retinue of European barons.
As to Persia, the Avesta speaks of the " Airyanem," the
friends or companions of the landownei's there described.
The Slavic nations, among wdiom, with abundant land and
no inferior population, the commune simply expanded itself
indefinitely, had little inducement to adopt this practice. It
is in Western and Southern Europe that we find its chief
examples. It is sufficiently distinct in Homer, where kings
and heroes are the eraipoi, and the Oepcnroi'Tec of more
distinguished princes. In the Macedonian period it again
appears in the eraifwi and the irepEraipoi, the Horse Guards
and the Foot Guards of Philip and of Alexander. Even in
the traditions of early Rome some glimpsesj of the custom
* "Hist, of Sepoy War," vol. iii., p. 313. f ^f^-> P- 422.
+ Mr. Freeman, "Comparative Politics," p. 478.
THE COMITATUS. 251
may possibly he discerned in the fierce band of youths that
attended Romulus, and charged ^vith the dictator at the
Lake Regillus. But neither in Athens nor in Rome, during
the ascendency of these cities, does the comitatus present
itself in any definite form. It is indeed, as Mr. Freeman
has remarked, " an institution ^vhich is not well suited for
the atmosphere of a city life." Accordingly it is among the
Teutons and the Kelts that it appears in its most complete
development. In both these nations, in the description of
C?esar and the description of Tacitus, the difference between
the warrior friends and the liumbler clients is conspicuous ;
and the word " soldier " still denotes something of that
devotion to his chief that the Soldurii of Gaul, and the
Gesiths of Germany, were wont to show to Dumnorix and
to Segestes.
§ 5. Distinct from the comitatus or military retainers, The In-
and yet essential to the existence of that body, was the puiution.
despised and non-combatant class which perfonned the
humble duty of cultivating the warrior's fields. It may be
stated, generally, that this class was composed of men outside
of the kin, althcnigh dependent upon it oi' upon some of its
members, and that it was derived from a concpiered and
alien race. In most of the countries whither the Aryan
nations wandered, they appear to have found hostile popu-
lati(jns of a race different from their own. It may, perhaps,
be gathered fiom tlie pliilological evidence that, even in
their primitive seats, our forefatheis had to contend with
neighboui-s of this description. Similar troubles awaited
them when they journeyed east and west. So far as their
history is known, they always coiiijiicred, and cither
absorbed or enslaved, their opponents. In Russia, the
process (jf absorpti(;n seems to have prevailed ; and as the
Slavic settlements were constantly pushed to the north, the
252 IMMUNITY.
Finnish tribes either retired before them or seem to have
amalgamated with them on equal terms. In Scandinavia,*
in Northern Germany, and in Italy, i* the aboriginal popu-
lation, if any, does not appear to have affected settlement.
But in India, and in Western Europe throughout Spain,
France, the Low Countries, and the British Isles, the Aryans
found and sul^jugated non- Aryan peoples. In Greece, also,
many instances of subject populations occur, although most
of these appear to have been of the same race, if not of the
same division of that race, as their conquerors. In India,
these unfortunate persons are known as the Sudras, the
lowest class, or, rather, the people outside the classes, of
Hindu society. In Greece, we read of the Helots of
Lacedsemon, the Thetes of Attica, the Klarotte of Krete, the
Penestse of Thessaly, the Maryandynians at Heraclea on the
Pontus. Amonor the continental Saxons, and other Teutonic
tribes, we meet with the Lsets, that is, persons to whom a
permissive occupancy of land was, on certain terms, con-
ceded, and who were distinguished from the Alodists, the
owners of the land in full right. In England, the laws of
Ethelbert mention the Lfets in Kent; and Bede^ notices,
incidentally, " folclic and dearfende" men, who seem to have
tilled the soil to which they were attached, and to have
supplied the wants of the martial owners of the land. In
Ireland,^ such people are known as " daer" classes, servile
or base tenants, not of the blood of the privileged clan.
It may have been that, in many cases, these subject pei'sons
were, as in Greece, the remains of Aryan tribes vanquished
by invaders of their own race. We can trace, too, some, at
* Eobertson's "Early Kings," vol. ii., p. 23.'>, not<\
+ Mommsen's "Hist. Rome," vol. i., p. 8.
+ " Hist. Ecc," vol. iv., p. 22.
§ See Dr. Sullivan's " O'Curry," vol. i., p. cxiv. Ilobertson's " Essays,"
p. 154.
THE INFERIOR POPULATION. 258
least, of what K. O. Milller* calls " the fundamental laws of
ancient Greek Ijondage." The serfs could not be put to
death without a trial. They could not be sold out of the
country. The amount of their tribute, or gifts as it was
called, was permanently fixed. Doubtless, also, there were
degrees in the contlition of the subjects, and their treatment
differed in different countries, and at different times. But
it is clear, that at least in Western Europe, the basis at least
of this class was non- Aryan. Much attention has of late
years been given to the presence of these non- Aryan
Europeans.-f- The result seems to be that both archaeology
and history concur in declaring that, before the Aryan
immigration, an Iberian or Basque population inhabited
Spain, France, Belgium, Great Britain, and Ireland. This
population was generally of a smaller size, had longer
heads, darker complexions, and more delicate organizations
than the Kelts and the Northmen who in\-aded them. To
this race belonged the Silures, the Ligures, the Iberi,
the " Fear Bolfjje " of the south of Ireland, and various
other tribes ; and their modern representatives as a separate
people are the Basques.
§ ('). I do not wish to discuss the rights of war, or the The Land-
rights of
relations of the victors to their vanquished enemies. These the De-
relations varied more or less according to differences in time. Classes,
place and circumstance. Nor is it necessary now to speak
of tributary tribes, or even of those persons who were depen-
dent upon the clan as a whole, or upon i\\r State. That
portion of the inferior population to whieh 1 now refer,
and wilder fortunes have had most influence in history,
• " Dorians," vol. ii., pp. 62, Cfi.
+ See "British Quarterly Review," October, 1S7'2 ; Mr. Dawkius, in
" Fortnightly Review," September, 1874; Prof. Huxley, in " Nature," vol.
i., p. .'il4.
254 IMMUNITY.
is not that which lived under communes, but that
which lived under separate lords. I shall not attempt to
narrate the history of these people, for I should then have
to wi'ite no small part of the legal and political history of
Western Europe. It is enough to say that the demesne
lands of every great proprietor, that is, the lands which he
retained in his own possession, were cultivated by men of
this class. According to the custom of the Three Descents,
these cultivators w^ere held to have acquired, in the third
generation, a native right, as it was termed, in the soil : in
other words, the occupier could not be removed from the
land so long as he performed his customary obligations.
These obligations could not be increased, and the tenant-
right thus acquired was hereditary. Sometimes the lord
settled upon his waste land freedmen, for whose main-
tenance after their emancipation he was bound to provide ;
sometimes he found there a place for some of the broken
men who, homeless elsewhere, sought his protection. In
due time the descendents of these persons acquired the
customary right. When such persons came to a chief of a
clan, and were settled by him upon the Folc land, they
necessarily* strengthened his power, since they considered
themselves as personally attached to him ; and they, at
the same time, weakened ^)y'o tanto the aristocracy of the
clan, or at least checked its growth, by reducing the extent
of its pastures. The influence of these dependents —
first, in strengthening their lords against their own clans,
or other public authorities ; secondly, in forcing their way,
in favourable circumstances, not indeed over the close
barriers of the genealogic tiibe, but into the new political
association in which those tribes were absorbed ; and
thii'dly, by securing their own rights in the land against
* See Mr. Hunter's " Orissa," vol. i,, p. 57.
THE LAND-RIGHTS OF THE DEPENDENT CLASSES. 255
lords or communes — will some day, when the story is told,
be recognized as no inconsiderable portion of political and
legal history.
I have said that, after three generations, the native right,
as it was called, became hereditary ; and the tenant, if he
performed his stipulated duties, could be neither rack-rented
nor evicted. But whether he could himself leave the land
was another question. It may safely be said, that the native,
or (jeneat, or by whatever other name the hereditary colonus
was known, had no such power. But freemen seem often
to have accepted a base tenure, and the test of freedom was
the power of unrestricted locomotion. Thus we find that
the riirht of withdrawal was the leadino- distinction between
the different classes of cultivators. " Domesday Book "
constantly and carefully distinguishes between the man who
can, and the man who cannot, go whither he will. The
former class the Burgundian and Lombard laws * describe as
" Faramanni ; " the latter are styled, in the Northern and
Danish law,-f- " Fierbena ; " that is, in the one case, men who
might fare or travel ; and, in the other case, men who were
foi'bidden to fare. In Ireland there is a similar difference
})etween the " Daor Ceile " and the " Saor Ceile," only that
in that country I a man was bound not to the land, but to
the lord personally, from whom alone he could accept stock.
In Indias!} we find a similar distinction, although in that
country the relative position of these classes is strangely
inverted. There are resident cultivators and migratory
cultivatoi's. The former hold by tenant-right, and are
regulate<l by custom. Tlu' latter are strangers induced by
the lord to take up waste land, and their position is
* Canciani, "Log. Barb," iv., 29.
t Ilobertson, "Early Kings," vol. ii., p. 244.
+ Robertson's " Essays," p. 157.
§ Sec Mr. Hunter's "Orissa," vol. i., p. 57.
256 IMMUNITY.
determined by contract. But the customary tenants hold
a much better social position than the lessees. The emigrant
loses his place in his own village, and is regarded with
little favour in his new settlement. What is a still greater
misfortune, he is to some extent confused with the landless
low-caste. Like them, he has no local connection, no M?eg,
no hereditary rights. He has neither Sedem nor Penates, as
other men have. In a word, he is not, in the estimation of
those among whom he lives, a respectable man.
These rules respecting the dependents suggest several
considerations. In the first place, it is apparent how easily
a court of law might misunderstand their vague tenure,
and what difficulty might be experienced in enforcing it.
It was admitted that " no estate passed." The lord, there-
fore, must have appeared to be the absolute owner. In
such circumstances the dependents could, in the eye of the
law, have nothing more than, at the most, a moral claim
upon his bounty. Thus, without any intentional injustice,
a substantial wrong was done ; and the ownership was held
to be vested in the chief, free of all trusts and of all
limitations. In the next place, the origin of the bulk of
the peasantry may be discerned. The peasants, generally,
are the lineal descendents not of the cine'I, but of the
gillies or dependent members of the clan. They probably
comprised some families of pure descent, which, when the
old organization was broken up, were unable, from what-
ever cause, to retain their old position. But the mass of
these dependents were not connected by any tie of con-
sanguinity with the clansmen of pure descent. If this be so,
it helps to explain a very singular fact, the readiness with
which the Keltic peasantry transferred their attachment to
Norman settlers. When Fergus M'lvor commended, before
his death, his clan to Waverley, he said — " You cannot be to
them Vich Ian Vohr." These words were true, so far as the
THE LAND-RIGHTS OF THE DEPENDENT CLASSES. 257
cin^l or pure-blooded clansmen were concerned ; but they
were not true as regards the inferior population that was con-
nected with the clan. Both in Scotland and in Ireland, the
"native men and kindly tenants" accepted, without any
difficulty, a new lord, if only that lord did his duty
towards them. The Frasers, and the Chisholms, and the
Campbells were supported by their tenants as heartily as
were the Macintoshes, the Mackenzies, or the Macdonalds.
The Irish tenant saw no difference between Strongbow's
Knights, an<l his native Flaiths, ^"t^pnrtiJP^ v-vvf nliV"
strangers to hii»_ Wood. No sentiment of nationality at
that time existed. So long as his rights of occupancy were
respected, it was of comparatively little interest to the
tenant in whom the ownership was vested. Further, we
can thus trace the origin of those proprietary claims which
so long lingered among the Irish people. When the clan
system was broken down, and the rights of occupancy
were disallowed, a natural confusion arose among the
tenantiy as to their position. They knew that their
ancestors had belon»;ed to the clan, and had rights in the
land. They had no standard by which they could
ascertain the precise extent of either of these claims other
than the inappropriate rules of English law. They alleged,
therefore, that they represented the pure clan, and that
they were entitled to the ownership of that clan's lands.
Such pretensions were, in most cases, unfounded. I do not,
however, mean now to revive a useless controversy. I
only wish to point out that, in that and every similar
controvei-sy, the issues are strictly matters of history.
They depend upon an examinati(m of the structure and the
usage.s of archaic society. It has been a favourite lal)Our-
saving contrivance of political writers to explain these and
similar difficulties by a simple reference to some assumed
(jualities of the Keltic race. Perliaps the.se alternative
18
258 IMMUNITY.
explanations may appear to illustrate Mr. Mill's* remark
that, " of all vulgar modes of escaping from the con-
sideration of the effect of social and moral influences on
the human mind, the most vulgar is that of attributing the
diversities of conduct and character to inherent natural
diflferences."
* "Political Economy," vol. i., p. 390.
CHAPTER XI.
THE COMBINATION OF CLANS.
si) 1. I have shown the growth of the domestic and The
of the Gentile relations. I have now to notice a further EspTulioa
development. As the Hoasehold expands into the clan, °^ ^^''''*'^*
so the clan expands^jn to a peo ple. In course of time, and
with the increase of its numbers, the _simpl e homogene ous
body becomes in the usual way a collection of het e rogeneous
related b odies. This wider relation is thus substantially an
extension of an actual Gentile relation. It marks the fact
that the clans of which it is composed acknowledge a
common descent. A single clan might, in course of time,
expand into many autonomous clans ; but, although each of
these new bodies would practically be independent of all the
others, the old community of worship would, in favourable
circumstances, still be maintained. Such worehip had,
indeed, little influence upon the daily life of the co-
religionists. Each clan had ac(juired its own pe culiar gods,
who were nearer and dearer to it than those far-away
gods, who were content with a smaller oblation, and who
returned a less careful regard. Still, these shadowy gods
must be treated with proper respect; and provisi<m must be
made for continuing the old worship and for conuiiemo-
rating the old descent. This union, t hen, wa s not made, but_.
grew^_ It was the natural consequence of the increasin'Tr
number of clans. It was a suiTival from the time when
there was but one clan and one worship. To a certain
260 THE COMBINATION OF CLANS.
extent i t served to __keep to gether communities that
otherwise would hav^ "hftp-n hopplRssly s pa.ttfired. Thus
the Hellenes found a bond of union in the worship of the
old Zeus at Dodona. The Italian tribes preserved the
worship of their hereditary Mavors. The European
Scyths,* if, indeed, they were of Aryan descent, recognized as
their only lords, Tahiti and Papseos, that is Vesta the Queen
of the Scyths, and Zeus their ancestor. Nor can we doubt
that the respective descendents of Ing, of Hermin, and of
Isco, had their common worship, even if every Teuton did not
offer, as he may have offered, sacrifice to the common
progenitor, Mann.
In describing these larger divisions of society, language
gives us little help. There are, in most of the Aiyan
languages, words that may be used to express considerable
aggregations of men. But these words are vague, and vary
in each language ; and it may be doubted if in any instance
this meaning is more than secondary. For the most part,
proper names are used in preference to any of these general
words. The Hellenes, for example, were said to be divided
into the lonians, the Dorians, and the vEolians ; and no
accurate distinction was drawn in the application to any of
these bodies of the word yipog or Wvog, or of any similar
terms. Still, the fact that there is some such wide-spread-
ing conn ection remains, and some expression f or it should"
be found. The advance of physiology ha s tended to
bring into prominence the conception of race. Still more
recently, the discoveries of coinparative philology, acting
upon troubled social and political conditions, have given
practical importance to th e theory of nationalit y. _There
is also the word natio n, whicli>_js__ at present used
almost as a synonym with State. It would be fortunate if
* Herodotus, iv., 59, 127.
THE NATUllAL EXPANSION OF CLANS. 261
this word could be rescued from this loose *4eaning, in which
it is wasted, and applied strictly, a s its etyniolof^y suggests,
to the expanded kin . In general use, however, it denotes a
political relation, w hile race seems to express community of
physical descent.
For the description of the expanded gens, or people, I
know nothing better than thejiescr iption which Her odotus *
giv es of the Hel lenes genera lly.^- They were of the same
blood ; they spoke the same language ; they observed similar
customs; they had a common worship and common rites.
They thus, in many important respects, resembled each
other ; and they were, in those very respects, unlike other
people. There was, consequently, a sympathy between
them — a tendency, as it were, towards union ; but the
sympathy was weak, and the tendency was easily coun-
teracted^ This relation was merely personal. It was in no
sense political. It was in no sense territorial. It did not
arise from an occupation of the same country, and it was
not limited by such occupation. The names of the great
modern powei-s were once mere geographical expr&ssions
witlunit the least political signification. So Hellas, as the
(Irt'cks understood the term, was not the country that we
now call Greece, It included every laml in which Hellenes
were settled. In other words, the Hellenes were not the
inhabitants of Hellas, but Hellas was the land occupied by
the Hellenes. In Central India, at the present day, the
first, and perhaps the hardest, lesson which a European
statesman has to learn, is, that he is in a country where
the i<li-a of political citizenship is unknown, and where the
idea of territorial sovereignty is only just begimiing to
aiise. " Geographical boundaries," says Mr. Lyalbi* " have
no correspondence at all with distinctive institutions or
gi-Quping of the people, and have comparatively slight
• viii., 144, t " Fort. Ticv.," No. 121, N. S., p. 98,
262 THE COMBINATION OF CLANS.
political s ignificance. Little is gained toward knowing who
and what a man is by ascertaining the State he obeys, or
the territory he dwells in, these being things which, of
themselves, denote no difference of race, institutions, or
manners. Even from the point of view of political alle-
giance, tlie, gov ernment under which a ma n may be living^
is an accidental arrangement, which the British Viceroy or
some other distant irresistible power decided upon yesterday,
and may alter to-morrow. Nor would such a change be
grievous unless it divorced him from a rule of his own
tribe or his own faith."
Difficulty § 2. So far as it went, this sentiment of nationality, if I
ration in may SO Call it, was undoubtedly a social force. The Hellenes
^'^^^ always drew a sharp line between themselves and the
barbarians, a term by which they designated all non-
Hellenic people. In times of great external danger, appeals
might be made to this Panhellenic sentiment, not without
success. The Highlanders, as Captain Burt* relates, "had
an adherence one to another as Highlanders, in opposition
to the people of the low country." Among both the Greeks
and the Romans, -f- a still further advance may be observed ;
and public opinion, and afterwards positive law, forbad that
any Hellen, or any Quirite, should be reduced to slavery.
But the integrative tendency went no further. On the
contrary, vicinity and similarity of habits increased the
surface of contact, and, consequently, the occasions for
dispute. Achilles had no quarrel with the Trojans, who
had never made a foray in the fertile fields of populous
Phthia, since between him and them lay the shadowing
mountains and the resounding sea. Between Achilles and his
Hellenic neighbours such amenities may have been not-
* Mr. Skene's "Highlanders," vol. i., p. 156.
+ Becker's "GaUus," p. 201.
DIFFICULTY OF CO-OPERATION IN CLANS. 2G3
infrequent. Hence the inuaediate and personal causes of
(|uarrel soon overpowered the feeble tendencies to union.
Even when their common interests most urgently pressed
for co-operation, the old enmities were too strong. One chief
would never accept the authority of another chief ; and if both
of them were to submit to a stranfrer, it was with the mental
reservation that the submission was only to last so long and to
extend so far as each subordinate thought fit. A memorable
example of this state of feeling is found in the history of
the Highland clans. The clans, each with its own desires
and its own objects, sometimes united in some political
enterprise, in which they professed a common interest. But
this tie was too weak to bear any lengthened strain. They
quarrelled with each other upon their private grudges ; or,
when their personal convenience seemed to require, they
left tlie army and went home. " Hence it was," says Lord
Macaulay,* " that, though the Highlanders achieved some
great exploits in the civil wars of the seventeenth century,
those exploits left no trace which could be discerned after the
lapse of a few weeks. Victories, of strange and almost por-
tentous splendour, produced all the consequences of defeat.
Veteran soldiei"s and statesmen were bewildered by these
sudden turns of fortune. It was incredible that undisciplined
men should have performed such feats of arms. It was
incredible that such feats of arms, having been performed,
should be innnediately followed by the triunq)h of the
conquered and the sul)iiiission of the conquerors. Montrose,
having passed rapidly from victory to victory, was, in the full
career of success, suddenly abandoned by his followers. Local
jealousies and local intei-ests had In'ought his army together.
Local jealousies and local interests dissolved it. The Gordons
left him because they fancied that he neglected them for the
Macdonalds. The Macdonalds left him because they wanted
* "Hist, of Knglaud," vol. iii., p. XiS.
264 THE COMBINATION OF CLANS.
to plunder the Campbells. The force which had once
seemed sufficient to decide the fate of a kingdom melted
away in a few days, and the victories of Tippermuir and
Kilsyth were followed by the disaster of Philiphaugh." Mr.
Lyall* notices a curious case of the same kind in India.
Little more than sixty years ago, the Eajput clans were
in sfreat daneer and distress. Ameer Khan, a Pathan
filibuster, was moving at large among them, at the head
of a well appointed army of 30,000 men. They had been
almost destroyed by the Marathas, and were only saved
from entire destruction by British interference. Yet, at
this very time, the two great chieftainships of Jodhpoor
and Jeypoor waged an internecine war on account of a
quarrel between their respective chiefs for the hand of the
Princess Kishen Konwar, of Oodeypore. " The fact," says
Mr. Lyall, "that these two states, surrounded by mortal
enemies, and in the direst political peril, should have
engaged in a furious blood-feud over a dubious point of
honour, shows at once that the Rajputs were a people quite
apart from the rest of India, and strikes the primitive note
in their political character. The plundering Marathas and
Pathans, to whom such a casus helli must have appeared
supremely absurd, encouraged, and strenuously aided, the
two chiefs to destroy each other, until the dispute was
compromised upon the basis of poisoning the princess — a
termination which very fairly illustrates the real nature of
barbaric chivalry."
Many comments have been made upon the want of
concert among imcivilized people. Herodotus f says of the
Thracians, that, if they had one head, or were agreed among
themselves, they would far surpass all other nations.
Thucydidesj expresses a similar opinion respecting the
* "Edin. Review," vol. cxliv., p. 177.
t v., .3. J ii., 97.
DIFFICULTY OF CO-OPERATION IN CLANS. 265
Scythians. The folly of the different nations %vho allowed
Rome to deal with them one by one, instead of combining
against her, has been the subject of much sterile wonder.
The explanation of the phenomenon is simple. These
barbarous tribes could no more combine for any great opera-
tion than they could make a chemical analysis, or run forty
miles in an hour. They were mentally and morally unequal
to the task. Their state of society did not admit of the
training necessary for concerted effbits. Thrace, for example,
was not a country in the sense in which at the present
day we use the term. It merely denoted the locality in
which some hfty* independent tribes were settled. Every
one of these tribes was, in its structure and in its social
life, independent of all the others. Every one, so far from
habitually acting with the others, regarded them as its
rivals, and often as its enemies. All their habits tended
not to confidence and co-operation, but to hostility and
distrust. Each clan, in shoi-t, had its own individual
existence ; and as it was complete after its kind, it was
not capable of fuither integration. Even among civilized
men nothing is more difficult than co-operation. Many
generations of failures are needed before even a little
success can be obtained. In our own day the course of the
disciplined armies of two great allied nations does not, as we
know, always run smoothly. To expect permanent and
efficient co-o})eration among uncultured clans is as unreason-
able as it would be to look for grapes from brambles, or tigs
from thistles.
§ 3. There is another form of gi'ouping, which, in archaic j ^ssocia^
societies, is of only too frequent occurrence. It is that of chms by
conquest. One man, or one society, by force, or the fear of ^^^^^^ '
* See Canon Ilawlinson'a note on *' Herodotua," ubi mqtrn.
266 THE COMBINATION OF CLANS.
force, compe ls the submission of several societies. In such
a state of things, the conquered society is usually bound to
pay to the victor a certain tribute, or to yield a proportion,
for the most pai-t either a third* or two-thirds, of its land
and stock ; and also to obey, generally, any order that he
thinks fit to issue. These orders, however, are always
special, and do not prescribe such general rules of conduct
as we understand by the term laws. Each society, not-
withstanding its conquest, continues to live according to its
own usages, and conducts its ordinary business in its own
way. It is, in fact, impossible to form, in any other
manner, any great empire of which the object is simply
the collection of tribute. The more extended the empire,
the more difficult is its administration, the greater are
the demands upon the conquering force, and the more
perilous is its position. That force may, in ordinary
circumstances, be adequate to compel obedience to a few
simple duties ; but -where locomotion is difficult and slow,
the task of establishing new and odious customs among
numerous and scattered peoples is hopeless. Further,
archaic conquerors never felt any such wish. To them it
seemed natural and right that every race of men should
have its own religion, and observe its own usages.
Without these essential supports society could not, in their
view, be maintained. The victors had no desire to deprive
their subjects of necessaries which they themselves could
not have used, and they would have scorned the notion of
extending to the vanquished their own privileges. They
knew that their gods were stronger than the gods of other
people ; and they were content that the matter should so
rest. They did not care what the customs of their subjects
were : they had no desire to alter these customs. They
* See Niebuhr's "Hist. Rome," vol. i., p. 419 ; vol. ii., p. 45. Robert-
son's *' Scotland under her Early Kings," vol. ii., pp. 210, 358.
ASSOCIATIOX OF CLANS BY CONQUEST. 267
probably did not even suppose that it was possible to alter
them. A ll that ronnprnofl them was that their tribute should
be regularly p aid, and the ir or ders promptly executed. In
the emphatic words of the Behistun inscription, " Says
Darius* the king: 'These are the provinces which have
come to me : by the grace of Ormazd they have become
subject to me : they have brought tribute to me : that
which has been said to them by me, both by night and by
day, it has been done.' " Tribute and obedience, such were
the requirements of the great king. If he weie secure of
these, he cared little for the laws of his subjects.
So simple and so well known is this class of societies,
that I shall only cite one illustration. " The empires of the
East," says Professor Rawlinson,f " have uniformly arisen
from the sudden triumph of conquering nomadic hordes
over more settled and civilized communities. ... In
eveiy case a conqueror rapidly overruns an enormous tract
of territory, inhabited by many and diverse nations, over-
powers their resistance, or receives their submission ; and
imposes on them a system of government, rude and ai-tificial
indeed, but sufficient ordinarily to maintain their subjection,
till the time comes when a fresh irruption and a fresh
conqueror repeats the process, which seems to be the only
renovation whereof oriental realms are capaljle. The
imposed system itself is, in its general features, for the most
part one and the same. The rapid contpiest causes no
assimilation. The nations retain their lan<j:uafjes, habits,
manners, religion, laws, and sometimes even their native
princes. The empire is thus of necessity broken into
provinces. In each province a royal officer, representing
the monarch — a Satrap, a Khan, or a Pasha — beara absolute
sway, responsible to the Crown for the tranquillity of his
• Canon Kawlinson's "Herodotus," vol. ii., \i. I'.ll.
t /?'., vol. ii., p. 4(50.
268
THE COMBINATION OF CLANS.
district, and bound to furnish periodically, or at call, the
supplies of men and money which constitute the chief
value of their conquests to the conquerors."
Such, generally, was the character of every empire, even
the Athenian, prior to the great domination of Rome. They
all were, as Sir Henry Maine * has well expressed it, tax-
taking and not legislative. But such a form of empire is
merely inorganic. Its forces act from without, and not from
within. It is composed, indeed, of separate organisms, but
these organisms are distinct from each other and from their
common ruler. The case, in short, is that of one organism
preying upon another, not that of new structures built up
out of the changes of the old. The empires of Attila and
Tamerlane were not more organic than a number of wool
bales under a hydraulic press, or a mob of cattle under the
charge of a drover.
Associa-
tion of
Clans by
Agree-
ment. 1
§ 4. There was yet another form of archaic association.
It ai'ose neither as the spontaneous memorial of a common
though remote ancestry, noi- as the forcible domination of
one society over another. It was the result of specific
agreement upon equal terms. Like the alliance of kinship,
this consensual alliance rested upon a common worship.
There was, however, a difference between them. In the
former case, it may be said-f that the association existed
for the sake of the worship. In the latter case the
worship was established to mark and consolidate the
association. When the men of old desired to form any
intimate and lasting alliance, they knew, as I have so often
said, one way, and one way only, for the purpose. They
united in a common worship. They retained, indeed, their
old corporate personality. The several clans and sub-clans
* "Early Hist, of Inst.," p. 384.
t Mr. Freeman, "Hist. Fed. Govt.," p. 187.
ASSOCIATION OF CLANS BY AGREEMENT. 269
remained unchanged, and the gods of their respective
Fathei-s continued to receive their customary honours. But
several clans might combine under a new and special
worship. When they did so, they followed the familial-
precedent. They were independent ; they desired to unite ;
and they naturally imitated that powerful form of associa-
tion of which alone they had experience. They formed
what may perhaps be called an artificial and concurrent kin.
They adopted, so to speak, certain new deities to form their
connnon or public Penates ; and they became brothers by
sharing in the new worship and partaking of its common
meal. This was the first step in all such combinations, and
it was essential. No pennanent association could, according
to the beliefs of the archaic world, exist without the
establishment of its special cult.
But when the intention of union was formed and its
principle was accepted, it became necessary to determine
the character and the objects of the association. On the
one hand these objects might be temporary, or might be
special. On the other hand the association might be
designed to last for all time, and to include all purposes.
It is neeilless to consider mere transitory alliances. Such
agreements must have been familiar in every state of society,
and probably were not supposed to require any community
of worship, even though the presence and the sanction of
the deities, whether common or separate, were invoked to
guarantee the contract. But when a pennanent union was
formed, it might be either general, or intended for some
special object. Of these special associations, the highest
teuiporal aim was usually the establishment of friendly
relations between its members, or, at all events, the
miti<ration of the usajrcs of war. Such seems to have been
the character of the great Amphictyonic Assembly at
Delphi, wliose venerable oath has been preserved to us,
270 THE COMBINATION OF CLANS.
binding, among other things, the belligerent Amphietyon
not utterly to destroy his hostile brother and not to cut off the
water from that brother's stroncrhold. Multitudes of minor
Amphietyonies, * each practising its own cult and asso-
ciated for its own purposes, existed through every part of
Hellas. Of a similar character were the Ferine Latinfe,*}*
which marked the unity of the Latin race, " The test of
union," says Mr. Robertson,^ " in an Italian confederacy of
early times, seems to have consisted in participating in a
solemn sacrifice, of which the supreme director would have
been, in a certain sense, a Rex Sacrorum appointed by the
members of the confederacy. The leading man of Veii,
affronted by being passed over on the occasion of one of
their solemn festivals at the Fanum Voltumnae, when
another priest (alius Sacerdos) was appointed to direct the
sacrifice, procured his own election to the position of Rex of
Veii ; and, accordingly, in their subsequent contest against
Rome, the Veientines were left by the Etrurian confederacy
to their fate. Thvis the choice of a Rex by the Veientines was
equivalent to a dissolution of their connection with the
Etrurian confederacy : and in the legend of the expulsion
of the Tarquins may be seen, apparently, a similar, but
more successful assertion of independence by the Romans,
who henceforth 'chose their king' from among themselves,
and ceased to receive him from Etruria." So, too,
Tacitus I describes what, by a somewhat hybrid phrase-
ology, may be called the Amphictyony of the seven
Volkerschafts that worshipped Hertha ; and the Amphic-
tyony of which the Lygii were the most prominent
members, and which worshipped the Dioskuri under the
* Grote's "Hist, of Greece," vol. ii., jj. 324.
t Mommsen, "Hist. Home," vol. i,, jd. 43.
X "Essays," p. 218.
J "Germania," cc. 40, 43.
ASSOCIATION OF CLAXS BY AGREEMENT. 271
name of Ales. These associations, however, exercised little
influence upon men's ordinary conduct. They were, in fact,
mere confederations of independent communities for
particular purposes. They might be, and they sometimes
were, utilized to some extent for political objects ; but they
had no more tendency to build up a State than the
Crusades had to establish a univ^ersal European monarchy.
The true character of these Amphictyonies is thus
apparent. At first sight they present* the appearance of
an organized political association, or, at the least, of
the material out of which such an association could
readily be constructed. Yet, in no case has this result
followed. There is no instance of any Amphictyony
having become a State. There are few instances where any
Amphictyony has prevented — or, except within the terms
of its alliance, softened — war between its members. The
reason is either that, in some cases, the remains of the old
homogeneous force were unable to restrain the natural
tendency to differentiation ; or that, in other cases, the
integTation was attempted between bodies whose organiza-
tion, though not high, was complete of its kind, and whose
independent life would not readily merge in a new form of
existence. Nor need we feel surprised at the small success
of the early reformers of war. For eighteen centuries the
precepts of a far purer religion, in a far more advanced
condition of society, have not been at all times able to
secure the peace of Christendom.
s^ ."). It must not, however, Ije assumed that these associa- Moral
tions, although they have not materially affected the course suchiffrec-
of political history, failed to exercise any moral influence. ™°°*'^'
Archaic society was, as I have said, composed of a number
• Mr. Freeman, "Hist. Fed. (iovt.," p. 133.
272 THE COMBINATION OF CLANS.
of small, complete, and mutually repellent organisms. No
social tie was recognized other than a personal relation, and
that relation must be created in a particular way. " There
is no sense of obligation then existing," writes Mr. Grote*
of legendary Greece, " between man and man as such, and
very little between each man and the community of which
he is a member; such sentiments are neither operative in
the real world nor present to the imaginations of the poets.
Personal feelings, either towards the gods, the king, or some
near and known individual, fill the whole of a man's
bosom : out of them arise all the motives to beneficence,
and all the internal restraints upon violence, antipathy, or
rapacity ; and special communion, as well as special
solemnities, are essential to their existence." In these
circumstances it was a great advance when men were
brought together with new sympathies and common
obligations. To some extent this result was obtained by
the festivals that commemorated community of descent.
A further and distinct advance was made when Amphic-
tyonies of non-cognate kins were formed on terms of mere
agreement. A step in the same direction was taken when,
without any actual alliance, two or more tribes reciprocally
sent le orations to oflfer sacrifice at each other's festivals, and
to partake in the consequent recreations. By these means
they brought themselves, as Mr. Grotef observes, "into
direct connection each with the god of the other, under his
appropriate local surname." Another similar step followed
when strangers were invited as guests to the festival of
some particular community. So powerful, indeed, was the
sentiment thence resulting that, in Greece at least, it
amounted to something almost approaching a national union.
Very practical consequences, too, followed sometimes from
* "Hist, of Greece," vol. ii., p. 108.
t Ih., vol. ii., p. 3-24.
MORAL EFFECTS OF SUCH AGREEMENTS. 273
this interchanc^e of friendly sentiment. During the holy
period all hostilities were suspended, and these truces were,
under the religious sanction, faithfully observed. Such
were the truces at the Olympian and the Pythian games ;
such was the Samian truce,* which bound all Triphylians.
Such, too, was the famous truce of God, by which the
Christian Church succeeded in curbing, for three days out of
seven, the ferocious habits of its northern converts. It
was thus that the ideas of common duties and of common
enjoyments were raised in those contracted minds ; and
sympathies, and a sense of mutual obligations, were
generated in communities whose normal state was, if not
actual war, at least invincible suspicion and distrust. " It
may," I again f[Uote the words of Mr. Grote,-|- " be affirmed
with truth that the habit of forming Amphictyonic unions,
and of frequenting each other's religious festivals, was the
great moans of creating and fostering the primitive feeling
of brotherhood among the children of Hellen in those early
times, when rudeness, insecurity, and pugnacity did so much
to isolate them. A certain number of salutary habits and
sentiments, such as that which the Amphictyonic oath
embodies in regard to abstinence from injury, as well as to
mutual protection, gradually found their way into men's
minds ; the obligations thus brought into play acquired a
substantive efficacy of their own, and the religious feeling
which always i-emaincd connected with them came after-
wards to be only one out of many complex agencies by
which the later historical Greek Avas moved."
§ ('). Some minoi- forms of association may be brieHy Minor
noticed. On*,' kin is sometimes absorbed by another. The Zl^[°.
sclera of the one merges into the sacra of the othei- ; and the *'°"'
• " Hist, of r; recce," /!>., p. 32G.
t Jb., p. .3.32.
19
274 THE COMBINATION OF CLANS.
two bodies no longer maintain a separate existence, but
foim a united clan. Such a process is analogous to
an-ogation, or the adoption of a man .sui juris. The
adopted person lost his independent condition, and became
merged in the household of his new Father. Thus, in the
Odyssee,* Menelaus expresses liis desire that Odysseus
.should settle in his country, and offers lands to him foi-
himself and his people. So the Claudian gens emigrated
to Rome, and was there admitted to full connnunion with
the people of Quirinus. In like manner, Livyf* describes
the Samnites as admitted by the people of Capua to a
partnership in their city and their lands. But this political
adoption merely added to the bulk of an existing society,
and did not alter its structure or change its relations.
There were other alliances of an intimate nature, but
which stopped short of complete amalgamation. Some of
these were meant to be permanent, some were in their
nature temporary, some were limited to specific purposes.
Of the first class, the arrangement which Xenophon.|
describes Cyrus as having made between the Chaldeans and
the Armenians, whether the story be true or fictitious,
affords an instructive example. It was stipulated that the
parties should be mutually independent, and that they
should have, reciprocally, four rights. These were — the right
■of intermarriage, the right of cultivating and the right of
depasturing each other's lands, and the right to assistance in
case of attack. Of temporary and special alliances, examples
are found in those cases in wliich several independent clans
placed themselves, in time of war, under the command of
some Her/.og, or Dux, or Tagos, and resumed their former
* iv., 174. t iv., 37.
I Kul (XtvOipovc ^tv uf^Kpo^ ipovc eV uWiiXiov livai (rvteridEi'To,
tTriyufiiur 2" iitai, /cot iwtpyualac i^al tmiofxiac Kal tnificf^iav he
.Koaiiv ii rtc uCiKoh) ('moTtpovc. — Cyropediu, iii., 2, 23.
MIXOK FORMS OF ASSOCIATION. 275
independence when peace was restored. To this class
belongs that immortal federation which sought redress for
the Atreidse before holy Ilion. Such, too, was the militaiy
system of the Teutonic tribes in the time of Tacitus.*
♦Such, too, with only the difierence of the choice of a leader
by lot and not by merit, was the system of their descendents
in England. " These same old Saxons," says Bede,-f* " have
not a King, but a number of Satraps, set over their nation,
who, when war is imminent, cast lots on equal terms ; and
whomsoever the lot points out, him during the war they all
follow as their leader, him they obey ; but when the war is
over, all the Satraps again become of ecpial power." These
transient combinations resemble the hunting expeditions of
the Red Indians, or the journey of an Eastern caravan, (^ii
these occasions men place themselves imdci- the control of a
single chief, and observe, for the time, strict discipline.
When the hunt is over, or the journey is at an end, they
separate, and their union is dissohed.
Claas, also, sometimes established, whether by force or 1 »y
better intluences, an authority of varying extent over other
clans. This authority might practically range between
alliance on the one side, and domination on the other.
From tlie tcnn used bv Thucydides in describin<f the
Athenian supremacy, it is now generally known as
Hegemony. "A powerful canton :J: induced a weaker to
become sul)()rdinate, on sucli a footing that the leading
canton acted for the other as well as for itself in its external
relations, and stipulated for it in State treaties, while the
dependent canton bound itself to render military service
and also to pay a tri])ute. But this union was always
loose ; and its central authority, wlictlu r in peace or war,
* " (ierinania," c. l.S.
t "Hist. Eccl.," 1). v., c. 10.
X Mominseii, "Hist, of Roiiiu," vol. iv., p. Jl'O.
276 THE COMBINATION OF CLANS.
was feelile. Its existence, indeed, depended upon its
Aveakness ; for, so soon as its strength increased, its tendency
was rapidly towards dominion. Examples of this class of
cases are numerous, especially among the Hellenes and the
Kelts. The Hellenic instances are too well known to
require further notice. Among the Kelts, the Romans*
found, in the North of Gaul, a Bel^ic league, extending;- into
Britain, under the headship of the Suessiones ; and in
Central and Southern Gaul M^ere formed the rival confedera-
tions of the Arverni and the H?edui. In the time of Csesar,
the Belg?e-}- still held their headship in North-Eastern Gaul^
but without, as it apj)ears, their British dependencies. By
their side the league of the Armorican or maiitime cantons
had grown up in what now is Normandy and Brittany. In
Central Gaul the Sequani had taken the place of the
Arverni, and carried on the old struggle with the H?edui.
And so, among the Highland clans,| the Campbells and the
Macdonalds, in the seventeenth century, collected their
tributary clans, and fought as theii' forefathers had fought
in the days of the great dictator.
* Mommsen, "Hist, of Rome," vol. iii., p. IGS.
t Ih., vol. iv., p. 22G.
% Macaulay, "Histoiy of Eiiglaiul," vol. iii., p. 315.
CHAPTEB XII.
GENTIS CUNABULA NOSTRAE.
{^ 1. At some remote, but unascertained period, on the The
Primitive
table-lands of Central Asia, where the Oxus and the i ax- Aryan?.
artes begin to flow, and extending westward probably to the
Caspian Sea, dwelt the forefathers of our race. The men
who then occupied these regions were of one blood, spoke one
language, had a common stock of beliefs, of manners, and of
customs. Tliey ha<l a common form of social organization,
although they did n(jt form a nation as we understand the
term ; and they drew a clear line of distinction ])etween
themselves and the barbarians, or tribes of alien race and
alien speech, by whom they weie surrounded. How these
men came there, what was tlieir descent, or what their
previous liistory, we know not. That such a history did
exist, we may well believe. That, a century hence, some
portion of that history may be discovered, no person, who
remembers the absf)lute ignorance of our grandfathers upon
tliis subject, will venture to deny. But in the existing state
of knowledge, we nuist accept the Aryans as an ultimate
fact. We must be content to take them as we find them. We
know so mucli of them, and we know no more. From these
original settlements, at some unknown periods, there
streamed to tin,' soutli on the one side, and to the north-west
on tlie other side, many luiuds of emigi'ants. Under their
various names of Indians an<l of Iranians, of Hellenes an<l of
Latins, of Kelts and Slavs and Teutons, these emigrants
27S GENTIS CUNABULA NOSTEAE.
have borne the Aryan speech, and the Aryan beliefs and
customs, through all the lands that extend from the Ganges
Avestward to the Pacific Ocean, and from Iceland to the
Darling Downs. All these nations are descended from the
original race as directly as the Italians or the Portuguese
are descended from the children of Quirinus, or as the
dwellers in America or Australia are descended from the
realm of England. It is, then, an inquiry of no common
interest, to ascertain something of the primal Aryan polity.
If we can obtain a true notion, so far as it goes, of this early
society, we shall at all events understand the problem which
the historian of the future will have to solve. The roots of
the pi-esent are deep down in the past ; and modern civiliza-
tion must be affiliated to the thoughts and the actions of
the tribes that, under their elders, used to roam, thousands of
years ago, over " Airyanem Vaejo," the cradle of our race.
The Com- ^ 2. A distinguished writer on Physical Science remaiks
p;irntiv6
Method of that Shakespeare and Newton were the descendents of
"^'' ■ ' savages. Whether in fact they were so or not, I do not
pretend either to assert or to deny. But I venture to
allege that, so far as any trustworthy evidence on the subject
is at present known to exist, savages were not the acknow-
ledged progenitors of these great men. The ultimate fact,
in the present state of knowledge upon this subject, is the
condition of the Aryans. We cannot connect these Aryans
with any other race, nor can we go behind the evidence
whicli their lanmiao-e and their institutions afford. It
may be positively asserted that the men who spoke that
language, and possessed these institutions, were not in any
reasonable sense of the term savages. It is l)y the aid of
Comparative Philology that we are enabled to form some
definite conception of the material condition of our archaic
forefathers. There is nothing in the conclusions of that
THE COMPARATIVE METHOD OF INQUIRY. 279
science to suggest the low moral state, the wandering an<l
precarious existence, the berries and the acorns, of the noble
savage. The Aryans knew the arts* of ploughing, of
making roads, of weaving, and of sewing. They built
substantial houses, they used cooked food and fermented
drinks. They counted •!- as far at least as a thousantl.
They were familiar with many useful plants and their
properties. They had domesticated the animals most useful
to mm — the cow, the horse, the sheep, and the dog. They
ha<l property,;): and they knew the meaning of wealth. All
the.se things, and others of the same kind, may be learned
fi-om the study of language. But as regards their social
and moral C(jnditions, the method of inquiry is somewhat
different. It is, at first sight, a very alluring project to recon-
struct fi(^m language archaic society, and thence to deduce
the varied forms of modern civilization. Only a very slight
[)ractical attempt is neede<l to reveal the hopelessness of
this method. In the first place, the linguistic evidences are
too meagi-e to be of themselves practically useful. In the
next place, many political and legal terms are use<l in a
secondary meaning ; and hence the existence of the word
in the original language proves nothing as to its use at that
time in this secondary sense. Thus there is no doubt that
the Aryans had a word to express Jurnd ; but this fact
does not prove either that they used or that they did not
use this word in the technical sense of m<(nus and of
niv/nd. \^y a coinbinatKni, however, of the results of
Compaiative .luris})ruileiK-e and of Comparative Philology,
))y verifying the inferences that the one suggests by the
conclusions of the other, by reading, as it were, the terms of
* Prof. Max Miilh-r's "Science of I^inguage," vol. i., p. 223.
f Sue " Verglcichundes Wdrtcrbuoli tier Indogcrmauischen Spniciuii,"
\<m August Kick, p. 70.
: //>., pp. 11, 22.
280 GENTIS CUNABULA NOSTRAE.
the archaic language in the light derived from the study of
archaic institutions, it is perhaps not impossible to attain
some trustworthy conclusions. If for these several institu-
tions, which from other evidence the Aryans might have
been expected to possess, corresponding words can be shown
to exist in the original lano'uae'e, the evidence is at all
events as good as the nature of the case admits.
I have shown that, among all the Aryan nations, the
early history of their institutions, so far as it can now bo
discerned, agrees in certain particulars. The Household, in
the sense in which I have endeavoured to describe it, is the
primary unit. This body is governed by a House Father
with supreme authority, and comprises the House Mother,
the children, the slaves, and the dependents. By the
natural expansion of the Household kins are formed ; and
these kins in turn form within themselves smaller bodies of
near kinsmen, intermediate, as it were, between the House-
hold and the entire kin. The kins were known by their
respective names, usually — probably, indeed, invariably —
patronymics. A distinction of ranks prevailed among the
freemen, according to their mendjeiship or non-membership
of a kin ; and probably, to some extent, between the kins
themselves, according to the purity and the length of their
descent. Each kin was settled upon a portion of land,
which it owned in its collective capacity. Its members
lived together in villages, in which each Household held
in full property a house and garden. The arable land was
cultivated in common ; the produce, when the Household
continued undivided, Ijcino- shared amonof its members, and
when separate Households were formed, becoming the
separate property of each Household. The pasture lands
were undivided, and the amount of cattle that each House-
hold might depasture was settled by certain rules. Such,
briefly, were_JIie— mi4rifcatur^^ p-rf^baic society at a
THE CU.Ml'AllATIVE METHOD OF INQUIRY. 281
period before an^^thiiif^ resembling po liti cal institutions
was formed. _Such, then, or of a similar kind, are the '
featui-es that avc might expect to hnd among the primitive
Aiyans. I have now to consider what traces, if any, of
these institutions may be discovered in our forefathers'
lanrruafire.
§ o. The Aryan House Father was certainly the husband The
of one wife ; and the House Mother was the true and hoid'^'
honourable- wife of a single husband. The various
membei-s of their family had their specific names. We
can still trace the terms that expressed the nearest degrees
both of consanguinity and of affinity, and we can mark the
friendly relations which these terms imply. But it is
less easy to prove the peculiar corporate character of the
Household itself, than to establish the existence of its
c<jinponent parts. The mere name of the House, or of the
diflerent members of the Household, proves nothing as to
the technical sense of the former term, or as to the relations
between those membei"s. In express terms, the language
tells us nothing of agnation, and nothin g of paternal power^
CBut th e paternal power was the connecting b ond and the
external symbol of the Household's unity. If, thereforfir-
any evidence of its existence can l>e obtained, its conse-
^uencos may fail-ly be accepted. T]ii ' ee ""TeaHing_termsII^
^.^^enoting paternity run through the Aryan languages. One
ot tliem, or rather one class of them, denotes the physicaL— --^
C relation of parentage. Anot her ^»f_^f'^ii m«y Vtp dp<;^(^viJ2<vl_
as a-^tcihroFendeariiiCTit. The third is a— f.iflp nf ^'l\g1^\t^
T fao iirnt includcr - r the Ivord s descended fr om the same rooF
(^^That of the Latin f/ cnitof, or from other roots liaving a
similar meaning. The second is found in the Greek iirra
or Turra, the Latin Afhis, and Taf'iax. the Irish Ailnt'il, and
our own faiiiiliiU', t]i<)Ui;li Ininiblt', " daildw ' Tlif tliird
2S2 GENTIS CUNABULA NOSTEAE.
comes from a root which means to maintain and protect,
and appears, among many other various but easily recog-
nized forms, in the English father. I think that, from
the use of this last-mentioned word by the Aryans, we
may infer the existence among them of the paternal power.
In other words, the term father, in its original sense,
denoted a person who exercised a certain kind of authority ;
and this was the sense in which it was used by the Aryans
at a time when its etymological meaning was more apparent
than it has now become.
