r'l
DIVERSITY M CAL.rOK^iA
1X)S AMGBLBS
^ KTtV
EVOLUTION OF LAW:
SELECT READINGS ON THE ORIGIN AND DE\nELOPMENT
OF tEGAL INSTITUTIONS
Volume II
PRIMITIVE AND ANCIENT LEGAL
INSTITUTIONS
COMPILED BY
ALBERT KOCOUREK
PROFESSOR OF JURISPRUDENCE IN NORTHWESTERN UNIVERSITY
AXD
JOHN H. WIGMORE
PROFESSOR OF LAW IN NORTHWESTERN UNIVERSITY
BOSTON
LITTLE, BROWN, AND COMPANY
1915
Copyright, 1915,
By Little, Beown, and Company.
All rights reserved.
Published, June, 1915.
Set up and electrotyped by J. S. Gushing Co., Norwood, Mass. , U.S.A.
Pressworkby S. J. Parkhill & Co., Boston, Mass., U.S.A.
1G7
PREFACE
The relation of the present volume to the preceding one and
the volume which is to follow is shown in the Preface to Vol-
ume I. The first two volumes should be used together. The
selection of materials is such that they are intended to com-
plement each other. For the student, the best results will be
gotten by attempting first to master the raw materials of the
first volume, in analogy to the case-method ; that is to say, by
making an effort to reconstruct for himself, from topic to topic,
the state of development of the legal institutions among primi-
tive and ancient peoples. The easier and less profitable way
will be to commence with the second volume, referring for
illustrative materials to the first, from subject to subject.
Nothing further is here tendered as suggestive of a method
of attack. Something should be left to the imagination and
the industry of the reader or teacher.
In view of the statement as to the purpose of this compila-
tion already made in the Preface to Volume I, it perhaps need
not be declared that these volumes are not intended for the
specialist in historical jurisprudence. But it needs again to
be emphasized that a study of the laws, customs, and usages
of inferior peoples does not exhaust its mission simply in
tracing out the connections between the past and the present.
The greatest productive value of an inquiry into the juridical
life of remote ages and of arrested developments lies in pro-
viding an indispensable standard by which the processes of
human reason, so far as they enter the sphere of legal evolu-
tion, are guided and corrected. Such an inquiry should result
in a clearer estimate of the present, and should provide to a
degree a calculus to measure the quality of the irresistible
pressure of the future by which all juridical institutions are
constantly and progressively modified.
Any work on the evolution of law which makes any profes-
sions of furnishing a survey of legal institutions necessarily
must render account of the ancient substitute for criminal law,
of the five main divisions of private law — family, succession,
PREFACE
persons, property, and obligations — of commerce in the field
of special law, and lastly, procedure. The legal categories of
the ancient world were exhausted by sins, rituals, and family.
We have sought to unite a developed classification of legal
ideas with the legal life of the first stages of legal development
without, however, seeking to indicate the relative order of evo-
lution of legal ideas. Within the more or less prescribed limits
of a manageable volume, an undertaking so pretentious as to
embrace the whole scale of legal ideas must, in compensation
for its range, omit to sound the overtones. It is clear that
a book which aims to be a survey of legal institutions must, to
accomplish its mission, shun the choice of detailed treatment.
In other words, length and breadth are only rarely found in
combination, and of these alternatives, we have put the em-
phasis on the one suitable for our purpose.
It was not possible to restrict these readings, as had been
planned in the beginning, to materials already available in
English, and in order to fill in what seemed to us to be impor-
tant gaps in an organic outline of the law, we have inserted
a number of original translations which now appear for the
first time in English.
For valuable suggestions in the volumes now published, the
editors acknowledge their indebtedness to Edward Lindsey,
Esq., of the Pennsylvania bar, who has been one of the first
in this country, among professional lawyers at least, to urge
the large importance of the studies here represented.
A. K.
J. H. W.
Northwestern University,
Chicago, November, 1914.
TABLE OF CONTENTS
INTRODUCTION
PAGE
Section 1. Evolution of Law 3
By Josef Kohler.
Section 2. Ethnological Jurisprudence 10
By Albert H. Post.
Section 3. The Origin of Legal Institutions .... 36
1. The Imitation Theory 36
By Gabriel Tarde.
2. Criticism of the Imitation Theory ... 55
By Paul Frederic Girard.
Section 4. Universal Comparative Law 61
By Georgio Del Vecchio.
PART I
LAW AND THE STATE
CHAPTER I
Forms of Social Organization 73
By J. W. Powell.
CHAPTER II
Evolution of the State 88
By Josef Kohler.
CHAPTER III
Omnipotence of the Ancient State 92
by fustel de coulanges.
CHAPTER IV
Chieftainry and Kingship 96
Section 1. Cultural Impoi-tauce of Chieftainry .... 96
By Josef Kohler.
vii
Vlll TABLE OF CONTENTS
PAGE
,. Section 2. Authority of the King 99
By Fdstel de Coclanges.
CHAPTER V
Religion and Law 104
Section 1. Religious Origin of Ancient Law 104:
By FUSTEL DE CODLANGES.
«
Section 2. Religious Element in Hindu Law 110
By Henry S. Maine.
Section 3. Taboo as a Primitive Substitute for Law . . . 120
By Josef Kohler.
CHAPTER VI
Evolution op Criminal Law 122
Section 1. Primitive Criminal Law • 122
By Richard R. Cherry.
Section 2. Development of Justice o . 128
By L. T. Hobhouse.
Section 3. The Origin of Punishment 151
By Ellsworth Faris.
CHAPTER VII
The Forms of Law 162
By Henry S. Maine.
CHAPTER VIII
Methods of the Law's Growth 173
By Henry S. Maine.
■---*
PART II
PERSONS
CHAPTER IX
Kinship 181
Section 1. The Tribe 181
Section 2. The Clan 187
By J. W. Powell.
TABLE OF CONTENTS IX
CHAPTER X
PAGE
The Patriarchal Theory 196
By George E. Howard.
CHAPTER XI
TOTEMISM AND ExOGAMY 215
Section 1. Exogamy as a Survival of Group Marriage . . . 215
By Josef Kohler.
Section 2. Origin of Exogamy and Totemism .... 216
By Andrew Lang.
CHAPTER XII
Women in Primitive Society 237
By L. T. HoBHonsE.
CHAPTER XIII
Marriage 276
Section 1. Forms of IMarriage 276
By JosEF Kohler. •
ection 2. Tribal Marriage Law 277
By J. W. Powell.
Section 3. Religious Basis of the Family 283
By FusTEL de Coulanges.
.. Section 4. Marriage in Greece and Rome 285
By FuexEL de Coolanges.
CHAPTER XIV
Patria Potestas 291
By Henry S. Maine.
CHAPTER XV
Women and Marriage under Civilization 301
By L. T. HoBHOusE.
CHAPTER XVI
Children and the Family ........ 336
By Josef Kohler.
X TABLE OF CONTENTS
CHAPTER XVII
PAGE
Adoptiox and Artificial Relationship 341
Section 1. Survey of Artificial Relationships 341
By Josef Kohler.
^ Section 2. Religious Basis of Adoption 344
By FUSTEL DE COULANGES.
CHAPTER XVIII
Slavery 347
Section 1. Historical Importance of Slavery 347
By Josef Kohler.
Section 2. Theories of Slavery 350
By Henry S. Maine.
CHAPTER XIX
Capitis Deminutio 353
By Rudolph Soioi.
CHAPTER XX
ExiSTiMATioKis Minutio 356
By Rudolph Sohm.
PART III
THINGS
CHAPTER XXI
The Law of Property
Section 1. Religious Basis of Property
By FuSTEL DE Ck)ULANGES.
Section 2: Development of the Idea of Property ....
By L. T. HoBirt3usE.
Section 3. Early History of Property and the Village Community
By Henry S. Maine.
Section 4. The Village Community as a Primitive Institution
By George Laurence Gomme.
361
361
380
39-
CHAPTER XXII
Origin of Commercial Institutions
By Levin Goldschmidt.
407
TABLE OF CONTEXTS XI
CHAPTER XXIII
PAGE
Primitive Commebcial Law 420
By Cakl Koehxe.
CHAPTER XXIV
Barter and Transfer 435
Section 1. Barter 435
By Josef Kohler.
