UNIVERSITY OF CALIFORNIA SAN DIEGO 3 1822 00742 5077 Central University Library University of California, San Diego Note: This item is subject to recall after two weeks. Date Due 0139(1/91) UCSD Lib. |,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;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[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* 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. AfiiCiKifit(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«),'." 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' 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 § 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: 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 Knglane; 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. 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, 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 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 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. 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 adlierinelonged 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 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 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 lanr(>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 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 aneitson 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_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., 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., 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 ce 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 OJ G ^ Ncptivo Aryans had no wonl f(^r law. Tlioy had no wori)>'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. 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 saii 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 v\rj, and the Kin. In the second series there are the Agnatio, the ., 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 anersedcd 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 boarorta, 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 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 preventel)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 dicntiic (^^-^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 vis 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, 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 . ; 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, . 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 iniplieliant, 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