The root of father is pa, which means to support and
protect. The term itself, as I have said, denotes not genera-
tion, but authority. It is applied by freemen to the gods,
and by the slave or the dependent to the freeman. In
Roman law,* it means not necessarily a married man, but,
as we should say, the head of a house. The familiar expres-
sion Pater Familias correlates the Familia or Household, the
body of dependents over which the Peter presides. It is
nearly equivalent to our word lord, in its original sense of
the Hlaford, or loaf -giver. With this word, indeed, it is
sometimes in our old records expressly joined. Wlien, for
example,"f the Saxon chronicle states that " in this year
was Edward king chosen to father and to lord of the Scots'
king and of the Scots, and of Regnold king and of all the
Northumbrians, and eke of the Strathclyde Wealas' king
and of all Strathclyde Wealas," the old record furnishes a
full illustration of the surviving sense in which, a thousand
years ago, our immediate ancestors used this word. In
the Vedas, too, the words equivalent to father and genifor
are used together, in reference to the same person, as
mutually complementary, and severally expressing distinct
ideas. Thus the form of the word, as it is found in all
* "Dig." L., IG, lOf).
t See Mr. Freeman's "Norman Conquest," vol. i., p. (!0.
THE HOUSEHOLD. 28*
the Aryan languaf:fe.s, proves its antiquity ; while its history
— the fact that in all these languages it has superseded the
derivatives of other roots — proves the importance and the
universality of the office.
It is notable that the Aryans had no special name for the
relation of grandfather. The various languages express
that relation each in its own particular way, for the most
part by some periphrasis. The omission is the more striking
because the Aryans had a special name, which is represented
in the Latin ncpos and our nephew, to express the relation
of grandson. I think this singular omission may be
explaineil by holding that the grandfather, or other liighest
living ascendent was the Pater. He was not the ^('»/^or,
but he was the House Father. Special names were necessary
to distinguish between the different members of the House-
hold, but for all these members there could be only one
head.
The contention may be thus stated. The word father
was in use among the Aryans. Its etymology implies the
exercise of some authority. In the earlier forms of all the
derivative lan<'ua!j:es, the wor<l is used in its etymological
sense. It was, therefore, in this sense that it was used by
the Aryans. The authority Avhich, in the derivative
language, it implies, is that generally known as the paternal
power. Hence the inference is, that there existed among the
iindividcil people a power siuiilar in degree and kind to that
which prevailed in each of the separate nations. To these
considerations it niay be added that there is no trace of any
external authority among the Aryans, such as the modern
State, wliieli \vas likrly to lia\e iuterl'ercd with tlie iloinestic
rule of the House Fatlier. It is not easy to prove, by the
use of single words, the existence among the Aryans of
such a relation as that of agnation. Still, by the aid both
of that which is prociit. ami ot" tliat which is not present.
284 GENTIS CUNABULA NOSTRAE.
something may be clone. The Aryans had* specific names,
jKitarva and hhratarva, to express the father's brother and
the son of the father's brother — that is, the paternal uncle
and the first cousin on the father's side. But they had no
such names on the mother's side ; nor, on the father's side,
did the list of special names advance beyond this point.
There were, indeed, names for the immediate relations by
marriage i" — for the wife's father and the wife's mother, for
the wife's brother and the wife's sister, and for the
husband's brothers and sisters, and even for the husband's
brothers' wives. But there is nothing to indicate any
further relationship on the j)art of the wife. There is no
special name to denote the wife's uncle, or aunt, or cousin,
or any other of her kin. In this state of facts there are
two matters for consideration. In the first place, there are
special names for the persons who formed the Mffig, or near
kin ; and, in accordance with the principle of agnation, they
all, excepting the wife's immediate family, are spear-kin
and not spindle-kin ; they are relatives on the father's side
and not on the mother's side. There is thus some evidence
in the language to confirm the presumption in favour of
agnation to which the unifoim custom of the derivative
nations gives rise. In the second place, the specific names
.stop at the first cousin. But the Mjieg, in the derivative
nations, usually extended to the second cousin — that is, to
the sixth degree. This difference suggests the possibility
that, in primitive times, the line of the Miieg was drawn at
the fourth degree — that is, at uncle's sons — and was subse-
quently extended. Such an opinion, however, is merely
conjectural, and there is little, if any, external evidence in
its support. In the i)resent state of philological knowledge,
the negative argument on such a point must not be pressed
* Fick's "W<irterbuch,"pp. 1063, 1064.
+ See Prof. Max Miiller's " Chips," vol. ii., p. 31.
THE HOUSEHOLD. 285
too far. There is nothing to explain either the original
limitation or the subsequent abandonment of it. In these
circumstances, a suspension of judgment is probably the
wisest coui'se, and it is enough to say that on tliis sul)ject
the philological evidence is not conclusive.
{5 4. The paternal authority, as it appeal's in historic The House
times, was no arbitrary power. It was not the mere and the
control of superior might. It was, as to a Roman ear
its very name implied, a duly constituted authority. Its
basis was the religion of the House, and the relio-ion of the
House consisted in the worship of the deceased ancestors
that still dwelt at and protected the holy hearth. That
hearth, and its ever-burning fire, at once the emblem of the
comfortable element, and the organ of communication
between the spirit-world and the earth, formed in the old
days the centre of the spiritual life. There is as little
doubt that this religion prevailed over the Highlands of
Central Asia, as there is doubt of the presence there of the
paternal power. But it is important to ascertain whether
language afibrds any warrant for this belief. Its intima-
tions are few, but suggestive. In the first place, there is
philological evidence that the Aryans were a religious race.
Their language contains an abundance of terms expressive
of religious sentiment, of adoration, of piet}', of faith, of
prayer, and of sacrifice.* In the second place, that lan-
guage contains nothing that is suggestive of public worship.
It knows nothing of priests or of idols, of temples or of altai-s.
In the third place, aiiujng the divided nations the names of
their gods are simply the names of the various olijt'cts of
nature, and were originally used with a full appreciation
of their physical signification. All these objects had thus
• Pictet, " Lc3 Origincs Indo-Europ«?eimes,'" vol. ii., p. (i'JO.
286 GENTIS CUNABULA NOSTRAE.
received their names before they became objects of adora-
tion. There was, therefore, a time when the lancruafje was
spoken, but Polytheism did not exist. I do not thence
infer, with M. Pictet, the original belief of the Aryans in
the one true God. My inference is, that the Polytheistic
Pantheon was not religious, but only scientific ; and that it
was designed merely to explain, in the rude fashion of an
early time, the ordinary phenomena of Nature. Where, then,
did the Aryans find the means for the satisfaction of those
strong religious feelings which they certainly possessed ?
Language alone will not answer the question. It tells us
that the Aryans had hre, and we know from other sources
that fire, or at least a particular form of fire, was an object
of worship among all the Aryan nations ; but linguistic
data alone do not warrant the assertion that the Aryans
worshipped fire. So, too, the Aryan language contained
the word that corresponds to £Tr«'// or Vesta ; but although
this fact proves that the Aryans recognized the hearth, it
does not indicate how far in their eyes that hearth was holy.
The Aryans had several words for mdu, and the Hindus, the
Greeks, the Kelts, the Scandinavians, and perhaps the Latins,
spoke of their House Spirits as the men in the sky, or the
men in the House, or the old men, or the men ; but a
missing link must be supplied* before we can allege that
* The Hindu expression is Naras. Nara is a recognized Aryan word,
meaning man, and appears as well in otlier cognates as in the Greek
ai'j/p, and in the Latin names, Nero and Nerius. The tem^jtation to
indentify Lares or Lases with this word is very great ; and the more so as
no reasonable explanation of Lares has yet been proposed. But the change
of an initial n into Z is a formidable difficulty. It is true that Priscian
alleges that " solebant vetustissimi (Triecorum n jjro 1 dicere ;" and that, in
certain circumstances, the change in tlie middle of a word is regular. But
I do not know any estaljlished case of such a change in the begiiniing of a
word except that of virpov and Xirpoi', and in our own language of noon-
cheon and luncheon, which, after all, are but dialectic varieties. It is
noteworthy that the Hindus are said ("Life in the Mofussil," vol. i., p.
115) to habitually interchange I and n at the beginning of English words.
THE HOUSE SPIIUT AND THE HEARTH. 287
the Aryans appropriated any such term to their deceased
ancestoi"S. Perhaps tlie most siijj^i^estive word on the subject
is the name of the Hellenic tire god, Hepliaistos. The
attributes and the functions of the Olympic armourer were
indeed very ditierent from those of the gentle gods of tlie
Houseliold ; but his name has been identified* with the
Sanscrit SuhJijifildJui, a superlative form ecjuivalent to the
" sibest," if I may coin such a word, or the " kindliest " in
its original sense, the ifuardian and the chief of the sib,
the persoas who shared in the same religious rites, and
enjoyed the same divine protection.
slj •"). I have said that the Aiyan nations, when they The Clan
in their separate C(jn(lition become known to us, lived in Divisions.
groups of clans connected by a descent, real or assumed,
from a common ancestor ; that each of these clans presented
a structural division wliicli may be called, in the terms of
the Roman law, that of the Agnati and of the Gentiles ;
and that there was, further, a well-marked distinction amonsf
freemen into a supei'ior and an inferior class, according as
they Were members of" a kin and of a Household, or of a
Hfjusehold only. If we assume that similar arrangements
prevailed among the innlivided Aryans, the old language
confirms our expectation upon each of these points. The
Eponym of our race was Manu — the Menu of the Hindus,
the Minnas of Orchemenos, tlie Manes of the Phrygians, the
Minos son of Zeus of Crete, the ^lannus son of Tuisco,
whom, in the time of Tacitus, the German Sagas described
Wli:it wc want is .111 instance of a Sanscrit word coninieiicini,' with 11 tliat
is reprcscntu<l by a Latin word coniinencing with /. Tliu doriviitions of
wonls, like the use of wonls, must he strictly judged ; and the student
inuat learn the ]iainful, hut whtilcsonie, lesson, to ahandon, upon cause
shown, tlie most favourite effort of las ingenuity— " Quiinn is iuvita
recedant VX versentur adhuo intra penetralia Wstie."
• See rictet, vol. ii., p. (.7!'.
288 GENTIS CUNABULA NOSTRAE.
as their founder. Just as the several nations were divided
into coonate clans, as the lonians, the Dorians, and the
JEolians were descended from the three sons of Hellen ; as
Inor, Herniin, and Isco continued the race of Mann, so the
Aryans had their several clans, each of which was known by-
its proper appellation. Individual names are of course
necessary, at all times and in all circumstances, to distinguish
individuals. But the pride of race which has always
distinguished the Aryans appears to have given no small
importance to the name of the clan. The word " name "
has, accordingly, been preserved under a variety of but
slightly differing forms all through the Aryan nations. It
comes from the root gna, and means that by which one is
known, the initial guttural being, by a strange coincidence,
lost in every one of the sepai-ate languages.*
For the division of the clan there are appropriate words
in the old lano-uao'e. These words are Sib or Kin for the
one part, and for the other pai't the Wic. I cannot say that
the language of itself proves any connection between these
terms, much less such a connection as that which, in a
former chapter, I have attempted to describe. The proof of
that connection depends upon the resemblance in the
customs of each of the separate nations. But when the
existence of such resemblances is known, that knowledge
may reasonably be applied to the interpretation of these
Aryan words, which evidently denote different ideas. It
is not clear whether the lower division ought to be called
the kin or the sib. Both words exist in the Aryan language ;
but the latter, while it became obsolete among the Iranians,
is used in the Vedas, and the former takes its place in the
Avesta. Both these languages agree in the use of the
wider term, the wic. Further, there are titles which show
* Pictct, " Les Oriyines," vol. ii., p. 3S0.
THE CLAN AND ITS DIVaSIONS. 289
that each of these bodies was regularly organized, and was
under the control of its special chief. The Avesta* notices
four degrees in the social scale of the old Iranians. It
speaks, and in this order, of the House-master, the kin-master,
the wic-master, and the province-master ; and it prescribes a
tariff of purification for these, according to their rank.
With the last-mentioned personage, who appears to have
been merely local, I am not now concerned. But this
passage gives the three ascending steps of the House, the
kin, and the wic, with a master of each. In Sanscrit
there are coiresponding titles, except that for the "zantu
pati," or kin-master, the " sabha pati," or sib-master,
occui-s. The House-master and the wic-master are recog-
nized as original Aryan terms, but not so, apparently, the
intermediate term. Yet, whatever difficulty may arise as
to the use of a particular word, it may be confidently
alleged that the Aryan House-master was the member of
an organized clan under the presidency of a chief, and that
he was also a member of a body of near kinsmen within
that clan, by whatever name that body was called, and
whether it had, or had not, a special president.
The word "wic" occui"s, with but slight variations of either
fonn or meaning, in all the Aryan languages. Its original
meaning seems to have been simply a dwelling, and in this
sense it appears in the Greek otKog, a digammated word, and
in the Icelandic "f Vic. But it also included a collection of
houses or a village, and in this sense it occurs in the Latin
licus, our own wiek, and under other forms in the Gothic,
Keltic, and Slavonic tongues. The word kin, or gens, or
zantu needs no comment. Its descent is unmistakable
from that root with which, both in Greek and in Latin, we
are familiar in the sen.se of generation. But the " sabha"
• See Spiegel's "Avesta," by Bleeck, vol. i., 57 ; ii., 2.
t Clcasby-Vigfusson, Icel. Diet., p. 687.
20
290 GENTIS CUNABULA NOSTEAE.
or sib deserves some further consideration. The Sanscrit
word " sabha" is compounded of the preposition sa, which
is the Latin cwm, the Greek avy, and of the root hha, which
occurs in the Latin fiii and its cognates.* It means an
assembly, and, secondarily, a place of worship. Hence are
derived various adjective forms, meaning, generally, worthy
of the assembly, and then faithful and distinguished in
society. In the Rig Veda the word " sabheya " is used as an
epithet of a son who is distinguished in the " sabha," and is
the glory of his father, or of a priest who is learned in the
customs of the family. Sometimes " sabha " is used in the
sense of a tribunal ; and the words " asabhya," meaning
worthless — that is, out of the sabha, and " pasabha,"
meaning violence, or conduct in opposition to the sabha,
also occur. Corresponding to these terms is the Gothic
" unsibis," illegal ; all which words suggest the idea of an
assembly having jurisdiction. In Irish, the word " sabh,"
or " sibhe," a chief, belongs to the same source. The word
occurs in the Slavonic languages, with the significant sense
of a person who has a share in a common field-mark. In
the Norse language it is said"f" to mean relationship by
marriage as opposed to that by blood ; but from the use of
the technical term afsifja,:J: to forisfamiliate, I suspect
that this was a later meaning. From the old German
sippe, it has come to ourselves, and survives in our
language. Sib, in the sense of related, is still used in the
Lowlands of Scotland, and appears in the writings of Sir
Walter Scott. It is also found in the humble but deeply
interesting word, gossip. This word, degraded as it now
is, takes us back, with a twofold interest, at once to the
* Pictet, " Lcs Origines," vol. ii., p. 382, ei se<j. Tick, " Wcirterbuch,"
p. 195.
+ Cleasby-Vigfussoii, p. 526.
J lb., p. 9.
THE CLAN AND ITS DIVISIONS. 29l
cradle of our race and to the cradle of our faith. It was
originally applied to persons who were sib, or related to
each other in God ; and especially meant those persons who,
by taking part in the same baptismal rite, were regarded
as forming between each other a new relation, of which
God was the bond. As the Hindu belonged to a " sabha,"
of which the bond was the offering to Agni, so the Chris-
tian entered, through baptism, into a spiritual kinship, of
which the members were in a special sense brethren in
Christ. How intimate this tie was once held to be we may
gather from a curious passage of an old Irish* annalist.
When he desires to express the climax of misery and
disorder in his unhappy country, he declares that " there
was no protection for church or fortress, gossipred, or
mutual oath." Hence gossips came to mean intimate
friends ; next, gossip meant the light, familiar talk of such
friends ; and, finally, with a dyslogistic connotation, any
frivolous conversation. To such base uses may the noblest
words, like the noblest men, come at last.
The Aryan vocabulary contains-f* the word " vasupatar,"
and its feminine, " vasupataryji," meaning one who has a
noble father. The words immediately recall the Homeric
epithet of Helene, tvTrareinin, and the Athenian noblesse, the
(vTTiirpihQ, But a ncjble father is a relative expression, and
connotes a state of things where inferior parentage is not
unknown. We arc thus reminded of that remarkable
division of freemen which, as I have shown, is found
among almost all the Aryan nations, and which, in our
own early history, is familiar to us under the names of Eorl
ami Ceorl. H(AV far a similar distinction originally
prevailed, I can only surmise. But clans, ainl divisions of
clans, existed among the Aryans. The words that I liavc
• " Aniial-s of the Four Masters," 1050.
f Fick'a " Wortcrbuch," p. 180.
292 GENTIS CUNABULA NOSTRAE.
cited are evidence that, before the dispersion of the nations,
ranks were distinguished, and that the basis of that dis-
tinction was birth. Among the separate nations distinctions
of rank prevailed, and I have stated my reasons for
believing that the line was drawn at membership of a kin.
In these circumstances, it is not an unreasonable inference
that, in this respect also, the practice of the Aryans resembled
the practice of their descendents.
The Mark § 6. It remains briefly to notice the traces among the
Aryans of the mark system , such as I have already
described it. In the first place, the word Masg is found*
in the sense of the mark itself. There are, as I have said,
a variety of names for the house ; and ara,-|- which re-
appears in the Latin area and various Sanscrit and
Slavonic cognates, occurs in the sense of what our old law
called the " precinct." The village was known as " vaika
or vik." But it had also other names, amongst which is
our word "tribe." This wordj is the Sanscrit trapa, the
Keltic treabh, the Lithuanian troba, the Latin tribus, the
Umbrian trefu. In the Gothic languages, it appears under
some variety of the well-known " dorf," or, as in England
it is called " thorpe." The Russian word is " derewnaia,"
and the Scandinavian is "trup." It is probable § that
these words are connected with troop, trouj)eau, and the
like, and that the primary idea is aggregation for the
purpose of protection. But it may be observed that
these words do not support the meaning of the word
" tribe" as an extension of the community ; in other words,
of an aggregation of clans. I suspect that sucli a meaning-
came from the Latin tribus, and that this word was of
* Tick's "Wiirterbuch," p. 151. t Ih., j). 20.
J Pictet, "Les Origines," vol. ii., p. 291.
§ See " Cobden Club Essays," vol. i., p. 351.
THE MARK SYSTEM. 293
entirely different origin from those we have been considering.
It denoted* merely a political division, and is analogou??
To QUI' " ridin g." Both in Greek and in Latin, it was Tpnnrve
or TpiT-vc, the third of some primitive whole. In this aspect
it would be a comparatively modern word, and has little
interest. In the other sense it claims, of com'se, a high
antiquity ; and it denotes the community itself, and not any
extension of it. I do not know that there is any express
evidence of either the arable mark or the pasture mark.
There seems, however, to be one word which points to a
system of collective occupation. This is f the Sanscrit
samanya, the Oscan comonom, the Latin comoinis, or, as
it was in classic times written, communis, the Gothic
gamainths, the modern German gemeinde. All these forms
imply an undivided property, and probably have especial
reference to pasture lands. To them may perhaps be addeil
the Greek k-u'doq and the Irish cumme. There is another
word, " vara or varata,"+ which seems to imply a fenced
place, and of which ti-aces still remain in the final syllable
in such words as Kenilwoi-th, Lutterworth, Tamworth. It
is possible that this word may relate to the house and its
precinct only ; but it may also, and a kindred word among
the Germans did, denote a smulergut or immunity.
At the same time I must add, that neither in the case
of tribe, nor of connuon, nor of worth, does Fiek include
in his Aryan vocabulary any coiTCsponding primitive term.
The evidence of the expei-is is, therefore, not so decisive as
it was in those other cases, where they were all agreed.
ij 7. Philoloirv affords also some negative evidence. The ^!'"' .
> OJ G ^ Ncptivo
Aryans had no wonl f(^r law. Tlioy had no wor<l for king. Evidence.
• See Moinnisen'a " Hist, llomc," vol. i., pp. 45, 74.
t Pictet, vol. ii., p. 400.
* lb., p. 80.
294 GENTIS CUNABULA NOSTRAE.
There is no trace among them of any organized priesthood,
or of any system of public worship.* There is no trace
among them of anything that approaches to what we
call a State. These omissions, however, are less formid-
able than they might at first sight appear. The experience
of India shows that, even at the present day, men can
live without the aid of any political organization. If
we bear this fact in mind, these negations, taken along
with some positive hints, will help us to understand
the social condition of these distant forefathers. If
there be no Aryan State, there are plainly enough the
clan and its organization. If there be no Aryan word
for law, there is an Aryan word^f* for custom. If the king;
be wanting, we find chiefs in their several degrees — the
chief of the House, and the chief of the wick, and the
chief of the kin. If they had no established religion, our
forefathers had strong religious sentiments, even if we can
but dimly discern the objects of their worship. The
names of some of their divinities, the Devas, the Amukas,^:
Varana, seem to suggest an incipient Nature-worship. In
" Bhaga " § again — a name that means a brother, the Zeus
Bagaios of the Phrygians, the Boga of the Slavs, the degraded
bogy of Christendom — there is probably a trace of the
House Spirit. At all events, the vestiges of the agnatic
Household may be seen; and where that is found, the
House Spirit is not far away.
I do not, therefore, picture to myself the dwelling of an
Aryan House Father as "a den|| which its savage owner
shares indeed with his mate and his offspring, but which no
other living being may enter except at the risk of his life."
* Pictet, " Les Origines," vol. ii., p. 690.
+ See Fick's " Wiirterbuch, " p. 101.
t lb., p. 12. § lb., p. 133.
II Mr. Cox's " General History of Greece," p. 11.
THE NEGATIVE EVIDENCE. 295
The rule of the precinct was not altogether so alarming.
To me the evidence seems to point to a number of clans
connected, like the Hellenes, in a general way, and wor-
shipping a common genarch. These clans had each its
peculiar sacra, and bore each its special " nama " or Gentile
designation. Each of them was independent, and lived
upon its own land, or wandered perhaps over its own beat,
imder the direction of its hereditaiy chief. They knew
nothing of State affairs ; but clan life, with its rules of
mariiage and of pure blood, of kindred help and kindred
vengeance, was in full activity. Custom supplied the place
of law ; and their disputes were settled by their elders, or,
at woi"st, were compounded under some system of wer-geld.
.T hey had propert y, both common and se parate, and a
jlistinct system of inherit ance. To speak of such men as
savages, in the same sense in which we so describe the
lower grades of the Turanian peoples, is a mere abuse of
words. They may have been in some respects far from the
standard of modern civilization ; but there never was any
risk of an Aryan having been mistaken for an Anthropoid.
CHAPTEE XIII.
NON-GENEALOGIC CLANS.
§ 1. I have hitherto described the normal growth of the
primitive association. Starting from a single Household, it
expands into a Joint Undivided Household, which separates
into several related Households, which become a kin or
clan. Such seems to be the regular course of events when
it is not interrupted by the action of external forces.
Disturbing forces do, of course, intervene ; and there must
have been, and must still be, countless instances of kins that
have been cut short at every stage of their existence.
Superorganisms have their perils not less than the
organisms of which they are composed ; and the apparent
waste of vegetal and animal life finds its parallel in the
fate of societies. War, pestilence, famine, all the ills to
which flesh is heir, scatter the elements of which the rising
societies are formed. Even prosperity brings with it its
own dangers. The stronger and more luxuriant the
growth, the less necessity exists for those expedients by
which, in less fortunate circumstances, the ranks of the
society are recruited. The rules of descent become rigid,
and are strictly enforced. Any lapse from the strict
standard, any imperfection in the pedigree, brings with
it expulsion. Not unfrequently this strictness is fatal even
to the body that it means to protect. In the absence of
new blood, the old genealogic clan dwindles, and at last its
place knows it no more.
HOUSEHOLD THE TYPE OF ARCHAIC ASSOCIATION. 297
The genealogic clan, however, is not the only, although it
is probably the earliest, form of Aryan association. There
are other similar bodies, for all of which the old clan forms
the model, and for some of which it supplies the materials.
I have said that from various causes, either from some
defect in the pedigree, or from some misconduct, or from
the pressure of debt or of a blood feud, or from some similar
misfortune, men are expelled from, or are obliged to
leave, their kin. In archaic society, such a relinquishment,
whether compulsory or not, means something very different
from what it means when the State is supreme. It implies
that the person so cast out has no longer, unless he be sold
into slavery, a place in the world. He must begin life
anew. He belongs* to no brotherhood, is subject to no
custom, has no hearth. His hand is against every man, and
every man's hand is against him. But man is a social animal,
and the scattered elements of society, by an imf ailing attrac-
tion, gravitate together. Forthwith they commence to
organize themselves according to the law of their being.
Of that law, the Household is the type. Nor is mis-
ibrtune the sole cause of such new combinations. Some-
times there is a natural reproduction of the parent stock.
Sometimes there is a separation, whether in friendship
or in anger, of the old body. Sometimes men desire to
associate for the accomplishment of some common purpose,
for the advancement of some religious belief, for the prose-
cution of some special form of industry, for the cultivation
of some special art. In all these cases they have recourse
to the one prevailing type. Human association presents
itself to archaic man in the form of a Household, and
that Household is arranged on certain definite principles.
There is no reasoning upon tliu matter, no balancing of
* 'A(j>i)>'iTu>f} uOifiiaroc uiiarioQ inrif tKtiivt^.—W., ix., G.3.
298 NON-GENEALOGIC CLANS.
powers, no calculation of the greatest happiness of the
greatest number. They accept the one familiar form as an
ordinance of nature ; and they no more desire to innovate
upon it than they think of altering their stature or
chano-ino- the colour of their skin.
The forma- § 2. The principles on which the Household was based, and
artificial which, in the formation of artificial households oi^analogou^s
tions. groups, men had to apply, were the existence of an Eponjan,
Agnation, and Exogamy. Of each of these subjects I have
already treated, and nothing more is now necessary than to
notice the method of their application to the new circum-
stances. The first step is to find an Eponym. Ordinarily, _
some man of ability and n^e sup plies the^Avant with a.
■ degree of efficiency p roportio ned to his re putation. Some
successful soldier, some person of high, although perhaps
blemished descent, some person of peculiar sanctity, in short
a person possessed of any qualities calculated to excite public
attention, attracts a following. Nothiiig^succeeds — like —
success ; and the associat ion, if it once secure a foothold .
5ooii"ausnients its numbers. The leader of one generation
becomes the Eponym of the next. After his death, his spirit
is acknowledged as the Lav Famil'iaris of the new society,
and his followers are regarded as his adopted sons. So far,
there is no difficulty. The train of thought is sufficiently
intelligible, and I shall presently show that this was the
actual course of events. What was the position of the
leader during his life, is not so clear. It appears as if, in
ancient times at least, it was usual to accept as the patron
some hero or some god ; or, in Christian times, some saint ;
and this patron, separately during the life of the Eponym,
and conjointly with the Eponym after his decease, formed
the Penates of the association. Yet even the worship of a
living man, or rather of his genius or spirit, is not incon-
THE FORMATION OF ARTIFICIAL ASSOCIATIONS. 299
ceivable. The Romans blended the divinity of Augustus
with their Lares, as grateful Greece did that of Castor and
the mighty Hercules. Asiatic provinces could not be
restrained from erecting altars to the emperors. Even in
our own time we are at once shocked and amused at the
accounts of the determined efforts of the Hindus to worship,
during his life-time, the brave General Nicholson ; and of
that much-aggrieved officer's escape from apotheosis by the
unsparing application to his votaries of the cat-of-nine-tails.
In all circumstances, however, the name and the repute of
the Eponym form the cement of the association. Its mem-
bers derive from him a common name, a common worship,
and a common pride of descent. They have lost or forsaken
all other ties, human or divine ; and they form under their
new organization, for good or for evil, an independent and
self-sufficient commimity.
Yet, although these men are thus co nnected by their
allegiance to a common head, each of them within thatZ^
Hiiiit li.coinis liiiiisL'lf the founder of a line of his own.
Til' .Ni' w lit) once had a lineage and Gentile customs, introduce
in sdiiic fa shion their old ties into the new place . As the
Englishman in Australia and America revives old memories
by giving to his homestead and his township the long-
familiar names ; as the surviving son of Priam founded, in
his exile,* his little Troy, and Pergamos modelled upon its
great original ; as the Roman colonist,-f- wherever he went,
always established a miniature and semblance of the
Roman people ; so the Rajput, driven into the jungle, strives
to perpetuate the memory of his kin. Thus the process
which I have hitherto endeavoured to describe is inverted.
* Proccclo, et parvam Trojain, simulataque magiiis
Pergama, et arentem Xanthi cognoiniiie rivum
Agnosco, .Sc;va(iue amploctor liiiiina portiu. — ^Eit., iii., 349.
t Elfigiea parvu; siiuulachraciue I'opuli lloniani. — Aid. GcUiun, xvi., 1.3.
300 NON-GENEALOGIC CLANS.
Instead of a Househol d expand ing^ through kins into a
people, the tale comm ences with a peo^ple in miniature, ready
formed, and with its component clans marked out from the
first. That which practically keeps together the larger
connection, and keeps asunder the smaller groups, is the law
of Exogamy. Men must marry within the people, and must
not marry within the clan. It is noteworthy how men are
found to obey the letter of these laws, while they adopt
various contrivances to avoid the inconvenience to which,
in an early state of society, their pressure gives rise. When
the domestic supply of wives fails, recourse is had to abduc-
tion : but the women so taken are formally adopted — *
although the adoption of females seems, as I have elsewhere
said, to have been irregular — into one clan, in order that they
may be married into another. When there are enough
women in the tribe, but their distribution among the clans
is unequal, a re-examination of pedigrees takes place.
Some plausible case of distinct ancestry is always made out,
and one clan is divided into several clans, each of which has,
of course, both as between themselves and the other clans
within the tribe, I'eciprocal i-ights of connuhium. These
^and the like expedients would not be tolerated in the older
and more successful clans ; and they will probably cease
among those who now use them, as time strengthens and
confirms their hereditary tendency.
Such seems to be the process by which clans were formed
otherwise than by descent. So little is known of the history
of any clans, or of their formation, that it is difficult to illus-
trate, by any well-authenticated case, any part of their
development. As to these impure clans, an example is given
by Mr. Lyall from his personal observation in India. In
that country there exists a great tribe of robbers and
* Mr. Lyall, "Fort. Kev.," No. 121, N.S., p. 107.
THE FOKMATION OF ARTIFICIAL ASSOCIATIONS. 301
caterans named Meenas. "This name," Mr. Lyall says,*"
" represents four great sections of one tribe, ^yhich inhabit
four different and distant tracts, and are evidently fast
separating off into alien clans by reason of distant habita-
tions. Each section is, of course, distributed off into mani-
fold circles of affinity ; and these circles, being in various
phases of growth and consistency, can mostly be traced back,
by the clue of their names or other characteristics, to their
real distinction of origin. Some of them preserve the name
of the hiirher clan or caste from which the founder of the
circle emigrated and joined the Meenas : some names denote
only the founder's original habitation, while other circles
bear the names of notorious ancestors. We can perceive
plainly that the whole tribe is nothing else but a Cave of
AduUam, which has stood open for centuries, and has
sheltered generation after generation of adventurers, out-
laws, outcasts, and refugees generally. It is well-known
from history, and, on a small scale, from experience of the
present day, how famines, wide-desolating invasions,
pestilences, and all great social catastrophes, shatter to pieces
the framework of oriental societies, and disperse the frag-
ments abroad like seeds, to take root elsewhere. Not only
have these robber tribes received bands of recruits during
such periods of confusion, so common in Indian history, but
there goes on a stea<ly enlistment of individuals or fanulies
whom a variety of accidents or offences, public opinion or
private feuds, drives out of the pale of settled life and
beyond their orthodox circles. Upon this dissolute collec-
tion of masterless men, the idea of kinship begins immedi-
ately to operate afresh, and to re-arrange them systematically
into groups. Each new immigrant becomes one of the
Meena tribe ; but he, nevertheless, adheres so far to his.
• Ubi siqira, p. 105.
302 NON-GENEALOGIC CLANS.
origin and his custom as to insist upon setting up a separate
circle, under the name of his lost elan, caste, family, or
lands, "
This description suggests the commencement of a far
more famous society, and the old Asylum on Capitolinus
between the Two Groves. It is clear that the legendary
origin of Rome, whether those legends be in fact true or
false, did not appear to the men among whom the tale was
told as in any way absurd. It is equally clear that, to a
native of Central India, at the present day, the stories of
the Asylum and of the Rape of the Sabines would seem
mere ordinary occurrences. A prince in distress, but
miraculously preserved ; a band of brave but broken men
collecting under his banner ; the contemptuous rejection of
connuhium by the neighbouring genealogic clans ; the
successful abduction ; the foundation of a great power — to
the story of all these events a modern Rajput would
seriously incline, without any misgivings as to antecedent
improbabilities. In times that, in our view, are more
within the region of actual history, the Roman annals
record some cases that seem to be parallel. One of these
was that of the Cilician Pirates, whom Pompeius Magnus
extirpated. At one time it seemed as if a great robber-
State was about to establish itself in the Levant. " The
pirates," says Mommsen,* "called themselves Cilicians ; in
fact, their vessels were the rendezvous of desperadoes and
adventurers from all countries, discharged mercenaries from
the recruiting-grounds of Crete, burgesses from the destroyed
townships of Italy, Spain, and Asia, soldiers and officers from
the armies of Fimbria and Sertorius ; in a word, the
ruined men of all nations, the hunted refugees of all
vanquished parties, every one that was wretched and
* "Hist, of Eonic," vol. iv., i>. 40.
THE FORMATION OF ARTIFICIAL ASSOCIATIONS. 303
daring." The organization of these men was complete.
They afforded mutual help ; they acknowledged any agree-
ment made by any of their members ; they collectively
avenged any wrong that any such member had sustained.
They showed,* in an eminent degree, " the inviolable
determination to stand side by side, the sense of fellowship,
respect for the pledged word and the self-chosen chiefs."
*' We cannot tell," adds the historian, " how far the internal
political development of this floating State had already
advanced ; but its arrangements undeniably contained the
germs of a sea-kingdom which was already beginning to
establish itself, and out of which, under favourable circum-
stances, a permanent State might have been developed."
Perhaps the history of Sertorius points in the same
direction. If that distinguished general had been content
with his Iberian position, he might have founded a Spanish
kingdom. The Spaniards, just as the Teutons and the
Kelts would have done, insisted f upon becoming his ' men.'
But his object was to re-conquer the headship of his native
country. He fell in the attempt, and his clan, that might
have been, fell with him.
S 3. A union which, like the Household, rests upon a The
— T — : :; . ^"7. 1 • Religious
religious sentiment, was obviously suited for the extension ^ssocia-
of religious communities. Accordingly it is found that in
India such communities spring up with wonderful rapidity,
10 s
and all with similar features. Some person, sometiuu
^ devout man, sometimes a n impostor, starts some new tenet
or pi'Ofesses"'somenew_jeyelatiQiL He organizes a new
society, of wliich he becomes the E p on ym . Sometimes
he fails, and no more is heard of lmiL^Qr_liis.__society.^
* Sometimes his memory Hn^'j^ers in some o bscure tomb or
• "Hiat. of Rome," vol, iv., p. 42.
t Jl., p. 20.
304 NON-GENEALOGIC CLANS.
shrine. Sometimes his success is assured, and the religious
community may Attain even to national proportions. Such
was the case of the Sikhs, who were originally a religious
fraternity ; and such, on a still greater scale, were the faiths
of Bouddha and Mohammed. Of the practical operation
of these principles on a small scale, Mr. Lyall gives
some interesting illustrations.* He says : — " A boy may
be noticed sitting by the roadside, who can be known at
once to belong to a religious order by the large trident
painted in a special fashion on his forehead, having for
vestments only a light martingale of yellow cloth around
the loins. Being questioned as to his circumstances, he
explains that he has forgotten his people and his father's
house ; that his parents both died of cholera, a year or so
back, whereupon his uncle sold his sister into a respectable
family, and presented the boy to a mystic who had a new
revelation, and was developing a religious fraternity there-
upon. To that fraternity he now belongs, and all other ties
of blood or caste have dropped away from him. Or if one
question, in like manner, any strange pilgrim that comes
wandering across central India from the shrines upon the
Indian Ocean towards the head-waters of the Ganges in
the Himalayas, he may describe himself simply as the
disciple of some earlier saint or sage who showed the Way.
The point to be remarked is, that he undertakes no other
definition of himself whatever, and declines all other con-
nections or responsibilities." I need do no more than
indicate the analogies in Christian countries. If any person^
in a country where the Roman Catholic creed prevails,
enter ' religion,' that is, become a member of some
religious order, he is deemed to be civilly dead ; and has,
in contemplation of law, no other interests save only such
* "Fort. Eev.," No. 121, N.S., p. 100.
THE RELIGIOUS ASSOCIATION. 305
as belong to his monastery. In regard to secular things,
such a person has practically ceased to exist. There are
in this connection some matters, otherwise difficult of
explanation, which now become intelligible. Sir H. S.
Maine* justly explains certain difficulties in Irish ecclesi-
astical history, by showing that each monastic house
constituted a family, or tribe ; and he observes that the
founder of the house "afterwards nearly invariably re-
appears as a saint." He offers no explanation of this
phenomenon, but it does not seem difficult to find one. The
canonization merely represented the apotheosis. The founder
became the Eponym, the Lav Familiaris, of his connnunity.
If Herodotus were to describe such a personage, he would
probably say of him, as he does sayf of Miltiades, " And to
him, when he had made his end, they offer sacrifices, as is
the custom to a founder." In such circumstances, the monks
and their successors became the saint's kin. Each monk
may have had his secular kinsmen, and for certain purposes
notice was taken of them. But the spiritual relationship
was fully established ; and each new religious community
became, as it were, an additional clan of the great all-
embracing community, the great spiritual nation, whose
Eponym is Christ.
R eligion, moreover, not only forms a bond of union, but
also acts as a disintegrating force. If it brings peace on
earth, it also brings a sword. The first great schism of
which any information exists was that which arose among
the Eastern Aryans, when those who worshipped the Devas
cmigi'ated into Hindostan, and their brethren, who clung to
the old faith, remaineil in Iian. Unhappily, tlic disruptive
power of religious belief, in modern times, needs no illustra-
tion. But in its mililer form, as it appears in India, it
* "Early Hiat. of Inst.," 11. 2:?G.
t vi., 3t).
21
306 NON-GENEALOGIC CLANS.
seems to furnish a method by which, in the absence of any
legislative organ, the pressure of customs that have become
unsuitable may be avoided. Religious societies break up
and form new groups. Those who desire any change
.secede, and form a new religion of their own. Thus, the
marriage with a deceased brother's wife is with some tribes
an absolute duty, and is with others prohibited. The
custom* has crept into one of the clans where it was
previously forbidden. The result is that a sept has been
detached from the rest of its brotherhood. " It appears,"
says Mr. Lyall,*f- " that a religious body with some distinctive
object of worship, or singular rule of devotion, has usually,
though not invariably, come to split off into a separate
group, which, though based upon a common religion,
constructs itself upon the plan of a tribe. The common
jf aith, or worship, forms the outer circle, which has gradually
(shut off a sect not only from intermarriage, but even from
) eating with outsiders : while, inside their circumference, the
regular circles of affinity have established themselves
independently, just as families settle and expand within the
pale of a half -grown tribe. Each body of proselytes from
different tribes and castes has preserved its identity as a
•distinct stock, keeping up the fundamental prohibition
against marriage within the particular group of common
descent. But with some other groups of the sect it is
essential to marry ; and thus in the course of time has been
reproduced, upon a basis of common belief or worship, the
original circle of a tribe, beyond which it is impossible to
■contract a legitimate marriage."
I have taken the preceding illustrations chiefly from the
present time and from Indian sources. There is nothing
unusual in religious association, and we need not go far
• Vr. Lyall, "Fort. Rev.," Ko. 121, N.S., p. 103.
+ JIj., p. 113.
THE RELIGIOUS ASSOCIATION. 307
from our own doors to observe the power and the persistency
of the force from which it springs. But that which I desire
to show is the nature of such an association as an exchisive
^tie ^ The S tate has now become su fficiently strong to insist
upon the allegiance of all its subjects, whether they are
members of a religious body or not. But in archaic society,
all the various combinations of men crossed each other, and
yet remained distinct. In India, this condition of things
still survives, although its end is probably not far distant.
The information, therefore, which that country affords is
inestimable. It is, indeed, foi'tunate that we have the
evidence of so intelligent and trustworthy a witness as Mr.
Lyall with respect to the events that are now actually
taking place ; and all students of social phenomena must
earnestly desire that this very acute and judicious observer
may, while there is still time, place upon record a detailed
account of Rajput customs and modes of thought. The
weakn&ss of the State, or, rather, the absence of any true
State, in the remoter parts of India, has hitherto permitted
tliese varioas societies to develop themselves by the side of
the clans, or even in opposition to them — a result which,
under a powerful central government, is liardly possible.
We cannot, therefore, expect to fiml, either in modern
States, or in the more advanced of tlie <;overnments of
antiquity, examples e([ually striking. But it must not be
supposed that religious organizations, such as I have
descriljed, were unknown in Greece and Rome. In the
latter city, indeed, the strong hand of the law was pi'ompt
to keep within bounds every kind of extravagance ; and the
senate, however tolerant to individual eccentricity in mattei's
of worship, sternly repres.st'd any organization that threat-
ened the welfare of the State. In Greece, however, the case
was otherwise. Of early Attica, Mr. Grote* observes that it
• "Hist, of (Jroccc," vol. i., ji. 2M.
308 NON-GENEALOGIC CLANS.
" was originally distributed into many independent denies
or cantons, and included, besides, various religious clans or
hereditary sects, if the expression may be permitted ; that
is, a multitude of persons not necessarily living in the same
locality, but bound together by an hereditary connnunion of
sacred rites, and claiming privileges, as well as performing
obligations, founded upon the traditional authority of divine
persons, for whom they had a common veneration." Such,
on a larger scale, were the Orphic, and especially the Pytha-
gorean, brotherhoods. * The latter famous association
consisted of the disciples of a great religious and moral
teacher. They adopted, as a symbol of their allegiance to
him and of their union among themselves, a peculiar diet,,
ritual, and system of observances. Among themselves, they
were bound by the most devoted attachment. Towards all
persons outside of their brotherhood they made no secret
of their contempt. Their social views are concisely stated
in two verses of a descriptive poem that have been preserved.i*
" His companions he deemed equal to the blessed gods : all
others he held of no account, either in value or in number."
To this comprehensive rule they allowed no exception. It
extended even to their nearest relatives, and the offence
thus given is said to have been one leading cause of the
misfortunes of the sect. With the history of the brother-
hood I am not now concerned. I only desire to call
attention to their characteristics as illustrating this form
of association, to their intimate union, their exclusiveness,
their devotion to their Eponym, their substitution of the
new ties for the old domestic relations, and to the resem-
blance which their association seems to have borne to the
Household.
* "Hist, of Greece," vol. i., p. 31 ; vol. iv., p. 529, et seq.
t Tovc jJitv kraipovQ I'lytr 'i(Tovg fAaKttpeaai deoicri.
Tovc h' aXXovc iiytir' ovt Iv \oyto ovr kv ItpiQfxu.
THE PROFESSIONAL OR INDUSTRIAL ASSOCIATION. 309
§ 4. Other associations, formed for various other pui"poses, The Pro-
have been or ganized on p rinciples. similar_-to those that I or Indus-
have described. Such, especially, are those which have for ciatiou.
tlieir ob jp^^^. prnfps;t;innn1 puippscs, and thosc which arc
purely industrial. The former class was conspicuous in
early Greece. " As there were in every gens or family,"
says Mr. Grote,* " special Gentile deities and foregone
ancestors who watched over its members, forming in each
the characteristic symbol and recognized guarantee of their
union, so there seems to have been in each guild or trade
peculiar beings whose vocation it was to co-operate or to
impede in various stages of the business." Such a class was
the famous School of thu Homeridjv — the bards who, with the
great epic poet as their Eponym, formed what we should
call the literary class of the time. Such were the
Asklepidrt?, or sons of the physicians, who, under the
headship of Asklepios, formed the fraternity of medicine.
Sucli were the Cheironid«i,-|" who inherited from the wise
Centaui- the knowledi^e of the virtues of medicinal herbs, a
knowledge wliich they were bound to use without renui-
neration. Such, too,:): were the Klytiadiu and the lamidie,
the gieat augural clans of Elis, and the Talthybiadae, the
heraldic house of Lacedjianon. Thus, when Diomedes^
boasts that the children of the ill-fortuned were they that
encountered his might, lie docs not intend to say, and in
fact does not say, that those pei"sons are unfortunate whose
children meet him in battle ; but he describes his opponents
as being in very truth the children or desccndents of
misfortune. Misfortune was their Eponym, and they were
80 predestined to defeat that tliey could only be regarded as
the clansmen of disaster. At Rome, the original history of
• " Hist, of Greece," vol. i., p. 46o. + Ih., p. 249.
J HerodutuB, vii., l.'W ; ix., ."?.'}. Cicero, " De Uiv.," i., 41.
§ "Iliad," vi., 127.
310 NON-GENEALOGIC CLANS.
such associations is remarkable. They were composed
exclusively of ?erarians and freedmen. No Quirite, much
less a patrician, could belong to a gild. We may accor-
dingly infer that these gilds were meant to provide an
organization for persons who otherwise would have had no
social ties. The State was not then sufficiently strong to
dispense with the inferior social agencies. On the contrary,
it eagerly courted their assistance. Thus, from the earliest
times, or, in popular language, from the reign of King
Numa, the artisans,* or, as we should say, the working
classes, were arranged in nine gilds. These were the pipers,
goldsmiths, carpenters, dyers, curriers, tanners, coppersmiths,
potters, and all other woi'kmen. To these must be added
other gilds of great antiquity — bankers, merchants, water-
men of the river, butchers, and scribes. " That each," says
Niebuhr,-f- "as a true corporation, had its presidents, property,
and special religious rites, may be asserted with perfect
certainty, from the examples of later times." Of all these
gilds, the greatest and the most powerful was that of the
scribes or notaries. All the business now performed by
clerks, book-keepers, and conveyancers, the preparation of
all the public documents, and of all private written instru-
ments, was in their hands. They formed the permanent
civil service of the time ; they were the solicitors, the
scriveners, the accountants, of Rome. Under the Em]3ire
the old gild developed into two bodies — the 2JOSsessor€S
or public functionaries, and the notaries, who practised
their profession independently. It is to the latter class that
we owe, as Savigny has conjectured, the preservation,
through centuries of peril, of the Roman law ; and so, as
Niebuhr :|: has remarked, " The Manes of the heroes and
* riutarcli, "Numa."
+ "Hist, of Eome," vol. iii., p. 298.
J lb., p. 300.
THE PROFESSIONAL UK INDUSTRIAL ASSOCIATION. 311
lawgivere of Rome owe it for the most part to a guild, in
whicli they saw, not unjustly, a germ which might produce
the destruction of the old noble institutions, and the
pretensions of which rendered them indignant, that a late
posterity is enabled to know and admire these institutions
and their development."
From the Brehon laws it appears that organizatiorLs for
professional purposes existed in Ireland, and were conducted
on the principle of the family. There were similar associa-
tions for industrial purposes, of which the most important
were grazing partnerships. It is, indeed, as Sir Henry
Maine* observes, " most instructive to find the same words
used to describe bodies of co-partners formed by contract,
and bodies of co-h^ii-s or co-parceners formed by common
descent." In France, families of cutlers and of other trades
were found in Auvergne and other rural districts, up to the
time of the great Revolution. "f*
Closely resembling these industrial associations are the
gilds of the Middle Ages.iJ: These gilds had their origin in
direct imitation of the family. The three earliest of which
any record exists are English, and date from the beginning
of the tenth century. TlifV all agree in some significant
particulars. Each ha.s a patron .saint ; each makes provision
for divine worship; each makes provision for a common
meal. Between the membei's, strict rules for nnitual
help ami support prevail. At an earliei- period, indica-
tions, though le.ss distinct, of similar as.sociations may be
found. It may be sai<l, generally, that tlieir character was
similar. 'I'liere wa.s always a confraternity ; and the basis
of their union was u religious rite, symbolized by a common
meal. In ( 'liristian times, to which alone our knowledge
• " Early Hiat. of IuMt.," p. 232.
t M. lie Jjaveleyc, " De la I'ntprii't*?," p. 231, if Ht'if.
I Bruntanu *' On liiUls aiul Tratlc Unions," p. lU.
312 NON-GENEALOGIC CLANS.
extends, these forms were applied to Christian purposes, and
the saint superseded the Ej)onym. How wide-spread was
this transformation we may infer from the multitude of
industrial saints that still linger on the Continent of
Europe, "The local gods," says Mr. Tylor,*^ "the patron
gods of particular ranks and crafts, the gods from whom men
sought special help in special needs, were too near and dear
to the inmost heart of pr^e- Christian Europe to be done
away with without substitutes. It proved easier to replace
them by saints, who could undertake their particular profes-
sion, and even succeed them in their sacred dwellings. The
system of spiritual division of labour was, in time, worked
out with wonderful minuteness in the vast array of profes-
sional saints, among whom the most familiar to modern
English ears are — St. Cecilia, patroness of musicians ;
St. Luke, patron of painters ; St. Peter, of fishmongers ;
St. Valentine, of lovers; St. Sebastian, of archers; St. Crispin,
of cobblers ; St. Hubert, who cures the bite of mad dogs ; St.
Vitus, who delivers madmen and sufferers from the disease
that bears his name ; St. Fiacre, whose name is now less
known by his shrine than by the hackney coaches called
after him in the seventeenth century."
Some ex- ^ 5_ \Ye Can perhaps now appi'eciate some celebrated
amples of '' •'^ ■"• ■'■■'•
Profes- institutions of early history. We can understand the
sional _ . .