Section 2. Primitive Transfer of Goods 439
By Felix So.mlo.
CHAPTER XXV
Pledge 452
Section 1. Forms of Pledge Rights 452
By Josef Kohler.
Sectioti 2. The Pledge Idea 456
By John H. "Wigmore.
CHAPTER XXVI
Suretyship 478
By Josef Kohler.
CHAPTER XXVII
Evolution of the Law of Contract 481
Section 1. The Fides Commandment 481
By B. W. Leist.
Section 2. Early History of Contract 498
By Hezs'rt S. Maine.
Section 3. Sponsio and Primitive Contract 512
By Pol Collinet.
CHAPTER XXVIII
Sales and Loans at Rome ........ 518
By Rudolph Sohm.
CHAPTER XXIX
Interest 531
Bj' Josef Kohler.
Xll TABLE OF CONTENTS
CHAPTER XXX
FAOB
Succession 536
Section 1. Survey of the Law of Succession 536
By Josef Kohler.
Section 2. Religious Basis of Inheritance 542
By FcrsTEL de Coulanges.
Section 3. Early History of Testamentary Succession . . . 553
By Henry S. Maine.
PART IV
PEOCEDURE
CHAPTER XXXI
Procedure 575
Section 1. Survey of the Law of Procedure ..... 575
By Josef Kohler.
Section 2. Ancient Magistracy 580
By EcSTEL DE Coulanges.
Section 3. Primitive Forms of Legal Remedies .... 586
By Henry S. Maine.
Section 4. The Ordeal and the Oath 609
By Gustave Glotz.
Section 5. Ancient Formalism . 638
By Andreas Heusler.
Section 6. Ancient Semitic Procedure 654
By Stanley A. C ook.
Section 7. /Ancient itoman Procedur e J 668
By Rddolph Sohm.
Section 8, Evolution of Procedure 691
By Gabriel Tarde.
%
PRIMITIVE AND ANCIENT LEGAL
INSTITUTIONS
INTRODUCTION
Section 1. EVOLUTION OF LAW
By Josef Koiiler
Section 2. ETHNOLOGICAL JURISPRUDENCE
Br Albert H. Post
Section 3. THE ORIGIN OF LEGAL INSTITUTIONS
' No. 1. THE IMITATION THEORY
By Gabriel Tarde
No. 2. CRITICISM OF THE IMITATION THEORY
By Paul Frederic Girard
Section 4. UNIVERSAL COMPARATIVE LAW
By Georgio Del Vecchio
EVOLUTION OF LAW
Volume II
PRIMITIVE AND ANCIENT LEGAL
INSTITUTIONS
INTRODUCTION
Section 1
EVOLUTION OF LAW i
Comparati\t: legal history is a science of most recent date.
In the period of our juristic studentship, very few persons had any
notion that the deepest roots of legal history and legal philosophy
were here to be found. If our instructors, not quite twenty years
ago, when we ourselves listened as students in the lecture halls,
had spoken of the laws of primitive peoples, we would have been
as little impressed, as might have been the elegant humanists of
the sixteenth century if someone had told them of the language of
the Hottentots or the Bushmen. ... In the same way that the
study of Germanic law has brilliantly justified its existence through
the rich discoveries which, from day to day, it has laid at our feet,
so also comparative legal history, by the fulness of its results, the
width of its horizon, and a cultivation of the legal historical sense,
will generously render compensation for the field of activity al-
lowed to it. The traditions of Roman law, and the monuments
of the Latin language go back to a time covered by night and
mist ; and not even the most acute vision will be suJBBcient to pene-
trate this veil, and look upon the facts and forces which lie in the
MBv Josef Kohler ; from Griinhut's "Z. f. d. privat- und offentliche
Recht,'" Bd. XIV (1887), p. 410 seq.; translated by Albert Kocourek.]
4 INTRODUCTION [§ 1.
depths of the past. Everything attempted by way of conjecture
proceeds only from specious hypothesis, — especially if the in-
vestigator is unable to ^e-li^•e the ideas, feelings, and point of view
of past ages, in his effort to reconstruct the small fragments of
ancient legal life on the basis of the ideas of the present day, —
just as it would be with the ethnologist who might seek to explain
the remains of the weapons of the lake dwellers by comparison
with the firing arms of modern times. Germanic law leads us
back farther into the primitive age than Roman law ; but even the
oldest sources of Germanic law, Tacitus, the Lex Salica, and the
most ancient records, tell of the old institutions a story which is
highly fragmentary and unsatisfactory.
Thus, we come to the point reached by the investigator who
searches the monuments of the Latin or Germanic stem languages
to their origin where he encounters what seems an invincible in-
terrogation. What has been the course of development of these
perfected systems of language in reaching their position of organic
symmetry ? In what way is an explanation to be given of the con-
spicuous affinities, on one hand, and the remarkable differentiation,
on the other, among languages? Comparative philology has
given the answer; it has established the elements of language; it
has sought to show how language from the first expression of
human needs has become the trustworthy instrument of man's
mental faculties, in an uninterrupted evolution, representing the
most refined sublimate of ideas, and the most delicate nuances of
feeling ; and it explains how, with departures from an original
tongue, individual languages have developed according to anal-
ogies and following various laws of growth — how, in the construc-
tion of languages, the great law of organic nature, unity in diver-
sity, has been maintained. Comparative law has the same func-
tion in the sphere of law, as the science of comparative philology
in the field of language ; it is its mission to explore the path of legal
development from its most primitive point of beginning to the
stage where it enters the domain of the science of legal history.
Such a science, it must be conceded, would have been in vain, if
the law were an accidental creation, the sport of chance, in which
case the study of peoples would, indeed, disclose laws, but not law ;
it would exhibit, even, an interesting profusion of details, a chaos
of particulars, without organization, and wanting in regularity of
development. Happily, there is no danger of stumbling upon such
objections, since in this day there may no longer be any question,
that the law is not the chance product of profitable and unprofitable
§ 1.] EVOLUTION OF LAW 5
hours ; but is the result of an innately reasonable impulse oi
humanity, a sociological process pushed forward by necessity
through the coexistence of reasonable beings with material and
spiritual wants/ and which therefore, like every evolutionary pro-
cess which expresses reason, has its own principles and eternal laws.
x4nother proposition opens the way tlirough the countless turns
of evolution in which the idea of law struggles to unfold — the
essential sameness of the factors of human development among the
most diverse branches of mankind. If this proposition is valid,
then it is certain that in a definite stage of legal development, the
legal systems of the most diverse peoples will show secondary dif-
ferences, but in the midst of these differences must exhibit a unify-
ing principle.- This truth is one of the most brilliant achievements
of modern ethnology. The science of ethnology has not only dem-
onstrated general similarities, but also the most striking anal-
ogies in detail, — analogies of institutions not only of a kind which
lie close to human nature, but also such as relate to the most in-
frequent, bizarre, and unnatural customs of peoples ^ — analogies
which cannot be explained as borrowings, but which are independ-
ent phenomena appearing among tribes where no trace of ethnic
connection is to be found. This principle applied to the law
immeasurably widens our historical horizon; and the thick fog
which has surrounded ancient times is illuminated. In the legal
systems of extant primitive peoples are found the analogies of
those legal conditions under which our most ancient ancestors
lived, of which ail recollection has died away and every record has
faded .^ And how could it have been otherwise in the law ? Hun-
ger and love have been, from the beginning of time, primal im-
pulses of the human race. Solicitude for the individual, as well as
solicitude for the species, has burrowed under human nature, pro-
ducing endlessly inexhaustible conflicts. Hunger and love have
everywhere git-en birth to the law ; and their primitive force has
generated one legal institution after the other.
This new science to-day is revealed to us in immeasurable sig-
nificance. In the same wa}^ that philology has undertaken from
the most scanty germs of language construction to explore the
compounded agglutinative forms of speech to reach the inflectional
languages, and, again, to proceed from the lowest to the highest
forms of language, so, also, comparative legal science has the mis-
1 See my article in " Z. f . vergleichende Rechtswissenschaft," III, p. 161 seq.
'' Cf. my article in "Krit. Viertoljahresschrift," X. F. IV, p. 176 seq.
^ Cf. my article in "Z. f. verg. R.," V, p. 400 scq.
* Cf. my article in "Krit. Vierteljahresschrift," N. F. IV, p. 175 seq.
6 INTRODUCTION [§ 1.
sion of showing the development of the law from the earliest germi-
nation of legal consciousness to the time when it has grown into
a mighty tree, and thrown its shade over the world. ^
When we contemplate this development, we must shudder to
think of the enormous effort which mankind must make to bring
forth a legal institution.^ To achieve the institution of marriage
in the modern sense, or the parental relationship, or the law of
contract, and to attain a State which looks after all interests, re-
quired an enormous outlay of human energies involving not alone
individuals but peoples ; thousands of young lives were blighted,
thousands of hearts were broken, and streams of blood flowed to
enable a fruitful new idea to come into existence ; just as it re-
quired the powerful expenditure of all the forces of nature to
raise up our organic world out of its original imperfection.
Comparative legal investigation deals with the evolutionary
side of the law ; by no means, however, with that desolate and
sterile kind of evolution which derives each development from an
accidental and external coincidence of particular facts ; but, on the
contrary, with the spiritual point of view which assumes that the
world-process involves an inherently reasonable course of devel-
opment, an evolutionary struggle which employs mechanical
factors only for the attainment of its ends. Evolution must con-
tend against a profusion of opposing elements ; it must make way
against human errors, against obstinacies, rigidity, tenacity, and
defiance ; but it succeeds in pushing forward, and where the
straight road of progress is blocked, it finds a devious route for the
accomplishment of its purposes. When obstinacy and reserve
stand in the way, it decomposes them by a withering process of
centuries. It sinks its roots into hundreds of fissures and crevices,
and imperceptibly one phase of life is extinguished to give place to
another. The movement of evolution may appear imperfect in
that it does not imitate the speed of the lightning, but the power of
resistance only with which evolution contends, is imperfect, when
we bear in mind the end, and only the end, of this struggle. The
way to the end is justified even though it proceeds through eons
of time. Philosophically considered, time is only an inferior ele-
^ Cf. my essay, "Das Reeht als Culturerseheinung," p. 5.
2 [As these lines are being translated the whole world is feeling the
shock of the bloody clash of European armies, in which struggle the learned
author's country is one of the leading combatants. Nothing, it seems to
us, can more vividly illustrate the truth of the last sentence of the text,
than this destructive conflict. Mankind has not, up to this moment, yet
paid the price which must be rendered before there can be granted to it
the institution of international peace.]
§ 1.] EVOLUTION OF LAW 7
ment in the phenomena of things. Here, as elsewhere, in nature,
perfection is not measured by human standards; for man is a
temporal and limited being, and is not the measure of things.^
Evolution makes use of men and nations against their will.^
Struck by an inexplicable notion or desire they seek a lost trifle
and find a treasure of cultural progression. INIisgiving and timidity
lay hold of Hamlet; his hand is restrained by an unaccountable
feeling ; the sword remains in its scabbard ; and the revenge of
blood is stayed.^ The ambition of a half-barbarous INIacedonian
demolished the Persian empire, and a flood of Oriental culture
poured out over the Occident.
We are now competent to appreciate the unending benedictions
of culture. We shall speak no more of the Golden Age of man in
a state of nature from which civilization led him to a condition of
misery ; on the contrary, we shall hail culture as the lamp which
has shown the way to the regions of light from the darkness of
night. It is the highest consolation which science can grant for
the future, that it is allotted to humanity to achieve a better end,
and a more exalted form of existence. Therefore, let us interlock
anew with the wheels of cultural and legal evolution ! The more
powerfully our forces are applied, the quicker will mankind be
carried to its higher destiny, and the sooner will one mission after
another of humanity be fulfilled ! However great the sorrows and
pains may be, with which mankind is afflicted, they have a reason-
able meaning, and an evolutionary purpose;^ for every stage
of historical progress involves suffering.^ In order that a fort may
be carried, thousands must fall, and the flag of victory is planted
only over the bodies of the dead. Sarastro's reign first triumphs
after Pamina is plundered. Wrongs and sufltering are the soil
upon which the flower of the law blossoms.^
1 Everything which has been advanced against teleology, touches only
an anthi-'opomorphic or individualist teleology which always applies a
human standard, or which denies that mankind is organic in construction,
for which purpose individuals alone are considered as factors in evolution.
'^ Cf. mv article " Rechtsgeschichte und Weltentwickelung," in "Z. f.
V. R.'"' V, p. 328 se^.
3 The objections raised against my Hamlet interpretation rest on the
most singular esthetic misunderstanding. Immortal Shakespeare, why
did you not provide your Hamlet with its fabula docet !
^ Cf. mv "Aus dem Lande der Kunst," p. 18 seq.
6 George Eliot, "Mill on the Floss" (Germ, trans, by Kolb, II, p. 14.5).
« Even the application of law brings with it unmerited suffering. When
the head of the father of a family falls under the ax, the whole family is
plunged into misery. "We can think of no retribution which does not
exceed its purpose and inflict undeserved pain." — George Eliot, op. cit.^,^
p. 94. Cf. also, my "Shakespeare vor dem Forum der Jurisprudenz,
p. 95 seq., and the "Nachwort," p. 1 seq.
8 INTRODUCTION [§ 1.
And now, what is the ultimate destiny of mankind with its
struggle and effort? The question is one of philosophy, but yet
the law may share it, since the law is one of the chief factors of
human progress. The end of human development is divine unity
through knowledge (science), perception (art), and metaphysical
feeling (religion). The cultivation of all these highest objects is
possible only under the greatest refinement of social condition, —
under conditions which the law alone can bring about. Legal
science, in that it operates to further these conditions, levels the
road upon which science, art, and religion celebrate their triumphal
march. Jurisprudence, however, does not accomplish its mission
by this practical activity ; like every science and art, it has also its
own independent purposes.^ And like all knowledge, knowledge
of the law is one of the most important objects of the human mind.
We may regard it as one of the highest emanations of a god-like
force which sways mankind, and leads it, even against its own will,
to its destiny.
And what would be the life of the nations without science ? And
what of its joys, its fears and hopes, its tenderness with its sighs
and longings, its family life with its charms and cares, its commer-
cial activities with all their changing fortunes and their hurry and
bustle, — if all this were to be swallowed up in the maw of time
without ultimate result? And what record would be left after
thousands of years of our struggle for existence, of our efforts and
striving, if it were not for the monuments of science and art?
Dimmi, o luna : a che vale
Al pastor la sua vita ? ^
A point needs to be emphasized against the aberrations into
which the philosophy of nature and history once fell ; it is not for
us to master facts, or to substitute fancies for science. A phantas-
magoria is not science, and alchemy is only a divergence from the
proper line of effort. Inexhaustible and unfathomable are the
ways of nature and history. It would be a frivolous endeavor to
attempt to interpret them with our ideas — ideas which span but
a small part of what has come to pass. Against the great abun-
dance of enduring nature the narrowness of our limited, particular
existence must make head. Therefore we must undertake, dili-
^ Cf. my article, " RechtsgescMchte imd Culturgeschiclite," in 'Griin-
hut's Z.," XII, p. 590 seq.
'^ Leopardi, "Canto notturo di un pastore errante dell' Asia" (ed.
Capellina, Milan, 1883), p. 91. [Canto Notturho, Poem xxiii, "The
Poems of Leopardi," edited by Francis Brooks, Manchester, 1909.]
§ 1.] EVOLUTION OF LAW 9
gently, an investigation of details. No particular is so unimpor-
tant, no tribe of people is so lacking in interest even though it be
one of the most degraded anthropomorphous types, and no his-
torical tradition of ancient times is so scanty, as not to be worthy
of attention.^ What is a philosophy- of history without facts?
What is an interpretation of legal evolution without the rich ob-
servation of this development itself ? If one speaks constantly of
the barbarism of earlier legal systems, it is not to commend as
worthy of imitation, but as an object of the movement of culture.
The age of barbarism must be profoundly studied ; for only his-
torical knowledge gives us freedom and widens our horizon, in
order that we may understand the laws of evolution. Of course,
no botanist would want to fill the streams with algte, but yet, he
finds in them the evidence of the eternal laws governing the vege-
table kingdom.