Associa- formation of associations — partly religious, partly pro-
tions. <• • . i ./ o i
fessional — their structure, and their growth. The most
conspicuous of these cases, because our attention has been
of necessity directed to it, and because it still exists on a
great scale, is that of the Indian castes. This subject, once
so mysterious, is now tolerably well understood. " Caste,"
says Sir Henry Maine,-f' " is only the name for a number of
* " Primitive Culture," vol. ii., p. 110.
t " Village Cominunities, " i). 219.
SOME EXAilPLES OF PROFESSIONAL ASSOCIATIONS. 313
practices wliich are followed Ly each one of a inultitude of
groups of men, whether such a group be ancient and
natural, or modern and artificial. As a rule, every trade,
every profession, every guild, every tribe, every clan, is
also a caste ; and the members of a caste not only have
their own special objects of worship, selected from the
Hindu pantheon or adopted into it, but they exclusively
eat together, and exclusively intermarry." There is even
rea.son to believe that the great caste of Brahmans was,
originally, not a distinctive religion, but a professional or
literary clan. " The office of Brahman," says Dr. Muir,*
" was not one to which mere birth gave a claim, but had to
be attained by ability and study." " Though the Brahman
caste," says Mr. Lyall,f " is now a vast circle inclosing a
number of separate Levitic tribes, which again are sub-
divided into numberless family groups, yet several of these
tribes appear to have developed out of literary and sacer-
ilotal guilds. Indeed, one distinctive tenet of the Hindu
Broad Church, which rests (I am told) upon passages quoted
from the Vedas, affirms that Brahmanism does not properly
come by caste or descent, but by learning and devotional
exercises. This is now laid down as an ethical truth : it
was, probably, at first a simple fact. There is fair evidence
that several of these Brahmanic tribes have at dificrent
periods been promoted into the ca,ste circle by virtue of
having acquired, in some outlying province or kingdom
(wliere Brahmans proper could not be had), a monopoly of
the study and interpretation of the sacred books ; and,
having devoted themsolvus for generations to this profession,
at last graduated as full Brahmans, though of a different
tribe from the earlier schools. Some glimpse of the very
lowest rudimentary stage of a Levitic caste (that is, a caste
• "SaiiHcrit Tixts," vol. i., p. 2*.)4.
t "Fort. Itcv.," No. 121, N.S., p. 11.1.
314 NON-GENEALOGIC CLANS.
with a speciality for ritual and interpretation of the sacred
books) may still be obtained in the most backward parts of
India." The case of the Magi seems to have resembled
that of the Brahmans. Herodotus,* indeed, alleges that
they were one of the six tribes into which the Medes were
divided ; but although they doubtless had an organization
that simulated that of the tribe, it may be well doubted if
they formed a true genealogic clan. Herodotus elsewhere "|*
comjDares them with the Egyptian priests ; and the
manner in which he speaks of them seems to indicate
that he regarded them more as a caste than as a
nation. The better;]: opinion seems to be that they
were what is now generally understood as a caste.
Little, indeed, is really known of the Magi. The name does
not occur in the Avesta, where the priests are called
Atharvas. It appears that the Magi were not merely a
religious order, but were the learned men of the country ;
that they, or rather a particular class of them, interpreted
dreams ; § that they were experts in the use of the divining
rod, 1 1 and generally in a soii of magic which we probably
should now term elementary natural philosophy. It is
said,^ also, that they were not only an order, but a family
descended from one and the same stock. We may, there-
fore, conclude that they had an Eponym ; that, as Herodotus
seems to intimate, they contained various septs or divisions ;
and that, on the whole, they resembled, although perhaps
on a larger scale, some of the Hellenic yf »'»; which I have
already mentioned.
In the same class, ought, probably, to be ranked the
Druids. These persons formed the literary order of the
* i., 101. + i., 140.
t See Canon Eawlinson's " Herodotvis," vol. ii., p. 454, et seq.
§ Herodotus, i., 107.
II Canon Eawlinson's "Herodotus," vol. i., p. 350.
IT Anunianus Marcellinus, xxiii., 6.
SOME EXAMPLES OF PROFESSIONAL ASSOCIATIONS. 315
early Kelts. In the old Irish records * they are habitually
described as " men of science." The Druids of King
Laeghaire, whom St. Patrick overcame by the gi'eat signs
and miracles wrought in the presence of the men of Erin,-|-
appear to be elsewhere spoken of as the " prof essoins of
science in Erin," and as " the Brehons and just poets of the
men of Erin." It was their duty [J to interpret dreams, to
use the divining-rod, to offer incantations, and generally to
practice magic rites, in their case apparently very harmless,^
with the intention of securing benefit to their own friends,
and of discomfiting their enemies. They also exercised
jurisdiction, especially in cases of homicide, boundaries, and
inheritances ; the latter subjects, I may remark, depending
upon the old customs founded upon the ancestral worship
of the tribe, and requiring for their determination a know-
ledfje of the fjenealofjies and of the family riirhts of the
tribesmen. Further, we hear,; of "a Druidical chief, or
demigod, the jjreat Dafjhda, as he was called, who was also
their (i.e., the Dadanann tribes) military leader." In other
words, they ha<l the usual organization under their Eponym.
It is also said that the Druids were divided into several
classes or branches.^ Strabo mentions three; other WTitei's
enumerate five. The inference therefore is, that, like the
Brahmans, or the Magi, they contained anundjerof separate
clans, or, as Mr. Lyall calls them, smaller circles of athnity.
It is not ditlicult to undeixtand how, in tlnir reliyfious
functions, tliey were supei*seded by the clerics of tlie
Cluistian Church. But the old customs were less easily
changed than the external modes of worship; anil St.
• " O'Curry'a Lectures," vol. ii , p. ISO.
t "Ancient I^awa of Ireland," vol. i., p. 15.
X O'Curry, uf>i mpra, p. 194.
§ See "The Incantation of Amergin," O'Curry, vol. ii., p. I'.K).
II " O'Curry'a Lectures," vol. ii., p. 187.
IT lb., p. 181.
316 NON-GENEALOGIC CLANS.
Patrick* could not cany, against the Brehons, death as the
punishment of homicide, in place of the Eric fine. That
branch, at least, of the Druids which exercised judicial
functions, maintained its ground ; and there is little doubt "f
that the Brehons were the legitimate representatives of the
Druids of Ca3sar.
* " Ancient Laws of Ireland," vol. iii., p. 24.
t See Sir H. S. ]\Iaine, " Early Hist, of Inst.," p. 32.
CHAPTER XIV,
THE STATE.
§ 1. Apart from mere alliance, or from external influence, Compa-
1 • • n • • 1 lison of
or from domination, there are three principal cases, social com-
all resting upon a common principle, of combined action
between separate clans. The first case is the com-
munity of worship between clans of common descent. This
community is in no sense political, and is merely the
expression of a natural sentiment and the recognition of a
historical fact. It affords a sort of irrlmA facie case for
alliance, a,s against strangers ; but it does not afford any
security for haliitual friendly relations between the parties
themselves. The second case is that community of worship
which is established for the purpose of forming and securing
a ln'otherhood of independent clans. These as.sociations are,
for the most part, limited in their object ; and are always
formed not between individuals, but between communities.
Such a relation is mechanical, and not vital. It means
juxtaposition — not integration. A confederacy of clans is
thus formed, for objects more or less general in their nature.
But federation, though apparently the simplest, is, in reality,
the most difficult form of human association. Nothing is so
hard to obtain as voluntary co-operation ; and the difficulty,
in itself sufficiently gi'cat as among individuals, is, as
amongst separate mas.scs of men, multiplied indefinitely.
Neither the older, therefore, nor the later form of what I
have termed Amphictyonic association, ever has been, or, as
it seems, ever can be, sufficient to produce a State.
318 THE STATE.
All these cases of concerted action agree in certain re-
spects. The co-operation is limited in time, or is restricted
to some pai'ticular object ; and the executive organ acts
not upon individuals, but upon the clans in their corporate
character. But there is a third result of community of
worship, and this result is the State. There are cases
in which two or more kins, while they severally pre-
served their identity, have formed a new combination, for
an indefinite period and for general purposes. There are
cases, too, where a society is formed merely of scattered
individuals, and where, after its formation, that society at
once proceeds to organize itself upon Gentile principles. In
these cases, although the Gentile tie remains, the individual
members of the clan enter into a wholly new alliance.
Whatever may be their position within the clans, the
members of the new association meet on equal terms.
Between the same persons, two distinct relations of equality
and inequality may exist ; but these relations are not
repugnant — they are only distinct. Admission to the one
class does not necessarily imply admission to the other.
There were members of the clan who were not members of
the State : there mio-ht be members of the State who were
not members of any clan. Thus the State is not composed
of other social organisms. Its members may be members of
other social organisms, and the activities of these other
organisms may or may not clash, or tend to clash, with the
activities of the State. But the oro-anization of the State is
complete within itself ; and its power, within its own sphere
and over its own members, is supreme. It has its own
worship, its own property, its own functions, its own
claims upon its members, its own duties towards them. It
respects the rights and the duties of the other associations
which it includes, and does not — at least in its earlier stage
— seek to interfere with the relations of its members to any
COMPARISON OF SOCIAL COMBINATIONS.
of those other associations. Of tliis union, community of
worship, while the old beliefs continue, is at once the symbol
and the cement. Without such a communitj^, the State
could not have come into beinjj, or, if it had, could not have
continued to exist. In the course of its evolution it has
gradually developed new organs ; and the former organs,
which wore adapted to its original condition, have served
their purj^ose, and given place to their natural successors.
§ 2. It is no easy matter to give a complete definition of The cha-
the State, just as it is no easy matter to give a complete the state
definition of a man. Not only is the subject itself difiicult, "'^^°°'
but verbal embarrassments are added. The word State
means* sometimes an independent political society, some-
times the governing body of such a society. In its former
sense, modern writers have not been veiy happy in their
explanations of it. Mr. Austin,-f whose power of analysis
is unequalled, declares that the expression is not capable of
■precise definition. His description is in the following
words : — " In order that a given society may form a society
political and independent . . . the generality or bulk
of its members must be in a habit of obedience to a certain
and common superior : whilst that certain person, or certain
body of persons, must not be habitually obedient to a
certain person or body." For Mr. Austin's purposes, this
description was sufficient. Analytical jurisprudence accepts
government and law as they exist, and makes no inquiries
as to their origin. It deals with a single function of
national life. But for all ulterior questions as to the
structure and the histoiy of society, Mr. Austin's descrip-
tion has no value. Two obseiA'ations respecting it suggest
themselves. The first is, that Mr. Austin seems to have
* See Austin's " Lectures on Jurispnulcncc," vol. i., p. 249.
t Jb., p. 233.
320 THE STATE.
been misled, partly by the use of the correlated word
sovereignty, and partly by an exclusive regard to European
societies. He constantly speaks of the sovereign of a
people as something external to that people, and superior to
it. Such a view was, doubtless, not held by Mr. Austin.
He knew that Government is usually the result, not of
conquest or of usurpation, but of a genuine national evolu-
tion. But words react upon thoughts. It is, therefore,
prudent to speak of the Government as the political organ
of the State, that is, as the organ which, in the course of its
evolution, is set apart to perform the principal functions of
national life. The second observation is, that if the
expression " political organ " be substituted for Mr. Austin's
" sovereign," or its equivalents, the insufficiency of Mr.
Austin's description, which I have cited above, becomes
apparent. He attempts to define an organism by a refer-
ence to its external organs. The immediate result is a
circle. To the question, " What is a political society ? " he
in effect answers, " A society that has political organs." To
the further question, " What are political organs ? " the
answer at once describes them as " Those organs that are
found in a political society." It is evident that the
governing body of a political society is not the cause of
that society, but one of its effects.
If we turn to the classical authors, our inquiries are, at
least at first sight, equally unsatisfactory. Aristotle*
says : — " A State, in one word, is the collective body of such
persons (i.e., citizens), sufficient in themselves for all the
purposes of life." Cicerof says : — "Respublica . . . estcoetus
multitudinis juris consensu et utilitatis communione
sociatus." Neither of these statements appears to add much
to our knowledge. On a closer view, however, a hint may
* " Politics," iii., 1.
+ "DeRepub.,"i., 25.
THE CHARACTER OF THE STATE UNION. 321
be obtained from them. The word " coetus," as Niebuhr*
points out, is a technical term, and is equivalent to Koiruji-ia.
The State is thus a species of Kou'wt'ia, or community ; and
the force of this term the preceding pages have endeavoured
to illustrate. From this starting point it may be possible to
discover the qualities which distinguished this community
from other communities ; in other words, to ascertain the
essential characteristics of political society.
The State, then, seems to me to have originally been a
fonn of the non-genealogic clan or tribe. It was a true
Koivtorin, that is, it was formed on the model of the House-
hold ; it established similar relations among its membei's,
and it was kept together by a similar bond of union. But
it was not a spontaneous growth, like a natural Household.
It commenced in a voluntary association. In one of its
forms the association was between clans fully organized.
In anotlier form, it seems hardly to have differed from those
Indian forms of association which were described in the
preceding chapter. From some of these forms it was
distinguished, since it was not limited to the promotion of
any special o])ject, but was meant to secure the general well-
being of its members. In this view, the characteristics
of the original State may be thus enumerated : — First,
it was constructed upon the model of the Household.
Secondly, it was held together as natural households
were held together, by the worship of its Eponym, whether
that Eponym were a god, or a hero, or a deified founder.
Thirdly, it was formed out of the mem])ers of two or more
clans, whether those clans were antecedent or subsequent
to the State ; and it exercised over them, within its own
sphere and by its own officers, its own jurisdiction.
Fourthly, while it dealt witli these members individually,
* " Hiot. Rome," vol. ii., p. 44, note.
22
322 THE STATE.
it preserved and recognized the clans of whicli they
severally formed a part. Fifthly, the lands and public
property of these clans were brought into a common
stock, and formed the public land of the new corporation,
and there were reciprocal rights of intermarriage. Sixthly,
the union was intended to be permanent. Seventhly, the
object of the union included all purposes of common interest,
subject, however, to the duties and the rights of the clans
in their several spheres of private life. Thus, the State
was distinct from the clan, was wider than the clan, was,
at least in the case of the pure clans, posterior to the
clan. But the State was analogous to the clan, was formed
upon the same pattern, was held together by a like
principle, and was not substitutive for it, but accumulative
upon it.
The evidence in support of each of these propositions
may be briefly indicated. The analogy of the State to a
Household is seen in the necessity, for each of them, of a
common hearth. Aristotle says that rulers derive their
honour from the common hearth, whether their title be
Archons, or Kings, or Prytaneis. The Prytaneum was
essential to the political life of every Grecian city ; * and
the Prytaneum contained the common hearth. The very
names TrpvTayeioy and Koli'T] IffTia appear to have been used as
equivalents. So, too, of Rome, Mommsen^f says: — "As the
clans resting upon a family basis were the constituent
elements of the State, so the form of the body politic was
modelled after the family, both generally and in detail."
That the king was, in fact, the House-master of this
political Household is evident, " for at a later period there
were to be found, in or beside his residence, the always-
blazing hearth and the well-closed store-chamber of the
* Wachsmuth, "Hist. Ant. of Greece," vol. i., p. 290.
t " Hist, of Eome," vol. i., p. 66.
THE CHARACTER OF THE STATE UXIOX. 323
community, the Roman Vesta and the Roman Penates, as
indications of the visible unity of that supreme Household
which included all Rome."
I need not speak further of the public worship, and the
honours paid to the founder of the city and its guardian
gods. Everywhere were the Oeol noXiaceg ; everywhere the
aiuspicia piihlica, or the knowledge of the signs by which
these gods expressed their will. There was no city which
had not its special public worship ; and this woi-ship was
analogous to the worship of the clan, and to the worship of
the Household. Nor is it necessary that I should labour to
prove what no person disputes — the presence of clans
within the archaic States. I shall merely advert to the
well-known distinction between the political clans and the
true clans, the * (phXai romKai ' and * cphXai yiviKui ' of old
writers. The former were merely statutory arrangements,
specially created on the model of the older clans for
purposes of political convenience — mere creatures of the
State, and parts of it, without any independent existence.
The latter are the true spontaneously-formed clans with
which these pages are concerned. As to the dealings of the
State with its individual members, and not with their clans,
there is ample evidence. At Athens, the State sometimes
thought fit to reward the distinguished services of some
foreigner by the gift of citizenship. It had,* however, no
power to order his admission into any clan. It could not
make him the clansman of Apollo Patroos or of Zeus
Herkeios. But the worship of these deities was an essential
condition to the holding any public office. Consequently,
these SrifioTTuirfroi ov State-made citizens were incapable of
election to any magistracy. On the other hand, when a
member of a clan ])ecaiiie a member of the State, the State
• .Sec Hcrmauu, "(irec. Aut.," p. 103.
324 THE STATE.
declined to recognize any disabilities to which, by clan-
custom, he might be subject. Thus, a Filius Familias was,
iniblico jure, on equal terms with his Pater Familias, was
equally eligible for public office, and was equally capable
of exercising public functions. He might even, as I
shall subsequently show, be his father's political superior,
although at the same time he was subject to that father's
unrestrained power, within his precinct, of life and death.
Such an alliance involved community of public property,
and reciprocal capacities for all the ordinaiy transactions
of life. " The community of the Roman people," says
Mommsen,* " arose out of the junction (in whatever way
brought about) of such ancient clanships as the Romilii,
Voltinii, Fabii, &c.: the Roman domain comprehended the
united lands of these clans. Whoever belonged to one of
these clans was a burgess of Rome." Every burgess — that
is, every full member of the society — was entitled, as of
course, to all the material rights and advantages of such an
association, to the e-myafiia i-Kspyaaia and eTrirofila of which
Xenophon speaks. But the principal right is that of inter-
marriage. It is this right f which practically forms the test
of equality. A citizen must marry within his State, that
is, he must marry with his peers. Those clans, then, with
whom he may intermarry, are those whom he acknowledges,
and who acknowledge him, as equal.
The assertion that the State union was originally meant
to be for an indefinite time, and for indefinite purposes, does
not admit of historical proof. I can only say that, from
the days of the siege of Naxos to the days of the siege of
Richmond, men have always acted upon this principle.
Secession has never been recognized as a political right. It
will perhaps suffice if, in these circumstances, I cite the
* "Hist, of Pkome," vol. i., p. 65.
t See "Edin. Rev.," vol. cxliv., p. 192.
THE CHARACTER OP THE STATE UNION. 325
opinions of three great authorities. I do so, not because I
think that they give any help towards the solution of the
problem concerning the true functions of the State, but
because they show the opinions of the best minds as to the
indefinite character of the association. Ai'istotle says*
that civil society was founded not merely that its members
might live, but that they might live well. Bacon f insists
that the "Jus Pivhlicum" extends "ad omnia circa bene
€sse civitatis." And Mr. Austin:J: declares that "the proper
purpose or end of a sovereign government is the greatest
possible advancement of human happiness."
§ 3, There is an antecedent presumption in favour of Historical
evidence of
this connection of the Household and the State. Early this view
society was based on community of worship, and the form state.
which the superstructure assumed was that of the House-
hold expanding into the Kin. It might, therefore, be
reasonably expected that the first attempts at any higher
organization would proceed upon the same principle, that
they would be founded on a community of worship, and
that they would be modelled according to the prevailing
type. Further, from the strong individuality and the
inaggressive nature of the early cults, it might also be
expected that the new combinatiim would, at least in its
<iarly stage, not be intentionally antagonistic to its pre-
decessor ; but that the two systems would, at all events
for some time, exist side by side. If this presumption
coincide with the known facts of history — if the d in'iorl
argument be confirmed by actual experience, the consi-
lience will furnish the strongest proof of the theory that
the nature of tlie case admits. I proceed, therefore, to
• "Politics," iii., 9.
t " De Aug. Sci.," viii., .3. "Aph.," iv.
J " Lectures on Jurisprudence," vol. i., p. 298.
326 THE STATE.
state the historical evidence which I have to offer upon
this question.
There were two ways in which the known relations
between clans and the State that comprised them might be
established. I mean, of course, true clans, and not those
local divisions to which I have already referred. Either
the clans might be integrated into a State, or a State might
be differentiated into clans. An association might be
formed by separate clans, and these bodies might gradually
become so co-ordinated that the life of the whole should
predominate over the lives of its parts ; or an association
might be formed in the nature of a non-genealogic clan,
within which new clans, or new branches of old clans,
would, according to the Hindu model, naturally arise. Of
these two methods there are, I think, examples in the two
great States of antiquity. On the former principle, Athens
was formed ; on the latter, Rome.
Thucydides* alleges that, in early times, Attica was
inhabited by separate communities, possessing each its
own Piytaneum and its own rulers ; that these bodies
were not only mutually independent, but in some cases
mutually hostile ; that Theseus succeeded in uniting-
them into one city ; and that, in the historian's own
time, a commemorative festival was celebrated at the
public expense in honour of the Goddess. He further
alleges that, in his day, the various townships still
continued to exist, and to celebrate their ancestral worship.
But, although this latter worship was evidently that which
was most familiar to them, all these people were also the
votaries of the great Goddess of the Athenians, Pallas
Athene, and were the citizens of one city. The historian
vividly describes the reluctance and the grief of the people
ii., 15.
HISTORICAL E\aDENCE. 327-
when, at the commencement of the Peloponnesian "War,
they were forced to remove from the country into the city
— feelinfj's far more intense than those which the French
peasants lately experienced when they were compelled to
seek, beneath the walls of Paris, a temporary shelter from
their Gennan invadere. But, notwithstanding the strength
of this local attachment, no pei-son among them doubted
that his political allegiance was due to Athens. The
geographical name 'Atticans' was merged in the political
name ' Athenians.' There was undoubtedly a time when
Marathon and Dekeleia, Aphidmv and Eleusis, were
autonomous. For political purposes, as we should describe
the proceeding, these communities merged that autonomy
in the " poUteia" of Athens. For religious purposes, and
fur the other objects of clan-life, they retained their original
individuality. This union — lax, indeed, according to our
modem notions, but far stronger than any similar associa-
tion that had previously existed — rested, as I have said, upon
the common worship of Athene Polias. This worship did
not interfere with the woi-ship of Apollo Patroos, or of Zeus
Herkeios. The Goddess presided over the city as such ; but
Apollo was the god of the Ionian clans, and Zeus Herkeios
was the common name b}- which the ancestral worship of
each household was indicated. The gods of the city, of the
clan, and of the household, were distinct, and their worship
must not be confounded. But the pul)lic interest required
that the domestic worship, according to its several rites,
should be duly maintained. Thus, a conunon religion, and
consequently connnon interests, were established for the
whole of Attica ; an<l yet that religion did not displace, but
protected, the various forms of Gentile worship. At what
time, and in what circumstances, this remarkable association
was formed, there are no means of ceiiain knowledw. But
it is lumlly an exagfjeration of its iuipoi'tance to descrilic
328 THE STATE.
the event as "the beginning* of the political history of
mankind."
Grecian history^ presents many other, although perhaps
less conspicuous, instances of this process. Tegea, in
Arcadia, and Dyme, in Achsea, were formed each out of
eight village communities. Man tinea was composed of
four. Megara and Tanagra are also mentioned as having
been similarly formed. Even after the Persian War, the
city of Elis was the result of a like coalition. A hundred
years after the foundation of Elis, j forty village com-
munities coalesced to form Megalopolis, the Great City —
Micklegarth, as our ancestors would have called it — by
which Epaminondas thought to secure the unity of Arcadia.
But without seeking other examples, it is enough to cite the
authority of Aristotle § that " the community formed out of
several villages is a perfect city, having the limit of all self-
sufficingness."
There are, substantially, two leading opinions as to the
origin of Rome. One is that of the early traditions ; the other
is that of some modern historians. The former represents the
city as springing from what I have called a non-genealogic
tribe. The other regards it as the result of a synoiJdsmus,
or integration, among three pure-blooded clans. It is not
necessary that I should undertake to determine this contro-
versy. Whichever opinion be correct, there is little doubt
that the city was united by a common worship ; that it was
organized on the model of a Household ; and that the special
cults of the clans, whether they were formed within the
State or were prior to it, were carefully preserved, concur-
rently with the worship of the public Penates. Yet I may
* See Freeman's "Hist. Essays," vol, ii., p. 120.
t Grote, "Hist, of Greece," vol. ii., p. 346.
t Ih., p., .S07.
§ "Politics," i., ], S.
HISTORICAL EVIDENCE. 329
be permitted to state a few of the reasons which have led
me to the conclusion that the older idea is correct. The
first reason is that the Romans thou<^ht so themselves.
Little weight can be given to this argument in the presence
of good evidence to the contrary. But in the present case
I do not think that such evidence exists. Lord Stranj;-
ford observes* that in Eastern countries, "wherever a rude
and uncultivated people have been brought within the pale
of Islam, they have never failed to connect themselves with
the traditionary quasi-biblical ethnology of their concjuerors
or spiritual instructors, through some patriarch or hero of
Scripture." No such general cause of error appeal's to
exist in Rome. The Trojan legend is easily separable from
the genuine tradition. The course of national development
seems to have been fairly regular. The details of the story
have, of course, been overlaid with the usual crust of fable,
and it is idle to attempt to distinguish the true from the false.
But where descent was of vital practical importance, and
where all matters relating to it were carefully preserved,
and where care was taken, by festivals and similar means,
to perpetuate the memory of great leading events, the
refusal even to admit the national traditions seems to be a
misapplication of the rules of evidence. Again, both in its
constitutional history and in its law, Rome, when it first
appears in history, presents a remarkable advance as com-
pared witli most other peoples. Probably the determining
point in the history of Rome is the start that it obtained
in social evolution. To what causes this start was due, no
evidence now remains to tell us. But the fact seems to
suiTirest some fundamental difference between Rome and
the ordinary run of pure clans. " A long succession," says
Monnnsen,-f" " of phases of political development must have
' " Letters ami I'jipors," p. 58.
t " Hist, of Home," vol. i., p. 55.
330 THE STATE.
intervened between such constitutions as the poems of
Homer and the Germania of Tacitus delineate, and the
oldest organizations of the Roman communists." In place
of these hypothetical changes, for which no proof exists,
and no parallel is known, it is, I think, simj)ler to assume
that the city of Rome was never like either the Hellenic or
the Teutonic clans, but arose under dissimilar conditions.
Again, there is no trace in Roman history of any royal
gens. Such a body, the representatives in the eldest line
of the divine Eponym, is essential in every pure clan.
Even where several such clans have coalesced, some pro-
vision for the headship is made. Thus, at Athens, there
were the Kodrids, in whom, even after the abolition of the
kingdom, the royal dignity long lingered. But although
the royal title survived for religious purposes at Rome,
there is not a vestige, even in the leo^ends of the regal
period, of any clan with any hereditary claim to royalty.
Further, Niebuhr* has remarked that the proper names
among the Oscan nations were usually Gentile names among
the Romans. Such was the royal name of Tullius. Such
were the famous literary names of Pacuvius, of Statius, and
of Gellius. Niebuhr merely notices the fact, but the
explanation of it seems to be possible in the light of the
passages which I have cited from the Eastern experiences
of Mr. Lyall. This explanation tends to confirm the old
legend. A chief of pure blood, in consequence probably of
some imperfection in his generations, makes a new settle-
ment, at the head of a few followers and friends. The
new community becomes successful. Its success attracts
from other societies other adventurers. When any of these
adventurers prospers, he becomes, in the new community,
the founder of a clan. Of this clan, the principle of Exogamy
* "Hist, of Rome," vol. ii., p. 104, note.
HISTORICAL EV^DENCE. 331
serves to define and to preserve the limits. The clan takes
its name from that of its orenarch or founder. If the
Eponym were a man of pure blood, he would introduce
his hereditary sclera, and establish a new branch of his
ori<^dnal gens. If he were not of pure blood, he would be
known merely by hLs proper name. Not unfrequently, too,
in the roughness of a new settlement, an old name, especially
if it be unfamiliar to the new associates, is lost, and some
accidental designation is acquired. In such circumstances
the new appellation generally prevails ; and men do not care,
or perhaps are not without much trouble able, to resume
their proper patronymic. If, then, the fact be as Niebuhr
has alleged, the inferences from it are — first, that Rome
was not the result of a pure clan or of a union of pure clans,
but was a non-genealogic society ; and next, that many
membei's of this non-jjenealocric clan were broken men, who
either had not in their own country attained the dignity
of a kin, or who, in the coui-se of their adventures, had
abandoned their old associations.
The evidence with respect to the ancient Germans is less
complete than it is in the cases of Athens and of Rome.
It consists mainly of the sketch of Tacitus, which, masterly
though it be, is sometimes highly tantalizing. From this
source alone it would not be possible to reconstruct the old
polity ; but when tliat polity has been described from other
evidence, traces of it quickly reveal themselves in the
pages of the gi'eat Roman liistorian. With such aid, his
distinction between the 'civitates' and the kins that
compose them is apparent. It may be infeiTed that these
' civitates' were founded on a religious l)asis, both from
his account of those Teutonic Amphictyonies that I have
already mentioned, and from his statement* that, at the
* " (Jennaiiia," o. 11.
332 THE STATE.
meetings of the civitates, the priests were charged with the
maintenance of order, and in the execution of this duty
exercised plenary powers. Concurrently with the general
power of the State, the operation of the " Jus Privatuvi," or
the custom of the kin, may be discerned. The kin makes
its appearance* in the order of battle, in the maintenance
of the blood-feud, and in matters of inheritance. Foreign
marriages,-]- too, are avoided ; and in the ceremony of arming
the young warrior,:|: the distinction between the " doinus"
and the " respublica " is broadly marked. In later times,
mention is frequently made of communities associated under
a common name. Such, for example, were the Picts, who
were composed of the Caledones and the M8eatse.§ Such
were the Alemanni, and the great names of the Saxons
and the Franks. But the nature and the circumstances of
these unions are not sufficiently known to warrant any
confident opinion on the subject. One instance is at least
suggestive. The Angli and the Weringi, tribes mentioned
by Tacitus, coalesced || under the expressive name of
Thuringi, or " Sons of Thor." Thus, the modern name,
Thuringia, attests the principle upon which, fourteen
centuries ago, the coalition of clans proceeded. The
Scandinavians present a still stronger illustration. The
Norsemen IT who settled in Iceland, " when they desired to
form a community, built a temple, and called themselves by
the name of Gothi or hof-Gothi, 'temple-priests;' and thus
the temple became the nucleus of the new community."
Many independent communities of this character sprang
up all through the country, until, about the year 930,
an integration took place. Ulf-lyot** was the Theseus of
* "Germania," cc. 7, 21, 20. t c 4. t c. 13.
§ Mr. Skene's "Celtic Scotland," vol. i., p. 125.
II Cauciani, "Leg. Barb.," iii., 31.
H Cleasby-Vigfusson, " Icelandic Diet.," p. 208.
** Jb., p. 18.
HISTORICAL EVIDENCE, 333
Iceland. Under his influence the various Gothi formed an
" Althing," or geneml legislative assembly, and Iceland
became a State.
§ 4. For the pui-pose of denoting social relations, all the The reia-
. _ •11 ^^^^ of the
Aryan languages contain a series of terms — not, indeed. Curia to
etymologically connected, but expressive in each case of
similar relations. To select the three most convenient
examples, the fii-st series contains the Gens, the <l>v\rj, and
the Kin. In the second series there are the Agnatio, the
<ppaTpia, in its Homeric sense, and the Sibsceaft or M;vg. There
is a third series, which consists of the Civitas, the noXic, and
the Volkerschaft. These last-mentioned terms imply, as I
have attempted to show, a new union, based, indeed, on the
idea of the Household, but including several Kins, and so
having in certain respects a Gentile structure. If this view
be correct, a fourth series of terms might be expected. There
is still wanted a set of words which bear to the third series
the same relation that the second series bears to the first. In
other words, if the State imitate the Kin, what is the
political analogue of the Sib ? What, in the "Jus Piihliciim"
coiresponds to the Agnatio in the " Jas Privatum ?" I think
that the missing series may be found in the words Curia,
(pparpia in its later sense (or, as the Spartans* called it, w/^t;),
and, perhaps, Hundertschaft. These terms denote a political,
not a Gentile division. They are not independent arrange-
ments, but denote respectively the Civitas, the ttoXjc, and the
Volkerschaft. They formed, as between their fellow-
members, a closer connection than that to which their
general political relations gave rise. Of four Quirites, two
who were meml)ers of the same Curia were much more
intimately related than two who were membei-s of diflferent
• Miillcr's "Dorians," vul. ii., j). 19.
334 THE STATE.
Curife. The bond of union was a special worship ; and
Zens Phratrios performs a function similar to that of Zeus
Herkeios.
It is clear that the Curia was a political and not a Gentile
arrangement. The Roman tradition* connects it, and it
alone of Roman institutions, with the origin of the city.
It is also noteworthy that the genealogical legends of the
Teutons give genealogies of the clans, but not of either
Volkerschafts or Hundertschafts. For the special relation
of the Curia to the Civitas, a hint is found in the statement
that Romulus gave each Curia one allotment. This state-
ment suggests the grants to the M?egs, or villages, by the
entire clan. In the case of the Curia, however, if reliance
can be placed upon our authorities, this grant must be
understood with reference to the township only. The
extent of the grant is said to have been two hundred jugera,
which was meant for one hundred householders, apart from
their use of the common land. This measure was called
centuria, and thus a sort of connection is established
between the Curia and the Hundertschaft. It is not worth
while, however, to inquire, even if there were any means of
certain information, whether the estate of each Curia did or
did not include more than building allotments. The rights
incident to these allotments must have existed, whether
they were exercised over the land of the Curia or the land
of the city. It is sufficient for my purpose that the Curia
was an intermediate body between the State and the House-
liold ; and that it received for its members, and distributed
among them, grants of land, in the same way that the Mseg
acted in the Gentile economy. The word " curia" itself
appears to point to the Mseg, or Joint Household. Its
etymology has long been a subject of as great difficulty as
* Mommsen, "Hist, of Rome," vol. i., p. 73.
THE RELATION OF THE CURIA TO THE STATE. 335
its structure and functions. Recently, however, Corssen*
has pointed out that * curia,' or, in its older form, ' covisia,'
transliterates with 'house.' If this view be accepted,
' curiales' will mean political Agnati, just as ' cives' were in
effect political Gentiles.
8 5. AccordinfiT to the view that I have thus endeavoured The State
to present, the State, in its earlier form, was an independent Army.
association of men according to clans. In other words, its
constituent elements, although they were individuals, were
individuals in groups. There was thus a divided allegiance,
and, consequently, a continual struggle, between the claims
of the clan and the claims of the State. It was only by
the complete subordination of the clan, and the dii-ect
communication of the State with each individual citizen,
that true political society was established. These principles
and this process may be observed, not on the civil side only
of the State, but also on its military side. The community
in peace and the community in war are, in fact, the same
community under different aspects. It is not unreasonable,
therefore, to expect tliat the development of the army
should correspond with and illustrate the development of
the State. As the history of law records the evolution of
the individual from the corporation, in all matters ivlating
to property, to succession, to personal rights ; so military
history narmtes the evolution of the militant clansman
into the professed soldier. The original army was simply
the clan, or the people assembled in its clans. Each clan
met according to its respective Miegs. The development of
the army consisted in breaking down these divisions, and
in the formation of a union independent of the clan. In
this union the individual soldier found his jilace, not
* Kick's " Wortcrbuch," p. 47.
336 THE STATE.
according to his own convenience or his personal status,
but according to his commander's view of the exigencies of
the sendee.
Examples are scarcely needed of the rule that archaic
men fought by clans. If the structure of their society be
such as I have attempted to describe it, such a method is
evidently that which, from the nature of the case, should
have been expected. It is, however, prudent to verify
inferences, however clear they may be, by a comparison
with actual facts. Our earliest authority is Nestor's rule
in the " Iliad," * when he advises Agamemnon to marshal
his men by Phyla and by Phratr?e, so that Phratra might
support Phratra, and Phylon support Phylon. The Teutons-f*
acted upon the same principles ; and their host was not a
random crowd, but was composed of kins and Msegs. Of the
early Roman system no information exists ; but under the
Servian reforms the army was organized with reference to
its civic, if not its Gentile divisions. Nor is Mr. Robertson's
suggestion impossible, | although I do not attach much weight
to the fact, that the rule of the Imperial law, by which the
property of the intestate soldier went to his comrades
and not to the Fisc, may have been a far-off echo of the
days when the Roman soldier stood in line — not with his
Vexillatio and his Legio, but with his Cognatio and his
Gens. In the Keltic people, however, the evidence is clear.
There is no more interesting part of Lord Macaulay's great
work than that in which he describes the Highland clans.
He there§ shows that a clan was a regiment almost ready
made. " All that was necessary was, that the military
organization should be conformed to the patriarchal organiza-
tion. The chief must be colonel ; his uncle or brother must
* ii., 362. t Tacitus, " Germaiiia, " c. 7.
+ See " Scotland under her Early Kings," vol. ii., p. 312.
§ "Hist, of England," vol. iii., p. 335.
THE STATE AND THE ARMY. 337
be major ; the tacksmen, who formed what may be called
the peerage of the little community, must be the captains ;
the company of each captain must consist of those peasants
who lived on his lands, and whose names, faces, connections,
and characters were perfectly known to him ; the subaltern
officers nmst be selected among the Duinhe Wassels, proud
of the eagle's feather ; the henchman was an excellent
orderly ; the hereditary piper and his sons formed the band ;
and the clan became at once a regiment." A regiment so
constitute*! possessed no small advantages. In it there were
exact order and prompt obedience, and mutiny and deser-
tion were unknown. Every man knew and trusted his
comrade. Every man was devoted to his officers. No
man th(jught of deserting his colours, because his colours
represented to him his world. But although nothing was
easier than to turn the clans into efficient regiments,
nothing was more difficult than to combine these regiments
into an efficient anny. All within the clan was friendly.
All without the clan was usually hostile. Between clan and
clan there was always jealousy, and there was frecjuently
hate. That general could have little confidence in the
result of his most skilful combinations, who, in the words of
Lord Macaulay,* " at any moment might hear that his right
wing had tired upcm his centre, in pursuance of some quarrel
two hundrnl years old; oi- that a whole battalion had
marched back to its native glen, because another battalion
had been put in the post of honour." It Ls easy to perceive
how unHtte<l for any large undertaking, for any enterprise
that reijuired time ainl jiatience and self-denial, such ;ui
army must have lieen. it was nijt until the clan system
had lieen thoroughly broken up that the Highlanders
became adapted for the pui*poses of modern warfare. A
"Hiat. of Englaml," vol. iii., p. 33S.
23
338 THE STATE.
similar change is recorded in Roman history. Down to the
time of Caius Marius, the Roman military system rested, as
I have said, upon the Servian organization of the civic
militia. The cavalry, which was composed of the wealthy
classes, was difficult to recruit, and its temper had become
absolutely intolerable. The infantry was less unmanage-
able, but still urgently needed reform. " The Roman
method," says Mommsen,* " of aristocratic classification had
hitherto prevailed also within the legion. Each of the four
divisions of the velites, the hastati, the iwincipes, and the
tridvii, or, as we may say, of the advanced guard, of the
first, second, and third line, had hitherto possessed its
special qualification as respected property or age for service,
and in great part, also, its own style of equipment ; each
had its definite place once for all, assigned in the order of
battle; each had its definite military rank and its own
standard. All these distinctions were now superseded.
Anyone admitted as a legionary at all, needed no further
qualification in order to serve in any division : the discretion
of the officers alone decided as to his place. All distinc-
tions of armour were set aside ; and, consequently, all
recruits were uniformly trained."
Two points connected with these examples deserve
consideration. One is, that the Gaelic clans, although they
never formed among themselves any lasting confederation,
sometimes accepted the command of a stranger. To a
renowned foreign leader, like Montrose or Dundee, obedience
might be rendered ; but it was an obedience limited in its
extent, and brief in its duration. The clans remained with
the army until they fought with each other, or quarrelled
with their general, or chose to go home. For any of these
reasons they, without hesitation, abandoned the enterprise.
* '<Hist. of Rome," vol. iii., p. 201.
THE STATE AXD THE ARMY. 339
That is, they formed a union, incomplete, indeed, and
incoherent, but still, in some sense, a union, apart from
their clan system, and distinct from a mere alliance or
confederation of clans, ^\^lat, in time, such a union might,
in able hands and favouring circumstances, have become,
we can only conjecture. But, at least, it was a union which
was founded on a principle different from that of their
ordinary clan association. Thus a political union was
effected, not as a result of the clan system, but in spite of
it. The second point to which I referred is, that the
change to the army system involved a recourse to something
like household discipline. The change in the structure of
the Roman legion, which I have mentioned above, was
accompanied by a change in its drill. " It is a significant
fact," says Mommsen,* " that that method considerably
increased the military culture of the individual soldier, and
was essentially based upon the training of the future
gladiatoi's, which was usual in the fighting schools of the
time." Thus, the principle of the Comitatus asserted itself
at the expense of the piinciple of the clan. The necessity
<jf an independent association, of a political, and not of a
Gentile organization, was apparent. It is not from the
alodial militia that the modem army is descended. Its
roots are found in the Comitatus, in the discipline of the
Household, and the undisputed commands of the House
Father.
|:j ('}. Another indication of tlie practical distinction TLcdisin-
between the State and the clan, (;f the religious character ou^he'*''^
of the fonner and of the tenacity of existence of the ^^^^'
latter, is found in the opposite process to that which I have
been considering. If the State could be made, so also it
'• "Hist, of Rome," vol. iii., p. 201.
340 • THE STATE.
could be unmade. As the Roman Empire has been
described,* not indeed with perfect accuracy, as a mere
band Avhich held together a bundle of separate communities,
and as, when the Empire was dissolved, the communities
still remained, so the communities themselves were capable
of further reduction to their primary elements. The Greek
language has special words for both processes. The
integration of the State it calls (tvi-oIkktiq : the disintegration
of the State it calls ciokitnc. Of the latter process, there
are several examples. Xenophonf relates that, after the
peace of Antalkidas, the Spartans resolved to inflict an
exemplary punishment upon the Mantineans. The wall of
Mantinea was accordingly razed ; and the city was disin-
tegrated into four parts, as in days of old they used to
dwell. This reference to the past is especially remarkable,
because Mantinea is described in the " Catalogue of the
Ships"! as if it were a single community. So, too, the
Phokians, after their defeat Jn the Sacred War, were com-
pelled to resume their village life. The effect of this
desecration was the destruction of the State religion. The
worship ceased, and the gods were forgotten. With the
religion, § everything which depended upon it — law, civic
rights, property — fell also. The very gods became the
property of the enemy ; and if the Thebans erected a
temple to Here|| on the ruins of Plati^a, it was a Theban,
and not a Plattean, Here that was thereafter worshipped.
By some such process as this, after its treachery in the
Hannibalic War, the Romans reduced Capua IT to the rank
* (Tiiizot, "Hist. Civilization," vol. i., p. 33.
t "Hellenica," v., 2. J "Iliad," ii., 607.
§ See "La Cite Antique," p. 247. || Thucydides, iii., 68.
^ " Ceterum habitari tantum tanqnam nrbem Capuam frequentarique
placuit, corinis nullum civitatis nee senatns nee plebis concilium nee
magistratus esse : sine consilio publico sine imperio multitudinem nullius
rei inter se sociam, ad consensum inhabilem fore : prsefectum ad jura
reddenda ab Roma quotannis missuros." — Z/ry/, xxvi., 16.
THE DISINTEGPIATION OF THE STATE. 341
of a village. It was also the usual policy of Rome to
break up all confederations among its vanquished subjects.
The Classics contain many allusions to the use of the
plough in the destruction of cities. The reason of this
practice seems to have been that the foundation of the city
was a religious ceremony, and its boundaries were marked
by a fuiTow, in pui-suance of an order of the gods gi^•en
through the augurs. On the well known principle that
■every obligation which is formed in a particular manner
should be dissolved in the like manner, it was felt that a
city which had been <luly consecrated, could not be dese-
crated, save by a similar ceremony. When we bear in
mind the character of these ceremonies, we can appreciate
the inclusion of the chapter* " De Sulcis Circa Villas"
in the " Iiulicidan t:iai)erdlttonmii et Paganiarum,"
against which the Fathers of the Church thoui^ht tit
solemnly to warn their Teutonic proselytes. There may,
perhaps, be an allusion to some kindred pmctice in the
abjuration of the Sax-note, or Saxonicani consortuiin,
which we find in the " Laws-f of the Barbarians." In a
remarkable catechism, containing an " Ahrenuiuliatio
BlaboU," and also a profession of faith, and prefixed to the
" Iiullcithis" that I have just mentioned, the catechumen
pledges himself to forsake the devil and all the devil's
gilds, and all the devil's works and words ; Thor, Woden,
ami the Sax-note, and all those evil ones who are their
associates. The words " Sax note" are explained to mean
the tutelary gods, the Otol iroXluctc, of the Saxons. It is
known that Charlemagne dissolved the Saxon League ; and
it may have been that the method wliich he adopted for
that purpose included that renunciation of wliich the form
has been thus preserved.
• Canciaiii, *' lycg. Diub.," iii., 102. f lb., iii., 72.
CHAPTEE XV.
THE MEMBERS OF THE STATE.
Jus Publi- § 1. Mr. Austin criticises with considerable severity the
Jus Pri- Roman division of law into ' Jus Fuhlicum' and ' Jus
Ta urn. Privatum.' He contends that the distinction is needless
and perplexing, and that, in place of being contrasted
divisions of a body of law, these two sections are merely
chapters of the second part of the code, namely, of the law
relating to persons. Yet, the old jurists had better grounds
for this division than their distinguished critic supposed.
The case is, indeed, one of the many which illustrate the
difference between the analytical and the historical method
in jurisprudence. No jurist at the present day would
attempt to construct a code of existing law upon any such
division. No Roman jurist — none, at least, of the older
jurists — would have even thought of proceeding upon any
other principle. The reason of the difference is found in
the history of law. In the course of time the twO'
expi'essions, ' Jus Puhlicuvi ' and ' Jus Privatum' have
undergone a notable change. With us, they denote
divisions of the same system of law. In their original
meaning they denoted two perfectly distinct systems.
In its earliest sense ' Jus Privaturti ' meant clan-custom,
including under that expression the customs of the House-
hold. 'Jus Puhlicur)i' at the same period meant State-
law. When the State prevailed over the clan, the 'Jus
Privatum,' or, at least, so much of it as survived, became
JUS PUBLICUM AND JUS PRIVATUM. 343
a portion of the commands of the State — that is, the State
recognized and enforced the customs that had gi'own up
under the old system. Gradually, as its legislative organs
became developed, the State claimed and exercised the
power of modifying these customs. Thus, 'Jus Privaturn'
became, in fact, a part of ' Jiix PiOAicmn in its original
sense. But with the development of the State, there grew
up a body of law relating to the powers, privileges, and
immunities of the State itself — that is, of the political
organ of the community. To this new branch of law the
phrase 'Jus Publicum was naturally specialized. Thus,
in place of clan-custom and State commands, there was
established " the law," properly so called. Of that portion
of this general law which relates to persons, two branches
separated. One of these branches contained the special
provisions that relate to private conditions ; the other
contained the special provisions that relate to political
conditions. Thus, './;?.s PuhUcuiii' and 'Jus Priratum,'
originally separated ami tlien united again, became con-
ti'asted.
In the infancy, then, of legal history, ' Jux Prira-
tum' denoted a body of rules which were not law, but,
on the contrary, dealt with subjects that were excepted
from the control of the State. In order, therefore, to
ascertain what law was, it was, in the first instance,
necessary to dt-'tcrmine what it was not. A description of
the relations denoted by the familia and the gens ought,
consefjucntly, to liave preceded, by way of limitation, a
descripti(»n of law in its strict sense. Even when the
importance of this distinction had \tvvn reduce*!, its traces
and the force of habit deeply influenced the form of law.
Even in the maturity of Roman law, the ' Juf< Pcrsoi^annn'
the legitimate di-scendent of the old '.fas Prinifam'
occupied the foremost place. Undoubtedl} , in the order of
344 THE MEMBERS OF THE STATE.
logic, the ' Jus Rerum ' takes precedence of the ' Jus
Personarum.' But the position of the latter branch at
the commencement of the Institutes proves the necessity
which Gaius and his predecessors felt of distinguishing
between the classes which were and those which were not the
immediate objects of legislation. I propose, in this chapter,
to follow in their footsteps, and to consider the large
exceptions which, even as regards its apparent members,
were made to the universality of the authority of the
State.
Infant § 2. There is a wide difference between modern and
Members archaic notions as to the legal position of a new-born child.
State. With us he at once becomes a subject of the Queen, and is,
in contemplation of law, entitled to the full protection and
benefit of the State. The authority which the father
possesses is, as regards the child, not a property, but a trust.
It is understood to be given not for the advantage of
the father, but for the advantage of the child ; and it is
subject to the controlling authority of the sovereign as
'parens patrice. Very different views prevailed in the
archaic world. The old definition of a man, as a naked
biped, was not without significance. A new-born child was
literally only that and nothing more. He was merely an
animal ; and the fact of his birth gave him no admission, as
of right, into any social relation. He was not a member of
any Household or of any clan, much less of any State. The
reason was, that these societies were formed upon a com-
munity of worship ; and that birth of itself could not, and
did not, create any such community. I have already
described the proceedings that were necessary to render the
new-born infant the member of a Household. With these
proceedings, or with the consequences of their omission, the
State had no concern. It had nothing to do with an
INFANT SONS AND MEMBERS OF THE STATE. 345
infant, either for its inteiest or ajxainst its interest, because
the infant was not inchided in tlie State brotherhood.
Initiation into the State worship was not less necessaiy
than initiation into the clan worship ; and in the one case
as in the other, a peculiar ceremony was essential. At Athens
the son of a citizen was, up to the age of sixteen, under
the exclusive control of his father. At that age he was
required to conmience a course of training in the Gymnasia.
After two yeai-s thus spent, he was enrolled in some deme.
On this occasion* he was duly presented to the Assembly:
he received, at its c()mmantl,a shitdd and spear; and he took
at the altar, on which a sacriHce was oHered, the oath of a
citizen, in which, among other things, he pledged his faith
to the religion of the city. From that time he was
regarded as a member of the State, and was admitted to
many of the rights of citizenship. But he was required to
attain two yeai"s' standing, and to perform cei-tain military
duties, before he was allowed to exercise the right of taking
part in the Assembly of the People.
Not merely was a member of a clan not necessarily a
member of the State ; the converse was also true, and a
member of the State was not necessarily a meudier of a
clan. AVhen the State^f desired to ccmfer upon foreigners
the rights of citizenship, in recognition of special services
rendered by them, such admission was witliin its acknow-
ledged competence ; but it could not, at the same time,
admit them to an}' I'hratria. Over these bodies the State
claimed no control. Consetjuently, these naturalized citizens
could not hold the office of Archon, or any priestly otiice,
because they could not sharu in the woi-ship of either the
god of the clan, (^r of the god of the House — of Apollo
Patroos, or of Zeus llerkeios. The State might admit
• Hennann's ** fSrcc. Ant.," p. 2.39.
t III., p. I Do.
346 THE MEMBERS OF THE STATE.
them to its own community,* or to any local phyle or deme,
which were sub-divisions of the State. But no order of the
State could make a man the member of a clan, into which he
had not, either in consequence of his birth or by adoption,
been admitted by the kinsmen. At Rome the practice was
similar. On the I7th of March, at the festival of the
Liberalia, the youth — at what precise age is a matter of
dispute — dedicated to the Lares the badges of childhood, and
changed his boyish dress for the garb of a man. He was
then brought by his father and his friends to the Forum,
and was there inscribed on the roll of some tribe as a
citizen. From that time he assumed all the honours and all
the burthens of citizenship, served in the field, and voted in
the Comitia.
So, too, Tacitus"!* describes the ceremonies by which the
attainment of the youthful Teuton's majority was cele-
brated. In the presence of the Assembly, the young
warrior received from the hands, either of some man of
rank, or of his father, or of his kinsmen, a shield and spear.
" This," the historian adds, " is their toga, this the first
honour of man's estate : before this they were regarded as
a part of the Household, after this as a part of the State."
It is probable that the practice, in the days of chivalry, of
confeirino; knio-hthood was a survival of this ancient
Teutonic custom. In its origin, however, the custom was a
method of terminating the Patria Potestas, with a result
varying in each case according to the nature of the trans-
action. The son was transferred by his father to another
person for a specific purpose. The gift of the arms indicated
the acceptance of the transfer. When the arms were given
by a kinsman, the youth became the son of that kinsman ;
but without, it is said, the revival of the paternal power.
* Hermann's " Grec. Ant.," p. 230.
f " Germania," c. 13.
INFANT SONS AND MEMBERS OF THE STATE. 347
If the amis were given by a chief, the youth was at once
admitted into his followinjx. If the father himself save
the arms, his act amounted to a complete surrender and
formal abandonment of his power. The gift of the arms,
in the presence of the Assembly, and with its concurrence,
was an admission of the young man as a new member of
the army of the State. In the two former cases, his newly-
acquired rights were subject to the rights of his adopted
father, or of his lord. But where the father was the donor,
the acquisition of the new rights was absolute ; and tlie
youth, who was formerly ^^ars dinnus — a member of his
father's household — became at once jm^s reijiublica'. In this
capacity he became at once entitled to all the advantages,
and was bound by all the responsibilities, of a share in
the commonwealth.
§ ']. It thus appears that boys, before they attained the Political
age of early manhood, were not members of the State, Sou under
although they were membei-s of the Household and of the
clan. It follows that they were, during their boyhood,
under the exclusive autliority of tlie cu.stom uf their kin.
The Stiite interfered neither for them nor against them.
It simply ignored their existence. But boys had the
capacity of becoming members of the State ; and by usage, at
least, if nut by positive law, were entitled, ujjon attaining
the proper age, to demand admission. If they were thus
admitted, the <|uestion aiises — What was tlie effect of their
new allegiance upon their old allegiance ? Did the new
citizen live under State-law alone, and was kin-law confined
to boys, to women, and to slaves ? In all cases where there
was no collision, as in matters of inheritances, and other
instances, the two laws remainetl unaffected. But a
tlitiiculty arises at the p(;int at which the two systems
claslicd — namely, the authority of the House Father. In
348 THE MEMBERS OF THE STATE.
Athens the State seems to have been sufficiently powerful
to override all conflicting claims ; and consequently to
extinguish the authority of the father over the citizen, who
was bound to obey another and a higher law. But in Rome
the Gentile tie much longer retained its power. It has
often been observed that the Roman system of nomenclature,
comprising, in addition to the personal name, the name of
the kin and of the sib, while the latter name added merely
the name of the father and of the clan to which he
belonged, proves the greater duration and influence of the
Gens above the ■yeyoc. But the mode in which the Patrice
Potestas was preserved at Rome is a still more striking
proof of that diflference. In Rome the rights of the Pater
familias over his son, and the rights of the State over its
citizen, were treated as conflicting rights ; and no special
provision for their adjustment appears to have been made.
The father's power was strictly limited to matters within
the jurisdiction of the clan. In matters of State-law, father
and son met as equals. Inside the house, the father
possessed over his son the power of life and death. Outside
the house, the son, if he were Dictator, possessed the power
of life and death over his father. Inside the house, the son
could not possess any property, except by the consent of his
father, and during his pleasure. Outside the house, the
father might be subject, in purse and in reputation, to the
decision of his son when acting as Prsetor or as Judex. If
an assault* were committed on a father who was a private
citizen, and on his son who held or had held high public
office, the father brought the action and recovered the
damages ; but the damages which he recovered for the
injury done to his honourable son were much heavier than
the damages which he recovered for the injury done to
himself.
* "Dig.," xlvii., 10, 30.
POLITICAL RIGHTS OF A SON UNDER POWER. 349
These strange consequences, and others like them, were
not accidental, or mere survivals of an extinct social state.
In the maturity of Roman law, the rule remained in
express terms. "Quod* ad jus pul)lieum attinet, non
sequitur jus potestatis." And, again : " Filiusf familias in
publicis causis loco patris familias habetur." The line
between the two conditions was sharply dra^^'Tl. Hence,
notwithstanding his personal disabilities, F'diti.^ fainirtus
might hold any magistracy ; or might act as a tutor,
because that function was regarded as a public duty.
He might bring actions:): in his own name where the
wron<r done affected his ri<;hts as a citizen. He mi<fht
even, in his capacity of magistrate, preside at the pro-
ceedings § for his own adoption or his own emancipation.
So too, if a tutor who had previously been sul juris was
adopted, and so passed under the Potrstas of his new father,
the tutelage — except when the office was not perscjnal, but
incident to a position which the tutor, by his adoption,
cea.sed to fill — was not affected. The reason was, that the
change in the tutor's position was a matter of private
concern ou\y, and witli wliicli uonv Imt his kinsmen liad an
interest ; while the ' tutela ' was a public function, and was
altogether apart from any Gentile arrangements. ;
There is (jne case in wliieli the political condition of the
son .seems to have materially affected his private condition.
It was a fundamental rule!i of Roman law tliat a eitizen
could not l<»se either his liberty — that is, liis independence —
or his rights of citizenship, without his consent. Tlius, in
cases of aiTogation, the person to be arrogated was pointedly
asked whether he wi.shed to become the .son of the
inti-nding adopter, and to allow to that person the jus
• "big.," xxxvi., 1, 14. t /!>., i., C, 9.
t Sc« Mr. PoMto'H "(iaiiia," p. (i7. § "Dig.^," L., 7, 3.
II '* Inst.," I. xxii. 4. H Cicero "Pro Domo,"o. 29.
550 THE MEMBERS OF THE STATE.
vitce necisque over him. When, therefore, a son became a
citizen, and his Pater familias afterwards died, it followed
that no other person could acquire over him, without his
consent, a father's power. The son was therefore inde-
pendent, and the family was practically broken up. I
think that this is the reason why ihePatria Potestas lasted,
at Rome, during the father's life, and why it terminated
at his death. The father's ri^ht existed when his son
became a member of the State ; and the two rights — the
right of the Household and the right of citizenship — are
not necessarily inconsistent. But when the father's right
was extinguished, the right of citizenship prevented the
creation of any new derogatory i-ight without the citizen's
consent. Thus the old Household was, ij^so facto, brought
to an end. If it were continued, it must be in the nature of
a partnership, where one partner conducted the business for
his own benefit and that of his co-partners, and not where
a House Father governed his dependents with absolute
.sway.
After the power of the clan had passed away, the State
did not hesitate to regulate the exercise of the parental
authority. But, in the older times, both clan and State
pursued each its own course. It is probable that no act of
the son, in his public capacity, would have been regai'ded as
a proper cause for the exercise of the paternal power. At
least, the occurrence of such a case is specially noticed* as
though it were unusual ; and, yet. even there the State
does not appear to have taken any notice, either in
approval or in disapproval, of the proceeding. A recent
historian -j- regarded this silence as a proof of the "languid
voluptuousness" that is supposed to have prevailed in the
Senate : a state of mind, however, which did not prevent
* Sallust, "Bel. Cat.," 39.
t Eean Merivale's "Hist. Rom.,' vol. i., p. 148, ti.
POLITICAL RIGHTS OF A SOX UNDER POWER. 351
very prompt and vigorous measures being taken with
other offenders on the same occasion. A simpler explana-
tion is, that, accordini; to the laws and usa^^es which
then prevailed, the Senate had no jurisdiction in the
matter.
§ 4. The position of women in archaic law is a subject Women
which many persons have found it difficult to comprehend, bers of'the
The solution of the problem, however, is simple. They ^^^^^'
had no position. Women were not only not members
of the State, but were incapable of becoming members.
Hence a woman was in perpetual tutelage. She could
neither sue nor be sued in the courts of the State,
because she had there no locus standi. It was, therefore,
necessary that some citizen, some person who was capable
of appearing in these courts, should act in her behalf. Tliis
disability is usually described by saying that women were,
throughout their life, in a state of nonage. It would be
more con-ect to say that women throughout their life, and
infants during their minority, were alike subject exclusively
to the custom of the clan. They were ^)aj"8 domivs, and not
pars reqyiiblicce. The State, therefore, neither recognised
them nor intei-fered with them. "Women," says Ulpian,*
" are rcmovetl from all civil and public functions, and conse-
quently cannot act as Judices, nor hold offices of State, nor
sue, n(;r intervene on behalf of another ; nor be Procurators.
Likewise, a person under age ought to abstain from all
public functions."
The reason of this permanent disability has been some-
tinies sought in the p resumed weakneas of the sex, or,
a.s Cicero rudely says, " Propter infirmitatem consilii."
Tlie Roman law, however, did not proceed upon any
• •• Dig.," L., 17, 2.
352 THE MEMBERS OF THE STATE.
such fanciful supposition. In the case of infants, the
auctoritas of their guardians was not merely formal, but
substantial. It controlled both the technical acts of the
infant, and also the administration of his property. In the
case of women it was otherwise. Ulpian,* in express
terms, marks the difference. " Pupillorum pupillarumve
tutores et negotia gerunt et auctoritatem interponunt ;
mulierum autem tutores auctoritatem dumtaxat inter-
j)onunt." Gains, "f* too, declares that he cannot see any
reason for the tutelage of adult women ; for the ordinary
pretext of their liability to be deceived " levitate
animi," is refuted by the facts, that such women
administer their property, and that the tutor can be
compelled, on application to the Pmetor, to give his
assent to their proceedings. Mr. Poste,:}: in his excellent
commentary on Gains, observes that " it is trans-
parent that the wardship of women, after the years of
puberty, was not designed to protect their own interests,
but those of their heirs apparent, their agnates." I do not
think that this explanation removes the difficulty — namely,
why this restriction applied exclusively to women. The
rights of the agnates were equally in danger from the
conduct of a Pater famUlas ; and a woman had the same
powers in administering her property as her husband, or
her father, would have had. The^_reason_wiiya_3^iimii
could not act in her own name, while a man could, was not i
that a woman was naturally more extravagant than a man, or
nalrurally'more inclined to defraudlier agnates; but because
the man hada locus standi in the courts of the'State, of wliich.
he was a member, while a woman had no such membership.
and the refore no such position. This view is supported by
the similar case of^a stranger. The rule of the Twelve
* "lieg." xi., 20. t i-. 192. t p. 140.
WOMEN NOT MEMBERS OF THE STATE. 353
Tables was " ad versus hostem (i.e., peregrinum) feterna
auctoritas ; " that is, as an Athenian would have said, " a
Metic must always have a Prostates." Yet the stranger
did not suffer from weakness of mind or any similar defect.
He was simply incapable of any right under Quiritarian
law.
A remarkab le con sequence of th is^xclusioiL^ women
from the State was their exemption from the operation jQf_
the ordinary crimin al law. If a woman c ommitted any
crime, she wa s handed over to the person in who se_mcmug
she was, for t rial, and, if need were, for punishment. A
little after the war with Antiochus, in the year 18G B.C., the
discoveiy was made at Rome* that the worship of Bacchus
had for some time past been conducted, and was still
conducted, in a manner which caused not only just and
excessive scandal, but which directly led to the perpetration
of the grossest crimes. The most vigorous steps for its
suppression were adopted, and, for a time, terror reigned
in Rome. It is said that not less than seven thousand
persons, male and female, were implicated. The men
were tried^_ _condem ned, and punished in various ways,
according to their deserts ; but it was found that no juris-
diction existed in _ the cas e of th e women. Th ey were
ultimately surrendered to their husbands and parents, to
rece ivctKe ir punishment in private. Long afterwards,
Tacitus f relates how aTady of rank, the wife of a gallant
officer just returned from a successful foreign command, was
accused, rxtovdi Hvpfvi^thlon'iK, probably of lieing a eoiiviTt
to (.'hristianity, and was left to the judgment of her husband.
He, according U) the ancient custom, in presence of his near
relations, tried liis wife for a caj)ital offence, and found her
not guilty.
• Livy xxxix., 8.
t " Annals," xiii., '.V2.
24
354 THE MEMBERS OF THE STATE.
Slaves not S 5. All that I have said as to the exclusion from the
Members
of the State of infants and of women applies, a multo fortiori, to
slaves. With the slave, the State had no concern ; whether
he lived or died was a matter of no public interest, " Servile
caput nulluTTi hahet jus." It is not correct to say that
slavery imposed duties, but gave no rights. Slavery
kncAv, so far as the law was concerned, neither duties nor
rights. The law, of course, recognised the fact that such a
state existed ; but it did not attempt to interfere with it.
It was not to the law that the authority of the House Father
was due ; nor did the law, for many ages, claim any right
to regulate his power. It is probably this absence of State
interference that is meant by the Roman jurists, when they
said that slavery is not jure cluili, but jure gentium. It
certainly existed from the foundation of the city. It
certainly was never a subject of the Prsetor's peculiar juris-
diction. The allegation, therefore, appears to mean that
slavery was a recognised fact, but that it did not depend
upon, and was not regulated by, the old common law of
Rome. It was within the sphere of domestic custom, and
found no place in early law. I need not produce evidence
of the uncontrolled power of a master over his slaves. In
Greece and in Rome, their violent death was a matter of
ordinary occurrence, and was justified both by law and by
public opinion. In Germany, Tacitus* states that slaves
were seldom cruelly punished, but were often killed in
bursts of passion ; and he adds, that no punishment attended
such cases of manslaughter. Earlier writers would probably
not have noticed this circumstance ; but, for a century before
the time of Tacitus, the law had interfered to check the
cruelty of the slave-owners.
It is more to my purpose to consider the position of
* " Germania," e. 2o.
SLAVES NOT MEMBERS OF THE STATE. 355
a slave after the termination of his master's power. In
modem communities, when a slave is liberated, he becomes
— happily, I ought now to speak for most countries in the
past tense — a citizen. He may not have all the political
rights that the most favoured citizens enjoy ; but, for general
purposes, he is at once vmder the protection of the law as
fully as is the noblest in the land. Such was not the
case in the ancient world. At Rome, where, as usual, we
see more distinctly than elsewhere the form and the working
of legal principles, a man might, if he pleased, give freedom
to his slave by any sufficient expression of his intention ;
and if he did so, he could not use any legal process to recover
the right which he had disclaimed. But this manumission,
although it gave freedom, did not give citizenship. For
that purpose, the consent of the State was necessary ; and
that consent was given either directly or by some officer
appointed for that duty. When wills were made at the
Comitia Calata, the State itself concun-ed in the manu-
mission by will ; and, consequently, the slave so liberated
became a citizen. Manumission j^ci' censuiuand per rindic-
taiii, which were attended with the same results, implied
— the former, a deliberate recognition of the new citizen by
the proper officer, the Censor ; the latter, a judicial decision
in his favour by the Pr;i?tor. In all these cases, the recog-
nition by the State through its proper officers was essential.
In Athens, the freedman was not admitted to citizen-
ship, although, in that city, the State intei-fered for his
protection much earlier than in Rome. He was ranked
amongst the Metics, or resident aliens. At Sparta,* it
appears that freedmcn could never attain civil rights ; and
manumi-ssion, without the consent of" the State, was
probably not permitted. Tu Cleiiiiany, a similar conclusion
• Hcniianu'a " (irec. Ant.," p. 51.
356 THE MEMBERS OF THE STATE.
may be drawTi from the words of Tacitus,* that freedmen
are only a little above slaves, and have no rights, " raro in
domo nunquam in civitate." In those clans only which
were organized on the principle of a gasindschaft, not of a
gemeinde — that is, in the hlrd of some wealthy House
Father, their services were appreciated.
When the exclusive supremacy of the State was estab-
lished, much was done to protect the slave against the
caprices and cruelty of his master ; but so long as the old
'Jus Privatum existed, it, and it alone, took notice of the
slave. The ' Jits Publicum' stood aloof, and did not seek to
interfere in matters with which it had no concern.
Exemption S 6. The cases I have mentioned may be I'egarded as
of the ^ ...
House aud merely examples of a general principle. The especial seat
its Pre-
ciuctfrom of 'Jus Privatiim' the condition under which it appears in
cum. the sharpest antagonism to ' t/its Pithlicum,' is the House
and its precinct. The house, and the enclosure of the
house, were wholly exempted from the operation of State-
law. Whatever was done or forborne therein was judged
by its own tribunal according to its own standard of justice,
and not otherwise. The utmost stretch of authority on
which the State could venture was to require the House
Father himself to execute right. So far as the State and
its officers were concerned, every house was inviolable.
Within the house and its enclosure the authority of the
Household and of its I'epresentative, the House Father, was
supreme. The House Father was as truly sovereign in that
small precinct as any king is within his dominions. He
administered, as I have said, his own justice. He kept his
own peace. He was responsible for the conduct of all
persons who were within his gates. No other person,
* " Germania," p. 25.
EXEMPTION FROM JUS PUBLICUM. 357
whether official or non-official, could exercise any form of
process within his jurisdiction. He might, at his discretion,
treat with the officers of the community for the extradition
of offiinders ; but no officer could, in the execution of his
duty, cross the holy boundary any more than the Queen of
England could send a police constable to execute a warrant
in Russia or in France. The House Father's relations with
his neighbours were, if I may so speak, rather international
than political. " What," asks Cicero,* " is more sacred than
the house of every citizen ? What is more guarded by
eveiy sentiment of religion ? Here are his altars, here his
hearth, here the gods of his Household ; here are contained
his sacred things, his worship, his ritual ; this is so holy a
refuge to all that no person may thence be dragged away."
The same rule of law was continued six centuries after-
wards in the legislation of Justinian. In the Digest, i*
Paulus thus states the rule : — " Nemo de domo sua extrahi
debet." Gains, in the same work, goes still fui-ther, and
declares that the general opinion of the profession was,
that a summons could not be sei'ved upon a man in his own
house : " Quia domus tutissimum cuique refugium et
receptaculum sit,":]: and every process of law implies a kind
of compulsion. It was a maxim of the Spartans § that
"the door of his court or precinct was the boundary of
every man's freedom : without, all owned the authority of
the State ; within, the master of the house ruled as lord on
his own ground." These rights of domestic life, notwith-
standing their frequent conflict with the public institutions,
and notwithstanding the general tendency at Sparta to
.sacrifice everything to the supposed interest of the State,
.seem to have been respected. Our Teutonic forefathers
• Pro Domo, c. 41.
t L., 17, 10.3. t Ih., ii., 4, IS.
§ Mailer's "Dorians," vol. ii., p. 2%.
35S THE MEMBERS OF THE STATE.
fully recognized the like inviolability. " Suam quisque
sedem," says Tacitus, "suos Penates regit." Neither
communal nor public officer was allowed to cross, in
the execution of his duty, the freeman's door. Late
in the eleventh century, a document, which is still
extant, affords a notable illustration of the living efficacy
of this rule. " Every house, every garden, shall have
peace within its enclosure. No person shall enter
upon it, no person shall burst it open, no person shall
presume to inquire rashly after those that are set within,
or to oppress them by violence. If any fugitive shall have
entered the enclosure, he shall abide therein in security."*
So too, in all the old English laws, from the earliest time to
the reign of Henry I., the like principles are reiterated. A
similar custom prevailed in Ireland. Around each residence,
says the learned editor^f* of the " Ancient Laws of Ireland,"
" there was a space (maighim or precinct) of varying extent,,
within which the owner of the house had a right to insist
that the peace should be kept." And he observes that the
rules on the subject of the precinct that were laid down in
the Brehon laws, are almost identical with those contained
in the early English laws to which I have referred.
There are still extant, l)oth in the form of survival and
even of living institutions, traces of those times when ' Jus
Pinvatiim ' reigned supreme. To this day Englishmen like
to be told that every man's house is his castle ; and English
lawyers still repeat their long-descended maxim, " domus
sua cui(|ue tutissimum refugium," although before the all-
pervading energy of the State the castle is no longer a
refuge, and the maxim only serves as a weapon for harassing
the sheriff" and his officers. In Russia, however, the old
rule retains much of its pristine force. " A patiiarch," says.
* See Von Maurer, " Einleitung," p. 241.
t vol. iii., p. 102.
EXEMPTION FROM JUS PUBLICUM. 359
a recent writer, " is lord over his own house and family,
and no man has a right to interfere with him, not even the
village elder or the Inipei-ial judge. He stands above oral
and written law. His cabin is not only a castle, but a
church, and every act of his done within that cabin is
supposed to be private and divine." In India,* too, may
still be seen the separate households, each despotically
governed by its family chief, and never trespassed upon by
the footstep of any person of difterent blood. There, too,
may be seen, so far at least as native usages extend, the
absolute immunity from all external interference. " From
the remotest times," says Colonel Tod,-|- " Sinua has been the
most valued privilege of the Rajputs, the lowest of whom
deems his house a refuge against the most powerful." To
the horror and consternation of the Eastern mind, this
immemorial and prized immunity has, under British rule,
been made to yield to the knock of the policeman, and the
supreme control of the Queen over all her subjects. " To
the extent," says Sir Henry Maine,:): "to which existing
Indian society is a type of a primitive society, there is
no doubt that any attempt of the public lawgiver to in-
trude on the domain reserved to the legislative and judicial
power of the Pater famUias causes the extremest scandal
and disgust. Of all branches of law, criminal law is that
which one would suppose to excite least resentment by
trespassing on the forbidden limits. Yet, while many
ignorant statements are constantly made about the rash
distur])anc(' of native Indian ideas by British law an<l
administration, there is really reason to believe that a
grievance most genuinely felt is the impartiality of that
admirable penal code. ... I have had described to
* Sir H. S. Maine's "Village Commuuities," p. 11.3.
t " llajastlian," vol. i., p. 5'26.
X Ubi Hupra, p. 115.
360 THE MEMBEES OF THE STATE.
me a collection of street songs, sung in the streets of a city
which is commonly supposed to be most impatient of
British rule, by persons who never so much as dreamed of
having their words repeated to an Englishman. They were
not altogether friendly to the foreign rulers of the country,
but it may be broadly laid down that they complained
of nothing which might naturally have been expected to be
the theme of complaint. And, without exception, they
declared that life in India had become intolerable since the
English criminal laws had begun to treat women and
children as if they were men."
CHAPTEK XVI.
THE TERRITORY OF THE STATE.
S 1. I have shown, in the case of the crenealoji^ic clan, The prin-
«' ' o o ' ciple of
the close relation between the clan and the land. So Vicinity.
close is this illation that some writere have included it
within the definition of that body which in tliese pages is
called a clan. They describe such a coniuumity as, among
other thinjxs, consistin<x of a number of kinsmen settled
upon the same land. This description applies only to
genealogic clans. To the non-genealogic clans or tribes,
so far at least as they are religious or -professional and. are
not formed for the express purpose of land-occupation, the
possession of common land is immaterial. For the most
})art, indeed, such tribes are landless. But even with the
genealogic clans, the land, although its presence is usual
and forms a highly important part of their organization,
is not essential. A clan may be broken and spoiled of its
territory, but it is a clan still. Several distinct clans, or
even races, may occupy the same territory or the same
town, either independently or in subjection to a conimon
superior ; and yet no integration may take place. Even
a race that has Ijecome a nation may lose its political
character, and yet retain for centuries its primitive Gentile
structure. The tie which unites the kin is personal and
not territorial ; and, conse(juently, it may survive even so
great a shock as tliat of its local displacement.
362 THE TEREITOEY OF THE STATE.
A memorable example of these propositions is the history
of the Jews. I do not, however, press the illustration, both
because they are not an Aryan people, and because it may
be contended that their case is altogether exceptional.
Another example, almost as striking, and not open to the
same objection, is found in the case of the Armenians.
" At present," says Professor Bryce,* "Armenia is a mere
geographical expression, a name which has come down to
us from the ancient world, and has been used at different
times with different territorial extensions. The country, if
we can call it a country, has no political limits, for it lies
mainly in the dominions of Turkey, but partly also in
those of Russia and Persia. It has no ethnographical
limits, for it is inhabited by Tartars, Persians, Kurds, and
the mixed race whom we call Turks or Ottomans, as well
as by the Armenians proper. It has no natural boundaries
in rivers or mountain chains, lying, as it does, in the upper
valleys of the Euphrates, Tigris, Aras, and Kur. Of the
numbers of the Armenian nation, or rather of Armenian
Christians, for the nation and the church are practically
synonymous, no special estimate can be formed. They are
supposed to be aljout five or six millions. Others are
scattered abroad in all sorts of places, India, Southern
Russia, Kabul, Hungary, Abyssinia, Manchester. Wherever
they go they retain their faith, their peculiar physiognomy,
their wonderful aptitude for trade."
I have said that the State isj)ne form of the non-genealogic
Ian. Yet it approac hes very closely in some respects to the
structure of the pure clan. Its object is not the promotion
of a specific purpose, the advancement of some belief, the
c ultivation of some sci ence, oxthe practice of some art. It
has, indeed, its co mmon form of worsh ip ; but this wo rship is
* " Trans-Caucasia and Ararat," p. 317.
THE PRINCIPLE OF VICINITY. 363
merely its symbol, the outward visible siffn of its u nity. Its
main object, the object to which the common worship is
merely auxiliary, is the general material well-being of the
jcommunity^-^ Hence, like the pure clan, it tends to become
localized. This tendency generally predominates ; and
_ neighbourhood, not kinship, becomes the basTsofthe natlO'Kal "^ —
union. Th ere is no need to offer proof of this ten-itorial
character, for the difficulty now is not to establish its
presence, but to conceive its absence. At th e present day,
in all civilized countries, the territorial law is enforc ed upon_ J_^
^^alT persons, whether strangers or natives, who are within
its limits. Yet a State can certainly exist* apart from _
territory. The supreme court of tlie I nitcd States,-|- while
it refused to recognize their right of property in the soil,
acknowledged the Cherokee Indians to be a State capable
of forminix treaties, and of observino; the duties and the
rights of civilized men. This territorial principle, too, is a
recent development. In India, I territorial political titles
are extremely rare, and are generally due, when they exist,
to the English. In Rajputana, the State takes its name from
its capital, the residence and citadel of its chief, which,
itself, almost always takes its name from the ancient chief
who founded it. All the European States were originally
personal, not territorial associations. Kings,§ so late as the
thirteenth century, were kings of peoples, not of countries.
The various races that were settled in the same temtoiy
insisted, during many generations, on retaining each its
separatt^ law. The Frank lived according to Frank law ;
the Gallic Provincial lived according to Roman law ; the
Burfjundian lived accordinjj to the law of the Bur-Tjun-
O O o
* See Austin's " Lectures on Jurisprudence," vol. !., p. M'y.
t Wlieaton's " Intcniational Law," p. GO.
t " Kilin. Rev.," vol. cxliv., j). IT'.', notf.
§ See Kuinble's " Saxoii.s in Knglaml," vol. i. , p. \'r2. Mr. Freeman's
" Norman Concjuest," vol. i., p. 82.
364 THE TERRITORY OF THE STATE.
dians; and the Lombard according to the law of the
Lombards. So, too, the Englishman, and the Dane, and
the Norman lived according to English, or Danish, or
Norman law. It was long before there was a king of
England; it was longer still before there was a king of
France. It was a slow process by which the king's law
extended, whether as a benefit or a burthen, to every
individual in the kingdom. Yet although this was so,
every important community, when it advanced to the
condition of a political union, had a territory; and that
territory became, if it had not originally been, the recog-
nized basis of the association.
There are thus several points which require attention.
The order of events is from kinship to neighbourhood, and
'not the reverse. The neighbourhood ultimately grows into
a territory, and is absorbed by it. The principle of
^territoriality is comparatively recent; nor is it even yet
regarded as essential to national life, although it may be
essential to the highest forms with which we are
acquainted of that life. Further, the two principles of
personal allegiance and territoriality still co-exist, and"
have in recent times obtained a considerable development.
I j^rppose, therefore, to consider — first, the circumstances
which led to the change from kinship to neighbour-
hood ; next, the circumstances which led to the growth
of the neighbourhood into the territory ; and lastly, the
two cognate doctrines of allegiance and territoriality, on
which the modem nation is founded.
Viciuityas {^ 2. Of the methods by which the State modified the
itight. clan, one was direct and intentional ; the other was the
unforeseen and imexpected result of their mutual re-
actions. The direct method consisted, not in the alteration
of the old clans, but in the substitution for them of
VICINITY AS A SOURCE OF RIGHT. 365
artificial bodies, constructed on a similar principle. The
original clans were prior to the State, and were the
elements out of which it was composed. The reformed
State, if I may so call it, was prior to the local clans,
which were formed, not for their own sake, but as a means
for securing the better working of the political association.
The basis of archaic society was community of Mor-
ship ; and common worship implied, at least in the
higher classes, common descent, whether actual or con-
structive. The relations of membei's of the society
.were consequences of this primary principle. One of
these relations was that of neighbourhood. Kinsmen
were originally neighbours, and neighbours were kins-
men. But when the community prospered, it attracted
an outside population, which in its turn became, in course
of time, prosperous. Thus there were neighbours who
were not kinsmen. These persons the State not unrea-
sonably made liable to political duties ; and they, with not
less reason, claimed a share in political rights. On t he
assumption that such a claim w as reasonable, the problem
arose, how a community of worship between the old citizens
and these petitioning outsiders could be estabJisFexT Each
party had its ancuMttul religion, and neither of them
desired to abandon its own worship or to accept that of
the other. But their religion was not exclusive ; and
another worship might be acceptc<l which should be not
destructive of the old worship, but cumulative upon it.
The expedien t was therefore adopt edof forminL'" a third
religion, in which both parties, while they retained their
^^pespectlve^8«cra, might share. Of this new religion the
foundation was not descent, but locality. The country
was regarded as forming districts; all free-born men in
each district formed a tribe; all tribesmen had a common
woi-ship ; the aggregate of tribes, united in the counnon
366 THE TERRITORY OF THE STATE.
worship of the public Penates, was the State. The old
clans continued for their own purposes, but their political
functions were gone.
An example of this process is found in the reconstruction
by Kleisthenes of the Athenian polity. Aristotle,* in
describing the means by which an aristocratical govern-
ment may be changed into a democracy, says : — " It is,
moreover, very useful in such a State to adopt the means
which Kleisthenes used at Athens when he was desirous
of increasing the power of the people, and as those did who
established the democracy in Kyrene,i* that is, to institute
many tribes and fraternities, and to red uce th e rel igious
rites of private persons to a f eWj^and those common ; and
every means^is^ to be c ontrived to associ ate jind blend the
people together as much as jDossible, and that all former
cu stoms be broken through." Three distinct steps may
here be tra ced. One was to forinwit Mn lhe~Stafe~gew"
subsidiary associatio ns. The seco nd was to include in these
new associations all persons whom it was desired to receive
as members of the State, whether they were members of
the old clans or outsiders. The third was to substitute, so
far as was possil »le, these new associations for the former
associations.. The Kleisthenean tribes were carefully
assimilated to^ the form of a pure clan. Each of them
was called by the name of some Attic hero, and the
statues of the Eponyms were placed in the Agora. Yet
it was feared that these tribes might in time harden
into exclusive bodies, not less formidable than those
which had been with such difficulty broken down. To
prevent this evil,]: the territorial tribe no longer, like the
* "Politics," vi., 4.
t See for similar cases in Kos and Rhodes, Grote's "Hist, of Greece,"
vol. iii., p. 86, note.
% See Grote's "Hist, of Greece," vol. iv., p. 178.
VICINITY AS A SOURCE OF RIGHT. 367
genealogical tribe, occupied a contiguous teiiitoiy. The
several tribes were formed, irrespective of contiguity, or
rather with a studied disregard for it, out of cantons
in all parts of Attica. Thus a union upon the basis of
territory was effected, and, at the same time, the strong
centripetal force of neighbourhood was retained.
Some features in this great reform well merit atten-
tion. A great reform it surely was, although our know-
ledge of its details is meagre, for it not only laid the
foundation of Athenian . glory, but it established in
human society a new and most fruitful principle. _ It
is the first recognition of the_p rinciple that territory forms,
a, basis for political rights a nd duties . Yet that principle
"was^ppl ied not without hesitation. It was not said that
a,ll men^or _even all free-born men , -in Attica should
have full po litical rights. But it was p rovided that all
^m^h pp.rsons should 1)0 members of some newly organized
.society. Cit izenship, pure and simple, -was s till too wide
JO. generalization. It \vas necessary that every man should
have his brotherhood and his kin; and then these kins
nught be farther combined into a city. Since the days
of Theseus, that is, from time immemorial, the State had
been formed of the old clans, into which, without special
initiation, no stranger could be admitted.' The chan'^e of
Kleisthenes, and it was a great one, consisted in the
fonnatioii of additional artificial clans for political pur-
poses, and the extensive recognition of their new
association by the State. " It was, indeed," says Mr.
Grote,* "a .striking revolution, impressed upon the citizen,
not less by the sentiments t<j wliieh it appealed, tliaii by
the visible change which it made in political and social
life. He saw himself marshalled in the ranks of Hoplites
• " Hist, of Greece," vol. iv., p. '219.
368 THE TERRITORY OF THE STATE.
alongside of new companions in arms — he was enrolled in
a new register, and his property in a new schedule, in
his deme and by his demarch, an officer before unknown
— he found the year distributed afresh, for all legal pur-
poses, into the parts bearing the name of Prytanies, each
marked by a solemn and free-spoken ekklesia, at which
he had a right to be present — that ekklesia was convoked
and presided by senators called Prytanes, members of a
senate novel both as to number and distribution — his
political duties were now performed as member of a tribe,
designated by a name not before pronounced in common
Attic life, connected with one of ten heroes whose statues
j^ he saw for the first time in the Agora, and associating
him with fellow-tribesmen from all parts of Attica. All
these, and many others, were sensible novelties felt in the
daily proceedings of the citizen. But the great novelty
of all was the authentic recognition of the ten new tribes
as a sovereign demos or people, apart from all specialties
of phratric or Gentile origin, with free speech and equal
law."
Vicinity as § 3. Another c aasp whiph fl,t le ast tended to the sub-
Duty. stitution of th e local for the personal relations, was the
. need for militar y servic e. When the enemy is at t he gates, _
there is no time to discuss ques tions of political equality.
The recognition by the State came sometimes in the form,
not of the bestowal of a right, but of the imposition of a
burthen. Athens* required her Metics to fight side by
side with her citizens. They were regimented, according
to their ability to provide their arms, or, in other words,
according to their wealth, with the Hoplites, or with some
other division of the army. Such, too, appears to have
* Hermann's " Grecian Antic^nities," p. 226.
VICINITY AS A SOURCE OF DUTY. 369
been the design* of that famous orcjanization whicli is
attributed to King Servius Tullius. The whole object of
that system was military, not political. It was meant to
cast the duty of service upon all residents in Rome
according to their means, not to give to strangers any
political advantage. At a later ti me, a further step was
ta ken^ and political rights were conferred with the in tention,
of there by imposin g political duties. That remarkable
edict which, by the stroke of a pen, gave the freedom of
the city to every subject of Ci^sar, did not proceed from
any higli philanthropy or enlightened statesmanship.^ Its
object was to include the gi'eatest possible number of
persons within the terms of an Act that im posed a con-
venient and productive tax. There is a curious parallel in
our own history, although on a much smaller scale. The
elective franchise was forced"!* upon the tenants of the lords
with the avowed purpose of rendering them contributory
to a rate for the wages, of members of the House of
Commons. But these events occurred when such rights
were only slightly valued. The point to which I now
invite attention is, that, when the privileges of citizen-
_ ship were highly esteemed, and there w as no inclina ,tion to
share thorn, the State c laim ed the power to le<yislate for
str angers within its territor}-. Such persons were assumed
to owe, at least, a temporary allegiance, which might faii-ly
be enforced. Undoubtedly, such a feeling must have led to
unexpected consequences. Those who sliaro the Imrtlicn
have a strong moral claim to share the benefit s The_
tendency of such legislation must have boon to prepare
the way for an extension of citizenship. In the mean-
ti me, it taught men ^~^eTieve "that a Teasonable ground
(^^radmisoion to citizenship was a residence within its
• Mdinimeira "Hist, of Rome," vol. i., iiji. 04, 100.
t " The (iovcnimeiit of Kiigland," p. 49G.
25
370 THE TERRITORY OF THE STATE.
limits, and a share in common dangers and common
bm'thens.
The faihne s 4. There are two difficulties to which City-States, such
ot the City '' *'
State. as those I have described, are exposed. One is the pressure
of outsiders. The other is the inability to assimilate any
considerable increase to their numbers. In other words, the
City-State soon reaches the limit of its growth ; and if any
further addition be forced upon it, constitutional disturb-
ances must ensue. The pressure from without is best
known in those contests of Patricians and Plebeians with
which, under various names, history is full. Neither as to
the fact of these contests, nor as to their tendency, is there
any doubt, or any occasion for illustration. But it is
needful to consider the effect upon such States of the
indefinite admission of strangers.
The organization of the City-State is of the simplest
kind. It consists of an assembly of all its citizens. It
implies the personal presence, at all its meetings, of all its
members. That presence must be given on a certain day,
and at a certain place. The furthest concession that can be
made is that of a quorum. The vote of those who are
present may be accepted as the vote of the whole body, and
consequently binds those who are absent. The organ for
administrative business was equally simple. It consisted
in the election, for a certain term, of an officer or of officers by
the whole body of the citizens, whose powers the person so
chosen exercised. For the preparation of legislation, and
for general supervision, a council of State was formed, on
the analogy of the council of the clan. Such an organiza-
tion was suited to the requirements of a small town ; and
accordingly, Aristotle, when he says that the tv6\ic or city
must be of a certain though indefinite size, observes, by way
of illustration, that a city could not consist of ten myriads.
THE FAILURE OF THE CITY STATE. 371
Jast as it might be said that a man must be of a certain
size, but that a being a hundred feet high could not be a
man, so the great philosopher urged that a collection of a
hundred thousand human beings could not be a State. He
did not allege that no such number of pei^sons could live
together. His proposition was, that no political institution,
that is, no City-State, could contain such a number. When,
therefore, from any cause the bulk of the State exceeded its
power of assimilation, its end had come.
The City-State which aspired to empire — that is, to
what we should call a national development — ha<l thus but
a choice of ruin. If it adhered to its original constitution,
it was destroyed by the pressure of its discontented subjects.
If it freely admitted these subjects to its citizenship, it
fell l)y its own weight. The history of the great City-
States of antiquity furnishes an illustratitm of each of
these tendencies. " What else," said the Emperor Claudias,*
" was the cause of the destruction of the Lacedjvmonians and
of the Athenians, powerful though they were in ai-ms, but
that they iLsed to repel their subjects as aliens V On the
other side, the policy of Rome was, as the same emperor
contends, a freedom of admission which, to the descendents
of a pure clan, would have seemed impossible. Yet, " the
civic community f of Rome had broken down from its
unnatural enlargement." As compared with the Hellenic
City-States, the coui-se which Rome pui-sued was the nobler
and the manlier one. Still, both courses led to the same
end. The foundation that the development of the town-
ship attbrded was too weak to bear the structure of the
nation.
It may be asked why the City-State did not develop
new organs to meet its new conditions and its increasing-
* Tacitus, "Annals," xi., 24.
t Momnisea'a " Hist, of Koine," vol. iii., p. .393.
372 THE TERRITORY OF THE STATE.
bulk. The men of that day had no experience of a national
government, and their traditional beliefs were, as I have
already said, inconsistent with any such form. This answer,
although it is true, is hardly complete. Everything must
have a beginning, and parliamentary institutions were not
less strange in the time of Henry III. than they were in
the time of the Gracchi. Some explanation, therefore, is
wanted to account for the rise of representation in the one
case, and for its absence in the other. I think that, in
addition to these obstacles, other conditions were absent in
Rome, without which national representation could never
have existed. Men's minds had not been educated to that
point. The custom of Rome recognised Contract only in
certain special forms. It knew nothing whatever of
Agency. In the time of the later republic, these great
branches* of law were still undeveloped. If the ideas of
agreement and of representation were not familiar to men's
minds in private affairs, it Avas not likely that they should
have been applied to public business. When, after many
centuries of training, the notions of the consensual contract
and of general agency had been thoroughly established,
when the special sanctity of a particular place was no
longer felt and the holy auspices were no longer taken,
and when political business assumed the form of money
dealings with the king, the conditions for political repre-
sentations were fulfilled.
rpjjg § 5. The City-State was not truly territorial. In the
Territorial examples I have cited, there is no substitution of a
^°^f\ territorial for a personal relation. They only show that
vicinity was sometimes accepted as a ground of admis-
sion to an association, the basis of which was, and
* Mr. Poste's "Gaius," p. 433.
THE GROWTH OF TERRITORIAL SOVEREIGNTY. 373
continut'il to be, personal. Men were not fellow-citizens
because they lived in the same country. They might,
however, for that reason be adopted into the State. They
then became worshippers of the great goddess, Athene
Polias, or, as the case might be, of Jupiter Capitolinus
and of Father Quirinus. But that change which made
vicinity, and not either kindred or religion, the basis of
political relations, belongs to a comparatively recent date.
" Territorial sovereignty," says Sir Henry Maine,* — " the
view which connects sovereignty with the possession of a
limited portion of the earth's surface — was distinctly an
offshoot, though a tardy one, of feudalism." An inquiry
into the development of this principle is outside my pre-
sent limits. I can only notice, in the briefest manner, some
of the most salient among the forces which led to its
establishment. I conceive that one of them was the gradual
dissolution of the Gentile ties. When, from causes which I
shall presently consider, the clan broke down, the only
connection that was left for the clansmen was neighbour-
hood. It was a force with which they were already
familiar, and it formed the natural and the easiest substitute
for the old social bond. But the principle of community
wa.s, at that time, not merely weakened : it was brought
into competition with an energetic and formidable rival.
From various causes, of which some at least are on the surface,
after the events known as the " Invasion of the Barbarians,"
a considerable inequality of wealth, antl especially of landed
propeity, became apparent in the greater part of Western
Europe. Both the Teutons and the Kelts, as I have
in a former chapter observed, were familiar with the
practice of Ccjuimendation. Military colonies, too, with
special forms (^f tenuie, ha<l, for the pui^poses of defence,
♦ "Ancient Law," p. lOG.
374 THE TERPJTORY OF THE STATE.
been long settled on the marches under the Empire. The
central government was paralyzed, and incapable of pro-
tecting life and property. From this concurrence of con-
ditions, feudalism naturally sprung ; and, with the aid of
lawyers trained in the jurisprudence of Rome, was gradually
consolidated into a system. Various motives,* in these favour-
able circumstances, led to action. Sometimes, as in the estab-
lishment by Chlotaire^f- of the Hundred, in place of the old
Vigilia3, there was the feeling that a customary institution
was hopelessly inefficient, and a deliberate attempt at
reform took place. Sometimes a powerful lord, or a king
like Harald Harfager, compelled his poorer free neighbours,.
or even the adjacent clans, to become gafol-geldas, that is,
to acknowledge themselves to be his men and to pay him
tribute. Again, as the kingdom was developed, and the
responsibilities of the Crown exceeded its means, the king
became anxious to establish, at the least possible expense,
some kind of local government. Like King Henry VIII.
with Lord Kildare, he entertained the well-founded belief
that the government of the local magnate, bad as it might
be, was better than no government at all. To this cause
was due, in our own countiy, the repeated legislation that
every man should have a lord ; and the term lord was
understood to indicate a wealthy landed proprietor. A
further influence may be traced in the altered position of a
chief of a clan, who, whether by conquest or otherwise, had
been accepted as the lord of an adjoining people. He could
not be their chief : he did not pretend to be their master.
If he was their lord, he was in a different relation to them
from that in which he stood to his own kin. In cases of
dispute between his new subjects and his old, an embar-
* See Robertson's " Scotland Under her Early Kings," vol. i., pp. 81, 164 ;
vol. ii., pp. 265, 299, 334.
t Canciani, Leg. Barb., ii., 19.
THE GROWTH OF TERRITORIAL SOVEREIGNTY. 375
rassing conflict of duties might arise. Uniformity of
relation was plainly desirable. But the strangers could
not, and perhaps would not, be admitted as members of the
old clan. Difficulties, too, miyrht arise in the formation of
a new complex nation. There remained but one solution
of the problem. The kinsmen might become homagers,
and the kindred tie be changed into that of commendation.
Thus, as Professor Stuljbs* has observed, " the rapid con-
solidation of the Danish with the Angle and Saxon population
involved the necessity of the uniform tie between them and
the king : the Danes became the king's men and entered into
the public peace ; the native English could not be left in a
less clo.se connexion with their kin<x. The commendation of
the one involved the tightening of the cords that united
the latter to their native ruler. Something of the same
kind must have taken place as each of the heptarchic
kingdoms fell under West Saxon rule, but the principle is
most strongly brought out in connexion with the Danish
submission."
This extension of the royal authority, at a time when a
connnon royalty was estaldished over difl'erent tribes, was
the cause of the uniformity of modern law. As the ' /tt-s
Honorari am ' suY>ersedcd the ' Jus Qaivitiuvi,' so, among
the Teutonic races, the ' Amt-recJit' superseded the old
' Fulk-recltf ; ' and became the ' Jus (ytvilc ' in its full sense,
or the national law of the community. There were, as I
shall have occasion presently to notice, a great variety
of Peaces in every conniiunity. There was the Peace of the
Churcli and the Peace of the Folk, the Peace of the Town
and the Peace of every HousehoM. But as the king was
usually more powerful than any other person in the com-
munity, the King's Peace was more efficient than any other
• "Const. Hist.," vol. i., p. 170.
376 THE TERRITORY OF THE STATE.
peace. It followed that the king's courts, in like manner,
established their superiority. Whether better justice was
there administered,* or the local courts were abused for
purposes of extortion, a distinct movement of suitors to
the king's courts set in, and could not be restrained. But
uniformity of court means uniformity of rule. The rise of the
common law, therefore — that is, of the common customs of
the realm, is due to the extended jurisdiction of the curia
regis. The process was facilitated by the general similarity
which the customs of the several divisions of the country
presented. There was no fundamental difference between
the customs of the English and of the Danes and of the
Normans. They were readily fused into one people beneath
the pressure of the king's court. But the case was far
otherwise with those who lived under the law of the Romans
and those who lived under the law of the Franks or of the
Visigoths."!" There was a much wider diti'erence between
the Frank, the Alemannian, and the Lombard, than there
was between the men of Mercia and of Wessex and of the
Danelagh. Hence the process of integTation was both
more speedy and more complete in England than it was
either on the Continent or in the other portions of the
British Isles. The people were more homogeneous, and the
royal courts were more active in England than they were
elsewhere.
Sir Henry Maine;}: justly remarks that the derivation of
teiritorial sovereignty from feudalism " might have been
expected a priori, for it was feudalism which, for the first
time, linked personal duties and by consequence personal
rights to the ownership of land." Theie is little difficulty
in tracing the political sequence. But it is less easy to
* See Professor Stubbs's "Const. Hist.," vol. i. , p. 393.
+ lb., vol. i., p. 197.
J "Ancient Law," p. 107.