After the materials are collected, the task will be to abstract
from them principles, to discover the operative, constructive
impulse manifested in the positive movement of progress,- and to
discover what was the elastic force, and what the machinery which
lifted humanity from one level of development to another, until
culture, and even superculture, replaced the rudest forms of
existence. This procedure will be no dift'erent than the procedure
of science in general. It is the method of the philologist who in-
vestigates the laws of the mutation of consonants, or traces back
verbal abstractions to sensible ideas. It is the method of the ge-
ologist who explains the evolutionary stages of the earth, by the
stratification of the rocks, and by the discovery of petrified remains
of life. Finally, it is the method, in general, of the investigator,
who discloses in the flow of phenomena the eternal laws which
govern the universe.
1 ''To the mind which looks out from a higher point of view, nothing
is unimportant, since everything may be regarded as having an endless
chain of relations." — George Eliot, op. cit. (Kolb's trans.), II, p. 145.
2 Against the remarks of Dargun (in " Rechtsgeleerd Magazijn," 1886,
p. 391 seq.) it may be emphasized that the evolution of law does not pro-
ceed according to mathematical rule any more than the development of
culture in general ; since individual circumstances are endless in their
differences, and in that now one factor, and then another, is predominant.
This, at the same time, is one of the allurements presented by the maui-
f9ldness of legal history. Even tribes governed by the principle of Father-
right, frequently retain the rule of succession through nephews ; and the
institution of wife-purchase may persist for centuries alongside of INIother-
right. When, as among many tribes, the husl^and must defend his pos-
session of his wife against the tribe, this may be explained as a conspicu-
ous survival of a condition where the wife belonged to the tribe. What
at one time was a right frequently appears with the greatest stubbornness
in the form of a wrong.
10 INTRODUCTION l§ 2.
Section 2
ETHNOLOGICAL JURISPRUDExNCE ^
Ethnological jurisprudence, the most recent branch of the
science of law, so richly elaborated by every method of research,
has still to battle for its existence. Wide circles in the world of
juridical learning utterly ignore it, or assume a hostile and at best
sceptical attitude towards it. Neither the history of law nor the
philosophy of jurisprudence has accorded it scientific recognition,
and even the tenability of the principles upon which it is based has
been characterised as highly questionable.
It is universally true that every new departure in science at first
meets with opposition, and that it cannot aspire to recognition
until it is in a position to present results that are incontrovertible.
Only by presenting such results can it acquire recognised standing
in the roll of the sciences, and only by the elaboration of these
results can it repel definitively the attacks directed against it.
But this process may be expedited by giving in the clearest and
most explicit terms possible a sketch of its underlying principles,
and so in the present case, while ethnological jurisprudence is still
in the initial stages of its development, it will not be amiss, in the
interests of our study, to attempt a substantiation of its scientific
pretensions. We shall, by so doing, at least throw obstacles in
the way of superficial criticism from the traditional standpoint.
Ethnological jurisprudence stands in marked contrast with the
tendencies that at present dominate the science of law. Its
method of procedure is fundamentally inductive, and has for its
starting-point the customs and jural concepts of all the nations of
the earth. Its method furthermore is specifically comparative-
ethnological ; that is to say, it is on the one hand socio-psycholog-
ical and on the other hand comparative in the sense that it pro-
ceeds by comparison even where the historical connexion between
the facts of the jural life is lacking.
It is thus opposed to —
1. Every philosophy of jurisprudence which is essentially de-
ductive in its methods.
2. Every system of jurisprudence founded upon the law of a
single nation or a single group of nations.
1 [By Albert Hermann Post. Translated from the German by
Thomas J. McCormack. Reprinted, by permission, from "The Open
Court," Vol. XI, Nos. 11, 12 (November, December, 1897).]
§ 2.] ETHNOLOGICAL JURISPRLT)ENCE 11
3. Every system of jurisprudence which is individuo-psycho-
logical in its origin.
4. All investigations of historical jurisprudence which on prin-
ciple do not quit the ground of historical connexion in the treat-
ment of the facts of jural life.
These innovations have given to ethnological jurisprudence its
peculiar impress, and it is this peculiarity' that demands scientific
vindication.
The first point of view that presents itself for the examination
of the jural order is unquestionably the individuo-psychological.
For the domain of jural life comprehends the action of the forces
that emanate from individuals, and the law finds its most immedi-
ate expression in the jural sense of the individual. It is daily born
anew in the depths of the human soul. Here it appears in the
form of passion and desire, so soon as a misdeed is committed,
and urges to vengeance and expiation. The written law of statute-
books and the courts, however, is but the mediate expression of the
jural life.
The first point of view presenting itself is therefore the follow-
ing : to regard all jural order as the product of the differences and
coincidences of the jural sense of human individuals, and to en-
deavor to explain the same from the natiu-e of man, that is, from
the nature of the individual.
This idea still rules supreme in modern jurisprudence. We
meet on all sides with arguments explanatory of state and law,
which are derived from the nature of the human individual. And
seeing that the individuo-psychological method of investigation
derives its materials directly from the living source of life, while
the socio-psychological starts from the jural phenomena of the life
of all nations, deriving thence its inductions as to the causes which
underlie the same, certainly, if it were possible to explain jural life
adequately from the nature of the human individual, the individuo-
psychological method would have the preference.
But this latter method does not lead far towards the under-
standing of jural life. The sequence of causes soon vanishes in so
inaccessible a sphere as the personality of the individual, and true
scientific inquiry is displaced by ingenuity and sophistry.
Viewed from the individuo-psychological standpoint, the facts
of jural life are partly matter of our subjective and partly matter of
our objective experience.
Matter of subjective experience is merely our own individual
jural sense, that is our individual consciousness as bearing upon
12 INTRODUCTION [§ 2.
right and wrong. This indivickial jural sense is made up of a sum-
total of psychical activities, of which we become conscious when
from inward or outward excitation we are confronted with the ques-
tion as to whether something is right or wrong. These psychical
activities are partly feelings and desires, and partly judgments, the
former tending towards action and the latter tending towards ex-
pression by word or sign. Jural feelings are principally feelings of
indignation as when an injustice is experienced by an individual, a
feeling of fear as when the individual is affected by an inclination
to do wrong, a feeling of penitence as when the indi^'idual has com-
mitted a wrong. With the feeling of indignation is joined a desire
for vengeance, with the feeling of penitence a desire of atonement,
the former tending towards an act of vengeance and the latter
towards an act of expiation. The jural judgments of individuals
are not complete judgments ; they are based upon an undefined
sense of right and wrong. In the consciousness of the individual
there exists no standard of right and wrong under which every
single circumstance giving rise to the formation of a jural judgment
can be subsumed. A simple instinct impels the individual to de-
clare an action right or wTong.
It thus becomes evident that the individuo-psychological analy-
sis of the individual jural sense, in so far as it rests upon subjective
experience, can afford only meagre results. All psychical phe-
nomena of the jural sense are, so far as regards our subjective
experience, ready-made products. The psychological develop-
ment of jural emotions, desires, and judgments, is not accessible
to our inner experience. The psychological processes whereby we
become conscious of jural emotions, desires, and judgments, lie
without the reach of consciousness.
Further, subjective observation of the psychical processes from
which the jural sense springs, bears the same character as subjec-
tive observation of psychical processes generally. Systematic
self-observation is impossible, inasmuch as the observing subject
and the observed object are one and the same, and the very act
of observing thus modifies the object observed.^ It is likewise
impossible to evoke, arbitrarily or artificially, a jural desire or an
instinctive jural judgment ; they always appear instantaneously
and unbidden in consciousness. As material for observation,
accordingly, there remains only the recollection of such occurrences
in the mind of the individual.
1 Comte, "Positive Philosophj^" abridged by Rig; German translation
by Kirchmann, 1883, I., p. 13 £f. Wundt, " Logik," 1883, II., p. 482.
§ 2.] ETHNOLOGICAL JURISPRLTDENCE 13
Still another drawback to the employment of subjective obser-
vation for scientific inquiry is the fact, that it is almost utterly
impossible to distinguish in general between jural feelings, desires,
and judgments, and moral feelings, desires, and judgments.
Scientific inquiry attains more favorable results when it adopts
as the subject of investigation the expressions of the individual
jural conscience in the external world of sense — that is, the phe-
nomena of the individual jural sense as appearing in acts on the one
hand and in words and signs on the other. Here self-observation
discovers facts which are represented as events in the outward world
of sense, and which are consequently subject to external obser-
vation. True, the observation of the outward expressions of the
individual jural conscience in acts, words, and signs affords scarcely
more material for the psychological analysis of the individual jural
sense than the direct inward observation of the same. The ma-
terial for observation increases, however, if the observer, not con-
fining himself to the expressions of his own jural sense, compares
with these the expressions of the jural sense of other people, or even
compares the expressions of the jural sense of other people with
each other.