THE GROWTH OF TERRITORIAL SOVEREIGNTY. 377
establish the first step, that by wliich men come to regard
mere vicinity as a source of duty. Yet, from wliat I liave
aheady said, the course of thought may be traced. The
unfree population furnished a precedent. They had certain
duties and certain rights towards their lord, by reason of
their occupation of his land. The practice of commendation,
or rather the extension of that practice, naturally gave rise, in
a dirterent class of persons, to similar relations. The alodist
who commended himself and took back his land as a tief,
passed into a position in some respects resembling that of a
Liet. The inducements to make such a sacrifice were, as
they must necessarily have been, strong. The old community
had broken down. Its religious basis had disappeared. Its
organization was inadequate to provide for the needs of
those troubled times that followed the disappearance of
the Roman Peace. The clan was gone, and the empire
was gone, and the modern kinjxdom was, at the most,
immature. The only secular means, then, by which at that
time society could be to some extent held together, was
the extension of the relation of lord and vassal. Such
was the firm and universal conviction of the men of
those days. To tliem, such a relation seemed* to be the
only alternative with anarchy. By it, and by it alone,
so far as their experience extended, could order be
maintained and propeity secured. It was the only form of
govi.'niiiiciit wliicli, in practice, they tliought of adopting.
It supplied the one ideal of society which their imaginations
weru able to conceive. The old order had passed away ; a
new and vigorous growth had sup})lied its place. To men
wlio knew what anarcliy was, anil by how slender a
partition they were divided from it, the new order seemed
so beautiful and so strong that they thought it must last
* See " Thu (lovernnicnt uf Eiiylauil," ji. .'JOl.
378 THE TEREITORY OF THE STATE.
for ever. But change is the law of life. The new order,
in its turn, became old, and from its decay a higher form of
political life arose. In what various ways this form, too,
has been modified, we can now, at least, partly see. What
will be the outcome of its changes no man can tell. But of
this we may be well assured, that the tendency, so far as it
is not counteracted or retarded by our own conduct, is
towards a still higher stage of social evolution.
The doc- S G. It is a long step from the reforms of Kleisthenes and
trines of ^, . . ^ ^
Allegiance of Servius Tullius, or even from the decrees of Chlotaire, to
and Terri- i i p • n i ^ r\ tr- • -xt
toriaiitj. the law 01 national character under Queen Victoria, i et>
in this case, as in so many others, the continuity of legal
history is unbroken. The subject of National Character is
so rarely discussed, that I venture to deviate a little from
my subject, and to make upon it a few observations. Our
law very plainly recognises both the personal and the local
elements. The natural-born and the naturalized subjects
of the Queen owe to her an allegiance very different from
that of Regnicoles, or persons who happen to reside,
whether temporarily or otherwise, in her dominions. For
the former. Her Majesty may legislate, in whatever part of
the world they may be. They are amenable to her laws,
whether their acts are done within her dominions, or on the
high seas, or in any foreign country ; although, of course, in
the absence of treaty, British law cannot be enforced against
a British subject within the dominions of another sovereign.
An English subject, for example, who lives in Brazil, where
slavery is lawful, and traffics in slaves there, is safe so long
as he remains in Brazil ; but as soon as he is found upon
the seas, or British ground, he may be arrested for
felony. For strangers the Queen may legislate* when they
* See " Eeg. v. Keyn, L.R., 2 Exch. Div.," p. IGl, per Cockbum,
L.C.J. Also, 32 H. VIII. , c. 16, s. 9.
ALLEGIANCE AND TERRITORIALITY. 37J>
are within her dominions, or are on boar<l a British ship, or
are on board a foreign ship which is within any of
Her Majesty's ports or harbours ; but not further or
otherwise. That is, the Queen's legislative power is^
personal as regards her own sul)jects, but territorial as
regards foreigners. Under the present custom of Europe,
the possession of some territoiy is essential to the idea
of a State ; and within that territory each State has
— except as to sovei'eign princes, their ambassadors and
their forces — absolute jurisdiction. But the nati(jnal
character goes beyond the territory, and gives rise to a
distinct statas. The immediate origin of the ditierence
between allegiance and territorial jurisdiction is feudal ;
but its remote pedigree must be traced to a much more
distant period.
Whatever its claims to antiquity may be, this distinc-
tion has given rise to one of the most notable political
inventions of modern times — the self-coveminfj colonies
of England. The basis of that remarkable relation is that
the Imperial Parliament has supreme legislative authority
in the colony ; but tliat the Colonial Parliament has, in
and for the colony, a concurrent, though subordinate,.
power. There is also the understanding, most important,
yet still merely an undei*standing, that the authority of the
Imperial Parliament will be exercised only in exceptional
cases, or in cases where legislation is required for the whole
Empire. The reason of the difference is, that the legislation
of the Imperial Parliament is personal, and reaches all Her
Majesty's subjects whrrever they may ])v, and consecpK-ntly
the lands which they inhabit ; and that the power delegated
to the Colonial Legislature] is, by the tenns of the gi'ant,
limited to its own tenitoiy. The Colonial Legislature may,
with some slight resnvations, " make laws on all subji'cts
whatsoever;" but tli»si' laws, (•xc('[)t where special authority
380 THE TERRITORY OF THE STATE.
is given, must be " in and for " the colony. Thus the
Imperial law that applies to the colony is in force there
because the colonists are Her Majesty's subjects. The
Colonial law is also in force, but its local limits are clearly
defined. When the two laws clash, the Colonial law gives
way, because the tie of allegiance is older and closer than
the tie of neighbourhood.
So too, when, under the laws of a colony, a foreigner
has been naturalized, he becomes thenceforth a subject
of the. Queen as against the world. The national character
is not local but personal. The consequences that follow the
assumption of that character in each portion of the Empire
are, indeed, determined by the laws of that portion. But as
between nations, nationality does not admit of degrees.
The Queen owes as much protection to a Maori, or to a
Chinaman of Hong Kong, as she does to the citizen who, like
his father before him, was never beyond the sound of Bow
Bells. " Had Don Pacifico," says Sir Alexander Cockburn,*
" been naturalized at Gibraltar instead of having been born
there, he would not have been the less entitled to British
protection."
* "Nationality," p. 38.
CHAPTER XVII.
LAW AND CUSTOM.
vj 1 . The notion of law is now sufficiently understood. The nature
The analysis of the great analytical jurists is generally
accepted ; and it is only necessary that I should, so far as
my present purpose requires, briefly recapitulate the result
of their investigations. Law, then, is a species of command
or signification of desire. This species has three leading
characteristics. First, the conniiand prescrilies a coui-se of
conduct, and not an isolated act or forbearance ; and that,
not in one pei-son or a few persons, but in all the members
of a certain class. Secondly, the command implies its
enforcement by means, in the last resort, of the physical
force which the person who issues the command can bring
to bear. Thirdly, the command proceeds from the governing
body ; or, as it is usually called, the sovereign ; or, as I
prefer to (U'siL,matc it, the political organ of the community.
It is this last circumstance that distiniruishes law from the
commands of a House Father, or from the rules of
voluntary associations. The commands of a Trades Union,
or of a Rib] ion Lodge, have every one of the other charac-
teristics of a law. Tliey are general commands of a
determinate superior to detenninate inferioi-s, imposing
dutie.s and enforced by sanctions. But they are not law in
our sense of tlie teiiii ; on the contraiy, some of them arc
opposed to, and condenmed by, law. Law^'^r cx^cellence is
State-law — that is, it is the enforceable command of the
382 LAW AND CUSTOM.
State, addressed either to its subjects generally, or to some
defined classes of them.
I shall, perhaps, best explain what law is, if I briefly
notice some examples of what law is not. Besides those
notions which I have mentioned, law involves a further
meaning. The enforceable command implies obedience ;
and where the power is great and the sanction adequate,
that obedience is proportionately prompt and complete. It
is, therefore, a result, not invariable indeed, but very usual, ,
of this command of the State, that it produces a regularity
of conduct in conformity to its precepts. But it does not
follow that every regularity, either in nature or in human
conduct, is the consequence of a command, much less of the
command of a particular authority. Nevertheless, the
term law has been extended to the sequences of nature ;
and this metaphor seems likely to absorb the original
signification of the term. Two circumstances have probably
led to this extension. First, the order of physical causation
resembles the uniformity of conduct which an accepted law
brings with it. Second, there was a tacit reference to that
Supreme Will whose word even the winds and the waves
obey. It is not needless to repeat, even though it be for
the thousandth time, the distinction between a true law
and this metaphorical use of the term. A law of nature, as
it is called, is a statement of an invariable unconditional
uniformity of sequence. In it there is no room for
obedience, since there is no room for will. If the facts do
not correspond with the alleged law, the law, in the absence
of any disturbing force by which the phenomena can be
explained, is not broken, but vanishes. The statement of
uniformity was inexact, and there never was such a law of
nature ; there was only a blunder in the assumption of its
existence. But a true law does not cease to be a law,
however frequent or serious the breaches of it may be. A
THE NATURE OF LAW. 383
single contradictory instance, clearly proved and unex-
plained, is fatal to any general proposition of uniformity.
But a command of the State remains a command of the
State, although little respect be shown to its authority, and
althourjh the force that (jives effect to it be weak.
Again, even in human conduct, it is not every uniformity
that is law. If it be so called, the word law is used in an
aml)iguous sense, denoting either uniformity in general, or
a uniformity produced by a particular cause. The command
of the State is not the only cause of the uniformity of
men's conduct, or even its principal or its earliest cause.
Men often act in a particular manner because they have
always acted in that manner. This habitual practice is
called custom. Since custom and law thus agree in being
iniles of conduct, they have, necessarily, certain points of
resemblance. But these resemblances relate to the effects,
not to the causes. Between themselves, indeed, the dif-
ferences are clearly marked. Custom neither is, nor
implies, a command in the strict sense of the term. It does
not create a duty in any particular person. It does not
enforce any duty by any definite sanction. In law, every-
thing is <lt!finite; in custom, everything is indefinite. In
the case of a custom, every person thinks, or acts, or forbears
in a particular way ; and every pei-son expects that every
other person will, in the like circumstances, think, and act,
and forbear in a similar manner ; and every pei-son has a
very bad opinion of any other person that thinks, acts, or
forbears otherwise than according to the regulation pattern.
In place of the precise commands of a political superior,
there are the vague expectations of indefinite persons. In
place of the prompt and sliaip sanction of the law, there is
the <lim and indistinct intiu«'nce of public opinion. Thus,
custom is much more nearly rt'l;itc<l to a law of" nature than
to a true law. It implies a uniformity of sequence ; but
384 LAW AND CUSTOM.
between the extent to which a sequence is uniform and the
extent to which a command is obeyed, there is no room for
comparison.
The nature S 2. Law, then, denotes the enforceable general commands
of Custom. ^ ' ' c
of the State. The absence of law, consequently, denotes
the absence of such commands. But it must not be assumed
that the absence of such commands necessarily implies
disorder. The State is not the only possible condition of
human society. It is, I think, the main error of the
analytical jurists, that they, in effect, admit no intermediate
condition between law and anarchy. The latter term is
always dyslogistic, and denotes not simply the absence of
law, but such an absence as destroys social stability. The
great thinkers to whom I refer were doubtless right upon
their own premises. They accepted the condition of
society in which they lived as an ultimate fact. In a
society which is organized politically, the line is probably
very narrow between actual anarchy and the mere absence
of law. But it is not all human societies that are organized
politically. Large societies have lived, and are now living,
happily, under an organization quite different from that of
the State. " Here in India," says Mr. Lyall,* " can still be
seen primitive sets of people who never came under the
arbitrary despotism of a single man, and among whom no
written law has ever been made since the making of the
world. Yet these people are not loose, incoherent assem-
blages of savages ; but are very ancient societies, restrained
and stringently directed 1 )y custom and usages, by rules and
rites irresistible." To the like effect another recent observer-j*
remarks, " The Turcomans are a curious example of a people
among whom the State does not exist. There is no body
* "Fort. Eeview," No. 121, N.S., p. 121.
t Mr. MacGahaii's "Campaigning on the Oxus," jd. 350.
THE NATURE OF CUSTOM. 385
politic, no recognized authority, no supreme power, no
higher tribunal than public opinion. Their headmen, it is
true, have a kind of nominal authority to settle disputes,
Itut they have no power to enforce decisions. These the
litigants can accept, or fight out their quarrel just as they
please. And yet they have such well-defined notions of
right and wrong as between themselves, and public opinion
is so strong in enforcing these notions, that there are rarely
dissensions or quarrels amongst them."
The force which, in such societies, assumes that place
as a rule of conduct which law fills among modern nations
is custom. I have already described the difference between
custom and law, and may therefore assume that the terms
are far from being equipollent. There is custom which
is not law, an<l there is law which is not custom. By
what process the two are combined I shall presently
inquire. Why different communities have different customs^
and what is the cause of the great power of custom, are
questioas which I cannot undertake to treat. The answer
to the former question must be sought for in the diversities
of the history of each people. The latter question, although
an immemorial common-place, has scarcely yet received all
the treatment that it deserves. Undoubtedly, use doth
breed a habit in a man ; and the mere repetition of an
act or of a forbearance tends, from whatever cause, to
generate an inclination towards that act or forbearance for
its own sake, and without regard to the motives on which it
originally depended. Nor is it difficult to understand how^
in the course of time, so strong a web of association and of
sentiment is formed, that few even think of breaking it.
I offer no opinion upon the tendency of these acquired
associations to Ihtohh; lieroditary. But custom, in the
sense in which I now use the term, relates to masses of
men, ami is to a great extent confirmed and perpetuated by
386 LAW AND CUSTOM.
their reciprocal influence. Men approve that which they
themselves do, and which they have during all their lives
seen others do. The uncultured intellect is averse to
suspend its judgment, and, consequently, men usually
disapprove that which is unfamiliar and strange. This
disapprobation is especially marked when the innovation is
not merely a novelty, but is directly hostile to their received
views. The approbation, or the disapprobation, of those
among whom he lives can never be wholly indifferent to
any human being. Thus the force of public opinion
exercises, in favour of an established custom, an influence
which, in the absence of any great counteracting sentiment,
is almost if not altogether irresistible.
I need not illustrate either the power of custom or
its variety. The former is sufficiently shown in our
daily life. The recognition of the latter requires but a
moment's reflection. In the course of a few generations,
men can be trained to think or to feel almost anything
that is not beyond the limits of their nature. When King
Darius asked* the Callatian Indians what he should
give them if they would consent to burn their fathers
on their decease, and not to eat them, they " exclaimed
aloud, and bade him forbear such language." Orientals
look"|- with horror and loathing upon the European system
of a single wife. Practices to us the most revolting, are, to
those who follow these practices, innocent and laudable.
So true is it in our day, no less than in the time of
Herodotus, + that " custom is king over all." But it is
remarkable, how odious a custom which has been outgrown
appears, when the descendents of those who once followed
* Herodotus, iii., 38.
t See Mr. Spencer's "Sociology," vol. i., p. 635, and tlie authorities
there cited.
I vofiog narTuv ftuaikiit, uhi supra.
THE NATURE OF CUSTOM. 3S7
it observe it in other people. It has been remarked that a
man is never so severe in his condemnation as when he
censures some inclination which he once followed, but
which he has succeeded in brintdnsr under restraint.
Some similar tendency seems to exist in national life. I
have already noticed the probable connection between our
avei"sion to horseflesh and the Odin-woi-ship of our fore-
fathers. Mr. Lyall,* in his animated description, drawn
apparently from the life, of an Indian impiiry respecting a
cattle-lifting difficulty, notices the "slight shudder" that
runs through the high-caste Hindu officials who record the
candid statement of the Bheel headman, and his business-
like proposal to pay the proper blood-money for the
Brahman that he and his companions shot. The feelings of
these officers were probably nearly akin to those of
Sir John Davies,-f- when he denounced the horrible nature
of the Irish customs, and their practice of commuting all
offences by an eric or tine. '• Therefore, when Sir William
Fitz-Williams (being Lord-Deputy) told Maguyre that he
was to send a sheriff' into Fermanagh, being lately before
matle a county, ' Your sheriff" (said Maguyre) shall be
welcome to me, but let me know his eric (or the price
of his head) beforehand ; that, if my people cut it off", I may
cut the eric upon the country.'" Yet the ancestors of the
Brahmans and the ancestors of Sir William Fitz-Williams
undoubtedly practised, and at no very distant date, the
custom which Maguyre proposed to observe. So. too, the
Entjlish judges in Ireland ilid not measure their laniruaire,
when, early in the reign of James I., they decided :J^ against
the customs of Tanisti-y and Gavelkind. These customs
were held to be inconvenient and unreasonable : they were
• Fort. Rev., No. 121, N.S., p. 104.
t "Hist. Tractp," p. 12G.
J Hit Joliu Davica's Ilci>orta, p. 10. >J
888 LAW AND CUSTOM.
inconsistent with that just and honourable law of England
which His Majesty, by extending his royal protection to all
Irishmen, had by implication introduced. They admitted
of no permanent estate in the land, without which there
could be no good government ; and the interest under them
amounted at most to a " transitory and scambling posses-
sion." Yet these unlucky customs were only an older form
of that Kentish Gavelkind which the judges were careful to
distinguish ; and their origin was much more ancient than
that of the just and honourable law, which, in an evil hour,*
and to the great miscarriage of justice, was substituted for
them.
The other illustration that I propose to offer relates to the
wide diffusion of custom. Men, or at least bodies of men,
never habitually act from mere unregulated caprice. They
may have no laws in the proper sense of the term, but even
in the most unpromising circumstances their conduct is
governed by very stringent usages. It is not easy to conceive
men apparently more lawless, that is, less dependent upon
the will of others, than the wandering tribes of the Asian
desei-ts. Whatever may be the internal organization of each
tribe, the tribe itself is the conventional emblem of all that
is unfettered and free. Yet, on a nearer approach, it is
found that these tribes are by no means exempt from
control, but live under well-established customs. Each
member of a tribe, of course, obeys his tribal rules ; and the
various tribes, as among themselves, conform to their
immemorial usages. On this subject Mr. MacGahan-f- thus
writes. He is describing the annual migrations of the
Kirghiz, a people who roam from the Oxus to the Syr : —
" To anybody unacquainted with their habits of life, there
* See Professor Eichey's " Lectures on the History of Ireland " (second
series), p. 455.
+ "Campaigning on the Oxns," p. 50.
THE NATURE OF CUSTOM. 389
does not seem to be the slightest system in their move-
ments. They have a system, nevertheless. Every tribe
and eveiy aul follows, year after year, exactly the same
itinerary ; pursuing the same paths, stopping at the same
wells, as their ancestors did a thousand years ago ; and
thus many auls, whose inhabitants winter together, are
hundreds of miles apart in the sunnner. The regularity
and exactitude of their movements is such that you can
predict to a day w^here, in a circuit of several hundred
miles, any aul will be at any season of the year. A map of
the desei-t, showing all the routes of the different auls, if it
could be made, would present a network of paths meeting,
crossing, intersecting each other in every conceivable
direction ; forming, apparently, a most inextricable entangle-
ment and confusion. Yet no aul ever mistakes its own
way, or allows another to trespass upon its itinerary. One
aul may at any point cross the path of another, but it is not
allowed to proceed for any distance upon it. Any deviation
of an aul or tribe from the path which their ancestors have
trodden is a cause for war ; and, in fact, nearly all the inter-
necine struggles among the Kirghiz have resulted from the
encroachment of some tribe, not upon the pasture grounds,
as might be supposed, but upon the itinerary of another. . . .
" I took occasion now to ask my friend why his people
dill not stay on the same spot, instead of continually
wandering from place to place ? ' The pasture,' he said,
' was not sufficient in one place to sustain their flocks and
herds.' ' But why do those who live on the Syr in the
winter not stay there in the summer, where the pasture is
good, instead of wandering off into tlie desert, where it is
thin and scarce V I ask. ' Because other auls come ; and if
they all stayed, they would soon eat it all bare.' ' But why
<lo not the other auls stay at home on tlie Amu and the
Irghiz, instea<l of coming ? ' ' Because other auls come there
390 LAW AND CUSTOM.
too,' he replied. ' But why do they not all stay at home ? '
' Well, our fathers never did so, and why should not we do
as they have always done ? ' he replied. And I suppose this,
is as near the true reason of their migration as any other."
The nature § 3. Sir Henry Maine* has expressed his opinion that
arj Law. " all of Austin's remarks on customary law seem compara-
tively unfruitful." I cannot concur in this opinion. Mr,
Austin's object was to explain the nature of customary
law, and not to trace the origin or the history of custom.
He has, accordingly, pointed out that custom is one thing,,
and that law is another thing. He has proved, in oj^position
to an opinion once very prevalent, that custom is not law
consensu utentium, or by any inherent property. He has
shown that the transmutation of custom into law takes place
only by the recognition of competent authority, and by the
extension of the custom of the sovereign's sanction. Subject
to some remarks that I shall presently have to make as ta
the process of transmutation, I think that this explanation
is correct. Nor is its value diminished because it throws no
light upon an entirely different subject. The difficulty
which presses Sir Henry Maine, arises, if I may venture ta
say so, from his failure to appreciate the broad distinction
between law and custom. It is true that, as he observes,*f-
Runjeet Singh ruled extensive territories in the Punjab,
and never made a law in his life. But there was no law in
Runjeet Singh's dominions. His subjects, or rather his
tributaries, lived according to their respective customs, and
merely paid tribute to what was practically a foreign power.
I have already shown that the tax-taking empires, according
to Sir Henry Maine's judicious distinction, are not States at
all. It is only when we come to legislating empires, or
* "Early Hist, of Inst.," p. 392.
t lb., p. 380.
THE NATURE OF CUSTOMARY LAW. 391
rather when we come to the Empire of Rome, that the
question as to the relation of custom and of law arises.
That relation, as Mr. Austin has stated it, is easily under-
stood. Custom becomes law when, and only when, it is
adopted by the State, and is enforced by its sanction. Thus,
castum furnishes both the motive and the material for law,
but is not of itself law. The fact that a custom exists,
supplies to the State a reason for bringing that custom,
whether for the purpose of supporting or of modifying it,
within the range of its authority. Further, when the State
desires to legislate upon any subject, it naturally takes into
its consideration the customs under which its subjects have
previously lived. To these customs, or to some of them, the
State, whatever may be its motive, extends its sanction ;
that i.«, it commands that the customs shall be observed
under penalty of its displeasure. Thereupon and thereby
that which was merely custom is transmuted into positive
law.
On one portion of this subject, indeed, I venture to dissent
from the gi-eat authority of Mr. Austin. He has shown
that custom becomes law when it is sanctioned l)y
the State ; but his description of the mode in which that
.sanction is given is (luestionable. The process, a.s he
represents it, is twofold — first, the judges, of their own
mere motion, give ett'ect to customs ; second, the State,
whicli ha.s the power to control the judges' conduct, tacitly
acquiesces in this proceeding. Both these propositions
seem to me erroneous. No motive is suggested why the
judges shouM, against the duty of their oftice, habitually act
upon unauthorized customs. A solitary instance of the
kind might be explained by some individual peculiarity ;
l»ut no personal eccentricity can account for the persistence
in such a course of a succession of <n"eat ma^ristrates during
many generation.s. The judges, too, do not claim for them-
392 LAW AND CUSTOM.
selves any legislative powers. On the contrary, they
always repudiate any such pretension. They profess not to
make law, but to explain the law as they find it. Part of
the law they find in the general customs of the country. It
is a much less violent, and certainly a more charitable
explanation, to suppose that the judges administer these
customs because they believe them to have, in some manner,
become established law, than to suppose that a succession
of able and upright men have audaciously usurped a power
of legislation which was never given to them, and habitually
exercise this usurped power, the existence of which they
hypocritically deny.
The doctrine of the tacit acquiescence of the State is
expressed in the maxim — " What the State permits, it
commands ;" that is, since the State has the power of
preventing, at its pleasure, any act or forbearance, its
omission to exercise that power is equivalent to its consent.
Sir Henry Maine,* although he has said much to discredit
the maxim, remarks that it is of vital importance to the
system of the analytical jurists ; and adds, that " the theory
is perfectly defensible as a theory, but its practical value,
and the degree in which it approximates to truth, differ
greatly in different ages and countries."
These concessions seem to me too great. For my part, I
do not admit any such maxim. I do not believe that it is
needed to remove any difficulty in jurisprudence. I think
that the condition on which it is professedly founded exists
only in certain advanced stages of political development.
I think that its application is inconsistent with the history
of law, and especially with the fundamental principles of
oui' own constitution. It was invented by the analytical
jurists to assist them in explaining, not the nature or even
* " Early Hist, of Inst.,"' p. 364.
THE NATURE OF CUSTOMARY LAW. 393
the origin of customary law, but the process by which
custom, without apparent legislation, becomes law. I hope
presently to show that the supposed anomaly does not, in
fact, exist ; and that, therefore, the maxim may be dismissed
with the imaginary difficulty which it was cix-ated to solve.
But it is in itself untenable. It rests upon the unfounded
assumption that the State precedes society, or is at least
external to it, and above it. But as the State is historically
of comparatively recent formation, there must have been,
and in fact there was, a large part of men's conduct which
was not ruled by State law, and which the State did not,
for many ages, pretend either to prohibit or to direct. Nor
is tliis all. The foundation of the rule is said to be the
irresistible power of the State, not necessarily exerted,
but capable of being exerted. In other words, the rule
postulates the existence of a strong central government.
Such a government is of veiy modern gi-owth. The
beginnings of the State were feeble. It was not competent
for tlie State to change any custom merely because it
disapproved of it. If Solon or Rothar had been asked
whether he considered that this maxim applied to his
Athenians or to his Lombards, he would probably have
replied that, so far from connnanding what he permitted,
he was fortunate in being permitted to command. The
history of early law is full of traces which show that, even
in the administration of justice, it was only by slow degrees
tliat the State could establish its authority. No custom in
the archaic world wa,s more firmly settled or more widely
difl'used than that of the blood-feud. There was no custom
against which the State, even when appearing to accept it,
maiiitaine<l so unceasing an opposition. It is idle to say
that the State either permitted or commanded a rule which
existed for centuries l>efore the State existed, and which it
was always labouring ineffectually to modify or to repress.
394 LAW AND CUSTOM.
Even in a highly developed political society, the maxim
is not true. The silence of the State may be evidence of its.
consent, but not of its command. Between the two ideas
there is a wide distinction. It makes no inconsiderable
difference to a people whether they may do whatever is not
forbidden, or only that which is expressly commanded. Our
whole system of personal and political liberty rests upon
the two principles — that individual freedom of action is the
rule, and that the interference of the State is the exception.
In these circumstances, it cannot be fairly said that the
State because it permits — that is, does not prevent — thereby
commands the enjoyment of any personal or proprietary
right. Its silence does not create any duty of enjoyment.
The law merely leaves the owner alone, and requires from
all other persons a similar forbearance. The owner is free
to enjoy his right, or to abstain from doing so. The law
neither directly nor by implication commands him to eat,
drink, and be merry. It merely prevents any other person
from molesting him, whether his humour be to be merry or
to be sad. Further, the practical application of this maxim
becomes occasionally highly perplexing. Sometimes the
law, avowedly and in express terms, adopts an existing
custom. A few years since, an Act of Parliament provided
that the custom known as the tenant-right of Ulster should
be observed as law, both in that province and in the rest
of Ireland. But the custom thus recognized had existed
for centuries before the time of Mr. Gladstone. Since,
therefore, the custom existed, the law must have permitted
it; and since the law permitted the custom, the law, if
this maxim be true, must have commanded the custom.
Consequently, the custom must have been always law;
and there was no difference in the state of the law in this
particular before 1870 and after that date — which were
news, indeed.
HOW CUSTOM BECOMES LAW. 395
§ 4. I think that the true explanation of customary law H"^^
is, that the customs of the community have, as a whole, been becomes
Law.
adopted by the legislature ; and that their extent, their
meanint' and their relation, as ^vcll to each other as to other
parts of the law, are determined in the usual way by the
coui-ts. I include, of coui'se, in the terms legislature and
coui-ts, that body which, when ditierentiated, is developed
into separate legislative and judicial organs, whatever may
at ditierunt times, or in difiorent counnimities, have been
its title or its structure. There is nothing anomalous or
exceptional in customary law. Like all other law, it is
made by the legislator, and it is administered by the judges.
Men did indeed ibllow these rules of conduct long before
they heard either of law, or of legislatoi-s, or of courts.
But when these agencies come into existence, they exercise
a new and very notable influence upon pre-existing customs.
These customs are adopted by the .State ; and, after they
have been ascertained by its proper officei"s, are enforced
not merely by public opinion, but by the collective force of
the community. In this view, judges do not contrive how
they may stealthily introduce into their practice some
favourite usage ; but tliey evolve order first out of vague and
often inconsistent customs, and next out of the conflict of
these customs, when they have been defined, with the posi-
tive legislation of the State. This view depends upon a
question of fact. If the legislature at any time, or in any
country, have adopted in general terms the existing customs
of the people, or any considerable portions of them, the
burthen of proof rests with those who maintain the
afhrmation. I accept tlie necessity, and proceed to state
such historical evidence as I am able to offer in support of
my contention.
Most of the so-called V)arl)arian codes wliich have come
down to us — the Salic law, the laws of the Ripuarians^
396 LAW AND CUSTOM.
and of the Burgundians, the laws of the Welsh, the
Brehon laws — recite an examination of existing customs,
and their embodiment as amended in the code. Some-
times they add the sanction, whether the command of
the King or the admonition of the Church or both, by
which obedience to the rules thus promulgated shall be
enforced. Thus we are told* that Howel the Good, the
son of Cadell, Prince of all Cymru, seeing the Cymry
perverting the laws, summoned to him, to the White House
on the Tav, the wisest among the people. After a careful
revision of the ancient laws, they promulgated the laws
which they decided to establish ; " and Howel sanctioned
them with his authority, and strictly commanded them to
be diligently observed." It may be broadly stated that
these "Leges Barharorum' are merely digests, more or less
complete, of the customs of the several tribes. By far the
greater part of them relate to personal injuries, and
regulate the amount for which the feuds thence resulting
may be composed. They have thus no true sanction or
penalty of disobedience inflicted by the central government.
They are merely the customs of arbitration. It was not
until a later period that the royal power attained sufficient
strength to enforce, by its officers, its commands. In other
words, the nations lived according to their respective
customs, and wrongs were redressed in the customary
manner by the party interested therein. Law — that is, the
enforceable command of the King — could not, and did not,
arise until the kingly office was firmly established. I shall
have occasion, in a subsequent chapter, to discuss the
growth of Civil Jurisdiction. For my present purpose, it
will be sufficient to examine the history of our two great
legal examples, the law of Rome and the law of England.
* "Laws of Wales," vol. i., p. 3.
HOW CUSTOM BECOMES LAW. 397
At Rome, under the old constitution, the curule magis-
trates, and among them the Pnutor, exercised by their edicts
a certain delegated power of legislation. They were, within
their several spheres, the organs of the popular will, elected
by the people for a certain term and for certain purposes.
During that time, and within those puiposes, they severally
exercised the whole power of the State. It was their
practice to issue, at the commencement of their year of
office, a statement of the principles upon which they
proposed to act. When, by the creation of the Pn^turate,
the judicial business was separated from the ordinary
business of administration, the Pmetorian edict acquired a
special importance. It was by this agency that the great
development of Roman law in the later Republic took place.
But Cicero* informs us that the Pr?etor declared that which
he found established by usage : he gave to usage the form
and character of real law.
The case, however, that has for us both the greatest
interest and the greatest importance, is that of the common
law of England. I know that to many persons I shall seem
to maintain an unseemly, perhaps an unpatriotic, paradox,
when I contend that that veneral)le body of customs derives
its legal strength from the authority of the legislature.
Every English lawyer boasts that his common law owes
nothing to Act of Parliament. It was only by very slow
decrrees that the le^al mind came to admit the idea that a
statute was stronjrer than a rule of common law. In its
literal sense, this indoj)endi'nce of parliament is unquestion-
ably true. The name parliament was first used in England
in the time of Richard I. The institution with which,
under that name, wo are familiar, is at least a century,
perhaps nearly two centuries, later. But long before the
• See Long's "Cicero," vol. i,, p. 1G3.
398 LAW AND CUSTOM.
reign of Richard, the common law was recognized and
enforced. The common law, therefore, is not the creature
of parliament. But it does not follow that the common
law does not depend upon the legislative organ of the
nation, whatever it may have been, from which parliament
was gradually developed. It cannot be denied that the
good customs of the country were, not by one king but by
many kings, recognized, accepted, and enforced. Thus, the
laws of King Cnut * declare — " This is the first that I will •'
that just laws be established, and every unjust law carefully
suppressed ; and that every injustice be weeded out and
rooted up with all possible diligence from this country.
And let God's justice be exalted ; and henceforth let every
man, both poor and rich, be esteemed worthy of folk-right,
and let just dooms be doomed to him." This enactment
presupposes an existing standard of right to which the
king required his subjects to conform. So, too, Professor
Stubbs"!* observes: — "Offences against the law (i.e., as I
conceive, against the custom) become offences against the
king, and a crime of disobedience a crime of contempt to be
expiated by a special sort of fine, the ofer-hyrnesse, to the
outraged majesty of the law -giver and judge. The first
mention of the ofer-hyrnesse occurs in the laws of Edward
the Elder : at the era, accordingly, at which the change of
idea seems to have become permanent." The same idea of
a pre-existing custom, and of the royal recognition and
enforcement of that custom, is expressed in the laws of the
Conqueror. I translate the following section from one I of
his charters : — " William, King of the English, Duke of the
Normans, to all his men, French and English, greeting:
We command, especially, above all things, that one God
* " Anc. Laws of England," vol. i., p. 377. See also for Alfred, p. 59.
+ "Const. Hist.," vol. i., p. 183.
J "Anc. Laws and Inst, of England," vol. i., p. 490.
HOW CUSTOM BECOMES LAW. 399
be woi'shippcJ through the whole of our reahn ; that one
faith of Christ be kept ever inviolate ; that peace, and
secuiity, and concord, judgment and justice between English
and Normans, Franks and Britons of Wales and Cornwall,
Picts and Scots of Alljany, likewise between French and
islandere, provinces, and countries, which pertain to the
crown and dignity, defence, and observance, and honour of
our realm, and between all our subjects through the whole
monarchy of the realm of Britain, be firmly and inviolably
observed, so that no person may incur forfeiture to another
in any respect, upon pain of our full forfeiture."
In the reign of the first Plantagenet, as the country grew
and its business increased, a special organization was by
act of the legislature created for the administration of
justice ; that is, for the enforcement by the king's authority
of the good customs of the country. Such customs so
enforced became common law, and the special organ created
for its administration w^as the judicial bench. This, I
conceive, is the position which the judges have always
claimed for themselves, and which their commission defines.
The judges of the present day are commanded, as their
predecessors have always been commanded, "to do what
to justice appertains according to the laws and customs of
England." That is, they are required to guide their official
conduct by three rules — first, by the statute law ; second,
by the customs of England, that is the common law, or
recognized local customs ; third, l)y the principles of natural
justice, which, as well as custom, is thus expressly recog-
nized as part of our legal system. This is the answer to
the attack of Benthain upon " Judge-made law." Judge-
made law, apart from the interpretation of statutes, means
nothing more than the adniiiiistiation by the i)r<)por ofHcers
of the general customs of the kingdom. So far is it from
being the autliorized work of the judges, that it is tho
400
LAW AND CUSTOM.
direct work of the people themselves. That which formerly
was vague, the judges reduce to certainty. That which
formerly was followed as usage, the judges, with the aid of
the strong arm of the Executive, enforce as law.
This process of the intentional conversion of custom into
law by the act of the legislature is still in force among
ourselves. Mr. Justice Markby* observes, that " wherever
the legislature of this country has defined the special
duties of the courts in India in reference to natives, it is to
the law and usages of Hindus and Mohammedans, and not
to the law alone, that they are directed to conform." A
still more recent example is the Irish Land Act, to which I
have already referred. That Act provided that the custom
of the Ulster tenant-right should be law ; and left to the
judges the task of ascertaining the extent of the custom,
and of applying it when it was ascertained. So, in an
earlier year of Her Majesty's reign,-f- a number of mining
customs in Derbyshire were collected, and converted into law.
A similar process is described by Blackstone. Writing of
offences airainst the law of nations, he concludes his account
with these words : — " These are the principal cases in which
the statute law of England interposed to aid and enforce the
law of nations as a part of the common law, by inflicting
an adequate punishment upon offences against that universal
law, committed by private persons." The law of nations is
only the custom of nations ; and, as against private offenders,
this custom had no operation until it was armed with the
sanction of the law, in the first instance by the aid of the
common law, and subsequently by the more effective
assistance of Parliament.
Some con-
sequences
of this
theory.
§ 5. This account of the genesis of customary law explains
several important facts. In the first place, it coincides
* " Elements of Law," p. 34.
t See 14 and 15 Vict. c. 94, § 16.
SOME CONSEQUENCES OF THIS THEORY. 401
with and contirms the view which the English judges have
always taken of their position. They have at all times
invariably declared that it is their province not to make
law, but to administer it. They are the officers of the
State; and the duty of their office is the administration of
the law which the State has adopted, or from time to time
enacts. Part of this law is found in the customs of the
country ; and these customs it is the business of the judge
to ascertain, define, and co-ordinate. What, in their
description of their province, the judges have not thought
it necessary to state, was the proof that these customs had
been at some time formally acknowledged and adopted by
the State. They have always assumed this fact as the
basis of their position ; and, as a dispute upon such a point
could not and did not arise in practice, they did not
concern themselves with a matter which seemed to be of
merely speculative interest. There has been no usurpation
on the part of the judges, and no interference by them
with the powers of the legislature. It is true that the
judicial powers are large and important. It is true, also,
that the change of vague and floating custom into precise
and rigorous law has often produced amongst us, as amongst
other people, serious and unexpected changes. On some
occasions, perhaps, judges may have been, to some extent,
influenced in their decisions by their views of what the
public convenience required. But the customary law which
governs the courts is neither caprice nor mystery. It is
the immemorial usage of the comnumity, or the application
to new cases of seconrlary principles deduced froni that
asagc, wliith the State has accepted and has undertaken
to enforce l)y its pammount autliority.
Again, Mr. Austin, although lie speaks of judiciaiy law
in terms very difiiTent from those which lientham employed,
fails to perceive the process by wliich the custom becomes
27
402 LAW AND CUSTOM.
law. He speaks* of the "childish fiction employed by our
judges that judiciary law is not made by them, but is a
miraculous something, existing, I suppose, from eternity,
and merely declared from time to time by the judges.''
He insists, as I understand him, that the judges have by
law a sort of concurrent legislative power ; and he blames •!•
Lord Eldon, not because he exercised that power, but
because he exercised it badly ; because, when he might
have amended the law, he left it worse than he found it.
Certainly, Lord Eldon never claimed, or even conceived
that he possessed, any such power. Certainly, if any judge
now ventured to disregard any precedent^ on the ground
only that he disagreed with it, his judgment would be
promptly reversed. Whether the judges ought to have any
such power, is another question ; but the hypothesis that
they do possess it has much more pretension to be styled a
fiction than that which Mr. Austin condemns. His difficulty,
of course, arose from his acceptance of the State as an
ultimate fact. On the assumption that the State and the
commands of the State were the original and the only bonds
of society, and that men never did live and never could
have lived in any orderly manner under any other conditions
than those of political government, Mr. Austin's view of the
fictitious character of the judges' theory is not unreasonable.
But when it is understood that men lived according to their
customs long before these customs were touched by the
State, that the State commenced its control by undertaking
to enforce these customs, and that it was only at a late
period that it ventured gradually to alter them, it may
well be believed that in professing to expound only and to
* "Lectures on Jurisprudence," vol. ii., p. 655.
t /&., p. 668.
t See Chapman v. Monmouthshire Eailway and Canal Company, 27
L. J., Exch., 101.
SOME CONSEQUENCES OF THIS THEORY. 403
develop, not to make, the law, the judges employed no legal
fiction, but simply stated the very truth.
There is a peculiarity in the structure of modem law,
which is of greater practical interest than the speculations
of jurists, however eminent. For this peculiarity, the view
in suppoi-t of which I am contending, and, as I think, that
view alone, furnishes an explanation. It is remarkable
that in all modern law there is no distinct statement of
men's general duties. It might reasonably be expected that
such a record, in plain and unambiguous terms, would be
found in the very front of every national system of law.
Yet, as Mr. Justice Markby* observes, there is no country
in which we have, on otHcial authority, a complete catalogue
of duties. The law invariably takes the shape of penalty.
It does not connnand its subjects to do certain acts, or to
observe certain forbearances. What it says is, that if any
person does, or forbears to do, such and such acts, he shall
undergo such and such a punishment. There is no direct
command ; and the primaiy object of the legislator's regard
is that which really is subsidiary — the sanction. The duty
is always assumed to be known ; and its definition must be
extracted from the penalty annexed to its violation. This
arrangement is certainly neither the most obvious nor the
most convenient. Why, then, has it been universally
adopted ? The answer, as I think, is that the law merely
enforced the customs that it found. It assumed that cveiy
person was already familiar with these customs ; and the
sanction or penalty was the part of the transaction with
which it was specially concerned. Hence, there is no law
which directly prescribes absolute and general duties. So
little noted are these duties, that even Mr. Austin can find
in his classification no definite place for them, and does not
• *' KIcmcnta of Law," p. 74.
404 LAW AND CUSTOM.
seem to think the omission material. They must be
gathered, as best they may, from the Law relating to
Crimes and Punishments. When a code is prepared, the
first step in the work will, I conceive, be the extrication of
these duties from their present obscurity. There will be
then promulgated a plain and precise statement, first, of
what — ^having regard to the motive and the state of mind,
as well as to the act and its consequences — the State
requires its subjects to do and to avoid ; and, next, of the
penalties with which it will visit each degree of
disobedience. The cause of the present anomaly is
altogether historical. It proceeds from the universal
priority of custom to law, and from the universal adoption
and modification of that custom by the State.
Keciprocal § G. Legal customs differ from customary law. As the
of Law aud latter is law which has risen on the basis of custom, so
the former are customs which, although exceptional in
their character, are permitted to exist by the favour of law,
and under its protection. Where, as in England, the
national integration has been complete, general customs
are, as I have said, taken up into the legal system, and
soon become almost exclusively known by the name of
law. Some local customs are strong enough to maintain
their ground, and to obtain a limited recognition. Such
customs are in derogation of the Common Law, and are
consequently not regarded with much judicial favour.
They retain the name of custom, which thus becomes
contrasted with that of law. Law, in this sense, means
recognized general customs. Custom, in this sense, means
recognized particular customs. Thus, the rule of Primo-
geniture is a rule of Common Law ; but the rules of Gavel-
kind or of Borough English are the customs of Kent or of
London. Such customs, however, are now merely survivals;
RECIPROCAL INFLUEXCE OF LAW AND CUSTOM. 405
and, as they iiiiist have existed since time beyond legal
memory, they are but old-world fashions with little practical
interest. The shape which modern custom takes is
different, and deserves a passing notice. It appears mainly
in contracts. Custom no longer founds a general rule of
law binding upon all persons who come within its operation.
In the greater freedom of modern society, men, in most of
the ordinary transactions of life, make their own laws. As
in former times the State adopted and enforced preceding
customs of general extent, so in modem times the State
adopts and enforces the arrangements by which men
undertake to regulate their future conduct. The primary
rule of law, the major premiss, so to speak, in all matters
relating to contracts, is in effect a command of the State,
that, subject to certain exceptions, every agreement duly
made between any two persons not incompetent to contract
shall, as between the parties and their representatives, be
deemed to have the force of \sl\v. But men's agi'eements
need to be interpreted ; and a reasonable interpretation
notices the ordinary course of business in which the parties
were engaged. Sometimes this course of business is
identified with a particular form of transaction, and so
becomes a part or necessary incident of it. Thus, the
contract arisin'' out of a bill of exchan<;e involves no small
amount of interpretation, and the law regards as essential
to the instrument that it recognizes under that title the
three days of gi'ace after the nominal date of payment.
These are among the customs of merchants of which the
law takes notice, and they show that the material relations
of custom and of law are still in operation. The intluence
of custom is still felt in law, but it operates now by way
of intei-pretation, and not as fomierly by way of direct
command.
The old Horatian exclamation, " Quid vanaj sine moribus
406 LAW AND CUSTOM.
leges proficiunt," contains an important, though perhaps an
unintended truth ; yet it is one which needs to be distin-
guished. The connection of law and of custom arises in
various circumstances. Sometimes the law is introduced
to suppress or alter the custom ; sometimes to enforce it.
Sometimes the authority is external, as in the case of
foreign conquest, or where a strong central government
controls a recalcitrant portion of its own community.
Sometimes the law is the genuine expression of the
legislative organ ; but, whether from eiTor or accident, is
inconsistent with the habits and the wishes of the bulk
of the people. Sometimes, again, it is invoked to give
effect to the wishes of the majority, and to enforce the
good customs of the country against the innovating few.
In the first class of cases, the question is one of the strength
and activity of the government. There is a struggle, the
duration and the consequences of which depend upon the
relative strength of the oposing parties, and the energy
with which that strength is exerted. If, however, the State
choose to incur the necessary cost, which may sometimes
amount to the actual extirpation of its opponents, the law
usually triumphs ; and the custom either disappears or ia
modified so as to meet the requirements of the case. " There
is no middle course," says Mr. Hallam,* "in dealing with
religious sectaries, between the persecution that exterminates
and the toleration that satisfies. They were wise in their
generation, the Loaisas and the Valdes of Spain, who
kindled the fires of the Inquisition, and quenched the rising^
spirit of Protestantism in the blood of a Seso and a Cazalla."
When, on the other hand, the law is not imposed from
without, the case seems to be that of a failure on the part
of the political organ to perform its proper functions.
* "Const. Hist.," vol. i., p. 204.
RECIPROCAL IXFLUEXCE OF LAW AND CUSTOM. 407
Just as some particular House of Commons may fail to
express truly the national will, so the entire legislative
organ is for the time not in accord with the national senti-
ment. In these circumstances, the law inevitably gives
way. Sometimes it is in due course repealed. Sometimes
it is simply disregarded. If the law refuse its assistance to
aiTangements which the public find it convenient or agree-
able to make, the arrangement will be made and observed
without that assistance. The deficiency of the law finds its
compensation in the increased activity of public opinion.
If the law command something to be done which public
opinion holds to be unfit to be done, a passive resistance,
whicli is most difficult to overcome, is set up. Judges become
preternaturally astute. Juries absolutely decline to be
bound by the evidence. Justices are reluctant to commit.
Witnesses are reluctant to appear, and when they do
appear, to tell all they know. Even the police are less keen
than usual in their search. If a conviction be by chance
secured, the culprit is not lowered in public estimation. A
very practical check is thus placed upon any excess of
inconvenient legislation. On the other hand, when both
law and custom coincide, the result is altogether iiTesistible.
Yet it needs but little reflection to understand* how much
more of the security and the comfort of our daily life we
owe to the action of custom than to the protection of law.
There Ls another relation of custom and law that claims
attention. Frequently, the aid of the law is invoked
to enfurce and support some custom which previously had
been followed without any legal sanction. It matters not
from what motive this aid is sought or given. The actual
fact produces results that were not foreseen, and that arc
often unwelccjine. The effect of the operation is that the
• See Hallain, " Middle Ages," vol. iii., p. 158.
408 LAW AND CUSTOM.
custom becomes a true law. Evidence of its existence is
given; the fact thus established is recorded, and the
sanction of the State is added to it. The practice is thus
no longer observed as a custom : it depends upon authority,
and is obeyed as law. Both in its substance and in its
sanction it ceases to be vague, and becomes precise. It can
no longer be applied according to what a loose public
opinion regards as the merits of each particular case. It
becomes inexorable, not respecting persons, and not
regarding consequences. It acts not by a common con-
dition of thought, but by the influence of an external
force. Further, from the very nature of the case, the
proposition aflirming the custom is always too broadly
stated. It does not comprise the exceptions and the
limitations which were present to the minds of the
customaries, although they did not know how to formulate
them. It has, too, no elasticity — no power of gradually
modifying itself to meet any alteration in circumstances.
Hence, in place of custom there sometimes arises a law
which neither the people expected nor the legislature
intended. Serious changes in men's rights and duties take
place, without any desire on the part either of those who
bring about the change or of those who are affected by it.
Such a result is inevitable ; but those who feel the incon-
venience and do not understand its cause, always blame the
law and its administrators. The most conspicuous instance
of such a process is that which, under British rule, is still
going on in India. On this subject, I need only refer to
the very able discussion in the first three lectures of Sir
Henry Maine's "Village Communities." In that country,
the great subject of complaint has been our couits of
justice. Even the very worst of these courts probably
administered purer and better justice than the native mind
ever dreamt of ; and the officers charged with the duty
RECIPKOCAL INFLUENCE OF LAW AND CUSTOM. 409
have been, as a class, conscientious and competent men.
But even in the hands of skilled judges, the change
must have been complete, and the transition, as such
transitions always are, painful and often exasperating.
"The truth is," says Sir Henry Maine,* "that the
written and customary law of such a society as the
English found in India, is not of a nature to bear the
strict criteria applied by English lawyers. The rule is so
vague as to seem capable of almost any interpretation ; and
the construction which, in those days, an English lawyer
would place upon it, would almost certainly be coloured by
associations collected from English practice." Thus the
loose corporate tenure in the Hindu village communities
acquired, in the hands of English lawyers, the character of
individual right. But this right brought with it the power
of dissolving partnership, and the liability of his share in
the joint property for the owner's debts. Hence it is said*!*
that " the partition of inheritances and execution for debt
levied on land are destroying the communities." Yet, this
result was certainly not intended. The remedy for the
ditliculty is systematic legislation ; and that remedy, fortu-
nately for India, is now in course of skilful application.
But when we appreciate these influences, a light begins to
glimmer upon some perplexing things that occurred in our
own history at a time when no such remedy was available
as the Indian code of Queen Victoria. We may remember
the earnest demands of our forefathers from their Norman
kin<;s for the " ''ood laws of Kinjf Edward." No such laws
were ever found ; and no new legislation was forced upon
the English. On the contrary, King William granted to his
new subjects their respective rights and customs ; and even,
it is said, abandoned, at their recjuest, his project of estublish-
* " Vill. Coin.," \). m.
f Jit., i>. 113 ; 8VC uIhu p. ~',i.
410 LAW AND CUSTOM.
ing uniformity of law throughout his kingdom. I cannot
doubt that Mr. Hallam's explanation* is correct, and that
the demand for King Edward's law was merely an expression
of dissatisfaction with the Norman administration. Such
too, but upon a greater scale and in a more aggravated
form, was the history of the disappearance of the Keltic
society in the British Isles. I cannot venture here to open
the troublous pages of Irish and of Gaelic history. But
I incline strongly to the belief that, when the facts are
fairly stated, the historian of the Keltic people will be found
in some officer who had worked in the Punjab or in Oudh.
Another illustration of the influence of law upon custom,
and of the rigidity which the consequent rule acquires,
occurs in the history of Equity. This was a sort of discre-
tionary power in the Crown to supplement, in certain
circumstances, the law, and to prevent the commission of
substantial wrong under the colour of strict justice. It
was thus in the nature of a custom which gradually was
brought under systematic administration. In course of
time. Equity became as inflexible as law. " It is shocking,
but it is the law," has more than once been the exclamation*!*
of gTeat judges. The rule had stiffened, and the result
was unexpected and undesired ; but still it was the law.
The defect was not in the men under whose hands the rule
had grown, but in the nature of the materials. Parliament
alone was competent to amend the law ; and it is somewhat
hard to blame Lord Eldon, as Mr. Austin j blames him,
for not assuming those legislative functions which Bentham
accuses him of having wickedly usurped.
* "Middle Ages," p. 321, note.
t See Doe v. Pott, "Douglas' Reports, 722."
X " Jurisprudence," p. 668.
CHAPTER XVIII.
THE LAW AND CUSTOM OF PROPERTY.
{5 1. Few questions have more fully engaged the attention Univer-
of philosophical writers than the origin of Property. It is rroperty.
from no want of respect to the eminent men who have in
ditierent ages proposed their respective theories on this
subject that I decline to consider their views. These views
were, in the absence of any positive evidence, formed upon
conjectures as to what men, with modes of thought such as
were familiar to the writers, would, if they had been placed
in certain imaginary circumstances, have probably done.
In such an inquiry, the greater the ingenuity of the theorist
the farther he is likely to stray. But if we are content to
take man as our evidence discloses him to us, we shall find
along with him, always and everywhere, the presence of
property. The forms of property vary considerably, but
the fact of its existence is constant. Men have always
taken possession of such natural agents as are susceptible
of appropriation ; have used them for their own purposes to
any extent and during any time that they thought fit ; have
prevente<l other persons from interfering with them ; and
have acknowledged the corresponding claims of their com-
panions who were in similar circumstances. Prominent
among the natural agents that have been thus appropriated,
because, although apparently simple, it really includes a
multitude of physical forces, is land. The right of property
in land has been denied for reasons which, in their
412 THE LAW AND CUSTOM OF PROPERTY.
legitimate conclusions, extend to almost every kind of
commodity, and tend to annihilate all separate national
existence. The same arg-ument which is used to prove that
individual property in land is unjust, would also, if it were
true, prove that no nation can have any exclusive right in
its territory. If the land of England be, in the sense in
which communist writers use the expression, the gift of
God, that gift is not made to Englishmen, but to mankind.
If, therefore^ an individual Englishman cannot claim pro-
perty in it, no number of Englishmen, whether separately
or collectively, can urge any such claim. If land be
incapable of appropriation, that incapacity must exist not
only between members of the same communities, but
between different communities. Yet, whatever may be
the casuistry of the subject, no such incapacity has ever
been, in fact, admitted. In all ages, and even in the lowest
and rudest forms of society, the common property of the
clan or tribe is rigorously defined. The boundaries of
Australian tribe lands are as carefully marked out as the
boundaries of any English gentleman's estate. A black-
fellow would die rather than commit a trespass, and has
much less scruple in killing a man than within the boun-
daries of another tribe killing a kangaroo. Even as
between kindred communities in India, the rights of
property are rigorously enforced. " The grazing ground of
each village," says Sir George Campbell,* " is common to
all ; but the division between the grazing grounds of
different villages is very jealously maintained, and any
uncertain or undecided boundary leads to very bloody
affrays." I need only refer to the sacred character which,
in early times, the landmark always maintained, and the
guilt which attached to its removal. The spirits of the
* " Modern India," p. 88.
UNIVERSALITY OF PROPERTY. 413
Kin, like the spirits of the Hoase, watched over their
consecrated boundaries. No stranger — that is, no person
who did not participate in the woi-ship of that Kin — could
possess any part of those lands, or derive any benefit from
them,
§ 2. Sir H. S. Maine, a writer whose opinions on this The origin
subject are based upon a knowledge of facts far beyond Property.
the command of his predecessors, finds himself, in dealing*
with the early history of property, confronted by the
question, " Why do men respect other men's property ?"
He points out that this question coincides with the other
question, " Why did men live under the system of the
Family ?" He thinks that the problem is insoluble : at all
events, that jurisprudence has no answer for it. I agree
that the origin of property is connected with the origin of
the Family, or, as I have called it, the Household ; and that,
consequently, the explanation of the one ought to furnish
the explanation of the other. But I venture to think that
Sir Henry Maine underrates the resources of the science of
which he Ls so distinguished a student, and that historical
jurisprudence is not silent in the presence of this gi-eat
problem. If Sir Henry Maine had not, in common with
most English jurists, slighted the theory of ancestral
woi-ship, which M. Du ( 'oulangos had advocated with such
power and clearness, he would not, I think, have so readily
abandoned this part of his inquiry.
If it ])e true that the question as to the origin of
property coinci<les with the (juestion as to the origin of the
Household, tilt' answer that I must make to the former
question is plain. As the Household depended upon the
House Spirit, so tlie respect for another's property was due
• "Ancient Law," p. 270.
414 THE LAW AND CUSTOM OF PROPERTY.
to the respect for the spirits that guarded that property. Of
the institution of property, as well as of every other archaic
institution, religion, as it was then understood, was the basis.
I do not mean that property so depended upon House-
worship that when the latter failed the former must fail also.
I only contend that the habit or sentiment of respect for
property was generated by the system of the Household ;
and that it acquired under that system sufficient strength
to stand alone when the originating force was withdrawn.
In other words, property is a custom ; in civilized States
that custom has been adopted and enforced by law ; and
the origin of this custom thus legalized is House-worship.
In proof of this contention, I must claim all that I have
in the preceding pages urged respecting the origin of the
Household. If the two questions coincide, the answer to
the one involves the answer to the other ; and in accounting
for the Household, we have also accounted for property.
But I must specially refer to that part of these inquiries in
which the House Spirit appears as the guardian of the
property of his Household. The Lares have, indeed, long
abandoned their watch, yet the belief has not even yet
wholly vanished from the world. Men still live, with
wdiom the security of property is maintained — not by their
own strong hand, or by the majesty of the law, but by
spiritual terrors only. A recent traveller in Asia* thus
writes : — " The place of our encampment (near Kohut,
south of Peshawur) was a ziarat, called Turkumul, round
the burial-ground of which the whole country seemed to
have piled their grain. In troublesome times, when a man
is fain to quit his native village until the return of order,
he prefers trusting his valuables to the sacred guardianship
of such a place rather than to his weak and failing brother.
* Wood's "Journey to the Source of the Oxus," p. 8G.
THE ORIGIN OF ARYAN PROPERTY. 415
I inquired of Agha Maheide if such was really the ease, and
whether thieves would not be induced to violate the
repository from the certainty of being able to do so with
impunity. The old man put the forefinger of his right
hand to his lips, and looked at me, exclaiming, ' God forbid !
bad as men are, they are not yet so utterly profligate.'
. . . A stronger instance cannot be shown of the firm
hold superstition has over the human mind. Here we find
it overcoming the woret passions and the most confirmed
habits of depraved men." So, too, among uncultured
people, if an offence against property has been committed,
the remedy that is sought, apart from actual violence, is
spiritual. Among the nomads of Central Asia, if a horse
be stolen, the owner seeks to recover his property by fixing
a spear in the grave of the father of the suspected thief.
This proceeding is understood to be e(j[uivalent to a com-
plaint to the deceased House Father against his son. If
the suspicion be well founded, the horse is found the next
morning tied to the spear. It is said that this strange
remedy rarely fails. Mr. Tylor* mentions a remarkable
case, in which a Brahman cut ofi" his mother's head with
the old woman's consent, and at her earnest request. The
object of this deed was that her spirit might punish a
neighlxnir who had repudiated some small debt which ho
owed to the Household. Again, in the remarkable custom
of sitting ' (Uuwna,' which once existed in Ireland, an<l
has within the last few years been prohibited by the penal
code in India, and of which, perhaps, traces may be found
in the Twelve Tables, the sauie principle may be observed.
The iiiiplicd tlnrat was that the spirit would avenge the
wrongs done to it in the flesh.
Not only is the afhiiiiative proposition true, that, where
• "Primitive Culture," vol. ii., p. 10.3.
416 THE LAW AND CUSTOM OF PROPERTY.
a community of religion existed, respect for property was
also found : the corresponding negative is equally true ;
where no special relation existed, all respect for property
was wanting. It was only those who worshipped the same
gods, or who had made some specific agreement, that had
any scruples about each other's goods. Beyond these limits
they acknowledged no moral duty of forbearance. Piracy*
was not held in any disesteem by the early Greeks. It
was, indeed, regarded as a recognized and respectable
vocation. Even in the time of the fathers of -^schylus
and of Herodotus, " undistinguishing plunder at sea, com-
mitted by Greek ships against ships not Greek, seems not
to have been held discreditable." Herodotus tells "f" how
Dionysius of Phocsea, after the failure of the Ionic revolt,
went with three ships of war to Sicily, and there
established himself as a professed pirate, "not plundering
any of the Greeks, but the Carthaginians and Tyrrhenians."
Among these Tyrrhenians similar rules j prevailed; and so,
too, among the Iberians. But many years after the time
of Herodotus, when Attic philosophy and Attic culture
were universally admired, the old maxim remained in
full force — that among all Greeks § there was eternal war
with foreigners. In the earliest treaty between Rome
and Carthage, it is stipulated that, within certain pre-
scribed limits, the Romans shall neither plunder nor trade
nor colonize. In the absence of any treaty, the three
operations were equally natural, and might with equal
reason be expected. The rule of the matured Roman law
is very remarkable. It is stated, in the " Digest," || that
those nations with whom no specific relation of friend-
* See Grote, "Hist, of Greece," vol. ii., p. 122, and the authorities
there cited.
+ vi., 17. t " Diod. Sic," v., 34.
§ Livy, xxxi., 29. || xlix., 15, 5.
THE OIIIGIX OF ARYAN PROPEIITY. 417
ship existed were not indeed enemies, but that if any-
Roman chattel should be found in their territory it became
their property ; and a Roman freeman, in the like circum-
stances, became their slave. Of course, Roman citizens
had analogous rights over foreign pei^sons and things
found within the boundaries of Rome. Nor was this a
mere case of violence. The Roman law distinctly recog-
nized such a capture as lawful. To the Roman citizen so
seized, the principle of j^ostrtminiivin applied as fully as
if he ha<l been made prisoner in a regular war. Of the
Germans, Ctesar* tells that robberies, if they were com-
mitted outside the territories of their own community,
were not regarded with any disfavour. It was, indeed,
supposed that such operations were a manly and useful
exercise for young men. Nearer home were the Caterans
and the Vikings,-f- with their creaghs by land and their
sumorlidas by sea. " Highway robbery," says Mr. Hallam,:|:
" was from the earliest times a sort of national crime."
Even at the prasent day, among uncultured men, the same
feeling may be traced. A traveller, § whom I have already
cited, speaking of one of the many soldiers of fortune
whose swords have made kinifdoms more or less lastinir in
Central Asia, observes — ' Murad Beg, the Usbeg, maintains.
a well ordered domestic government, and a course of rapine
over liis neighV)oui-s, over the whole upper waters of the
Oxus, from the frontiers of China to the river that runs
through Balkli. I'luiisluiu'iit for highway robbery, if the
higliNvay be in their own country — for that makes a
Wonderful dirterence — is death."
1 may thus state my contention. The sentiment of religion.
• "Dc Bell. Gall.," vi., 23.
t Sec R<>l)t;rtaon, " Karly Kiii^," vol. i., p. 'J.jO.
t " Mitltllo Ages," vol. iii., p. 107.
g Wood's "Journey to the Source of the Oxu.s," p. 110.
'2i
418 THE LAW AND CUSTOM OF PROPERTY.
is a force which, even at this day, exists, and is adequate to
produce the supposed effect. A similar force was in opera-
tion in archaic society, and did there — at least in those
cases with which we are acquainted — produce similar
results. The explanation also fulfils the condition that it
should account not only for the origin of property, but also
for the origin of the Household. Further, in cases where
the sentiment of religion did not exist — that is, between
strangers, who were not connected by any community of
worship — the respect for property was not present. The
sentiment of justice, when once it had been generated,
grew, or failed to grow, according to the circumstances in
which it was placed. In some cases it was stunted; in
more favourable conditions it attained a fuller development.
There are, at this day, people with whom justice is limited
to those of their own country, or their own community, or
their o^vn creed, or their own colour. But there are those,
too, who hold that right is not confined to blood, or race, or
creed, or country ; and who look for the coming of the time
when there shall, at length, be realized in practice that
lesson of universal benevolence — so hard to be understood
by its first hearers, so hard to be accepted by subsequent
generations — which was given in answer to the question
once asked by a certain young man — " And who is my
neighbour ? "
Jus Civile § 3. In a former chapter I endeavoured to show that in
Honora- early times property assumed two forms — the one, corporate :
the other, individual. Corporate property did not include all
the property of every member of the corporation, but meant
only the property, strictly speaking, of the corporation,
and the natural produce of that property. There was thus
a clear distinction between inherited property and acquired
property. It was to the former, and not to the latter, that
num.
JUS CIVILE AND JUS HONORARIUM. 419
the rules of the Household and of the Kin applied. In
the inherited property, other parties beside the House
Father were interested. The dealings with it were, there-
fore, restricted by the customary rules. In the actpiired
property, no person save its owner had any concern. Con-
sequently, no custom limited him in its disposition. In
archaic society, however, there was little room for acquisi-
tions ; and any such property must have generally sunk, in
the course of two or three generations, into the mass of
hereditary property. It was to the hereditary property
that the earliest law of property, in the strict sense,
applied. Law was, as I have said, the extension of a
particular sanction to custom ; but the subject of the
custom was the inheritance, not the acquests. This law,
too, was, from the nature of the case, not general, but was
the privilege of those persons who were members of the
State. The early law of property was thus limited to one
particular class of property and to one particular class of
persons. ' Dominiinn ex jure Quiritium' meant ownership
of the property of the Household, which ownership Roman
citizens, and none others, could enjoy.
Two causes, therefore, must have been in operation to
modify the customary law. Persons claimed to exercise
the rights of ownerehip, or some of those rights, who were
not members of the State. Even as reirards members of
the State, the law di<I not include the whole extent of
proprietary rights. For the outsider in all cases, for the
citizen in the case of his acquisitions, there was no legal
recognition. But as the State grew, its natural tendency
was to enlarge its jurisdiction. Some provision for both
these classes became necessary. The necessity became
urgent, when new forms of interests and new classes of
persons arose which could by no pretence be brought witliiii
the limits of any custom then existing.
420 THE LAW AND CUSTOM OF PROPERTY.
We can thus perceive the relation between the two
systems of the law of property which co-existed at Rome.
The elder system, or ' Jus Civile' w^as the custom of the
clans sanctioned by the State for the benefit of the people
of Quirinus. The younger system, or 'Jus Hov ovarium'
was the law which, by the judicial officers of the State, was
gradually established to regulate the acquired rights of
Roman citizens, and the rights, whether acquired or
inherited, of those residents at Rome who were not citizens.
The former was contained in the Twelve Tables and in the
Statutes, and in the learning affecting them. The latter was
found in the Edicts of the Prretors, and sometimes of other
high officials. The two systems were parallel and distinct.
As to ownership, as to the mode of acquisition, as to remedy,
as to conveyance, as to succession, as to contract, each had
its own provisions. The Quirite had the dominion or full
ownership of his inherited property ; he acquired any
additional property by the act of any member of his House-
hold, and not of any other person ; he sought redress for
any injury in respect of his property by ' vhidicatio,' a
special name for the ' Legis Actio Sacramenti.' He
conveyed his interest by mancipation. On his death, the
property descended to his agnates : his contracts regarding
it were made by sponsion. The non-Quirite, or the Quirite
who was dealing with novel kinds of property, had need of
all those rights, but he could not obtain them under the old
law. By degrees a new law, under the direction of the
Prsetor, formed itself. The place of dominion was, in
certain circumstances, taken by possession. Agency or
representation ^:»e)' iiberam personam — that is, by a person
not a member of the Household — was slowly, and step by
.step, established. * The possession was enforced not by a
* See .Mr. Poste's "Gains," p. 432.
JUS CIVILE AND JUS HONORARIUM. 421-
' Le(jls Actio' but by an interdict, or, as we, I think, should
call it, a prerogative* writ. Instead of mancipation, with its
bronze and balance, simple delivery sufficed to pass the
property. In cases of intestacy, the cognates, not the
agnates, were the successors. Contracts were held to be
binding, even though the mystic word, ' spoiideo^ which no
lips save those of a Quirite might utter, had not Ijcen
spoken. Thus the two bodies of law, applying each to
different subjects, continued to co-exist so long as the
distinction between their subjects prevailed. But as the
clan waned, the property of the clan became of less and
less impoi-tance. New interests grew with the growth of
an advancing community, and strangers constantly flocked
in ever-increasing numbers to great and wealthy and
conquering Rome. The simpler methods, too, of the edictal
law were found to be more convenient than the rigoroas
formality of the archaic customs. And so, from all these
causes, without any positive repeal, the ' Jus Civile ' died a
natural though lingering death, and the law of the Pra?tors
reifirned in its stead.
^ 4. There is no doubt either as to the existence of these Jus Civile
two systems of law, or as to their relative antiquity. Customaiy
The correspondence "f of the two series of terms that I Property
have mentioned, may also be now accepted. But I must House-
add a few words in support of the further view that I have
ventured to propose — namely, that the ' Jas Civile' was
the customary law of the old corporate form of property.
In the first place, the Roman lawyers describe the suc-
cession of children in terms that imply ownership l»y a
coi'poration, and tliat coi'poration the Household. In the
case of ' /b'tti Jieredes,' that is, lineal descendents, " wc
• See Mr. Poste's "Gaius," p. G22.
t Sec lb., p. 28.
422 THE LAW AND CUSTOM OF PROPERTY.
have," says the " Digest," * " a still more striking instance
of an unbroken continuity of dominion, for there appears
to be no vesting of new property by descent, but the heir
is deemed to have been previously proprietor, even during
the lifetime of the father. Hence the names, Films
familias and Pater familias, implying a similar legal
relation to the patrimony, though one is parent and the
other child. Therefore, the death of the parent occasions
no acquisition of new property by descent, but only an
increased freedom in the administration of already existing
property." In the next place, the succession of the agnates
is, as I have said, that form of succession which is charac-
teristic of the Household. The ' Sui heredes,' the Agnati,.
the Gentiles — such was the earliest order of succession ;
such was the order of the ' Jus Civile ; ' and such was
the order which the Prjetor and the statute law continually
endeavoured to modify. The distinction may also, I think,,
be observed in the mode of conveyance. One of the
divisions of things in Roman law was that of 'Res
Mancijyi' and 'Mes nee Mancipi.' To the former class,,
which consisted of certain specified objects, a particular form
of conveyance, that by the bronze and the balance, was
appropriated. The latter class included all other objects,
and these residual objects were transfeiTed by simple
delivery. The ' Res Mancipi ' were — land in Italy ; rustic
servitudes therein, that is, rights of way and of water-
courses, but not of lights ; persons, whether slaves or free ;
tame animals employed for draught or carriage, as oxen,
horses, mules, or asses. The difficulty in this matter has
been to account for the selection of these particular objects.
Various explanations "f- have been offered. Some writers
say that these objects were those which were alone known
* " Dig." 38, 2, 11. The translation is tliat of Mr. Poste, p. 234.
t See Mr, Poste's "Gains," p. 172. Mr. Hunter's " Roman Law," p. 114.
JUS CIVILE WAS CUSTOMARY LAW. 423
to the Romans. Others regard them as the ordinary booty
of a predatory tribe. Others contend that 'Res MancipV
are of a wasting nature ; or that they all are specific, and are
contrasted with things sold by number, measure, or weight.
Dr. Arnold* conjectured that the distinction was a privilege
of the plebeian landowners. It is clear that the division
does not rest upon any logical principle ; and the inference,
therefore, is that its origin was historical. The third class,
for example, does not include all tame animals, or all
animals that were used in di'aught or carriage ; for Gaius
expressly excludes both the smaller domestic animals, and
also elephants and camels. Of the explanations I have
mentioned, all excej)t the first are avowedly mere guesses
in the absence of anything better. As to the first, it might
be difficult to prove that the 'Res Mancipi' were the only
or even the principal articles of value known to the early
Romans. But they constituted, I think, the necessary
property, or ' xp'//^'""" ' of a Household. Their first division
includes land and servitudes, respecting which two points
have to be observed. First, the land must be in Italian
soil, as distinguished from the Provincial soil, which
appears at a much later period of legal history. But
' dominion,' that is ' ownership ' ' ex jure Quiritiuvi,' was
confined to land in Italy ; and thus there is a connec-
tion between dominion and mancipation. Secondly, the
servitudes were those known as " prcedivrum rusti-
cwum, non urhanoriini ;" that is, they included rights
of way, of water-coui-se, and the like — easements likely
to arise in a village connnunity, but not those which
belong to a crowded city. The second and the third
divisions of the ' Res Mancipi,' are in effect the " Familia
Pecuniave " of the Twelve Tables ; that is, the pci'sons
* "Hiat. of Rome," vol. i., p. 172, note.
424 THE LAW AND CUSTOM OF PROPERTY.
who are in the House Father's hand, and the cattle or stock
which were necessary for working the land of the House-
hold. Thus the mancipation was the form of conveyance
for the Household estate. The meaning of the difference
was not that favour, as Sir Henry Maine* suggests, was
shown to one class of objects rather than to another ; but
that, of the two great classes, each came under a different
rule. The fundamental division of things in the Roman
law*}" was into things that are in our patrimony, and
things that are not in our patrimony. The Household
property, or j^f-i-ininoniiiin, passed according to the custom
of the community. By the side of this patrimony, another
kind of property grew up, which was outside the patri-
mony, and so was not subject to the customs. For this
latter kind of property — as to its conveyance, its protection,
and its devolution — new methods were necessarily invented.
The conveyance by mancipation and the descent by
agnation went together, 'Jure Civili ;' just as the con-
veyance by delivery and the descent by cognation were
alike parts of the ' Jus Gentiurti!
Historical S 5. This remarkable change in the Roman lesfal system
origin of ^ *= . & J
Jus Hono- appears to be due to two leading events. These events
were the extension of the ' Agev Puhlicus,' or land of the
community, and the increase of immigration. With each
new conquest, the land of the conquered community became
a part of the territory of the Roman people. Sometimes
this land, or part of it, was re-granted to its former owners
on terms more or less favourable. Sometimes it was held
by Roman citizens. In all cases, however, the dominion or
ownership was vested in the State. Where the occupation
was by citizens, the tenure had two characteristics. None
* "Ancient Law," p 274.
t "Gains," vol. ii., p. 1.
rarium.
HISTORICAL ORIGIN OF JUS HONORARIUM. 425
but a Roman citizen, that is, a member of the Poiyvdus
Romanus, could, in the absence of an express grant, have
any interest in land belonging to the Roman State. As
against the State, the occupancy of its citizen was merely
permissive. He was strictly a tenant-at-will. His holding
was, in the language of the Roman lawyers, " precarious,"
that is, upon his request to the owner, and with
that owner's leave. On the determination of the land-
lord's will, the tenancy came to an end ; but until
such determination, the tenant had — as against all
other citizens and a fortiori as against strangers —
a complete title. But he was not the owner ; and
he could not, therefore, obtain any redress from those
customary remedies which had been devised to meet injuries
to ownership alone. He could not declare, in the terms of
the ' Legis Actio Sacramenti' that the land was his ' ex jure
Qairitium.' The pleasure of the State in his favour, how-
ever, continued ; and there was no reason why it should not
continue for an indefinite time. The longer the duration
of the tenancy, the greater was the expectation that it would
not be disturbed. Thus a new form of property was
brought into existence ; and this form was, by reason of its
novelty, outside the provisions of the law. It was only
reasonable that the State's officers should lend their assist-
ance to secure the State's tenants. Accordingly, the Pnytor
granted an interdict, or, as we should say, an injunction,
forbidding the party to whom it was addressed to disturb
the possession of the occupier. Where the circumstances
required it, this order assumed a positive form, and com-
manded the trespasser to restore the possession from which
the complainant had been wrongfully ousted. This form of
occupation — so familiar to British Colonists, and so strange
to the inliabitants of long-settled countries — was technically
called 'possessio ; ' and the occupation thus guaranteed by
426 THE LAW AND CUSTOM OF PROPERTY.
interdict became, as I have said, a form of property practi-
cally equivalent to 'dominion,' or ownership. This form
of property, if it had not the benefit of the ' Jus Civile' was
free from its restraints. It was the creature of the Prretorian
jurisdiction, and the Prsetor was therefore able to mould its
incidents at his discretion. Partly from its more rapid
rate of increase, partly from its superior convenience, it
superseded its older rival. It was the only kind of owner-
ship that was possible in the Provinces. In Italy, when,
after the Social War, full citizenship was granted to all
Italians ; and when, as the result of a series of land acts,
the State had gradually parted with all its wide domains,
* dominion ' was, in effect, established as the ordinary rule.
But, outside Italy, ' dominion' was entirely unknown. The
' Solum Frovinciale ' was vested in the Roman people, and
all interests in it were only 'Fossessiones.' These possessions,
when the distinction between Italy and the Provinces was
abolished, and the expressions Roman citizen and subject
of Caesar became in substance equivalent, grew into true
ownership, but retained the incidents which had marked
their origin. Even in Italy the advantages of the Praetorian
rules, especially in the conveyance of land, were appreciated.
When a mancipation failed, or had not been executed after
the contract of sale had been completed, the Praetor, by
means of his ' BonoriiTn possessio,' gave relief. He put
the real owner into possession, and let usucapion do the rest.
Gradually the mancipation fell into disuse, and, by the
legislation of Justinian, was finally abolished. " Thus," as
Mr. Hunter* observes, " in the time of the Twelve Tables,
there is but one form of ownership {dominium ex jure
Quiritium) ; in the time of Justinian, there is but one form
of ownership {dominium) : but the ownership of Justinian
* " Roman Law," p 216.
HISTORICAL ORIGIN OF JUS HONORARIUM. 427
is an institution that is separated from the Quiritarian
ownership by a wide gulf — a gulf as wide, and of precisely
the same character, as that which lies generall}'' between
the naiTow and provincial system of the early Romans, and
the liberal and magnificent jurisprudence bequeathed by the
Roman Empire to mankind."
I cannot think that the great discovery, for such it was,
of Niebuhr and of Savigny, respecting the historical origin
of possession, has been shaken, or is at all doubtful. But I
do not contend that their explanation covers the whole of
the present question. That explanation relates only to
land ; and the Praetorian jurisdiction extended not to land
only, but also to movables. The rise of this latter branch
of the 'Jus Honoranum must be sought in the require-
ments, not of a particular class of citizens, but of outsiders.
This aspect of the question has been ably discussed by Mr.
Hunter* in his recent work on Roman Law; although,
with the natural enthusiasm of the advocate of a neglected
truth, he presses, as I venture to think, his theory somewhat
too far. It is unnecessary for his purpose to prove that
Savigny was wrong. There is ample room for both the
Possessor and the Peregrinus. It is certain that from the
earliest times there was a considerable foreign, that is, non-
Roman, population at Rome ; that these foreigners had no
share in the ' Jas Qmritium ;' and that they were obliged
to live under the protection of a Roman citizen as their
PatronuH. With the growth of the city and the extension
of its power, the numbers of these foreigners increased.
In the earlier days of the Republic, most of these persons
were Italians, men generally of the same blood as the
Romans, and having, as it would now be said, a common
nationality. Over these men and their dealings the Priutor
* p. 205, et seq.
428 THE LAW AND CUSTOM OF PROPERTY.
was appointed to preside, and it was his policy to extend to
them proprietary rights. He appears to have effected this
object by the usual fiction called a ' litilis actio ;' that is, he
in effect permitted proceedings to be taken in the same way
as they would have been taken if both the parties were
Roman citizens ; and he disallowed the objection that one
of them was a foreigner. There were, however, cases in
which this course could not be adopted ; and it is probable
that the form of interdict known as " Utruhi," which
related exclusively to movables, was introduced for the
protection of aliens.
Whether the jurisdiction over the ' Possessores' or the
jurisdiction over the ' Peregrini' was the older, is a
question on which there is no distinct information, and
which is not, I think, particularly important. The two
probably reacted upon each other, and the more frequent
exercise of his functions must have tended to strengthen
the Praetor's authority. It is remarkable that, at Athens,*
the Polemarch exercised, in the case of aliens, powers similar
to those of the Praetor Peregrinus at Rome ; and yet at Athens
there was nothing analogous to the 'Jus Honorarium! To
say that this difference is due to the superior legal genius
of the Roman people, is a solution much more easy than
satisfactory. To arrive at the truth, the slower and more
laborious method must be pursued, of tracing the difference
in the conditions of the two countries. Two of these
differences I may, in passing, notice. One is, that
Athens does not appear to have held any extensive
public estates like those of Rome. The territory of
Attica itself was small and poor ; and the Empire of
Athens was, in its origin, merely tax-taking. Long
before it could pass into the Roman type, although not
* Hermann's ' ' Grecian Antiquities, " jj. 275.
HISTORICAL ORIGIN OF JUS HONORARIUM. 429
before its tendency in that direction was apparent, that
Empire was checked by external force. The other
difference was the relative shortness of the period of
Athenian development. From the Persian invasion to
the time of Philip of Macedon — from the battle of Salamis
to the battle of Chseronea — less than a century and a half
intervene. The rise and the fall of the Athenian Empire
were compiised in half of that period. But more than six
times the duration of the Athenian Empire elapsed between
the publication of the Twelve Tables and the full consolida-
tion, under the Csesare, of the Roman State ; and the
interval of a thousand years separates the legislation of
Justinian from the legislation of the Decemviri. Even with
all the help of the great precedent of the Roman law,
fourteen centuries have not exhausted the power of growth
and of development in England.
CHAPTEB XIX,
THE RISE OF CIVIL JURISDICTION.
Law §1-1 have said that law is a command of the State ; and
Hmfted to that the State is only one, and that a comparatively late,
terests^f f orm of social development. Our forefathers lived together —
the state. ^^ -^^ some cases other men now live together — when there
was no State, and consequently no law. That which then
reo^ulated their conduct was custom. I have shown how
custom and law coalesced, but there are some parts of the
process that deserve special attention. Law was originally
distinct from custom, was later than custom, and for
a long time was weaker than custom. All these circum-
stances have impressed their mark upon the early history
of law.
The State was distinct from the clan, had a different
organization from it, and pursued different objects. It
follows that it had different interests, and issued different
commands. The leading cause of political association was,
probably, the necessity of defence against a common enemy.
It certainly has been under the pressure of external dangers
that the principal combinations within historical times have
been made. But men, when they co-operated for external
purposes, never intended to abandon their internal arrange-
ments. It was not to the State that, in their daily life, men
looked for the protection of their property, or the security
of their persons. They acknowledged, indeed, a certain
allegiance, and showed a certain deference to the State ; but
LAW ORIGINALLY LIMITED. 431
their first duty was to their own class. The State, therefore,
attended primarily to its own interests, and issued, in rela-
tion to them, its own commands. It was, practically, only
one of a number of analogous associations. It accordingly
made its own rules, and punished all its disobedient
members, just as the clans did in the like cases. But it
did not presume to interfere with the private rights of any
of its citizens, or with the customary remedies by which
these citizens redressed their wrongs. Nor did the State, in
its rudimentary form, present that complex system of related
powers with which, in its higher development, we are
familiar. There was then no distinction, or, at the most,
only a faint distinction, between the legislature, the judiciary,
and the executive. The undifferentiated body politic
contrived to perform such functions as were needful to it.
So, too, the clan lived, according to its customs, its corporate
life ; and the first founders of political society, when it
co-existed with clan society, could not have foreseen the
future of the association which they established.
I have said that the State dealt exclusively with its own
affairs. It punished the person who betrayed its secrets to
the enemy ; or who, whether in the field or by less open aid,
took part against his country. But it did not interfere in
the private quarrels of its citizens. Every man took care of
his own property and his own household ; and every hand
guarded its own head. If any injury were done to any
person, he retaliated, or made reprisals, or otherwise sought
redress, as custom prescribed. The State eared for none
of these things. Yet there were certain matters which,
although they were of a private nature, directly affected the
well-being of the State. If the Gentile sacra were not
' perf(n-med, the anger of the offended spirits might not be
limited to the culprit, but might extend to the whole com-
munity. The first interference of the State seems to have
432 THE RISE OF CIVIL JURISDICTION.
been directed towards these rites. It was careful to inquire*
whether candidates for its offices, among other qualifications,
had fulfilled their duties to the Household and the Gentile
gods. It laid down the rule, " Perpetua Sacra sunto." It
did not pretend to perform or to regulate these ceremonies.
It only insisted that those persons whose duty it was to
attend to them should perform that duty. This superin-
tendence naturally devolved upon the head of the State.
In course of time, special officers were created to watch over
the ever-increasing rites, and a large body of pontifical
law was gradually formed. So, too, when any new worship
was introduced, or when any sorcerer or magician practised
his mysterious arts, the whole force of the community w^as
directed to repress the common enemy, and the State did
not hesitate to repel a danger that seemed to threaten as
well itself as all its subjects.
The state v!!} 2. It would, of course, have been an easy task to prove
in private that the State was interested in the quiet and the good
ispu es. ^jj,jgj, Qf j^g citizens. But in its earlier days the State had no
thought of such refinements. It accepted the facts as they
existed. Even if it had the desire, it certainly had not the
power to undertake the duties of police or the general
administration of justice. Neither its resources nor its
organization were adapted for any such purpose. Yet no
State could be insensible to the advantages of what we call
good government, or to the evils which, even in the most
favourable circumstances, the blood-feud and self-redress
imply. Nor, on the other hand, are men slow to appreciate
the benefits of a just and firm system of law. But archaic
men knew nothing of the greatest-happiness principle ; and
if they had known it, they would not have accepted it. As
* Wachsimith, "Hist. Ant." vol. i., p. 385.
THE STATE ARBITRATES IN PRIVATE DISPUTES. 433
the full-grown State is scarcely recognizable in its
rudimentary form, so the history of the growth of law
discloses an embryonic condition entirely unlike that to
which we are accustomed.
Our best starting point is, I think, that description of the
present Kirghiz which I have already cited. We are told
that the Kirghiz have no central government ; that, in their
quarrels, their Elders have some sort of authority ; that
it rests entirely with the parties themselves whether they
will be bound by the opinion of the Elders, since there is
no means of enforcing it ; and that, somehow, these opinions
are seldom resisted, and that serious difficulties rarely arise.
This description, M'hich relates to a rude non- Aryan race of
the present day, iiay well have been true of our archaic
fathers. Out wi." some such condition of society as that
which still prevails in the countries which were the
cradle of our race, our great system of law originally
sprung. The earliest juridical record represents* a dispute
between two men on a question of fact, and the issue
coming on for trial before the Elders in the presence of
the assembled people. Two men, the poet tells, were
disputing respecting the blood-money of a man who had
been slain ; the one alleged that he had paid it, and the
other altogether denied its receipt. In the oldest legal
formula, the 'Lcfjis Actio Sacramentl' of the Roman law, all
the proceedings^ carefully simulate the casual interference
of some third party in a dispute on a question of ownership.
Of our own early law, I will only observe that it is full of
contrivances for getting the parties to accept, as it were, its
jurisdiction. It seems to have felt that, if it had the
opportunity, it could speak as one having authority ; but
the opportunity could only be given by the consent of lioth
"Iliad," xviii., 497-507. + "Gains," iv., 13-17.
29
434 THE EISE OF CIVIL JUEISDICTION.
parties to its interference. If a prisoner refused to plead,
the court had no authority to try him ; and a severe course
of treatment, which subsequently degenerated into a
horrible torture, was used to extort the required consent.
It was not until a very late period that the legislature
ventured to construe persistent silence into a plea of not
guilty. It is, I think, generally admitted that jurisdiction
was originally founded in consent. In the Homeric
precedent, the Elders, like the Kirghiz old men, appear to
have some sort of authority. Every clan, too, and even
every Household had a tribunal of its own. It is not
unreasonable to suppose that a similar rudimentary
authority, undefined perhaps, and sanctioned by custom
and public opinion rather than by any legal force,
existed in the society which we call a State. Something
more than a metaphor was intended when the king was
called the Father of his people. But whether as having a
sort of right, or whether as being the most influential
person in the community, the arbitration of the king*
or other Flirst was often invoked or accepted. It
is at this point that the earliest approach to a sanction is
found. A sum is staked to abide the decision. In the
Homeric precedent, two talents of gold lie in the midst,
" to give to him whoso should speak justice most
righteously." These words may refer either to the litigants
or the judges. To speak justice may mean either to plead a
cause or to pronounce a judgment. I observe that Mr,
Grote adopts the former and Sir Henry Maine the latter
view, in each case without remark. For my part, I
hesitate to accej)t a meaning which implies such a singular
competitive examination in judicial ability as that which
assigns the two talents to the most popular judge ; and the
* See a curious case in Mallet's "Northern Antiquities," p. 337.
THE STATE ARBITRATES IN PRIVATE DISPUTES. 435
more so as the question raised — that of payment or non-
payment — did not admit of the display of much ingenuity.
The magnitude of the sum, too, even when allowance has
been made for the exaggeration of poetry, seems to suggest
that it was, or at least that it included, the blood-money
for some person of rank, rather than that it was a fee for
judicial services. In the account which Gains gives of the
' sacr(tinentiun,' a sum, although of a much more reasonable
amount than two talents of gold, is staked by each party.
The successful party recovers his money ; the deposit of
the unsuccessful party goes to the State. The stake varied
according to the value of the matter in dispute. There is
no positive information as to the object of this stake. Sir
Henry Maine* suggests that it was an expedient to gain,
by the help of a bet, time for angry passions to become
cool. To me it seems that the stake was intended to be a
security that the parties would abide by the decision of the
tribunal. In either case, it is not difficult to understand
how the deposit could serve as a check upon unjust
litigation, and still less difficult to recoijnize in it the
oldest form of the fees of court. But whatever may have
been its origin, numerous advantages followed from it.
The parties stayed their hands. They gave a material
guarantee for their readiness to accept the decision of the
arbitrator, and to acc^uiesce in that decision. The arbitrator
was enabled to proceed at once with his office, and to give
directions for the immediate custody of the object in
dispute. The sum deposited was also a guarantee that the
dispute was neither f livolous nor vexatious. It was available
either for costs, or for the remuneration of the judge, or for
the benefit of the State whose officer had used its influence
to determine tlie controversy. There was a tradition at
• " Early Hist, of lust.," p. 259.
436 THE RISE OF CIVIL JURISDICTION.
Rome that originally such moneys were applied to religious
purposes, and that the first arbitrators were the Pontifices.
If this tradition were true, it would point to the king as
the original arbitrator, and to the tendency of justice to
pass to the officer who succeeded to the religious functions
of royalty. But a differentiation must have commenced at
an early period. Certainly, the deposit in the ' Legis Actio
Sacramenti ' went to the treasury ; and, shortly after the
time of the Twelve Tables, a modified form (condictio) of
that action was adopted. This form was used in all cases
arising out of obligations, and in effect rendered the deposit
available for the payment of costs. Except so far as I
have thus stated, court fees and costs do not seem to have
been known to the Roman law. In medieval law, before
the complete integration of the State, the administration of
justice was regarded as a lucrative incident of property.
The Lord's Court was not unnaturally made at first self-
supporting, and then profitable. With the development of
the State, court fees, although they were not abolished, no
longer formed part of judicial remuneration. It is note-
worthy that in the English system costs come by statute, and
not by common law. Perhaps the reason was that, in the
Roman law, costs were not paid as such, but were included
in the ordinary form of action provided b}^ the mutual
stipulations — that is, in substance, by the wagers — of the
parties.
The State § 3. One of the most striking differences between the
private modern and the archaic conception of law is found in the
remedies, j^^^^^^g f^^. ^j-^g interference of the State. To us the State
appears to perform its natural functions in enforcing civil
rights, in punishing and repressing crime, in securing to
every man his own, and in so dealing with offenders that
peaceful men may live undisturbed. No such aspect of the
THE STATE REGULATES PRIVATE REMEDIES. 437
functions of the State presented itself to the archaic man.
He did not consider that the State was concerned in dealinof
with cases of violence or of fraud. These were matters
not of public but of individual concern, or at most required
the inteiference of the kin. But he could understand that
the State, if its mediation were invited, should interpose its
influence to jDrotect a person who had got into trouble, or
rather to mitigate his punishment. A man who had com-
mitted what we should call a crime thereby forfeited his
property, or his liberty, or even his life, to the party whom
he had wronged. It was much if the State coidd effect a
reconciliation ; and persuade the injured man to forego his
resentment, and to accept reasonable satisfaction. In the
case of blood revenge, for example, it was the recognized
duty of the next of kin to kill the homicide, or some of
his clan. This vengeance might, however, be commuted
for a money payment. The " Iliad " * makes distinct
mention both of the duty of vengeance and of the
customary acceptance of the compensation. But it also
shows that the avenger of blood was under no compulsion
to forego his feud. Public opinion was, doubtless, in
favour of his acceptance of a proper compromise ; but if he
refused, his refusal could only be regarded as the harsh
exercise of an undoubted right. Thus the position of the
archaic State was not that of a modern government
dealing with its subjects, but that of a friendly nation
interposing its good offices between two belligerents.
When one citizen had injured another, custom allowed, and
in certain circumstances required, the injured person, or his
next of kin, to obtain redress by making reprisals, or to take
vengeance by inflicting similar injuries, upon the wrong-
doer or his clan. In these reprisals, or this revenge, he was
* ix., G32-G36.
438 THE RISE OF CIVIL JURISDICTION.
supported not only by public opinion but by the active
assistance of bis clansmen. It was not the business of any
third party to interfere in the dispute. But by the inter-
vention of common friends amends might be offered and
accepted, and the quarrel might be composed. In the
emphatic words of the old English maxim, a man must
either " buy off the spear or bear it." The State by its
chief or other ofHcer acted the part of common friend. It of
necessity accepted the facts as it found them. It recognized
the existence of the custom of self-redress as older and
stronger than its own power. It had to depend for success
not upon force but upon influence. In order to induce the
injured party to accept mediation, the terms offered to him
must be nearly as good as those which he might reasonably
expect to obtain by his own hand or by the assistance of
his friends. It was not until the State was far advanced
towards maturity, until its political organs were developed^
until the means of at once exei-ting in any given direction
the whole public force were perfected, and until long habits
of deference had rendered obedience to its commands almost
a second nature, that it was enabled to claim exclusive
authority both in setting up a standard of duty, and in
determining all matters of dispute, and giving effect to its
decisions.
It was evidently the policy of the State to check those
bloody quarrels which continually deprived it of the services
of its most active and warlike citizens. The method by which
it sought to attain this object was by making the best terms
it could for the wrong-doer. Accordingly, it proceeded to
determine the amount payable by the offender for every
injury to life, limb, or reputation. It is a conspicuous mark
of the compai-atively early maturity of the Roman State,*
♦ Mommsen, "Hist, of Rome," vol. i., p. 158.
THE STATE REGULATES PRIVATE REMEDIES. 439
that there is in Roman law no trace, or at most the faintest
trace, of this system. But in the Teutonic peoples, and
also among the Kelts, the learning of the wer-geld, or the
Eric* — that is the man-price — formed the largest portion
of their law. The ' Leges Barbaroi'um ' are full of the most
minute provisions on the subject. They contain elaborate
tariffs of the damages payable according to the rank of the
offender for every kind of injury done to every part of the
body, or to the reputation, or to the Household, of persons
of every degree. They give directions to what persons the
money shall be paid, in what shares, and according to what
order of succession. They provide, with equal care, as to
the parties upon whom the burthen is to fall. They regulate
the modes of proof by which the fact of the offence is
established or is refuted. But if the guilty person be
ascertained, and if the proper wer-geld be not paid, the
State does not further interfere. It does not take upon
itself the duty of punishment. It merely leaves the offender
to the mercy of the injured party ; or, at the most, allows
the sum to be recovered as an or.linary debt.
We are not without information as to the standard which
the archaic legislator applied as the measure of damages.
It was not the amount of injury that was sustained, much
less the amount likely to prevent the recurrence of the
offence. It was simply the lowest sum that, upon the
whole, it was likely that the aggrieved party would accept.
On this point. King Rothar, in his " Laws of the Lan-
gobards,"i- speaks very plainly. He gives the relatives of
the slain their election between their customary vengeance
and a wer-geld fixed by law and recoverable before the
public tribunals. He says that he fixes a high price in
order to induce plaintiffs to forego their right of feud.
* Fear = man, aic;= price.
t c. 74. " Canciani," vol. i., p. (ji).
440 THE EISE OF CIVIL JURISDICTION.
The passage seems to imply that if he could, the King
would gladly have abolished the system of retributory
violence. Absurd as such legislation now seems, it was un-
doubtedly a great gain that men should be content to submit
their vengeance to rule ; to admit legal proof, however
rude ; to accept a compensation instead of blood, and to allow
the amount of compensation to be ascertained by law, and
not left to the heated passions of the parties interested.
I have taken the wer-geld as the example, at once the most
important and the most striking, of this regulative action
of the State. But the wer-geld is only a single case of a
general principle. As the State interfered by way of
arbitration in all cases of disputed rights, so it interfered
by way of regulation in all cases of remedies, or, as they are
sometimes called, rights arising ex delicto. Thus in Roman
law, whence, as I have said, the wer-geld had long disap-
peared, there are many examples of self-redress. If a man
had sustained from another any serious personal injury, he
was entitled to demand an eye for an eye, and a tooth for a
tooth. I have already observed* that the nearest agnate
was the person to whom the duty of exacting this vengeance
pertained. If a man owed another man money, the
creditor laid hands on him, and threw him into his own
prison. If a man took possession of another's property, the
paity injured expelled the trespasser from the land, or took
from him the goods, with or without violence, as the case
might be. In certain cases he seized the goods of the
offender-f by way of reprisal. If a man were found stealing
another's goods at night, or if being so found in the day
time he defended himself with a weapon, the owner might
* Supra, p. 135.
t It is noteworthy that in International law reprisal is still a recognized
method of redress, and that it is not only consistent with a state of peace,
but depends on that state. " Eepressaliis locum non esse nisi in pace."
See Sir Travers Twiss' " Law of Nations," vol. ii., p. 28.
THE STATE REGULATES PEIVATE REMEDIES. 441
kill the thief. Where a man's goods were stolen, if he
suspected that they were in another man's house, he might
entei" and search that house in a certain specified manner,
without any search warrant or other authority. If he then
and there found the stolen goods, he might proceed as if
the thief had been taken flagrante delicto. If a man were
found in adultery, or in unlawful intercourse with an
unmarried woman in munu, his life was at the disposal of
the injured husband or House Father. Gradually, however,
the law succeeded in establishing, at least as an alternative
for these extreme rights, a system of pecuniary com-
mutation ; and the measure of damages was, as in the case
of the wer-geld, the state of mind of the injured party,
when his ri<dit of self-redress accrued. Both in its arbi-
tration, however, and in its legislation, the interference of
the State, as I have already said, was voluntary. No
person was entitled to call upon the State or its officers so
to interfere. No person was compelled to submit to the
State's decision. That decision depended for its effect
upon the deference with which the decision of the
tribunal was regarded. The State endeavoured to promote
a reconciliation, but its power was limited to making
on behalf of one party an offer of terms which the
other party was at liberty to accept or to reject. The
person aggrieved had his election to accept the com-
pensation, or to pursue the feud. If he chose the latter
alternative, he did but exercise his undoubted right, and he
was not guilty of any offence against the State in declining to
accept its services. In such circumstances, when all attempts
at an arrangement had failed, it was still possible for the
State, if it could do no more, to regulate the conditions of the
feud. It might recjuire notice of the intended attack to be
given. It might direct that hostilities should be suspended
during certain seasons. It might forbid certain places from
442 THE RISE OF CIVIL JURISDICTION.
being made the scenes of strife. It might even appoint a
time and place and weapons, at and with which, under the
superintendence of its own officers, the parties should fight
out their quarrel to the end. When some sixty years ago
the Justices of the King's Bench were, by a law long disused,
required to preside officially upon an appeal of murder at a
duel between two champions armed with staves, the public
morality of the day was shocked, and Parliament hastened
to repeal a rule which society had outgrown. Yet the
judicial combat, and the numerous restrictions as to time
place and circumstance under which a feud might be
pursued, were in their day notable advances in the history
of law. Thus a wiong done was originally resented by the
injured party, without limit and without restraint, to the
full extent of his power and of his anger. The effect of his
resentment extended both to the wrongdoer himself and to
his kindred. At an early period limiting customs were
introduced. First it was held that the punishment ought
to equal but not to exceed the offence. Second it was held
that a pecuniary satisfaction might, and ought to be accepted
in full satisfaction for the damage. Thus both the
Lex tallonis and the wer-geld were restrictive and not
vindictive proceedings. When the State was established, it
interposed to mitigate the quarrels of its citizens, to induce
them to accept compensation and to regulate, if it could
not prevent, their violence. But it rested with the parties
themselves to accept or to refuse this interference. Even if
they did accept it, they were entitled * at any time before
the conclusion of the proceedings, to withdraw their sub-
mission, and to have recourse to the final arbitrement of the
sword. Gradually, however, the power of the State became
established. The blood-feud, as I shall presently show, was
* See Dr. Dasent, "Burnt Njal," vol. i , p. 140.