From this method dissimilarities in the phenomena of the jural
consciousness appear at once, and these are in a high degree adapted
to throw light upon its nature. In the first place it is possible to
distinguish differences in the jural sense of individuals according
to their ages. It is possible to follow the jural sense of children in
its development. We are also able to fix degrees of jural sense in
youth and manhood, perhaps too in old age. It will be possible,
furthermore, to point out variations of jural sense between the
male and female sexes. Then further, there are to be noted marked
irregularities of jural sense resulting from derangement ; which
derangement may rest on biological as well as sociological causes.
Mental diseases, affecting the whole consciousness of the individual,
affect the jural sense also. Besides these, there are a great number
of persons whose jural sense, though not disturbed by any psychi-
cal disarrangement, is far below the normal state ; namely, crim-
inals. Such persons, endowed with a jural sense of a socio-patho-
logical kind, furnish the material for a separate branch of psychol-
ogy; viz., criminal psychology. IVIarked irregularities in the
individual jural sense may be further distinguished according to
the social circle in which the individual moves. Even in a single
nation these irregularities are quite considerable ; according to
caste, culture, occupation, politics, religion, and the like. Yet
14 INTRODUCTION [§ 2.
the most considerable deviations are to be found between the jural
consciences of difl'erent peoples, and they are more considerable
according as the difference in civilisation is greater, or as the devel-
opment of the same has been more unique.
In all these ways it would be possible to observe the expressions
of the individual jural sense and by a process of individuo-psy-
chological comparison to arrive at scientific results. It is evident,
though, that it would be difficult to collect the material for obser-
vation, and that the observations of individuals themselves to
this end would be subject to innumerable sources of error.
These observations could not acquire scientific value unless
made upon the most extensive plan, and with persons of different
ages, different sex, different intellectual ability, different social
standing, and different nationality ; and unless the material accu-
mulated were so considerable that all the sources of error in indi-
vidual observation could be eliminated. To limit the observations
to a narrow field, would necessarily yield incorrect results ; for it
is now beyond question that the jural sense of individuals is sub-
ject to the most varied differentiations. The most distorted
presentation of all, however, is produced when the inquirer confines
himself mainly to his own individual jural sense, and persuades
himself that this should determine the conduct of humanity. He
has here merely systematised his own jural consciousness ; mani-
festly a doleful scientific result.
How is it possible to observe the manifestations of the individual
jural sense, which appear only instinctively and occasionally,
exhaustively enough to obtain really valuable scientific material
for a causal analysis of the jural order? It is unquestionably
hopeless.
And even were it possible to proceed thus, we should be far
from exhausting in this way the data of jural life. Jural life, as a
social province, is by no means made up of immediate expressions
of the individual jural sense only ; there are also mediate and in-
direct expressions of the same in it. The positive laws of nations
with their statutes and provisions, have, it is true, their first origin
in the expressions of the jural sense of individuals. But after these
have become positive laws they are no longer the immediate ex-
pressions of the individual jural sense, but the objective products
of the jural sense of whole spheres of social development, of count-
less individuals with variously formed jural consciences — indi-
viduals of existing generations as well as individuals that have long
passed away.
§ 2.] ETHNOLOGICAL JURISPRUDENCE 15
It would be a manifestly precarious attempt to seek the expla-
nation of these phenomena in the nature of the human individual
itself. Unlimited scope would be given to caprice and imagina-
tion.
And yet, in the face of all, this method of studying the Science
of Jurisprudence is still greatly in vogue, and meets with unquali-
fied approval from contemporary students. They endow the
human individual with certain instincts, the social instinct and the
instinct of self-preservation : or they will have it pursue different
ends according to its constitutional bent, happiness, liberty, etc.,
and upon these phantasms they build their structure as becomes
the kindly heart and academic culture of the philosopher. These
artistic productions are often charming reading, often teem with
clever conceits, and give us a pretty picture of how blissful all
would be, were it not so different in the world. If these works did
not claim to be more than light and entertaining reading, we might
joyfully welcome them. But they pretend to be more ; they as-
sert that they are scientific and would actually influence the prac-
tical mechanism of the jural order. Herein is their danger. Eth-
nological Jurisprudence, in my opinion, must stand aloof from all
attempts to define State and Law on the basis of individual psy-
chology. And now" to the discussion and proof.
It is not only in the province of Jurisprudence that we find at-
tempts to explain the phenomena of social life on the basis of
individual psychology. This method is common to all the other
social sciences. It rests upon a broad and fundamental psycholog-
ical principle, which at the present day shows signs of instability
and will sooner or later be completely overthrown.
All human science takes on a different form, according to whether
we assume that the nature of man can be determined from his ego
alone, or that the soul and egooi man are not identical but that man
is conscious of a portion only of his psychical activity. In the
first instance, the psychology of the individual is the irreversible
basis of human science ; in the second, we have to look about us
for broader foundations. Ethnology, and likewise ethnological
jurisprudence, is founded upon the second view. It assumes that,
in the individual consciousness, only a small portion of his psy-
chical activity is manifest to the individual and that the greater
part is lost to his consciousness. It regards individual psychology,
therefore, as no proper basis of science.
16 INTRODUCTION [§ 2.
That which we call our consciousness is in any case but an in-
finitesimally small portion of the totality of psychic life active
within us. It hovers like a tenuous and shimmering cloud above an
unfathomable ocean. All manner of images rise from the depths
of our soul, yet few assume such sharpness of contour as to be
recognised. By far the greater portion of our spiritual life remains
unknown to us. By far the greatest portion of the spiritual life
of which we are conscious, is known to us only as the resultant
product of unconscious psychical processes, and not as something
in process of production. We remain totally unconscious of those
spiritual activities which touch most nearly the vital centre of our
being, the activities which create on the one side an ego and on the
other a world. At the instant a child first becomes conscious of
itself, the ego and the world are already existent : their birth is
concomitant with the act of consciousness. The unconscious
activities of the soul have shaped them, until, appearing as ready-
formed products, they give rise to that radical contrariety by which
man becomes conscious of himself and a world. We remain utterly
unconscious, too, of those psychical workings which give to the
world its sensible character and to the ego its spiritual. Our world,
in every phase in which it is accessible to us, is virtually a product
of psychical activities acting unconsciously within us. Light,
heat, color, sound, taste, smell, pressure, weight, even space and
time, do not belong to the world as such: on the contrary thej^
are creations of mental activities, corresponding to the psycho-
logical activities of our sensory and central organs and project
without a world created within.
Rokitansky ^ expresses himself upon this subject as follows :
" We see the world that surrounds us by means of light ; but
it is now known that light does not exist as such apart from us;
on the contrary it is vibrations of ether, which we transpose into
light, and recognise as such, by means of mechanisms of specific
irritability located beyond the sensory organs proper. Thus we
ourselves illuminate space and come to know things therein through
their relation to light ; we acquire knowledge not only as to their
surface and outlines, but also as to their inner constitution. It is
likewise the vibrations of sounding bodies of different magnitude
and velocity, taken up and communicated to us by the air, that we
convert into sound and tone. And so, too, the things which we
perceive through impressions upon the other senses, are, apart from
our conception of them, quite different, and undoubtedly consist
1 "Der selbst. Werth des Wissens," 1869, p. 6, et seq.
§ 2.] ETHNOLOGICAL JURISPRUDENCE 17
of the molecular or molar motions of matter. It must strike every
impartial person as strange that we recognise as external objects
things of which the conception is really formed within us. How
does this come? There is undoubtedly a subjective organic
activity present here.
" This much is known : that the impelling power in obedience
to which we project objects conceived, outside the subject con-
ceiving them, must lie in the inward organisation of the mind ; that
the conception of things in space is a function of the organs of our
cognitive faculty which even in dreams creates in our imagination
an external world.
" The perceptible world about us is essentially a creation of our
personality ; it is by the functioning of inner organs that objects
appear as things outside of us, as things of definite quality and
form, of definite size and greatness. Further, when we behold in
the genesis of things and in their different stages and mutations a
succession and a connexion, we say that the succession takes place
in time and that the connexion between the changes is a causal one.