THE STATE REGULATES PRIVATE REMEDIES. 443
limited to the guilty individual ; and liis kin, unless they
chose actively to interfere, were exempted. Disobedience to
the law was deemed to be an offence against the King, The
process of the court was rendered effectual. Its orders became
compulsory. Self- redress was rigorously limited, not only in
extent, but in time place and circumstance. At length the
paity wronged was forbidden to do more than to complain.
To take the law into a man's own hands became a
serious offence, and in the graver kinds of cases the damage
done to the individual was merged in the offence committed
against the majesty of the State.
8 4. Such voluntary action as that I have described. The State
" '' ^ enforces
even where it had become habitual, would not now be rights.
reirarded as law. It fails in one essential element of true law
— the sanction. It is only a transition, or first step, towards
law, in the proper sense of the term. Between the proceed-
ing in which a plaintiff dragged his opponent, Avith twisted
neck, before the chief of the State, praying him to direct an
arbitration between them, and then, on being assured of his
right, kept his prisoner to work in chains as his slave, and
the proceeding in which the regular officers of the State
assumed exclusive jurisdiction in all matters connected with
liti-ration, from the first summons to the final execution,
there is a wide interval. If we desire to learn how that
interval was bridged over, how the advice of the State was
turned into its connnands, how out of mere custom true law
was established, we must look to the history of Rome. It
was in Rome, of all the ancient world, that the State
attained its highest development ; it was in Rome that
distinct legal organs assumed a definite form ; and it was in
Ron 10 that the great function of law was exercised with
transcendent success. From the history of civil jurisdiction
in Rome can best be learned the ever-growing authority of
444 THE RISE OF CIVIL JURISDICTION.
the State, and the slow degrees by which its supremacy
was established.
The original form of civil proceedings in Rome presupposes,
as I have already said, a dispute, attended with, or at least
threatening, violence between two parties, and the unj)re-
meditated interference of the Pi?etor, The next step is,
that one of the parties forces the other to come before the
Pr?etor. Then the law requires that, before violence is
used, a demand to proceed into court shall be made ; and
that witnesses shall be jDresent to testify to the refusal of
this demand. Then the Prsetor treats a refusal to come
into court as a wrong, for which he will give a remedy by
action. Ultimately, and not until the time of Diocletian —
perhaps not sooner than the time of Justinian — the State
undertook to summon, by its own authority, the defendant,
and to compel his attendance, in obedience to its order.
When the parties appeared before the Prtetor, the object
of that officer was to effect an arbitration. There is a
tradition* that in early days the kings in person interposed
to effect a mutual understanding, and this tradition we may
probably accept. But in historical times the Prtetor did
not personally arbitrate ; he regulated the arbitration. He
heard the dispute so far as to ascertain the fact in issue ; he
directed that an arbitration should take place, and that the
parties should agree upon a Judex ; he instructed the Judex
.so accepted as to the facts in dispute, and the law applicable
to those facts; and he caused him, subject to these instruc-
tions, to hear and determine the case. Thus the first step
in the interference of the State after the appearance of the
parties, was to compel an arbitration. At what time, or in
what circumstances this step was originally taken, there is
no information. But, although a trial was thus in the
* Cicero, "De Republica," v., 2.
THE STATE ENFORCES RIGHTS. 445
nature of a corapulsoiy reference, it was only a reference.
The Judex was a private citizen selected by the litigants to
deal with that particular dispute. His appointment was
sanctioned by the State ; and his proceedings within certain
limits were regulated by the State. Still, he was merely an
arbitrator selected by the parties jjvo lute vice, and deriving
his authonty from their consent ; and not an official exer-
cising apart from their concurrence the delegated power of
the State. A marked distinction was always maintained
between proceedings before a Pnetor and those before a
Judex, or, as they were technically termed, proceedings in
jiwe and in jiidicio. Two curious consequences of this
difference materially affected the practice of the law. One
was that, while the Pr;ietor could only sit upon certain days
which were determined by the religious usages of the State,
the Judex, who was not an officer or representative of the
State, might sit upon any day. The other was that the
exact commencement of a suit — a date which, for practical
pui-poses, it was sometimes necessary to ascertain — was the
appointment of the Judex, that is, the beginning of the
arbitration. All proceedings before the Prfetor were merely
preliminary. The true suit was the arbitration of the
dispute between the parties by the Judex of their own
choice. It was not until the time of Diocletian — three
hundred yeai-s after our era — that the State, as a consequence,
doubtless, of the great centralizing changes effected by that
Emperor, undertook by its own officei"s the determination
of civil causes.
Again, when the Judex had pronounced liis decision, it
was not the officei-s of the State that enforced it. The
successful party himself* proceeded to act upon it. His
remedy wa.s in all cases against, not the property, but the
• Mr. nuntcr, "Roman Law," p. Sll.
446 THE RISE OF CIVIL JURISDICTION.
person of the debtor. In later times the finding of the
Judex was the ground for a new action, which appears to
have served the double purpose of giving to the Pra3tor
an opportunity to inquire whether the Judex had properly
followed his directions, and also of notifying, as it were, to the
State, the arrest of one of its citizens. But the arrest was
first made by the plaintiff, and not by the State ; and the
defendant was detained in the custody, not of an official,
but of the opposite party ; and he was finally, if judgment
went against him, turned over, not to the sheriff', but to the
plaintiff". In other words, the State, if the proceedings
already taken were found to be regular, declined to
interfere between the wrong-doer and the injured party.
At the time, apparently, of Sulla* this mode of execution
on a judgment debt was abolished, and imprisonment in a
public prison took the place of private slavery. By
degrees as personal rights became disentangled from the
corporate property of the Household, means, which I shall
presently notice, were adopted, of reaching the property of
the debtor as well as his person. Finally in the time of the
Emperor Antoninus Pius, judgment debts were enforced by
the seizure and sale of the debtor's goods by public officers.
Two great changes were thus completed. The property,
and not the person, became available for debt. The
payment of the debt was enforced, not by the creditor,
but by the State.
So, too, in cases of disputed ownership, the original
remedy was, simply to seize the property, whether it was
land or chattel, and to drive away the aggressor. If the
property could not be found, the obvious resource was to
make reprisals, and to seize in its turn some property of the
reiver. Out of these seizures, whether recapturing or
* Mr. Hunter, "Roman Law," p. S75.
THE STATE ENFORCES RIGHTS. 447
retaliatory, an action grew. The form of that action was a
wager as to the ownership ; and the decision of the Judex
was, that the successful claimant had won his wager. The
victor thereupon proceeded to take possession of his
property ; but to obtain that possession he had to depend
upon his own exertions, and not upon any assistance from
the State. The Court had made no order respecting the
property, although it had recognized his right to it ; and if
such an order had been made, there was no sheriff or other
executive officer to carry it into effect. If he ejected
his opponent, he was entitled to plead in answer to a charge
of violent dispossession the badness of his opponent's
original possession. If, however, he failed to eject him,
the State did not provide any remedy. At length, towards
the close of the fourth century, by a constitution of the
Emperors Valentinian Theodosius and Arcadius, it was
provided that the violent dispossessor, if he were the
rightful owner, should forfeit the property to the person
dispossessed ; and if he were not the rightful owner that
he should restore the possession and forfeit the value of the
pi'operty. "This Coastitution," says Mr. Poste,* "may be
regarded as the final blow struck by the Roman legislator
at the archaic form of remedial procedure, private violence
and self -redress." Thenceforward, the State decided directly
the question of ownei-ship, and gave possession f — manio
tnilitari — with the strong hand to the party whose claim it
had acknowledged.
§ 5. There is another principle which, in Western The state
Europe, has been widely influential in creating the civil protection-
jurisdiction of the State. This principle is warranty. Tlie
State, or its representative, guarantees a general protection
• " Oiiins," p. 4Gfi.
t "Dig." vi., 1, 08.
418 THE RISE OF CIVIL JURISDICTION.
to a particular person ; and if he is injured, it resents the
injury as a contempt of itself. This principle was unknown
in Rome. In the early days of the Republic, clientage was,
in effect, an example of it ; and there are examples of the
public faith being pledged to a variety of persons. These
latter transactions, however, relate mainly to foreigners ;
and in domestic affairs, the tendencies of urban life were
not, as I have said, favourable to clientage. But after the
Empire had ceased to protect, and before the kings of the
Teutonic settlers had consolidated their power, the practice
of Commendation became of the very essence of society.
It was, indeed, a mere development of the Household. The
House Father not only ruled but protected those who were
in his Mund. Every injury done to them was an injury
done to him. At first, those persons who were in a man's
Mund were the immediate members of his Household — his
wife, his children, his servants, and the stranger who was
within his Q-ates. When settlements were made amonof an
inferior population, the rule of the Household was naturally
extended to the outdoor dependents, or Lsets. Then the
Household extended itself by the admission of the free-
born or even noble retainers, who shared, by a sort of
quasi-adoption, the fortunes whether good or evil of their
chief.
It was not a great step to apply these principles to persons
who desired the protection that a powerful chief could alone
afford, A man might surrender his land to another, and
receive it again, in whole or in part, upon certain terms,
and thus become a better sort of Lciet ; or he might be
admitted by the chief of some clan as a clansman, or at least
to the rights of favour and of protection which the clansmen
enjoyed ; or he might form a personal obligation with a great
man, with reciprocal covenants of fidelity and protection.
Such transactions would, of course, be evidenced by deeds
THE STATE WARRANTS PROTECTION. 44»
executed in the usual manner. Thus the homao;er, although
he continued to reside in his own home, would stand in the
same relation to the lord as if he lived in the lord's house ;
and the lord guaranteed him protection against all the
world. It followed that the homager ceased to be a free
member of the community, and depended upon the com-
mands of his lord. It was at the hands of his lord — that
is, in his lord's court, according to the usages of the
macfnified Household — that he could claim, or could receive
jastice. If he did any wrong, it was to his lord that he
answered it. If he sustained any wrong, it was to his
lord that he complained. The lord, in effect, represented
his men in all their external relations. Thus, every free
man might grant to another his peace ; but the value of
such a grant, like the value of a promissory note at the
present day, varied with the ability of the grantor. It was
an object of paramount importance with our early kings to
encourage commendation. All men were required to seek
out a lord, and damages for breaches of peace were assessed
according to the rank of the person whose peace had been
broken. About the beginning of the tenth century,,
offences against the law were regarded as contempts of the
king, and were pu!iished accordingly.* Finally, William
the Conqueror declared that all persons within the realm
were within his peace ;*t" and from the time, as it seems,
of Henry II., a similar proclamation was made upon every
coronation. In the reign of John, offences connnitted in
the inteiTegnum^ — that is, the period between the death
of the king and the coronation of his successor — were
unpuni.shal)le in tlie king's courts. I do not know the
precise time at which the maxim which denies an inter-
* Trofcssor .Stubl).s's "Const. Hist.," vol. i., p. 183.
t Sfi! llallain'a " Middle Ages," vol. ii., p. 427.
t Palgravc's " Eiiyli«li Commonwealth," vol. i., p. 28.K
30
450 THE RISE OF CIVIL JURISDICTION.
regniim was established ; but this doctrine was well
settled* in the time of Henry VI. Thus, the peace of
which we still speak means the Queen's peace ; and that
peace now includes all Her Majesty's subjects. In the
presence of that great protection, all other grants of peace
have become superfluous, and have long been discontinued.
Even the Crown's special grants are read as subject to the
more general grant, and are not allowed to contradict it.
And so, notwithstandino- some local resistance and com-
plaints, the royal courts have claimed, and have by degrees
enforced, their exclusive control, not only in matters
involving a direct breach of the peace, but in all cases
between any of Her Majesty's subjects.
Analogies K 6. These views seem both to o-ive and to receive illus-
in the ^ . . *= .
history of tration from the history of international law. It has often
tionaiLaw. been observed, and it is indeed abundantly obvious, that the
greater part of international law is not law, in the propei-
sense of the term. It is not a command. It does not proceed
from any definite political organ. It has no sanction. Subject
to the exception that I shall presently notice, it is merely
the customs which regulate the intercourse of inde-
pendent political communities. When rational beings
come into contact, if they can preserve their inde-
pendence, they unavoidably, as it seems, adopt certain
rules of conduct in their mutual dealings. It is not less
inevitable that these rules should, by repeated use, acquire
a constantly increasing influence. There is, indeed, nothing
to enforce their observance, except the danger of quariel
and the force of general opinion. Nor do any means other
than an aj)peal to arms exist of determining disputes, save
some sort of fiiendly arbitration. As these agencies enable
* See 7 Rep., 10 5, Calvin's case.
THE HISTORY OF INTERNATIONAL LAW. 4ol
societies of men to hold together without any stronger
cement, so, in the case of the society of States, custom and
its vagtic suppoits liave not been wholly inade(iuate. How
great a portion of the so-called law of nature and of nations
comes under this description, every person may easily judge
by merely recalling to mind the titles of the principal
chapters in the works of any publicist. These international
customs tend to regulate the violence that they cannot
control, and to place certain limits upon the exercise of
political self-redre.ss. From the archaic " Vcv Vletia" to the
ndes of war as they are now observed by civilized nations,
there is a wide step. The interval is bridged by custcjms
insensibly modified from generation to generation as the
moral sense of the world becomes more cultured, and always
tending to mitigate the evils of war, to define its limits, ami,
if it be possible, to restrain 'its conniiencement. Between
the history of private war and the histoiy of public war,
it would be no <lirticult task to trace some strikinir resem-
blances.
There is, h(jwever, ami<l these vague customs and usages
of States, one portion of true law. The Castoms of the
Sea have been accepted by all the nations of Europe as a
portion of their ri'spective municipal laws ; and this
customary law is administered in each country liy a <luly
authorized tribunal, liy the eoiuity of nations the decision
of every Court of Admiralty is, .so long as it administers
the common customary law and as its hoiut fides is not
disputed, accepted by every other nation. Such decision
nevertheless, is really a determination (^f municipal law.
enforced by the Executive of the country in whieh it is
given, whether sucli enforcement be or be not regarded as a
ground for complaint by the Ciovemment whose sul»j«'ct is
thereby atiected.
A comparison of tlie law as ailministcrnl in < 'ouits of
452 THE EISE OF CIVIL JURISDICTION.
Admiralty with the so-called laws of war by land, furnishes
a notable illustration of the influence of law upon custom.
Under the hands of a court the Customs of the Sea, once as
shifting as its sands, become fixed and definite, sometimes,
too, with results neither foreseen nor welcome. " Of the
two codes," says Professor Bernard,* " the one made by
generals and the other made by judges, the latter is the
harshest ; the latter shows the least concern for those
private rights which are the oflspring and peculiar charge
of the law. Private property which is sacred on dry land
is lawful booty at sea ; private industry and commerce are
the objects against which naval hostilities are principally
carried on." No explanations of the commentators on
international law aie less satisfactory than those which
relate to the difference to which the above passage alludes.
But the difficulty vanishes when it is understood that the
laws of war upon land are mere customs which by simple
disuse become obsolete, and thus are readily changed with
the changes in the minds of men. But the laws of maritime
warfare are true laws, and, therefore, admit of no such easy
change. They depend upon principles which have been
exactly determined by a long line of great judges, and to
Avhich, until they are altered by competent authority, the
successors of these judges are bound to conform.
* "Oxford Essays," 1856, p. 120.
CHAPTER XX.
THE DECADENCE OF THE CLAN.
v!!} 1. Ill coiiiparinj^f the modern form of society with it^ stite
archaic form, two differences, at the very outset, present tends to
themselves. The foundation of the two forms is dissimilar, Dhiute-
and their history is distinct. Neither in origin nor in ^'^ "^"*
structure are they alike. The unit of mod ern society is
the in dividua l ; t.K ^ nnjf, pf nml ut if^ (^ on . m ly Ls the Hou sehohL,
Modern society is not simply the natural development of
archaic society. It is not by any process of internal change
that the genealogic clan has become the State. The
primitive social type was complete in itself. It had its own
nature, and its o^^^l evolution. But the final result of that
evolution is not the present political organization of Western
Europe. The constitutional government of Queen Victoria
is not, and probably could not be, the direct descendent of
a genealogic clan. Yet, that such clans and the associations
formed upon the model of them were antecedent forms (;f
.society to our own foriii, and consequently had their
influence in moulding it, there is, I think, no room for
<loubt. The (juestion remains, What were the steps of that
transition — what was the additional force of which, acting
upon tlie simple clan, oin- piescnt State i.s the resultant —
what the graft upon the old wil<l stock that has produced
the fruit of modem civilization ?
/riiLi .i nliucnce is fo jim l in the State. That form of
a.ssociation whicli, under the name of tlie State, I ha\e
454 THE DECADENCE OF THE CLAN.
endeavoured to describe — itself one of those forms of society
which was originally constructed upon the model of the
Household type — has included, has altered, and in favourable
conditions has assimilated, both the old clan system, and
also, although more slowly, the system of the Household.
Ultimately, in the ordinary course of its own development
it has substituted a political relation for the old bond of
union. As the new system increased in vigour and
activity, the old system gradually dwindled, and at length
fell into complete decay. Thus, without any formal
change, the old dead corporate system was almost insensibly
replaced by that living force which recognizes the full
freedom of individual action. I have, therefore, to show
that the State does in fact produce these changes, and to
describe the mode in which these changes have occurred.
The former contention requires little elaboration. It is
patent that the individual is the unit of modern society.
So entirely is this the case, that it requires no inconsiderable
mental effort to realize the existence of a different state of -
things. Modern society is emphatically political s ociety.
.It implies great jaggi-pgatfts of inrliyid uals living together ,-
under a central government, whatever may be its origin
-and its fnrrn Of this government, they recognize the
tutli o rity and they obey the comman ds. Their common
bond of union is that they are fellow-subjects of the same
sovereign. Each man is accountablg. f o r bis pnnilui^-i . n th a.-
law, and to the law only.. Within the limits of the law, he
may act, or forbear to act, as he pleases ; may gain and may
spend ; may accumulate property, and may alienate it for
such interest as the law allows, either during his life or
upon his death, without any legaid to any kinsmen or other
persons, and merely at his own will and pleasure. He has
to answer for his own conduct only, or for the conduct of
those persons who are under his direct control ; and he is.
STATE ACTION TENDS TO GENTILE DISINTEGRATION. 455
under no le^al oblij,'ation fo\;^ any misdoings of his brother,
or of his uncle. No such powers or immunities existed, or
could exist, in the clan system. They are absolutely incon-
sistent with the Gentile relation. In .the records of former
clan societies, in the description of such clan societies as
still exist, they are conspicuous by their absence. If they
be introduced into a clan, that clan forthwith commences
to break, up. In such circumstances, men live no longer by
custom, but by law; that is, they live under conditions
(littering, it may be for good or it may be for evil, but
certiiinly (littering, and that too always in the direction of
individual rights, from those which in the archaic society
prevailed. On the other hand, these powers and immunities
are directly produced by tlie action of the State, whether
judicial or legislative. In the proportion, too, that a
State ailvances towards perfection, it removes, except so
far as its own re(|uirements and the lindting rights of
others demand, all iinpediMients fioin the action of the
individual. Thus the freedom of individual action is found
in the State, and is not found elsewhere. Its intensity
is concomitant with the development of the State. If
it be intnjduced into a clan, it tends, as I have said, to
disintegrate that clan.
§ 2. Assumin g the State to have be en fully established The state
and its authority recognized, the questi on arises, w Tiatx>cntiic
(^^-^rfffect, if any, whether in tentional or unin^tentional, the
exercise of that authority produced upon the clans. -^On
^this subject the evidence mainly comes from Athens and
from Rome. In India there was no State. In Western
Europe the changes may have been due, and in many cases
cerUiinly were due, to the action of the highly-developed
Iloman law upon the cu.stoms of the Teutons and of the
Kelts. But at Rome, and to some extent, thoui^^li much less
456 THE DECADENCE OF THE CLAN.
distinctly, at Athens, the course of events may be tliml}'
discerned, by which, in the earliest cases of their conflict,
the rules of immemorial custom gave way to law. Apart
from their sacra, the principal secular ties among clansmen
were their community in land ; their duties of mutual
responsibility, assistance, and redress ; and their rights of
mutual succession. The first of these ties was necessarily
dissolved by the formation of the State. The clan land
merged into the public land. After the establishment of
the State, there is no trace of Ager gciitilis, except the
common tomb, as distinct from the Ager puhlicus. Further,
a Sgnoikismos, or integration of clans, implied the rights of
intermarriage, of common arable land, and of common
pasturage. As to the second of these ties, that of personal
solidaiity, if I may so call it, the matter is less clear. I have
said that at Rome, from the earliest known time, the State
superseded all other forms of protection. It is to the
"Jides Quiritium," and not of any other association, that
the injured citizen appeals for help. It is the State and not
the kin that punishes the homicide. Traces, indeed, of the
customary duty long lingered. At Athens, the law required
the next of kin to a murdered man to prosecute the
murderer. At Rome, the next of kin had the duty of
inflicting the retaliation in cases short of death. His
clansmen, too, assisted, with their sympathy and moral
support, an oflfender whose guilt they were unable to deny.
Public sentiment received a violent shock when, on the trial
of M. Manlius Capitolinus,* his brothers did not appear with
him in mourning in the usual way. This event, perhaps,
marks at Rome the supremacy of the political connection.
Its very success renders it difficult to trace the manner
in which the State obtained its victory. There is no
'' Livy, vi., 20.
THE STATE PERFORMS GENTILE FUNCTIOXS. 457
distinct evidence upon the subject, and avc must be content
with such hints as words and analogies suggest.
The Latin word for murder is ' pariculiiim.' This word,
the oldest form of which is written as I have spelled it, is
usually supposed to mean the killing of a father. Neither its
fonn nor its meaning supports this explanation. The deriva-
tives oi pater take the form oi patr, not of ^;«r. The word
was never limited to the murder of a father. Towards the
end of the Republic, the offence of paricide is defined by law*
as the killing of certain specified near relatives, including
cousins. Although the statute in question goes on to
include relatives by affinity and others, it suggests the
traces of the old Familia, or Mivg. Again, one of the
oldest meanings of ' pancidium is the murder of a
citizen. The etyuiological meaning of the word is the
killing of a ' [xir,' or equal. But ' 2>ares,' like the Greek
'O^dim.f and the 'peer' of Feudal Law, seems to have
meant members of the same Household or other association.
At the Persian Court the words ufio'wi and avyyetac were
synonymoiLsly ased to express a compliment similar to
that conveyed by Her Majesty when she addresses an carl
as her right well beloved cousin and counsellor. The
definition of ' peers,' in our old law books, is persons who
hold by the same tenure. Since the death of a kinsman and
the death of a citizen are thus expressed by the same term, it
is not rash to conjecture that, in a new relation, the same word
was used to express the same fact; and that all citizens were
regarded as kinsmen. That is, the nature of the original
political union was toestablish between all its membei'S — at
least, to a eei-tain extent — the same relations as those which,
by custom, subsisted between members of the same House-
• " Ixjx roiiijicia do r.iriciiliis," ii.c. .VJ. "Dig.," xlviii., 11, 1.
■f ovCt nuTi'if) nutCiuaiy «/ioi'/of ovCi Ti nulCfc
ovCi iiiioc itivucot:^ ictti tTutftoc tTuiftu). — J/i.sioil, 0pp. Di., 182.
458 THE DECADENCE OF THE CLAN.
hold or gens. This view is, I think, confirmed by the earliest
description of ' paricidiuin! The terms of the old law*
upon the subject, attributed to King Numa Pompilius, have
been preserved. " If a person wilfully murder a free man,
he shall be deemed a paricide." These words imply that
paricide was already a known offence ; and that this offence
was extended to the killing of any free man — that is, of
any Roman citizen. Thus the State regarded all its citizens
as members of a common clan ; and, as a clan in the like
case would have done, punished, in its own tribunal and
by a direct personal infliction, the slaughter of one of its
members by another member. From this action of the
State several consequences naturally followed. First,
there was no blood-feud. The State was the avenger of
blood ; and its command, like that of the Paiev fmnilias
in his domestic tribunal, was a sufticient authority for
the execution of an offending member. Second, there was,
for the same reason, no commutation or wer-geld. Such
an arrangement was a substitute for the feud ; and if there
were no feud, there could be no commutation. Third, the
State avenged its citizen, whether he was, or whether he
was not, subject to the ' Jus Privatum' that is to say,
whether he was sui juris- or a son in man it. But this rule
does not apply to the lawful exercise of the acknow-
ledged power of the Pater familias. Lastly, as the State
dealt with its citizens individually, and not in Households
or in clans, even while it recognized such associations,
its punishment fell upon the offender alone, and not upon
any person connected with him.
In England, f the joint liability of the kin continued, at
all events, up to the Conquest. The old rule is stated very
* Si quis hominem liberum dolo sciens morti diiit, paricida esto. —
Festus.
t See Kemble's "Saxons in England," vol. i., pp. 261-277.
THE STATE PERFORMS GENTILE FUNCTIONS. 459
concisely in the laws of Edward the Confessor — -" Let
amends be made to the kin, or let their war be borne."
Many attempts were made to control this custom. Alfred,
while he seeks to regulate it, acknowledges in the plainest
terms the fjeneral rule. The most vi<jorous efibrt at re-
pression seems to be found in the laws of King Edmund
abi)ut the middle of the tenth century. The king, with the
counsel of his witan, recites that " both I nnd all of us
hold in horror the unrifjhteous and manifold tii;htini>s that
exist among ourselves." He then proceeds to enact that if
any man slay another he is to bear the feud himself, unless
within a year his friends assist him to pay the full v:ci:
But if his kindred forsake him and will not pay for him,
all the kindred are to be uvfd/i, exempt from the feud,
except the offender himself. If, however, any kinsman
subsecjuently harbour the offender, such kinsman thereby
makes himself a party to the feud. It is probable that this
enactment meant a total foris-familiation, or dismission of
the offender from the Mveg. It certainly failed to put an
end to private war. But in all these attempts at reform
tlie presence of the sanction is noteworthy. It consists in
what was technically called " rearing the king's inund ;"
that is, in setting up his protection. The form of this
process appears in the law of King Edmund, which 1 have
ju.st cited. " But if any of the other kindred take
vengeanc<' upon any man sa\"t' the actual perpetrator, let
him l)e foe to the kinj; and all his friends, and forfeit all
tliat he ]ja.s." Two circumstances thus tended to break
down the liability of the kin, and con.sequently, so far as
that liability was its cause, of private war. One was the
j;radual substitution of the neiy:hbourhood for the clan, of
tlie iwah In'ir for the ncah riKty. The other was the
incrca.se of the king's power, and the consequent increase in
the value of the king's peace. Private war, indeed, was
460 THE DECADENCE OF THE CLAN.
tolerated to a later period * in our legal history than
perhaps is usually supposed ; but the recognition of men's
single responsibility must, I think, have been effected with
the full establishment of the royal power. It also deserves
notice, that, when the royal authority was weak, it spon-
taneously reverted to the practice of collective responsi-
bility. Thus, after the energetic attempt of King Edmund
that I have mentioned, yEthelred,-f the ill-advised, sought
to secure the peace which he could not maintain, by
enacting "that if a breach of peace be committed within a
town, let the inhabitants of the town go in person and take
the murderers, alive or dead, or their nearest of kin, head
for head." So late as the year 1581,j the Scottish legisla-
ture, in dealing with certain troublesome Highlanders, made
a whole clan answerable for the misdeeds of its individual
members ; and in another statute, shortly afterwaids, the
chief of each tribe was made responsible for all the offences
of the surname. It may, therefore, be affirmed that the
State union tends to supersede the Gentile union, both as
regards common property and as regards guaranteed pro-
tection. I have, therefore, only to consider the right of
mutual succession, or, rather, of ultimate I'eversion.
I have already noticed the old Koman rule of succes-
sion. In case of intestacy, the succession went first to
the lineal descendents ; failing them, to the next agnate ;
failing him, to the Gentiles. This rule excluded not
only all relatives through the female line, but even all
* "It was said by Lowther that if Hugh and Henry be botli one side in
time of war, and during that period Henry enfeoff Hugh of his land, the
feofifment is good ; for the reason that, although it be a time of war as
between the opposite parties, yet, nevertheless, to those who are on one
side it is sufficiently time of peace — which is false." — Year Book, 20 and 21,
Ed. L, p. 156.
t See Kemble, ubi siqtra, p. 264.
t See "Eraser's Magazine," April, 1S78, p. 480.
THE STATE PERFORMS GENTILE FUNCTIONS. 461
those ' Sid heredes,' such as an emancipated son, who had
passed beyond the limits of the Household. It is note-
worthy that the earliest construction of the words of the
Twelve Tables was highly favourable to the gens, at the
expense not only of these outside relatives, but of the
agnates. The words ' Prox units Agnatiis' were construed
strictly, and were held to describe a person, not a class.
If, therefore, the ' Proxhnus Agnafan' declined to accept
the succession, or died before he had intimated his accept-
ance of it, the agnate next to him did not take his place,
but the right of the Gentiles became at once vested. It is
also remarkable that the Privtor, when he admitted the
cognates and the emancipated children, never gave the
agnates any relief from the effects of this harsh interpretation.
But at some period, of which the date is not known, the
Pni'tor by his edict established a new system of suc-
ce.s.sion. He could not, indeed, make an heir,* nor couLl
he directly unmake an heir. But by an ingenious fiction
he introduced various new classes of heirs in such a manner
as practically to render inoperative the Gentile rights.
His method was to give to the persons he favoured the
goods of the deceased ; and to maintain them in such
possession for a year, or in the case of land for two years,
at the end of whicli time the Roman customary law
operated to give the possessor the full legal ownership.
The parties who were the objects of the Pmetorian favour
were, fii-st, the ' Su/i hercdrn' vrho had quitted the House-
hold, and next the cognates generally. Thus, although the
old customaiy law was unaltered, the rights of the Gentiles
rarely in fact accrued, and in coui-se of time died out from
disuse. Sucli a cliange was, by its nature, gi'adual ; and its
date, therefore, canncjt be precisely fi.\ed. An attempt, how-
• "Oaiu-s" iii., .'?-2.
462 THE DECADENCE OF THE CLAN.
ever, may be made to approximate to it. Gaius* speaks of
the ' Jus GentiUclmri ' as having become, in his da}^ a
matter of mere antiquarian intei'est. On the other hand, in
the second Punic war,"|- their clansmen desired, in accord-
ance with their Gentile duty, to ransom the prisoners who
had been taken by Hannibal, and the Senate forbade them
to do so. This case is remarkable, both because it proves the
continuance of the clan duty to so late a period, and because
it shows that the State did not hesitate, even on so tender a
point, to control the action of the clan. From a case mentioned
by Cicero,:J: it appears that in his time the entire subject of
Gentile rights was discussed in the courts. Unfortunately,
he gives us no information upon the matter, except that the
case arose upon a disputed succession to the son of a
freedman. The tone of the whole passage seems to indicate
that the question was one of old law, and was not of
frequent occurrence in ordinary practice. If, as Niebuhr §
thinks, the judgment were given against the Gentile claim,
the decision would doubtless have accelerated the tendency
which we are considering. To me it seems that the legisla-
tion of Augustus marks the final catastrophe of the gens.
By the ' Lex Julia ' || — that is, the great statute or
collection of acts known as the ' Lex Papia et Poppmt ' —
vacant inheritances went to the people ; in other words, the
State was established as the ultimate reversioner, in place
of the clan. Thus, although the law of the Twelve Tables
was not in terms repealed, the rights of the Gentiles finally
disappeared. They had no claim so long as there were any
cognates ; and under the new law, when the cognates failed,
the State interposed. In name, the 'Jus Gentiliciu')n'
* iii., 17.
+ See Niebuhr's "Hist, of Rome," vol. i., p. 317.
J "De Oratore," i., 39,
§ " Hist, of Eome," vol. i., p. 321.
II "Ulp. Reg.," xxviii., 7. "Gaius," ii., 150.
THE STATE PERFORMS GENTILE FUXCTIONS. 463
remained ; but nothing was left upon which it could
operate.
The changes which, at Rome, were produced by the edict
of the Pnetor, were effected at Athens 1 ty direct legislation.
I have said that, in the latter State, the rule of succession
was substantially the same as that in Rome, and, indeed, in
all Aryan communities. First came the children ; then the
near agnatic kin, including always the first and usually
the second cousin ; thirdly, the clan. But after the Pelopon-
nesian war, the cognates succeeded in establishing their
claim, even though the ultimate reversion of the State was
not asserted as it was in Imperial Rome. The text of the
Athenian law, which takes as its commencement the famous
archonate of Eukleides, is still preserved in one of the
private orations * of Demosthenes. In effect it directs the
succession, on failure of children, in the following order : —
1. To brothers and their sons j9e<' stirpes; 2. To relatives
up to the degree of second-cousin by the father's side,
prefen'ing the male line ; 3. To relatives on the mother's
side up to the like degree ; 4. To the nearest of kin on the
father's side. There is here a process similar to that of
Rome, namely, the relaxation of the old rule Ity the intro-
duction of a new class of relatives, not representing, as the
old principle recpiired, the spirit of the founder ; and the
consequent reduction to a miiiiiiuiin of the chances of
Gentile succ&ssion. On the whole, then, it appears that the
clans gave way as the State advanced : that the last secular
bond of Gentile union was the right of succession ; and that
the right of succession was gradually undermined by the
authority of the officers of the State, or by its ])ositive
command.
An answer can now, I think, be given to a question that
* Against Makartatus.
464 THE DECADENCE OF THE CLAN.
presents itself on the threshold of Roman law. It was,
undoubtedly, as Mr. Poste observes,* "the policy of the
Prsetors," to encourage the cognates at the expense of the
agnates. But why should the Praetors have adopted this
policy, and why should they so persistently have pursued
it ? The Pr?etor changed from year to year, and the
new Prsetor was not bound by the edict of his predecessor.
Yet, for generation after generation, the edicts continued to
evade the customary law, and to secure the succession
of the cognates. Some writers tell us of natural love
and affection ; but, in the first place, these feelings permitted
the establishment of the system which they are assumed to
have overthrown, and so cannot have been inconsistent with
it ; and, in the second place, it was upon the remoter and
not upon the more immediate relatives that the Praetor's
change principally operated. Nor can the change be
attributed to the extension of Stoic principles, for it had
commenced before the Romans had even heard of the
philosophy of the Porch ; and that philosophy, although it
furnished a theory for an existing practice, could not, and
did not, originate the practice. Nor will Mr. Poste's-f*
suggestion suffice, that the ' possessio honorum' sprang from
that wrongful i^ossessio (pro possessore) which, as Gains |
tells, was originally given to secure the uninterrupted
performance of the Household sacra. This theory, at most,,
serves to explain the method which the Prsetor adopted, but
does not account for his motive in habitually converting the
possession of certain persons excluded by customary law
into actual ownership. Nor will any of these explanations,
account for the Pmetor's indifference to the moral claims of
the second agnate. But when it is remembered that the
Praetor was the officer of the State, and was bound to
* "Gaius," p. 314. t "Ga-.us," p. 191. i ii., 15.
THE STATE PERFORMS GEXTILE FUNCTIONS. 465
promote its interest, and that the agnatic brotherhood was
a rival very near the throne, an intelligible principle for his
conduct can be discerned. It is, indeed, probable that the
rule of cognate succession, like all the ' Jus Pnetoriivin'
had its origin outside the Household ; but there was
naturally a large class to whom its extension was accept-
able, and a sound public policy pointed in the same
direction.
8 3. The Household was much more compatible with Trausitioa
political authority than the clan. It, consequently, long porate to
iifii 1 pir^ 1 • 1 f IndiTidual
survived the lull ascendency or the btate ; and it left, at Owner-
least in Roman law, deep traces of its influence. The "
principle of universal succession, the principle that no
acquisition could be made by means of a stranger, the
consequent retardation of the natural growth of agency,
and the whole doctrine of the Patvia Potestas, are all due to
the original conception of the Household as a corporation.
Yet this corporate Household was inconsistent with full
social and political development, and slowly and gi-adually
broke asunder. Its disintegration was caused, not by any
single influence, but by the concurrent eflect of various
causes. The process may be described in general terms as
an alteration in the position of the Pater faniilias. In one
direction his powei's were greatly extended ; in another
direction they were greatly abridged. On the one side the
State gra<lually discharged the trusts upon which the Pater
fiirnUias held his property, and, consequently, the restrictions
upon his enjoyment of it. On the other side it strictly
limited the exercise of his authority over the pereons of his
Houschfjld. Thus, the history of individual property and
the history of personal lil)erty coincide. Both of them
resulted from the disintegration of the Household. The
House-master stood forth secure in his property, but shorn
31
466 THE DECADENCE OF THE CLAN.
of his power. The dependent emerged from the ruins,
penniless, but free.
" The partition of inheritances,* and execution for debt
levied on land, are destroying the communities — this is the
formula heard, now-a-days, everywhere in India." The like
forces were in more or less active operation in Rome at the
time of the Twelve Tables. Those Tables recognized the
partition of inheritances, the sale of the property of the
Household, and the power of testation. As to the partition
of inheritances, we have already seen that the principle was
recognized by custom, and was indeed essential, at least
within certain limits, to the growth of archaic society. But
it was a serious matter to establish a new Household, with
its peculiar sacra, for the continued maintenance of which
provision must have been made. The process of separation
was probably, therefore, slow and difficult, and required
the consent of all parties concerned. The interference of
the State gave precision to the vague customary duties.
The rule was established, that no person could be retained
in a partnership against his will. A process, which was at
least comparatively prompt, was devised for ascertaining
the amount of each partner's share, and of winding up the
affairs of the partnership. So, too, actions were given for
the partition of individual property, and for the settlement
of boundaries. Little is known of these proceedings ; but
they belong to the older period of the history of Roman
law, and it is not unreasonable to suppose that their
tendency was similar to that which we know that similar
measures produce in other countries at the present time.
The sale of the Household estate was a grave matter.
Originally, as I have said, it was probably prohibited, or
perhaps I should rather say unheard of. It was then
* Sir H. S. Maine's "Village Communities," p. 113.
TRANSITION OF OWNERSHIP. 467
allowed with the consent of the community, who, as the
ultimate heirs, had a direct interest in such a transaction.
Gradually, as the exigencies of social life grow urgent, it
was considered that such sales miijht be made in cases of
extreme necessity, or, as in India, of failure in business. In
Ireland there appears to have been a special tribunal, whose
duty it was to decide upon the existence of the alleged
necessity. The tomb was excepted from the sale, and, if it
were possible, the hearth. Still the sale would be effected,
but only in a particular form and with the consents of
specified persons. This customary mode of sale was, in
Roman law, called mancipation, or, from the ceremonies
used in it, sale by the bronze and balance. Tlie transaction
was attested by five witnesses, who may have been, or have
represented, the parties whose consent was required. The
authority of the State furnished a simpler an<l perhaps a
safer method. This method,* which was one of the Roman
' Legis Actiones,' or forms of procedure recognized by the
Twelve Tables, was styled " In Jure Cessio." It was, in
effect, a collusive action before the Prretor, who, upon the
defendant admitting the claim, adjudged the property to
the plaintiff. At a later period, when the consent of the
five witnesses was reduced to a form, the mancipation
became practically the easier process, and superseded in its
turn the fictitious sun-ender. But the assistance of the
State had done its work, and alienation had become
habitual and comparatively easy. With regard to the
power of testation, there is a distinction to which I have
previously adverted, and which it is important to note.
A testament was at one time a means for continuinfj the
universal succession ; at another time it was a means of
distributing the testator's property. In the language of
• "Gaius'ii., 24.
468 THE DECADENCE OF THE CLAN.
Roman law, it was either a method of appointing a 'Heres '
or universal successor ; or it was a method of providing for
the payment of legacies or charges on the property. How
the one object was related to the other, or by what steps
the modern will was developed, I must, since I am not
writing the history of law, resist the temptation to discuss.
That which is material for my present purpose is, that the
will is distinctly the creature of the State. The true will
is found only at Rome, or, if anywhere else, at Athens ; that
is, it is found in those countries, and at that period of their
history where and when the State was developed ; and it is
not found in any Aryan community while it remained in
the clan system. But Solon's will was a clear innovation
by legislative authority upon clan custom. As to the
Roman will, it is enough to cite the words of the " Digest"* —
" Testament i f actio nonjyvivati sed ^nihlici juris est." There
is, however, another aspect of this power. In matters of
succession, we are so accustomed to look to the powers of
the decedent, or to the gain of the successor, that we forget
that that successor has not only rights, but duties. It must
be remembered that, by the custom, a Filius familias, or
other person inmanu,'f' could not, if he were required to act,
refuse to be his father's heir, and that it might be very
disadvantageous to him to be so. The heir was the universal
successor — that is, he succeeded to all the liabilities, as well
as to all the rights of his ancestor. If, therefore, the estate
were insolvent, he succeeded to what the Roman lawj^ers
emphatically called " damnosa hereditas." His liabilities
were not confined to the assets that he received, but he was
bound to pay all the debts :{: of the deceased, even if there
were no assets at all. The reason was, that the Familia, or
property of the Household, belonged to a corporation ; that
* xxviii., 1, 3. t "Gains," ii., 157.
J " Dig.," xxxviii., 1 3.
TRANSITION OF OWNERSHIP. 4G9
the corporation was bound by the acts of its Pater, or
manager for the time being ; that the successor was a
member of the corporation, either indicated for that office
by custom, with or without the sanction of law, or appointed,
by virtue of a power conferred on him by law to make such
nomination, by the late Pater ; that, as such member of the
corporation, all his acquisitions while he was in maniL
formed part of the common fund ; and that he took the
property as he found it, subject to all the proceedings of his
predecessor. Such was the rule of innnemorial custom ; and
this custom was accepted and enforced by law. But Gains *
states that " the Prjetor permits them (i.e., the heredes iieces-
^arli) to abstain from the succession, so that the goods of
the parent may rather be sold." There is no information as
to the time when the Prtetor first introduced this " henefi-
cmm ahstinendi," as it was called. Whatever may have
been its date, it marks another distinct step in the disin-
tegration, by the operation of law, of the archaic Household.
There is a peculiarity in archaic procedure which has
been often noticed. The remedy against a debtor f was
always personal. A creditor could seize his defaulting
debtor, imprison him, and treat him as a slave ; but he
could not enter his house or sell a foot of his land. The
reason of this apparent anomaly is sufficiently clear. The
land belonged to the Household, not to the individual
debtor ; and a sale of the holy hearth and its belongings
could not take place without grave injury to the sacra.
The State, indeed, might, for its own debts, and then for
the most part l)y way of punishment, sell out a citizen ; but
in a transaction between party and party, neither custom
nor law sanctioned so extreme a coui-se. At first the
• ii., 158.
t See Mr. Hunter's " Roman Law," p. 73, and tlic authorities there
collected.
470 THE DECADENCE OF THE CLAN.
Praetor ventured to interpose his authority when, by the
conduct of the debtor, the ordinary remedy against him
was not available. If, without appointing any person
to act on his behalf, the debtor left the jurisdiction, or if
he hid, the Pr?etor had recourse to his favourite mode of
operation through the Possession. He gave the creditor
possession of the defendant's goods, subject to such con-
ditions as the justice of the case required ; and in due time
possession ripened into ownership. It is noteworthy that,
although he thus assisted the creditor, the Praetor never
ventured to interfere on behalf of the debtor. The first
attempt to introduce the modern principle of insolvency —
not merely to substitute a remedy against the goods for a
remedy against the person, but to close the whole transac-
tion by applying, so far as they would go, the existing
assets to liquidate the existing debts — was due to the great
Julius. It is probable that Augustus carried into effect the
unfinished policy of the Dictator. Ultimately, under
Antoninus Pius, judgment debts were enforced directly by
the seizure and sale of the debtor's goods by public
officials.
§ 4. The influence of the State upon the authority of the
House Father over the members of his Household needs
not detain us long. No State is likely to permit to any
person the uncontrolled power of life and death over
its subjects. Thus, in India, as I have said, the British
Government never even listened to the claims of the natives
to exercise their paternal power. In early times, the as-
sertion of the supremacy of the State, even within the
sacred precinct, was necessarily gradual and slow. It was
in Rome that the paternal power longest survived ; and it
was in Rome that the authority of the State was most
vigorous and complete. It will therefore suffice if I briefly
LIMITATION OF THE HOUSE FATHER'S POWER. 471
naiTate the principal events in the histoiy of Roman
Family Law.
With regard to wives, although cases, even under the
Empire, occuiTed where the husband acted as a domestic
judge, yet, in the later periods of Roman history, there are
no examples of any severity of marital discipline. This
circumstance may be explained by the fact that wives were
rarely married so as to come within their husbands' manus.
Mainly from considerations affecting the property of the
wife, the old religious marriage had fallen into disuse.
Under the method which took its place, means were found
to prevent the usual power from attaching to the spouses.
The wife remained in the Household of her birtli, under
the manus of her Pater familias or other agnate, and
thus was not amenable to her husband's jurisdiction. In
these circumstances, the remedy for any domestic mis-
conduct was divorce, a remedy which was obtained as
easily as the marriage itself was effected. The mamage
tie was, indeed, looser at Rome, towards the fall of the
Republic, than it has been in almost any other Aryan
community. It was against this merely nominal marriage,
if so transient a connection deserve at all the name, that a
violent reaction set in under Christianity ; and it is
probable that a desire to revert to the old confarreal form
had a material effect upon the teachings of the early
Church. However this may be, this change must have
seriously modified the archaic Household. One of its
principal members was gone. The ' Uxor' of late days,
tlic mere 'woman in the House,'* could never, in a
religious aspect, have filled the place of the Mater familias.
The earliest limitation of the power of the father over
the chiMren is contained in tlic Twelve Tables. It is there
• Sec Fick, " Wurtcrbuch," p. 23.
472 THE DECADENCE OF THE CLAN.
provided, that " if the father sell his son three times, the
son shall be free from the father." From a passage in
Gains,* it has been inferred that the census, which took
place every five years, freed all persons thus sold, except
those who were surrendered in satisfaction of damage done
by them, and those who for purposes of emancipation were
the subjects of a fictitious sale. In this view,-f- the effect
of the enactment would be to limit the father's power of
sale to a maximum term of fifteen years. There is, how-
ever, no definite information on the subject. We only
know that, except in the case of infants immediately after
birth, the power of selling, giving or pledging children was
taken away by Diocletian and his successors ; and that the
power of surrender in lieu of payment of damages had
become obsolete before the time of Justinian, and was by
him formally abolished. As to the power of life and death,
Alexander Severus provided that the magistrate should
hear the father's complaint, and if the son were found
guilty, should execute upon him the sentence which the
father demanded. Constantine included within the mean-
ing of the law relating to paricide, the killing by a father
of his son ; a case which, in the first Statute of Paricide,|
three hundred and seventy years before, had been carefully
omitted. About half a century after the law of Constan-
tine, by a constitution of Valentinian Valens and Gratian,
the old power of exposing children was taken away ; and
the duty of every parent to rear his offspring was declared.
The law extended its protection to slaves, probably
because the necessity was more urgent, at an earlier period
than it did to sons. In this case, also,§ it was under
the Emperors that the improvement began. A ' Lex
* i., 140. + See Mr. Poste's "Gaius," p. 116.
+ " Lex Pompeia cle Paricidiis," B.C. 52.
§ See the authorities collected in Mr. Poste's " Gaius," p. 63,
LIMITATION OF THE HOUSE FATHER'S POWER. 473
Petronia' oi uncertain date, but probably in the reign of
Augustus, forbade the exposure of a slave to wild beasts
without the permission of a magistrate, and restricted such
permission to the case of slaves guilty of some grave
offence. Claudius forbade the killing or the exposure of
sick slaves. Hadrian forbade the mutilation of a slave, and
took away the power of killing him without a judicial
sentence. Antoninus Pius protected slaves against cruelty
and personal violation. Finally, Justinian prohibited any
severity to slaves, either excessive in degree or for any
cause not recognized by law.
§ '). Milton, in his description of the terror and dismay The disin-
which, on the eve of the Nativity, were spread among the influence
powers of darkness, notices,* though casually and as ofanity.
small account, the Lares moaning with their midnight plaint
upon the holy hearth. Good cause, indeed, had the Lar to
moan ; and yet his importance in the new warfare, obscure
as he seemed, was far beyond that of those more pretentious
deities of whom the poet sings. Ever since that memorable
nifjht there has been between the Lar and the Church
a war without parley and without truce. In the East
the Lar to this day obstinately maintains his ground. In
the West he has l)een remorselessly hunted down. I need
not repeat the evidence, which in an earlier chapter I have
offered, to show the war of extermination which the Church
rMvpi.'d nn flfrnlns t the Household worship^ and it^gencral
success. But this worship was thr- foundation of archaic
societ y; and when the old I'Lliti'^s were thus destroyed, the
_8<)cial s uperstructure could no longer stand. Nor was this
all. The precepts on which the Church daily insisted were
antagonistic to the most cherished principles of the clan.
• " Hymn uf the Nativity," xxi.
474 THE DECADENCE OF THE CLAN.
The God of the Chrivstians was no mere Gentile deity, who
confined his favours to his own , people. The dream of
the Hellenic poet had assumed a definite shape, and the
description of the Pantheistic Zeus was applied in a sense
which its author would hardly have regarded as possible.