But when we ask ourselves how we arrive at these conclusions, it
turns out that we do so by virtue of subjective forms which must
lie in our organisation and by means of which we are in fact enabled
to apprehend successions and connexions."
Even the world that remains after we remove the mantle of
sensible phenomena, the world of ether and matter vibrations, is
still not the world proper ; it is the world only as it appears to
human cognitive activity.
The psychical operations, too, that create our ego are totally
hidden from us.
And even the greater part of those psychical operations of which
we are conscious, are presented to consciousness as finished prod-
ucts, the genesis of which took place in unconsciousness. Ra-
tiocination alone is effected wholly in consciousness. Feelings and
desires come to consciousness as results only, and many judgments
are not logical judgments, but incompleted ones, lying, with the
principle upon which they were formed, in the province of the un-
conscious.
If all this be correct, it is evident that our consciousness is in
no wise fitted for the thorough comprehension of human nature ;
for only an insignificant portion of our spiritual life ever becomes
immediately conscious. What we are able to fathom by self-
contemplation is soon exhausted. Yet unlimited is the province of
knowledge that opens before us, if to the inward observation of
18 INTRODUCTION [§ 2.
self we add outward observation by the senses ; in other words, if,
from the phenomena of unconscious psychic Hfe as expressed in
the outward world of sense, we draw inferences as to the uncon-
scious activities at work within us.
To this end the whole sensible world presents itself. Our sen-
sible world is not the real world-in-itself. It is merely a world-
image, made by man, created by human psychical activities.
From this, therefore, we shall be able to gather a great part of our
unconscious psychical life, and thus come infinitely nearer the
essence of our being than would be possible through the introspec-
tive observation of our own psychical activities.
In this way we arrive, not at the psychology of the past, which
attempted to unfold the nature of man from the ego, but at a psy-
chology which will endeavor to disclose the same from the world-
image created by man.
Among the phenomena of our sensible world which admit of
inferences as to unconscious psychical activities, the phenomena
of social life assume a prominent place.
And social life, though made up of the activities of individuals,
supposably in possession of free will, is also essentially instinctive,
resting upon the more or less unconscious impulses of the individ-
ual. Whosoever has had to do with the more intricate problems
of ethnology, will entertain no doubt whatever of this fact.
Turn where we will in the domain of social life, we shall every-
where see fixed social laws at work, everywhere meet with a ten-
dency of development, which leading through centuries and cen-
turies, makes towards some definite end, and of whose aims the
individuals comprehended in the movement have no idea. Con-
template the history of the growth of language, .the development
of forms of divinity, of art, of legal institutions, even of fashions
and utensils ; they come, grow, and go, like things of life. There
is but little here that is the product of individual reflexion ; almost
everything is of organic growth. The individual follows blind
impulses and coercive social conditions ; the individual most fre-
quently intends the very opposite of what he produces by his work,
and all that he does accomplish, unless fitting in with the course of
organic development, will soon come to naught.
That the individual in social life acts for the most part instinc-
tively, we may ascertain by self-observation and by the observa-
tion of other individuals. A man, in speaking to another, employs
§ 2.] ETHNOLOGICAL JURISPRLT)ENCE 19
the words he needs quite instinctively; they come to him, as a
rule, without further reflexion. He need not know anything of
the grammar of the language he speaks, and yet many employ the
language with the greatest ease. A man who is confronted with
the question whether he is acting advantageously or not, whether
he is committing an act of justice or injustice, generally decides
from pure instinct, occasionally from feeling, but seldom through
clear reasoning, and then always liable to the danger of mistake.
A poem, a melody, a picture, a statue, arises before the mind's
eye of an artist : something comes to him. Not until something
comes to him, can he elaborate it further by thought. Creations
that are not unconsciously born in the artist are not works of art,
although every artifice of aesthetic manipulation have been em-
ployed. Every original and powerful idea in science is born of
unconsciousness like a stroke of lightning.
We need but glance at every-day life to become convinced of
how instinctive in its workings the whole mechanism of human ex-
istence is. Take the habits and customs of ordinary social life.
When do we ever hear of reasons for acting in this manner or in
that ? We act so because things are not otherwise than they are,
because we must, because others do so. We all know how impos-
sible it is to convince a person who can advance no reasons for his
conduct, that his way of thinking is wrong. If there were a pos-
sible prospect of being able to do this in the case of a man, it would
certainly fail with a woman, whose springs of life are pre-eminently
more instinctive than man's. In fact, a man who does not act and
live instinctively is ridiculed and despised : he is no longer capable
of inspiration and enthusiasm for any cause.
The deposits, therefore, of the unconscious workings of the
human mind in the customs and conceptions of nations, are a
source of incalculable importance to the understanding of the
human soul ; and the history of social activity furnishes an in-
finitely more copious material to this end than could be obtained
by introspection and observation of the psychical life of a single
human individual. An important part of our psychical life, which
for the most part does not directly appear in consciousness, can
thus be gathered from the customs and conceptions of the peoples
of the earth.
Our statements as to consciousness in general are likewise true
of the jural sense. The jural sense b}- no means exhausts the
totality of psychical processes which constitute the jural life of a
man. More properly, the majority of these processes come into
20 INTRODUCTION [§ 2.
the jural consciousness as results, as feelings and desires, or as
instinctive jural judgments ; while the genesis of these psychical
formations are hidden in unconsciousness. But in the jural in-
stitutions and conceptions of nations a great deal of jural life comes
to light that remains unknown to the individual, and so it is pos-
sible to penetrate much farther by this method into the cognition of
the human mind in its jural aspects than was possible by the ob-
servation of one's own jural sense or by observing the expressions
of the jural sense of single individuals.
But apart from this broad psychological standpoint, the very
nature of Law itself indicates that the individuo-psychological
method can lead to nothing, and that only the socio-psychological
method can produce satisfactory results. It will appear on closer
observation that the individual jural sense is not the creator of the
jural order, but on the contrary, that the individual jural sense is a
product of law as a sphere of social life. Only in so far as the jural
sense is consciousness -per se are we concerned with a biological
basis ; in so far, however, as it is a jural consciousness, the foun-
dation is sociological. The human consciousness has a physical
basis in the central organs of the body, but we should search in
vain in the human body for an organ that is the seat of the moral
or jural sense. A human being, reared in a state of perfect isola-
tion, would think because he possessed a brain and had to use it
in the struggle with nature. But we should find no trace of a
moral sense or a jural sense in such a person. The}" are both the
exclusive product of 1 ife in human society. They first arise through
adaptation to the social relations in which men live, and not until
this adaptation is perfected does human consciousness acquire,
among innumerable other notions, conceptions of right and wrong,
of rights and obligations.
The jural order, therefore, is not to be explained from the nature
of the human individual, but from the nature of the social bodies
in which it has been evolved. And it is only from this source that
the individual jural sense also becomes intelligible.
Although the jural sense acts purely from instinct within us, it
is nevertheless the creation of social and not of individual factors.
This will appear from the fact that it acts in opposition to individ-
ual inclination. How are we to find one biological basis for the
two psychical forces that come into conflict when the individual
becomes possessed of an inclination to commit a crime and his
jural sense restrains him from it? And if there be no biological
basis, then the psychological theory that a person can control his
§ 2.] ETHNOLOGICAL JURISPRUDENCE 21
sensuous inclinations by the innate rational faculty rests upon
imagination. In reality the controlling element here is not a
biological or an individuo-psychological factor, it is a socio-
psychological one.
The most telling proof that the individual jural sense is not a
biological but a sociological product is found in the circumstance
that, apart from the changes it suffers as consciousness proper
(through age, insanity, etc.), its content is determined by the char-
acter of the social community in which the individual lives or has
grown up. Were this not the case the jural sense of Frenchmen,
Germans, Russians, and Chinese, who had attained the same de-
gree of intellectual culture, would be one and the same. But this
is obviously not the case. Identity of jural sense means identity
of social organisation.
The individuo-psychological standpoint, accordingly, is inade-
quate for the explanation of the facts of jural life and we must ex-
pect really valuable scientific results only from a socio-psychological
analysis of jural phenomena.