All men were alleged to be of one blood, ' for we are his
offspring.' So long as this view was confined to mere
theory, little regard was paid to it. But it was a hard
thing for a Eupatrid to sympathize with a deity who
was no respecter of persons, and in whose eyes a
slave might be of equal or greater worth than a man
who, like Hekatseos, reckoned sixteen ancestors, and
the seventeenth was a god. To the clansman, blood-
revenge was the most imperative of duties j and the
resentment of injuries was a sacred obligation. How, then,
could he forgive his enemies, and pray for those that
despitefully used him? Furt her, the whole theory and
p ractice of Christianity impE erl the recognition^^of the
individual man, and the value of the si ngle human^soul. It
in volved rights and duties which could not be subordinated^
to the commands of the House Father. It did not merely
ignore the Gentile relations, or introduce a tendency to
disobedience into the Household ; it was directly antagon-
istic to them. No Christian man could make the daily
offerings to the Lar, or take part in his Gentile sacred rites.
He therefore ceased to be a member of his Household and
of his Gens ; and his rights and duties were limited to the
members of his new association. So strong was the old
feeling that, within that society, and subject to its rules, the
principles of Gentile organization were sometimes applied.
But there must always have been fundamental differences
between a Christian Church and a true clan.
In those cases where the Roman law had disintegrated
the archaic society, Christianity supplied a pressing want.
THE DISINTEGHATING INFLUEXCE OF CHRISTIANITY. 475
The State had taken the place of the clan. But in the State
there was no place for women or for children or for slaves .
Fjom these cl asses the protection of the Lar was practi-
cally withdrawn, and the protection of the State was
not yet gi'anted to them. It was natural, therefore, that
they should welcome a religion which gave to them nut only
protection, but a social position and consideration nmch
beyond anything to which they could otherwise aspire.
Perhaps these considerations may account for the fact
which has often been noticed, that it was in towns* that
Christianity was most successful ; and that it was in the
remote country districts, in the Pagi and among the
Heathmen, with the Pagans and the Heathen, tliat its
advance was slowest. No allowance for rustic stupidity, or
for the keener intelligence of city life, will entirely explain
these facts. Other religions have made rapid progress in
country districts. Nor is the acceptance of Christianity a
purely intellectual process. In every great religious change
some event must have shaken public confidence in the old
system before men are prepared to accept the new. That
event had occurred in the towns, but was slow in reaching
the country. It was the breaking up of the old clan system
by the exercise of the Proconsular jurisdiction. The
Lycian Orontes had long poured down its turbid flood into
the Tiber ; and even among Romans of pure descent, the
Gentile organization, as I have said, had been in ertect
abandoned. The ' Edldmn Pruinnciale' had made its way
to every gi'eat town in the empire, and that edict meant
true law. Where that great sulvent had been applied, the
Christian Church found a ready field for its operations.
In every Household many were eager to accept its
teachings ; few cared much to oppose them. Opposition
• See Dr. Smith's "Gibbon," vol. iii., pp. 422, 420.
476 THE DECADENCE OF THE CLAN.
the Church had, indeed, to meet* in the public worship, in
the classes that were dej)endent on that worship, and in the
countless minor difficulties which arose from the extent to
which the old religion permeated every form of ancient life.
These, however, were difficulties that might be overcome,
and were very different from the stolid vis inertice of the
worship of the Lar, In the depths of the country districts
the old Household organization held its course, careless of
the changes above its head, and safe in its obscurity from
the lictors of the Proconsul, and the subtilties of the
advocates. There, too, the old kindly system of domestic
servitude continued ; and the want of change was not so
keenly felt as it was in towns, or in those parts of the
country where the system of the slave-gang had been
established.
It is material to distinguish between the principles of
the Christian religion and that gi'eat organization which is
known as the Christian Church. Both were powerful
social forces, but they operated in different modes. I have
hinted at some of the effects of the former. Of the latter I
can now but very briefly speak. In the troubled times that
followed the long decay of the Roman Empire, the Church
was the sure refuge of every form of literature, and of
peaceful art. Churchmen were the confidential advisers of
the Kings of the Barbarians, because their class had, and
for a long time continued to have, a monopoly of culture.
But these ecclesiastics were trained in the Roman law, and
their administration, under this influence, tended both to
strengthen royalty and to disintegrate the clans. Further,
the Church itself required, for its own purposes, the assist-
ance which the Roman law alone could give. The Church
depended for its income upon the gifts of the pious. It
* See Professor Blunt's " Hist, of the Christian Church during the First
Three Centuries," p. 149, et seq.
THE DISINTEGRATING INFLUENCE OF CHRISTIANITY. 477
would naturally look with much disfavour upon any claim
made by the next agnate, on the ground that the property
given or promised or bequeathed l)y the pious Pater familias
belonged not to him, but to his Household. The Imperial
Jurisprudence, the highest result at that time of the trained
intellect, and the object of enduring reverence alike to
Roman and to Barbarian, contained principles which exactly
met their difficulties. Accordingly, in dealing with those
people among whom the archaic customs prevailed, the legal
ecclesiastics * gave to some of the later principles of Roman
law a powerful impulse. Under their hands the contract,
the trust, the will, and consequently the separate o^^^lership,
were gradually introduced. Without these agencies the
endowments of the Church could not be secured. With their
assistance the whole Gentile system of property, and all that
depended on that system, were sooner or later doomed to fall.
One great portion, then, of the influence of the Church as
an agent in European civilization has been indirect. That
influence has been exercised, not in the capacity of Church,
but because churchmen were also lawyers and men of affiiirs.
In other words, the Church was the medium through which
the Roman law was brought to bear on the clans. To this
circumstance is, in a great measure, due the difference
between the political results of Mohammedanism and of
Christianity. Both these creeds, after their first success,
presented themselves to their converts not merely as a
religion but as a system of law. Wherever they extended,
they destroyed or inoditied the old clan relations. But, in
the ca.sc of Mohannnedanism, the law was an essential part
of the creed, and that law was based on the narrow and
inconvenient rules of the Koran. This foundation secured
the permanence of the system, but it also repressed its
• Sec Sir H. S. Maine, " Early Hist, of Inst.," pp. 5G, 104.
478 THE DECADENCE OF THE CLAN.
natural growth. In the case of Christianity, the law was
no part of its creed ; it was, indeed, foreign, and even
hostile, to its Jewish antecedents. But the creed acci-
dentally became the means of carrying a legal system with
it, and that system was the matured wisdom of the Imperial
code. Thus, the Mohammedan law was itself the product
of a lower culture, and was inconsistent with progress. The
law which accompanied the Christian Church was one of
the greatest efforts of the human mind, and admitted of
indefinite improvement. Further, where the Church did
not take with it the Roman law, its results were different.
The primitive Keltic Church adapted itself to the clan system,
and seems not to have materially affected the structure of
its society. But no Clan Church, if I may use the expression,
has ever been able to maintain itself in competition with
the definite organization and the vigorous impulses of the
Churches that were founded on the model of the Empire.
The rise § G. The modern nation is thus of comparatively recent
Modem date. The rise and growth of each nation form&ithe_proper_
subject of its own special history. But whatever variation
these nations may severally present, they have all a common
ancestry. M. Guizot* pointed out that there are three great
factors in European civilization, and that these are the customs
of the Barbarians, the Christian Church, and the Empire of
Rome. This analysis may be expanded, and worked out in
detail ; and as our knowledge of each separate element
increases, their reciprocal influence will also be better under-
stood. The general proposition, however, appears to be
indisputable. M. Guizot complains f of the difficulty
attendant upon any detailed examination of the extinct
customs of the Barbarians. Since he delivered his famous
lectures, materials not then available have been collected ;
* " Civilization in Europe," Lecture II. t Ih., vol. i., p. 39.
THE RISE OF THE MODERN NATION. 479
and the preceding pages attempt, in ^me slight degree, to
supply the deficiency which he_lamented. His expression,
*' the customs, of the Barbarians," must be taken to. include
the principles of commendation and of neighbourhood. But
it miLst not be forgotten that these principles could not of
themselv^es have produced the results to which they have so
largely contributed. They needed the magnificent precedent
of the Empire and the accumulated experience of the jurists.
Nor could the latter influence have been practically available
without the assistance of the Church, and the services of
those learned officials whom the Church, and the Church
alone, was then able to provide. Thus the Empire furnished
the law, and the Church furnished the lawyers, by which,
and by whom, the customs of the Barbarians were insensibly
changed ; and both the Empire and the Church presented
that high organization, and that spectacle of centralized
activity, which made so deep an impression upon the
Barbarian mind. We justly count among those victories
which changed the destinies of the world the defeat of
Varus ; and, to the Teutonic mind, the Hermanschlacht
ranks with Marathon. But Teutons though we be, we are
equally bound to rejoice in the great victories that Caius
Marius won over our ancestors at Aqu;^ Sextiii>, and on
the Raudine Plain. If Herman saved Northern Europe
from becoming Romanized, and so preserved one main
clement of our civilization, so Marius, the precui-sor of
the Ca\sai's, rendered possible the Empire. It was Im-
perial law and Imperial tradition, and not those of the
Republic, that shaped the history of modem Europe.
It was the consulate of Constantino, and not the consulate
of the Scipios, that seemed to the Barbarian cliiefs* the
• Writing of TliecMlosius, the flotliic liistorian says : — " Factus est consul
<inlinariiiH <iiio<l Ruiniiniiii bouuiii priiiiuiiujuc in nmiulo ilccus cdicitur." —
Jonrnnil'H df Rih. Hit., c. ^7.
480 THE DECADENCE OF THE CLAN.
summit of human ambition and the highest crown of earthly-
glory. It was the law of Justinian, and not the law of
Cicero, that — more effectually than, in its day, even Hellenic
culture had done — took captive its rude conquerors. It was
the centralized Church, and not the isolated churches of the
several tribes, that administered that law and built up the
modern kingship. It is idle to speculate upon what, in
totally different circumstances, might have happened ; but
it is not too much to assert that, if the Teutonic clans, two
thousand years ago, had settled, after their usual fashion, in
Italy, modern civilization might never have arisen ; and
that, if it had arisen, its course would certainly have taken
a different direction.
Few subjects have caused to historical students more
difficulty than the division of history. The old division into
ancient, mediaeval, and modern, has long been abandoned.
The division was hopelessly indistinct, for no person could
tell where the one ended and the other began. - Further, no
mere chronoloo-ical arrancfement is sufficient to indicate the
social changes which true history must describe. The time
depends on the changes of structure, not the changes of
structure upon the time. Hence every attempt to draw the
line between ancient and modern history has been, and must
be, unsuccessful. The ordinary division, which was certainly
incorrect, was at the extinction of the Empire of the West.
Dr. Arnold, with greater historic insight, drew the line at
the coronation of Charlemagne. Mr. Freeman would, I
think, accept this division. Mr. Hallam, for at least
Byzantine history, selected the reign of Heraclius. " That
prince," he observes,* " may be said to have stood on the
verge of both hemispheres of time, whose youth was crowned
with the last victories over the successors of Artaxerxes^
* "Middle Ages," vol. ii., p. 112.
THE RISE OF THE MODERN NATION. 481
and whose age was clouded by the first calamities of
Mohammedan inva,sion." Mommscn* has proposed a new
and original division. He wishes to divide history, not by
years, but by locality. In his view, history is the history of
civilization on the Mediterranean, and the history of civili-
zation on the ocean. But a true division of any organism
ought to rest upon some characteristic of structure, and not
upon any accident either of time or of place. To me it
seems that Aryan history includes both the history of
Gentile society among the members of the Aryan race, and
the history of political society. The Clan and the State are
its two leading features^ Gentile history is the history of
the Clag L Political history is the history of the State.
* " Hist, of Rome," vol. i.. p. 4.
INDEX.
Acquisitions, distinguished from inheritance, 235, <t -leq.
Adojjtion, process and etfects of, 27, 104 ; limitations upon, 105 ; intended
to benefit adopter, not adoptee, 107 ; a means of providing for
younger sons, ih. ; of women, 56, 300.
Adultery, wliy treated differently in men and in women, 211.
Agnate, nearest, duties of, 135 ; phrase, how construed at Rome, 461.
Agnati, how distinguished from Gentiles, 167 ; distinction of, in India, 16S;
and in Persia, 169; and in (ireece and Home, ih. ; and among
Teutons and Slavs, 170; and Kelts, 171 ; limit of, 172; political,
335.
Agnation, correlates Patria Potestas, 93 : description of, 147 ; distinguished
from cognation, ih. ; evidences of, 148 ; whether universal among
Aryans, 150 ; theory of, 162 ; evidence of Aryan, 284.
Agni, worship of, 50 ; regarded as a Household God, 51.
Agnomen, meanings of, 116.
Alienation. See L)iiiil, Propertij.
Allotment, original, various names of, 220 ; implies certain rights, ih.
Allegiance, doctrine of, 378.
Ambitus, meaning of in tiie Twelve Tables, 222.
Amphiktyony, nature of, 269 ; oatli of Delpliian, 270 ; examples of, ih. ;
true character of, 27 1 ; beneficial infiuence of, 272 ; does not form a
State, 317.
Ancestors, worsiiip of deceased. See Houxe Wor-i/ilj).
Animism, prevalence of, 3.1.
Ajuxiintmeiit, a mode of procuring heirs, 105 ; earliest fonn of, 106.
Arable mark, rules of. 224 ; original distrilnition of, 225.
Archaic. See Soriifi/,
Aristotle, on Hellenic families. 36 ; his definition of a State, .320 ; end of
civil society, 32.5 ; his description of a perfect city, 328 ; on reform
of Kleisthenes, 366 ; on tiic size of a city, 370.
Annenians, Prof. Bryce's description of, 362.
Army, evolution of the, .3.35.
Aryans, value of evidence respecting, 2 ; original seats of, 277 ; civilization
of, 279; method of iiKpiiry as to, ih. ; Household of, 281 ; agnation
among, 284 ; House-worship among, 28.5 ; clans of, 287 ; divihioiis of
clans of, 288 ; classes among, 21)1 ; mark system among, 292 ;
society among, 295.
Asha-Vahista, the Iranian Fire-Ciod, 51.
Associatiiui. See /'ilii/inii. Formation of artificial, 298 ; religious, .'{0.3 ;
profession.il, 'MY.) ; examples of, 'M'2.
Atlicns, political integration of, 327 ; reconstruction of polity of, 'M\(i ;
re<piire8 services of metics, .368 ; why no Jus Honorarium in, 428 ;
changes in, effected by legislation, 4ti3.
484 INDEX.
Atticans, grief of on removal, 216 ; early society among, 308, 326.
Augnstin. St., on Roman Pantheon. 17.
Austin, Mr., his views as to the State, 319 ; as to the end of Government,
325 ; his criticism on Jus Pul)licuni and Jns Privatum, 342 ; his views
on customary law, 390 ; his description of the mode by which custom
is sanctioned disputed, 391 ; fails to perceive how custom becomes
law, 401 ; wrongly blames Lord Eldon, 402, 410 ; does not classify
absolute and general duties, 403.
Bacchus, abuses in Eoman worship of, 353.
Bacon, on the relation of philosophy and religion, 19 ; view of, as to extent
of Jus Publicum, 325.
Basques, the representatives of European Aborigines, 253.
Bastard, not member of Household, 70.
Behistun inscription cited, 267.
Beliefs, in history and in science distinguished, 15 ; contrast of ancient
and modern, 19.
Benefice, analogous to peculium, 249.
Biology, primitive views of, 17.
Blood Feud, historical importance of, 136 ; whether waged for cognates in
Homer, 152 ; history of, 437, 459.
Boc-land, what, 230.
Bod-thing, analogous to Comitia Calata, 100.
Boneddig, who, 76, 171.
Borough English, custom of explained, 82 ; indicates original commune, 83.
Boundaries, guardians of, 48.
Brahmans, originally a literary fraternity, 313.
Brande Erbe, Norse custom of, 106.
Brehon Laws cited as to acquest and inheritance, 2.39 ; as to professional
organization, 311.
Bridget, St., sale of, 94.
Brotherhood, religious, 303 ; professional, 309.
Brownie in Great Britain, 46.
Burial (House). See House Worship and Heartli ; present practice of, 53;
evidence of in Greece, Rome, and India, Ih.
Capua, Samnites admitted to citizenshij) of, 274 ; Roman treatment of, 340.
Caste, what, 312. ('"•Hom:
Cato, on House Father's duty, 48 ; punishment of slaves of, 99 ; description
of Villicus, 108.
Celibacy, prohibition of, 72.
Centuria, a land measure, 334.
Chief, who, 126 ; position of, ih. : development of office of, 127 ; relation of
to clansmen, 198 ; duties of maintenance of, 243 ; differs from lord,
247.
Chinese, their views as to consumption of sacrifice, 36 ; their worship of
deceased ancestors, 37 ; strength of this feeling among, 41 ; main
obstacle to missionaries among, 57 ; annual feasts of, 118 ; structure
of society among, 189.
Church, principles of inconsistent with Household worship, 473 ; and with
the clan, 474 ; provides for women, children, and slaves, 475 ; why
more successful in town than in country, ih. ; diffuses Roman
law, 476 ; applies advanced parts of that law, 477 ; political results
why different from those of Islam, ih. ; influence of, on European
civilization, 478.
Cicero, defines Gentiles, 141 ; and respublica, 320 ; on female tutelage, 351;
on sanctity of House, 357 ; on jurisdiction of Prajtor, 397.
Cinders, the breaking of, what, 51.
INDEX. 485
City, Aristotle's definition of a perfect, 328 ; form of destruction of, 341.
City-State, two difficulties of, 370 ; organization of, Vi. ; size of, ih. ; failure
of, 371 ; examples thereof, //*. ; why it did not develop representative
institutions, 372 ; not territorial, lb.
Clan, description of, 112 ; synonyms of, ih. ; Highland, 114 ; Rajput, 115 ;
Roman, IIG; Laconian, 117; Ithacan, //;. .• sacra of, 118; tomb of,
119; worsliipped tlieir ancestors, 120; inliei-itance of, 122; organ-
ization of, 125 ; chief of, 12() ; council of, 127, 129 ; examples of
laws of, 128; offices in, 130; admission to, 131 ; departure from,
132 ; obligations of members of, 133 ; vengeance of, 13(i; tlieories of
origin of, il>. ; a natural development of tlie Household, 140 ; analogy
of, to Household in Russia, 142 ; distinction of ranks in, 192 ; diH'ers
from C'iiiel, 193 ; Royal, 199 ; land of, as regards strangers, 214 ;
land of, as between clansmen, 217 ; two forms of, 233 ; natural
expansion of, 259 ; description of expanded, 2(jl ; difficulty of co-
operation in, 2(32, 265 ; association of, l)y coiupiest, 265 ; association
of, by agreement, 268 ; alliances of, 274 ; dangers to, 296 ; non-
genealogic, 297 ; military aspect of, 335 ; may survive loss of
territory, 3(51 ; liow modified by State, 364 ; individuality incon-
sistent with, 455 ; yields to State at Rome, 456, 462 ; joint liability
of, 4.58 ; final catastrophe of, 462.
Clansmen, chief's brothers and kindred, 198 ; territorial relations of, 212.
Cnut, King, laws of, cited, 398.
Code, first step towards, 404.
Ctetus, meaning of, 321.
Cognation, liow distinguished from agnation, 147.
Coifi, speech of, 25.
Collegia, their position in Rome, 310.
Colonies, military, 373 ; legislative powers of, 379 ; naturalization in, 380.
Comitatus. See (lusiiidnrliiift. Distinguished from cliieftaincy, 247 ;
economic conditions of, ih. ; Indian examples of, 249.
Comitia calata, use, analogue, and meaning of, 106.
Conmiendation, nature of, 448.
Common, rights of in English law, 221.
Comnninity. See Wornhij). Contrasted witli immunity, 213, 232 ; nature
of, inland, 213; size of primitive, 216; co-exists with cliieftaincy, 244.
Condominium, distinguished from consortium, ISO.
Confarrei, analogous to Saj)iudas, 171.
Concjuest, associations by, 2(55 ; amount of land taken in, 266.
Consanguinity, tliree modes f>f tracing, 147.
Contract, theory of social, 10 ; major premiss in, 405.
Costa, origin of, 4.30.
Coulanges, M. De, excellence of his " La Cite Antique," 43, 413.
Council, of Hou.sehold, 99 ; of clan, 127 ; its number, 128.
Countries, named from iidiabitants, 145.
Couv.ade, description of, 1()4.
Cultivators, generally from inferior populations, 254 ; test of free and
unfree, 255.
Curia, meaning and etymology of, .3.35.
Custom, eomnarison of, with law, .383 ; not a command, il>. ; how far it
reHend)lrj8 a law of nature, ih. : holds in archaic societies the place of
law, 3H5 ; cause of ijowcr of, ih. ; variety of, 386 ; dislike of cultured
men to inicidtMrecf. 3JS7 ; disallowance of Irisli, 387 ; ditrusion of,
388 ; wlun it liecomcs law, .391 ; liow it l)ecomes law, 395 ; historical
evidence hereof, .39(5, <t ^)ij. : conversion of into law, recent exami)les,
400 ; legal, ilillers fioin customary law, 404 ; influence of mo(lern,
uiM»n law, 405 ; connection of law and, 406, 407; of Nations, 450 ;
of the .Sea, 451.
486 INDEX.
Cyclopes, life among, 223.
Daor, classes in Ireland, 252, 255.
Daglida, the Druidic demigod, 315.
Damovoy, Russian House Spirit, 44, 52.
Dancing girl, case of Indian, 236.
Daughter, incapable of performing sacra, 55 ; never adopted, 5.6 ; sale of,
94 ; disabilities of, 95.
Davies, Sir Jolin, on Irish tenures, 246 ; history of Maguyre, 387.
Dead, feasts to the, 60 ; forbidden by Church, 120.
Debtor, archaic remedy against, 469 ; law relating to, 470.
Demons, ancient gods so called, 32.
Demosthenes, passage in, explained, 206.
Deijendents, classes of, in Household, 107, et acq. ; in clans, 251 ; land
rights of, 253.
Descents, rule of six, 196 ; illustrations of rule of, 197 ; rule of three, 196,
202 ; proof of, 205 ; various application of rule of, 208 ; survivals
of, 207.
Dharna, explanation of, 415.
Awki(7ic, what, 340 ; examples of, lb.
Diomedes, speech of, in Iliad, explained, 309.
Divorce, when allowable, 90 ; must be in Foro Domcstico, 99.
Domestic Eeligion. See House Worship.
Druids, literary order among Kelts, 314.
Eavesdrip, 222.
Eldest son, the heir, 80 ; advantages of, in distribution, 81 ; when post-
poned, 82 ; as against his uncle, 145.
Empires, Oriental, 267 ; tax-taking and legislative, 268.
Endogamy, custom of, 156.
England, political condition of early, 215.
'E7r//vX?jpoc, who, 103.
Eponym, kinship traced from, 143 ; theory of, 144 ; who nearest to, 145 ;
plural, 146 ; in non-genealogic clan, 298 ; statues of Athenian, 366.
Equity, history of, 410.
Eric, Irish equivalent of wer-geld, 439.
Escheat, distinguished from Gentile inheritance, 123 ; found in Eoman
law, 125.
Eupatrids, exclusive rights of, 197; Aryan, 291.
Eurykleia, sale of, 94.
Excommunication, Hindu method of, 11.
Exogamy, custom of, 156 : causes of disappearance of, 158 ; traces of, 159:
Eoinan, 160 ; limited to new Households, 161 ; influence of, in non-
genealogic clans, 300.
Extinction, of Household or of kin a great calamity, 124.
Fabius, performs his Gentile sacra, 119, 120.
Family. See Joint Uvdiviih'd Fumili/. Difi'erence of ancient and modern,
63 ; extinction of, 124 ; had no sacra save those of the Household and
the Kin, 167 ; varioiis meanings of in Roman law, 170.
Faramanni, who, 255.
Father, governs Household, 64 ; is not absolute owner of its property, 74 ;.
a title of dignity, 85 ; his functions, ib. ; his authority based ou
religion, ib. ; description of liis power, 91 ; power of, how limited,
97, 472 ; power of, not practically oppressive, 102 ; etymology of, 282.
Fehmern, custom in, as to wills, 77.
Feriie Latiniv, nature of, 270.
Fiji, curious belief in, 37.
INDEX. 4S7
Fiiie, explanation of Irish, 171, 17.3.
Finns, their worship of Russian Saints, 26.
Five, court of, 129, 130.
Forbiddeu degrees, line of, at Rome, IGO.
Foreigners, eternal war witli, 410'.
Foris-fainiliation, 132.
Fonini doniesticum, DD.
Founder, genius of, becomes Lar Familiaris, 44 ; of colony buried in
Forum, 53 ; worship of, 144, 200, 303, .305.
Fravashis, worship of, by Iranians, 42; the cry of, Gl ; (Jeiitilc heroes, 121.
Freemen, division of, 192; diUer from nobles, 193; triple distinction of, 209.
Freedmaii, position of, 109, 203 ; wlien admitted to citizenshij), 355.
Frieslaud, land customs in, 22(3.
Full-bom, how distinguished from Free born, 202.
(iaelic clans. Captain Burt's description of, 114.
(jaius, passage in (ii., 4), explaineil, 78; en wardshi^j of women, 352; on
sacramentum, 435 ; on possession, pro posse.sKore, 4G4.
Gasindschaft, its oi-igin, 233 ; economic conditions of, 247 ; relation of,
paternal, 248 ; historical examples of, 249, i-( ^yy,
(Tavelkiiid, custom of, 388.
(iemeiude oi)2K)sed to ( iasindscliaft, 233.
<ieneaiogic. See t'laiii.
( lenealogies, importance of, 209 ; Rajput, 210.
Cieneration, primitive notions of, 103.
Clenius, meauing of, 43 ; worship of founder's, 44, 200.
Gentes, iiomau, IIG.
(ieiitiles. See A'jiKtll.
< ieraldines, devotion of Irish to, 201.
(iesith, bound to prefer his lord to liis kin, 248 ; position of, ib.
<;ihls, Hellenic, 309; Roman, 310; .Medi;eval, 311.
Goda, property in, 21 ; national, ih. ; abduction or seduction of, 23 ; aban-
donment of, 24 ; form with tiieir worshi2)pers one community, 3G.
Gossip, history of the word, 290.
(irandfather, no Aryan name for, why, 283.
CJ rants. See Land.
Half-blood, exclusion of in English inlieritance, 150.
Hand, an Aryan metaphor, 85; means sovereignty, 91 ; not peculiar to
Rome, 92.
Hearth. See JIoumi' i\'ornfiij>. Its association with the House Spirit, 49.
Hebrides, survival of House Worsliip in, 4(J.
Hegemony, nature of, 27.') ; examjiles of, 27<).
Heiress, provisions respecting, 103 ; niarri.-igc of, IGl.
Henry 1., laws (»f, as to acijuests cited, 239.
Hephaistos, connection of, with the Sib, 287.
Hercules, I^tin worship of, 48.
Heriot, analogous to peculium, 249.
Highlands, Captain iJurt on, 114; pedigrees in, 115; military system of,
33G.
Hiatory, jiroblein of, 15 ; legal and military, 3.3;> ; of public and private
war, -t")! ; of individual property antl of personal liberty coincide,
4G5 ; divi.sion of, 480.
Holdr, the sixth inheritor of an Odal projwrty, 197.
Homicide, refugees for, 109 ; comi>en.sation for, 13tf. Sec JJlooil fnitt.
Horsetlesh, why not eaten, 3.3.
Hou.se. Strc I'rfriurl.
House Father. See Fulln r.
488 INDEX.
Household, depended on sacra, 63 ; limits of, 65 ; members of, 66 ; test of
membership of, 66 ; corporate character of, 66 ; governed by House
Father, lb. ; proofs of its character, 67 ; implied marriage, 69
necessity of special admission to, 72 ; rules of property in, 74 ; con
nection of property of, and sacra, 79 ; eldest son the heir of, 80
degrees of rank in, 84 ; dependents on, 107 ; outsiders of, 110
comparison of, with clan, 142, 181 ; when differentiated, 187 ; the
extra communal, 242 ; type of archaic association, 296 ; on what
principles based, 298 ; the model of reformed military disciijline,
339 ; how affected by son's citizenshij), 350 ; its influence upon law,
465 ; how disintegrated, ib. ; how affected by Christianity, 473.
House Worship, nature of, 39 ; present prevalence of, 41 ; proofs of, among
Aryan nations, 41, et seq. ; a veritable religion, 47 ; Hearth, the
altar of, 49 ; proofs of connection of Hearth and, 50 ; connection of,
with House-Burial, 52 ; ritual of, peculiar to each Household, 54 ;
son the celebrant of, 55 ; daughter incapable of performing, ib. ;
persistence of, 56 ; adaptation of, to nature worsliip, 58 ; abolished
tiy Theodosius, 59 ; survivals of, in modern Europe, 59, why
limited to males, 162 ; traces of, among Aryans, 294.
Howel, laws of, cited, 396.
Hundred, Chlotaire's establishment of, 374,
Hunter, Mr., his able discussion as to Jus Honorarium, 427.
Husing, the Teutonic Lares, 49.
Iceland, political integration of, 332.
Identity, apparent confusion of personal, in primitive thought, 38, 165.
Idols. See Meats.
Iliad, earliest judicial record in, 433 ; meaning of passage in, 434 ; notice of
blood-feud in, 437.
Immunity, what, 232 ; did not spring from community, ib. ; character and
conditions of, 234.
Indians, cause of dislike of, to British law, 359 ; case of Cherokee, 363 ;
territorial political titles among, ib. ; civilized but not political, 384 ;
customs of Callatian, 386 ; change of customs among, 408.
Individuality exists only in political society, 454.
Infant, different status of, in ancient and in modern times, 344.
Inferior population, presence of, 251 ; land-rights of, 253 ; position of, on
demesne lands, 254 ; test of freedom in, 255 ; rights, how affected by
law, 256 ; ancestors of modern peasantry, ib.
Inheritance, object of Gentile, 123 ; of women, 148 ; distinguished from
Acquisitions, 235.
Initiation, of children, 73 ; of slaves, ib. ; of strangers, 74 ; into clan, 131 ;
into State worship, 345.
In jure, proceedings, 445 ; cessio, what, 467.
Intellect, the main determinant of history, 19.
International law, not tz'ue law, 450 ; the customs of nations, ib. ; maritime, is
true law, 451 ; difference between rules of, as to war by land and by
sea, 452.
Ithaca, clans of, 117.
Joint Undivided Family, distinction of, 176 ; present examples of, 177 ;
contests in Greece tending to its separation, 179; its equivalent in
Latin, ISO ; identical with near kin, 181. Sir H. S. Maine wrongly
identifies with Gens, 183 ; development of, 185 ; separation of, why
permitted, 187 ; history of, in Kussia, 188 ; proprietary rights of
members of, 190.
Judex, office of, 444, et neq. ; decision of, how enforced, 445. j^ i- ,' j
INDEX. 489
Judges, position of English, 399 ; three rules for conduct of, lb. ; their view
of their duty, 401.
Jurists, main error of the analytical, 384 ; invent maxim ' what State
l)ennits, it commands,' 392.
Jus Puldicum et Privatum, history of, 333, 342 ; Civile et Honorarium,
375, 418 ; dili'crcnce between, 420 ; Civile, the law of tlie Household
property, 421 ; Honorarium, origin of, 424 ; its extension to mova-
bles, 427 ; unknown at Athens, 428 ; Gentiliciuni, histoi-y of, 402.
Kings, not chief of clan, 126 ; number of, 127 ; duty of Indian, ih. ; Homeric,
193 ; not of countries but of ijeojjles, 363.
Kinship, existence and degree of, determined by common worship, 27, 102 ;
proof of, in India and in Athens, 27 ; i)artly wider, partly narrower,
tlian in modern times, 137 ; collateral, wliat, 100.
Kirghiz, influence of custom among, 388, 433.
Kleistlienes, reform of, 300 ; character of liis reform, 307.
Kobold, cliaracter of, 45.
Laertes, purchases free woman, 94 ; acquired estate of, 237.
Lfets, who, 252.
Land, of Household inalienable, 74 ; not chargeable, 76 ; usually
owned by some kin, 214 ; of kin, liow divided, 218 ; implied
aggregate of rights and duties, 220 ; by what agency distributed,
225 ; none but kinsmen entitled to share in, 228 ; modes of enjoy-
ment of, 229 ; sale of purchased, 237.
Lar, familiaris, who, 44 ; how atlected l>y Christianity, il>. ; his names in
other countries, 49 ; genius of founder, 144 ; always masculine, 148 ;
his war with the Church, 473.
Lares. See lIoti.se Wors/iljt. Tlie guardians of property, 48 ; functions of,
specialized at Rome, if>. ; etymology of, 280, iiotf.
Law, not derived from convenience, 9 ; sources of primitive, 226 ; no
Aryan word for, 293 ; cause of uniformity of modern, 375 ; analysis
of, 381 ; ambiguity of word, 382 ; comi>arison of, witli custom, 383 ;
defijiition of, 384 ; nature of customary, 390; Eiiglisli common,
3!)7, 399 ; jutlge-made, 399 ; why no distinct statement of duties in,
403 ; customary, 404 ; reciprocal inlluence of, and custom, ih. ;
collision of, with custom, 407 ; conversion of custom into, 408 ;
international, 450.
I^onidas, his guard, liow composed, 71.
Levir, connnission of, 102, 107.
Liber, how related to liljcrtus and liljcrtinus, 205.
LibertinuH, originally son of Libertus, 205 ; history of the word, 211.
Libusa, judgment of Queen, 178.
Likynmios, case of, 152, note.
I»ts, restoration of, in (J recce, 180.
Lyall, Mr. A. C, value of his Indian inquiries, 307.
Macaulay, Ixjrd, descrijition of Highlaml clans, 330, 337.
Mwg, e([uivalent of tamilia, 170; its relation to .Joint Family, 183;
ilescrijition of, 204.
Magi, who, .314.
Maine, Sir H. S., too cautious opinion of, as to testation, 77 ; view of, as to
(Jreek and I'oman primogeniture di.sputcd, 81 ; view of, as to (!cns
and .loint l-'aniily disputed, 1S3 ; his distinction between tax-taking
and legislative empires, 208 ; view of, jus to Irisii moiiivstic founders
extended, .'Wo ; his criticism on Austin's views of customary law
disputed, .3!M) ; his criticism of ' wliat the State ])eniiits, it commands'
extcndeil, 392; his error in neglecting Coulanges' tlieory, 413; his
view aa to rfi inaiicijn disputed, 424.
400 INDEX.
Mancipation, sale, by 467
Manes, the Sacrament of, 41 ; worship of, see House Worship.
INIanlius, M. Capitolinus, case of, marks supremacy of State, 456.
Manu, the Aryan Eponym, 287.
Manus, See Hand.
Marins, military reforms of, 338 ; the precursor of the Caesars, 479.
Mark. See Arable. Usual size of, 215.
Markby, Mr. Justice, value of his oi)inion, 69 ; on assumed personal identity
of father and son, 165, note ; notices conversion of Indian customs into
law, 400 ; notices want of catalogue of duties, 403.
Marriage, status of, 64 ; object of archaic, 69 ; motives to, 71 ; compiilsorj',
72 ; three parts of ceremony of, 87 ; effect of, upon wife's status, 89 ;
dissolution of, 90 ; law of, 156 ; laxity of, in later Eoman Eepublic,
471.
Meal, the common, the symbol of worship, 29 ; implies intention, 31 ;
proofs of connection between, and worshij), 32 ; theory of, 33 ;
material and immaterial parts of, 35.
Meats, offered to idols, 30, 31; survivals of, 32, 33.
Meenas, Indian tribe of, 301 ; parallels to, in Roman history, 302.
Megalopolis, foundation of, 328.
Melissa, case of. 98.
Merivale, Dean, his criticism on Eoman Senate considered, 350.
Mesalliances, why punished, 211.
Miltiades, worshipped as founder, 305.
Milton, his notice of the Lares, 473.
Minyje, Lenmian migration of, 135 ; descent of, 146 ; marriages of, 159.
Missionaries, foundation of villages by, 12 ; their contests with Norsemen,
32 ; obstruction to, in China by Manes worshij), 57.
Moghnls, instance among, of accident mistaken for custom, 155.
Mohammedanism, political results of, compared with those of Christianity,
478.
Montenegro, village communities in, 242.
Mother, original meaning of, 87 ; Household functions of, ih. ; may be in
her son's Manus, 89.
Mythology, the natural philosophy of the early world, 17.
Nahur Khan, devotion of, 201.
Names, imjiortance among Aryans, 288 ; Oscan proper, become Eoman
Nombw, 330.
Nation, meaning of, 260 ; sentiment of common, 261 ; extent thereof,
262 ; rise of modern, 478.
National character, doctrine of, 378 ; not local but personal, 380.
Nativi, their position, 255, 257.
Nature, worship of, 16; adapted to House Worship, 58; laws of, 382,
Near kin, limits of, 172.
Neighbourhood, relation of, 365.
Nestor, his rule of war, 336.
Nicholson, General, attempted worship of, 299.
Nobility, causes of, 195 ; determined by lineal descent, 196 ; degrees in,
198 ; evidences of, among Aryans, 291.
Odel Bondr, who, 197.
Ofer hyrnesse, what, 398.
Olympos, basis of Avorship of, 18.
OfioyaXuKTtQ, who, 171 ; analogous to Samanodocas, 172.
Ofio'ioi, meaning of, 457.
Oracle, directs performance of Gentile sacra, 122.
INDEX. 491
Orestes, bones of, IS ; case of, 98.
Outsiders, of the Householtl, 109; classes of, 110; not entitled to any
iuterest in the kiu's laud, 226.
Ownership, forms of, in Konian hiw, 420" ; transition from corporate to
individual, 46J.
Parage, tenure by, what, 24o.
Paricide, derivation and meaning of, discussed, 457 ; law of, 472.
Paternity, tliree classes of terms expressing, 281.
Patronjniics, in local nomenclature, 145 ; unply Eponym, ib.
Paul, St., cited, 30, 'M, 91.
Peace, grants of, 449 : the Queen's, 450.
Peculium, history of, 238.
Pedigrees, why ^jreserved, 210.
Periander, case of, 98.
Persians, social system of, 169 ; traces of comitatus among, 250.
Philosophy, primitive, combined with religion, 19.
Picts, royal succession among, 150 ; a composite nation, 332.
Piety, technical meaning of, among the Itomans, 40.
Piracy, early prevalence of, 41G.
Pirates, Cilician, resemble the Indian Meenas, 302.
Pitris, worship of Hindu, 41 ; cry of, 09.
Plato, on communion of kindred gods, 30 ; on House burial, 53 ; on testa-
tion, 77 ; on ancient kinship, 137 ; on Athenian i)ride of birth,
170.
Plough, why used in destruction of cities, 341.
Plutarcli, comments of, on Solon's law as to heiresses, 103 ; on Roman
marriage, 100; on Solon's law of wills, 237.
Political economy, in wliat sense universally true, 11.
Polyandry, alleged instances of, among Aryans, 151 ; not an Aryan institu-
tion, 154.
Population. See Inferior.
Possessio, in Koman law, 231, 425 ; Bonorum, 420 ; pro Possessore, 404.
Poste, Mr., excellence of his "(Jaius," 352 ; his explanatiim of the ward-
ship of women, Ih. ; his view as to the policy of the I'netors, 404.
Pottstas. See Ha ml. Meaning of, 80.
Prx'tor, legislative power of, 397 ; converts usage into law, ib.; creates
possession as a form of property, 425 ; his method of relief, 420 ;
Peregrinus, 428 ; civil jurisdiction of, 444, et xcq. ; creates new
system of succession, 4t)I ; could not make an heir, ib. ; policy of,
404 ; introduces ' beneticium abstinendi,' 409 ; gives remedy against
debtor's property, 470.
Precinct, nature of, 222; various names for, ib.; its privacy, ib.; its sanctity,
ib. ; how descendible, 223 ; exemjit from State control, 357.
Primogeniture, nature of archaic, 80 ; dillers from modern, 83.
Procinetu, tcstamentum in, what, 100 ; ellect of, 107.
Professional fraternities, 309.
Pn>perty, in gods, 21 ; guarded by House Spirit, 48, 213 ; of Household
inalienable, 74 ; how connected with sacra, 79 ; corporate dis-
tinguished from sei)aratc, 230 ; evidence of, among Aryans, 279 ;
alienation of acquired, 237 ; son's right in acijuircd, il>.; universality
of, 411 ; in land, why tlenied, 412 ; origin of Aryan, 413 ; dei^-nds
on religion, 414, r/ «<'/. ; early law of, 419 ; how modilied, ib.
Protesilaos, fofto(j i//ur(\»/c of, 09.
Prj'taneum, rontainiMl hearth of city, 332.
Pythagoreans, brotherhooil of, 308.
Baco, Mr. Mill on theories of, Z.'tS ; implies common physical descent, 261.
492 INDEX.
Eajputs, no prescription among, 74; clans of, 115; pedigrees of, 210;
description of, 215 ; peculiarity of Rathore clan of, 234 ; sanctity of
House among, 359 ; cities of, named from founder, 363.
Relatives, determined by common worship, 27 ; not by love or by force, 28.
Religion, early, combined with philosopliy, 19 ; the original basis of
human association, 27 ; earliest act of, 33 ; its twofold influence, 305.
Eeligiosus, slave's tomb deemed to be, 108.
Religious fraternities, organization of, 303.
Religious union. See Worshij^.
Rejirisal, right of, 440.
Res, division of, 78, 236, 424 ; sacra?, distinguished from religios;t, 78 ;
mancipi et nee mancipi, 422 ; explanation of this difference, 423.
Robbery, prevalence of, 417.
Rome, theories as to origin of, 328 ; determining point in history of, 329 ;
military system of, 336, 338, 339 ; object of Servian reform in, 369 ;
importance of history of, 443 ; history of civil proceedings in, 444.
Rothar, his law as to wer-geld, 439.
Royal clans, 199.
Russia, illustrates development of archaic society, 188 ; type of society in,
234; explanation of industrial villages in, 241.
Sacra, fiee House Worship. Their nature and importance, 63 ; a worship of
males by males, 65 ; how connected with propertj'^, 74, 122 ; how
dealt with in adoption, 105 ; Gentile, 118 ; Gentilitia, 122; anxiety
for, the cause of the allowance of wrongful possession, 464.
Sacramentum, Leyis Actio, 433 ; uses of, 435.
Sacrifice, motives of, 34 ; distinction of spirit and flesh in, 35.
Sacrificial. See Meal.
Saints, founders of rich monasteries, 305; patrons of gilds, 311 ; profes-
sional, 312.
Samanodocas, who, 27, 168.
Sanction, inverted importance of, in modem law, 403 ; earliest approach to,
435 ; its presence in history of blood-feud, 459.
Sapindas, who, 27, 168.
Sax-note, abjuration of the, 341.
Secrecy, cause of domestic, 222.
Self -redress, right of, 441 ; when ended, at Rome, 447.
Sertorius, position of, in Spain, 302.
Sexes, origin of rules relating to the, 211.
Sib, an Aryan word, 288 ; meaning and derivation of, 290.
Slave, initiated in Household, 73 ; his j^osition, 108 ; religion of, ih. : emanci-
pated, 109 ; not member of State, 354 ; legal protection to, 472.
Slavs, Southern, history of, 189.
Society, archaic, contrasted with modern. 4 ; implied religious union, 26 ;
knowledge of pre-historic, how limited, 112; general features of
archaic, 272, 279 ; influence of personal feeling in, 272 ; not
necessarily political, 384 ; character of modern, 454.
Soldurii, who, 251.
Solon, legislation of, as to celibacy, 72 ; as to heiresses, 103 ; as to wills,
237.
Sons, necessity for, 69 ; expedients in default of, 102, 104 ; property of,
238 ; jjosition of, jui-e ijublico, ib., 347 ; private condition of, how
affected by his public condition, 349. See Eldest.
Spirits, worship of, 17. See House Worsldp.
State, members of, not necessarily members of clan, 318 ; views of writers
on, 319 ; nature of association of, .321 ; essential characteristics of, ih. ;
analogy of, to Household, 322 ; distinct from clan, 323 ; formed by
INDEX. 493
integration, 324 ; historical evidence of rise of, 325 ; two modes of
connection with clans, 326 ; series of terms expressing relations in,
333 ; its relation to the army, 33.> ; disintegration of, 33!> ; meml)or
of, differs from member of clan, 34") ; admission to, 34"), 34() ; controls
parental power, 350 ; relation of, to its territory, 363 ; influence of,
on clan, 364 ; legislates for strangers witliin its bounds. 36!) ; not the
only condition of society, 384 ; commands wliat it jjermits, maxim
discussed, 392, et spq. ; did not at rirst interfere in private disputes,
431 ; compels performance of sacra, /A. ; arbitration of, 432 ; regulates
private remedies, 436, archaic view of functions of, 437 ; position of
archaic, //). .- enforces rights, 443 ; warrants protection, 447 ; inHuence
of, on Patria Potestas, 4(55, 470 ; tends to (Jentile disintegration,
453 ; produces individual freedom of action, 455.
Strangers, ))resence of, at religious rites forbidden, 22 ; Roman laws
regarding, 353.
Strangford, Lord, on Eastern genealogies, 320.
Succession, forms of, 151.
'LvvoiKKTic, wliat, .340 ; rights iniplie<l in, 456.
Supi>liant, special prayer of, oo, 74 ; must be received, 110.
Switzerland, cantons in, 133 ; communal rights in, 22S.
Tacitus, passage in, as to distribution of laml explained, 218 ; distin-
guishes communities and chieftaincies, 244 ; his description of early
(iermany, .331.
'Vi^uroc, meaning of, 224 ; Latin fonn of, 230.
Tencteri, exceptional rule of succession amongst, 80.
Territorial sovereignty, a result of feudalism, 373; causes of establishment
of, ;/).
Territoriality, doctrine of, 378 ; its ajiplication to coloiiies, 370.
Testation, recent origin of power of, 77 ; due at Pome to State law, ih. ;
differs from appointment, 105 ;• twofold use of, 4G7.
Thanehood. See Gasitulfrhdj't.
Theseus, begins the political history of mankind, 328 ; of Iceland, 332.
Thracians, want of union among, 264 ; explanation thereof, 265.
QvynT(HC(wr, who, 104, 161.
Tluicydifles, liis description of early Attica, 326.
Thuringi, confederation of, .3.32.
Toml), enemies', not sacred, 22 ; inalienable by Pojnan law, 76, 4G7 ;
Gentile, 110.
Tompt, tiie mother of the field, 220.
Township, two conditions in, 213 ; description of Indian, 217 ; nature of
primitive, 221.
Tribe, etymology of, 202.
Tpiyui'ia, illustrations of, 206.
Truces, holy, 273.
Turcomans, no State among, 384.
Twelve Tables, distinguiali Agnati and Gentiles, 123 ; succession of next
agnate in. 140, 4(!l ; regarding strangers, .353; law of inheritance of,
rendered ino|)erativc, 462 ; etVect of on the Household, 466 ; contain
earliest limitation of patria potestas, 471.
Ulflyot, the The.seus of Icelan<l, 332.
Ulpiaii, on status of women, 351 ; on infant aud female wants, 352.
Uterine succession, 151.
Varia, Horatian notice of, explained, 120.
Vcii, priest apixiinted king of, 270.
494 INDEX.
Vicinity, as a source of right, 364 ; as a source of duty, 368 ; course of
thought herein, 377.
Village community, description of Indian, 217; in Punjab, 226; in
Fi-iesland, ib. ; in Russia, 241 ; in Montenegro, 242.
Vithibis Bagaibis, Zend village gods, 21.
Volusian gens. House Spirits of, 122.
Wales, law of, illustrating archaic usages, 75.
War, private, 459, 460.
AVarranty, history of political, 447, et seq.
Waste, none unappropriated in India, 215 ; history of, 227.
Waverley, how far cajjable of chief ship, 256.
Wer-geld, history of, 437, et stq. ; none at Rome, 438 ; measure of, 439 ; a
case of a wider principle, 440 ; originally restrictive, 442.
Wic, an Aryan word, 288 ; meaning of, 289.
Widow, marriage of, to the heir, 161.
Wife. See Mother. Effect of marriage on status of, 88 ; leaves her own
Household, 89 ; when divorceable, 90 ; went with inheritance, ih. ;
clianged position of, under Roman law, 471.
Will, the creature of the State, 468.
Women, not named in Hindu genealogies, 149 ; no right of inheritance, ih. ;
not members of the State, 351 ; always in tutelage, 96, 351 ; reason
hereof, 352 ; exempt from criminal law, 353.
Worship, exclusive character of, 23 ; tlie foimdation of early social rela-
tions, 26 ; community of, established special relations, ih. ; symbol
of, the common meal, 29 ; proof of, 30 ; theory of this symbol, 33.
See House Worsltlp.
Worshippers and their gods make one community, 36.
Xenophon, his account of allied clans, 274 ; of destruction of Mantinea, 340.
Youngest son, when lieir, 82.
Of the books specifle;!, the following are the editions to which
reference is made in this work : —
Austin's Lectures on Jurisprudence, 18G9.
CoBDEN Club Essays — Systems of Land Tenure, 1870.
Grote's History of Greece —
Vols. i. and ii., 1849.
Vols. iii. and iv. , 1851.
Hallam's Middle Ages, 1853.
Macaulay's History of England —
Vols. iii. and iv., 1855.
Maine's Village Communities, 1876.
Mommsen's History of Rome —
Vols i. and ii. , 1862.
Vol. iii., 1863.
Vol. iv., 1866.
Max Muller's Lectures on the Science of Language —
First series, 1861.
Poste's Gaius, 1875.
Rawlinson's Herodotus, 1862.
Mr. Lyall is cited as the author of an article in the " Edinbiirgh
Review," on the authority, of Sir H. S. Maine, in his article in
the second volume of " The Nineteenth Century."
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