The socio-psychological method proceeds, in its investigation
of the causes of jural life, not from the human individual, but from
the forms which Law assumes in society, from jural customs, jural
conceptions, and jural institutions as they are met with in the life
of nations themselves. All these forms arose originally from ex-
pressions of the individual jural sense, and these expressions are
in their turn founded upon social instincts developed by life in
human society. By frequent repetition and the elimination of
concrete notions, these expressions gradually lose their indi^■idual
character. They become expressions of the corporate jural sense
of a concrete sphere of social development. In this way a nation
acquires a set of jural customs and jural conceptions, which regu-
late its acts and judgments, and whose conservation is entrusted to
the government of the social sphere in which they were evoh'ed.
In this so-called positive law, the organic law of a nation assumes
an objective form. It is a precipitate, in a social shape, of the
jural sense, just as religious rites, forms of divinity, and doctrinal
faith are the precipitates of the religious sense, or human language
of human thought. In the positive law of a definite epoch lies,
essentially, the normal jural sense of the totality of indi\iduals
embraced within a single sphere of social development, as founded
upon the jural order transmitted from previous generations.
22 INTRODUCTION [§ 2.
These positive laws constitute the combined data of the socio-
psychological investigations of jural life ; and they are full of
promise. In the evolution of positive laws the creative national
genius has instinctively accomplished a scientific work, such as
could only be obtained by thoroughly analysing the utterances of
the jural sense of all the individuals that now live or ever have
lived within the social sphere governed by the positive law in
question.
The study of the individual jural sense is thus in reality unnec-
essary, and the science of jurisprudence may begin at once with
the analysis of positive laws.
The question now arises as to what method of conducting the
analysis of jural life, as a field of social activity, will be most pro-
ductive of results.
It is obvious that in the first place the jural customs and jural
hotions of all the nations of the earth must be carefully collated
and accurately described. For only the aggregate of all the
expressions of the jural sense of mankind can afford material
warranting inferences as to the nature of the human jural sense in
general.
And since the mass of jural customs and jural notions neces-
sary to this task lies scattered among very many different peoples,
it follows that the natural classification of the material will be ac-
cording to the nationalities in which the notions in question prevail.
Such a collection of the jural customs and notions of all man-
kind arranged according to nations, would afford a higlily useful
basis for juridical research. It would be possible to carry out,
within this framework, a uniform and systematic arrangement of
the material. There are numerous customs and conceptions which
repeat themselves among different peoples, and these would serve
as the leading divisions of the systematised arrangement we have
in mind. The following, for instance, might properly be regarded
as divisions : the relations of kinship as derived from mother-right,
father-right, and parental rights generally, with the stages of tran-
sition between the same, the subsequent development of the bonds
of consanguinity (clan-fraternity, milk-tie, foster-tie, etc.), endog-
amy and exogamy, wedlock in its various phases (restrained and
unrestrained promiscuity, wedlock by groups, polyandrous, polyg-
ynous and monogamous wedlock, leviratical marriages), the cap-
ture of wives, the acquisition of the bride by service, the purchase
of brides, betrothal-rights, obligation of abstinence before and
after marriage, suitors, disqualifications to wedlock, forms of mar-
§ 2.] ETHNOLOGICAL JURISPELTDENCE 23
rying, divorce, second marriage, mourning-time, the status of
women and children, age of arming, age of majority, child-bed of
the husband, the status of the old and the sick, forbiddance of inter-
course between persons near of kin, guardianship, federal and mo-
narchic forms of organisation, community of house and farms, sys-
tems of joint responsibility and solidarity, blood-feud, rights of
refuge, ordeals, forms of oaths, et cetera. This list might be con-
tinued for pages. In this material are to be found legal concep-
tions and customs of the most widely different nations of the earth
which partly agree and partly vary. We could arrange all customs
and conceptions under these headings, and the classification so
reached would be a preparatory work of great value for the causal
analysis of legal customs and conceptions generally. It would then
appear in how far given legal customs and conceptions varied
among themselves and among different peoples.
One foundation for such a causal analysis is afforded by the
historical connexion between the legal customs and conceptions of
different periods within the same social organisation. But this
analysis is only possible where traditions are at hand relating to
corresponding legal customs and conceptions taken from the differ-
ent periods of the same people's development. As a rule this is
only the case with peoples having a history. With peoples having
no history these traditions are wanting, unless perchance observa-
tions relating to their law be made during different epochs by trav-
ellers from civilised nations.
The historical method, therefore, in so far as it presents the
history of the development of a given legal custom or conception
in a given society, is restricted to provinces comparatively limited.
So far, we only know of a history of Roman and Germanic law
with the beginnings of the history of Slavonic, Celtic, Indian, INIo-
saic, and Islamitic law. The history of all the other systems of the
earth has not been treated, or at least what has been accomplished
is confined to the beginnings. Here and there historical treatment
would be possible. But with the majority of the peoples of the
earth material for such a treatment is wanting altogether, and will,
in all probability, never be accessible.
The question arises now whether a really causal anah'sis of legal
customs and conceptions is still everywhere possible. The onlj^
aid at the disposal of science here is, as with every such analysis,
the method of comparison. But this is possible only when there
is an external similarity between legal customs and conceptions.
The use of a chronological connexion is here altogether out of the
24 INTRODUCTION [§ 2.
question. Can such a comparison yield scientific results of any
value whatever, or are we here at the end of our science ? That is
the question, the answer to which will determine whether Ethno-
logical Jurisprudence is a science at all, or whether it is a will-o'-
the-wisp the pursuit of which is to be given up as soon as possible.
The question cannot be answered a j^riori: it depends entirely
upon our successfulness in arriving at definite results. If we are
successful, the method is warranted ; if not, the attempt goes for
naught. The scientific possibility of a purely comparative method
depends upon facts, the existence or non-existence of which can
only be determined by the application of the method itself. The
question is whether in the development of human law definite legal
customs and conceptions exist and regularly occur even among un-
related peoples, or whether the law of every people, at least of
every kindred group of peoples, is an isolated product standing in
no relation whatever to the law of other peoples. If there be rules
of legal conduct which recur everywhere on the globe and which
pass through a stated course of development, the method by com-
parison is applicable : to explain a given legal custom of one na-
tion we may avail ourselves of the corresponding legal customs of
another. If such be not the case, a purely comparative method is
a scientific chimera.
For instance, if a table of the legal customs of all the nations
of the earth were to present such a picture as the languages of all
the nations of the earth (e.g. in Franz Miiller's " Grundriss der
Sprachwissenschaft"), a purely comparative method such as I have
employed in my works upon ethnological jurisprudence, would be
out of the question. A comparison of non-cognate tongues is im-
possible, for these are isolated formations. It may be that certain
results for the general evolution of human thought could be ob-
tained only from a conspectus of all the languages of the earth;
but generally languages are isolated products of certain ethnic
groups. With other creations of social life this is not the case.
The evolution of the religious sense affords phenomena of manifold
similarities, which extend far beyond the boundaries of philological
races ; and so the jural life of mankind affords a succession of phe-
nomena which are not the especial creations of certain peoples or
of a certain congeries of peoples, but which recur on the contrary
in wide domains, among unrelated nations, and extend over such
broad fields that they may be regarded as the common and univer-
sal property of the whole race.
When such analogous legal customs and conceptions are dis-
§2.] ETHNOLOGICAL JURISPRLDENCE 25
covered among unrelated peoples of the earth, it then becomes a
question whether they owe their origin to analogous causes ; for
phenomena of jural life which are outwardly alike may rest upon
quite dissimilar causes. Yet we may attempt to explain one by the
other, and whether this is possible, we shall soon discover. When
we meet with the same or a similar legal custom among many peo-
ples, we usuall}' find a sphere of ideas which readily explains it.
Whilst certain legal customs and conceptions occur only within ex-
tremely limited domains, and do not lend themselves at all to the
comparative method, on the other hand we meet with such as re-
cur among all possible peoples and races in infinite variations, and
the divergences are such that we are often unavoidably led to as-
sume that these isolated customs represent different stages in the
development of a jural institution which in its fundamental fea-
tures is everywhere uniform. This can be shown only by illus-
trations, and it remains for me to explain what I mean by a definite
example.
Thus under the rubric of leviratical marriages we may include
a group of phenomena regarding which we possess accounts from
the most diverse peoples of the earth, varying greatly in compass
and credibility. Such accounts are for instance the following :
1. North American Indians
Among the Kolushes the brother or sister's son receives the
widow of the deceased in marriage. Among the Ojibways and the
Omahas the widow became the wife of her brother-in-law after the
mourning period was over, and the latter had to care for the chil-
dren of his deceased brother.
2. Aztec and Toltec Nations
In the States of Anahuac a man was only allowed to marry
the widow of his deceased brother when children were still living
whose education had to be cared for.
3. Soidh American Indians
Among the Arawaks a second marriage is not left to the will
of the widow, for the nearest relative of the deceased husband has
the right to marry her, and the latter may thereby often become
the second or third wife unless sold to a third party. If she marry
any one without the consent of the lawful heir, the deadliest feuds
26 INTRODUCTION [§ 2.
may result. Among the Calcliaquis in the interior of Brazil, the
brother marries the widow of his brother, to beget descendants for
the deceased. According to Von IVIartius, it is a custom rigor-
ously practised among all Brazilian Indians, that upon the death
of a husband the eldest brother, or in case there be none, the near-
est male relative of the deceased marries the widow, and the wid-
ow's brother marries her daughter; which is the case with the
Mundrucus, Uainumas, Juris, INIauhes, Passes, and Coerunas.
4. Oceanic Peoples
In Australia when the husband or affianced dies, his brother
on his mother's side inherits his wife and children ; the widow re-
pairs to him with her children after the interval of three days. In
Western Australia the brother of the deceased has a right to the
widow, and, if he choose, may take her for himself. On the Flin-
ders Islands, near Australia, if the husband die his brother marries
his wife.
Among the Polynesians the brother of the deceased is re-
garded as the husband of the widow and the father of the de-
ceased's children.
5. Semitic arid Cognate Peoples
Among the Bedouins, if a young husband leave a widow, his
brother as a rule offers to marry her ; but it is not in his power to
force her to marry him. With the Beni Amer, if the brothers of a
deceased husband do not wish to marry his widow, she can, after
the expiration of the mourning period, marry at her own will, and
she may not be forced into marriage by the brother of her deceased
husband. With the Barea and Kunama, if a man die, his widow
is married without further ado by his brother of the same mother,
or ultimately by the son of the deceased's man's sister. With sev-
eral Berber tribes of the Atlas region, the male relative who after
the death of her first spouse first throws his shawl (Haik) over the
widow, becomes her husband and has to care for her children and
manage her property. Among the Bogos, when a married man
dies, his sons by a previous marriage, his brothers or next of kin,
succeed to his wife, that is, marry her, without further consultation
with her father. Among the Hebrews leviratical marriages occur
in the following form : If brethren live together and one of them
die and have no child, the wife of the deceased shall not marry
§ 2.] ETHNOLOGICAL JURISPRLrDENCE 27
without unto a stranger : her husband's brother shall go in unto
her and take her to him to wife. And it shall be that the first born
which she beareth shall succeed in the name of his brother which
is dead, that his name shall be not put out of Israel. With the
Galla, the brother must marry the widow of his deceased brother.
With the Somali, the widow may marry again only with one of her
husband's nearest relatives, who has to pay her half of her first
dowry ; if the latter die too, his wife is married to one of the same
family for a compensation of one-fourth of the first sum. If the
wife die, the husband has the right to demand in marriage an un-
married sister of his dead wife for one-half of the marriage dowry.
6. Negro and Congo Peoples
In the interior of western equatorial Africa, the nephew mar-
ries the relics of his maternal uncle, and with the Bakalai the son
marries the widows of his father, with the exception of his own
mother. With the Bechuana the son succeeds to all his father's
wives, and if an older brother die, the younger brother comes by
his wives.
7. Indo-Germanic Peoples
With the Afghans the brother is bound to marry the widow of
a deceased brother if she wish it. In the laws of ]Manu, leviratical
marriage occurs only in case a virgin widow be left. In the latter
case, the same custom prevails among the Ideyars in South India,
among the Jat families in the Punjab, and with some of the Rajput
classes of Central India. It occurred in the old German law, that
the heir to whom the guardianship of the widow came with the in-
heritance, particularly the brother of the deceased or indeed her
own stepson, took the widow to himself as though part of the in-
heritance.
*******
From such a collection of ethnological facts, embracing the
whole earth and including the customs of nations in no ways re-
lated, no one, unless starting from a prejudiced point of view,
could entertain the supposition that it were possible for such
strange phenomena, agreeing in so many particulars, to rest every-
where upon causes different in character and place. There can be
no doubt that broader foundations to these exist ; they must repose
upon universal forms of social organisation, — forms which in indi-
vidual instances find diversified expression onh*.
28 INTRODUCTION [§ 2.
These universal forms of organisation are not to be discovered
directly from the facts themselves : to determine them a person
must possess a knowledge of the general jural status of the nations
in question, and this knowledge can be obtained only from ac-
counts of the legal customs of the said peoples. With the aid of
information thus obtained, no doubt can be entertained that all the
above mentioned customs belong to a form of organisation which
extends over the whole earth, and which is exhibited exclusively
among peoples living in a state of nature — viz., the clan. Thence
arise characteristic conceptions of law which are repeated in all
the customs above mentioned. It is a universal principle of the
clan-system that women are not independent subjects of jural rela-
tions, that they are, so to speak, pieces of property belonging to
the clan. They stand under the guardianship of the clan, which
disposes of them at will, but which likewise provides for their
maintenance. These rights and duties of guardianship are lodged
by preference in the hands of a definite person, the head of the
family, and after the latter 's decease fall to the person who suc-
ceeds him. And so the women of the family chief pass to the new
family chief by way of inheritance, and the same rights and duties
that the former chief possessed, arise in the person of his suc-
cessor. With the gradual disintegration of the clan-system women
acquire more and more recognised legal status, while the right and
duty of guardianship becomes more and more invalidated.
This is the fundamental principle upon which all the above-
mentioned customs rest. If the guardian of a woman die, the lat-
ter passes by inheritance to the person to whom the guardianship
now falls. According to the strict interpretation of tribal institu-
tions, there lies in the idea of guardianship the right of absolute
disposal on the one hand, and on the other the obligation to pro-
vide for the woman in question.
A great number of other conceptions of clan-law might be ad-
duced in explanation of the customs mentioned.
1 . First, two systems of relationship exist in the clan : the
system of mother-right, agreeably to which relationship is deter-
mined solely through the female line, and the system of father-
right, agreeably to which relationship is determined solely through
the male line. Descent and guardianship conform to these sys-
tems. The third system that occurs, the system of parent-right
generall}^ whereby the relationship is determined through the male
as well as the female line, first appears after the dissolution of the
clan-svstem.
§ 2.] ETHNOLOGICAL JLTRISPRLTDENCE 29
It appears from the instances cited, that leviratical marriages
and inheritance of women occur as well under the system of
mother-right as under that of father-right. Under mother-right,
women are transferred among the North American Indians, Austra-
lians, Barea, Kunama, and among the tribes of equatorial Africa,
according to the systems respectively prevailing among these peo-
ples. Under father-right, women are transferred among the peo-
ples of the ]MaIay peninsula, the Himalaya and Caucasus districts,
among the INIongolic-Tartaric, most of the Semitic, most of the
Negro, Congo, and Indo-Germanic peoples, according to the s^-s-
tems respectively prevailing among them. Here and there the ac-
counts fail in establishing whether inheritance takes place accord-
ing to mother-right or father-right, and since both systems often
exist side by side, these instances demand more detailed investiga-
tion. With the Brazilian tribes mentioned a complication of father
and mother-right is found. The widow is married b}' the nearest
relative according to the patriarchal system, while the daughter is
married by her mother's brother on the maternal side according to
the matriarchal system.
With the Dyaks, who live according to parent-right, levirat-
ical marriages are in a state of total decadence. The widow may
be freed from marriage with the nearest relative of her husband by
surrendering her property to the family of such relative.
2. In strict conformity to clan-law, the nearest male-relation of
the deceased husband is empowered and obligated to take the
widow in marriage, while the consent of the widow is not asked.
After the dissolution of the clan the heir generally continues to en-
joy the right of marrying the widow, although no longer obliged to
do so ; on the other hand, he is still obliged to provide for her,
although he may become absolved from this duty by giving her in
marriage to another person — a procedure empowered by his
guardian-right of disposition. The widow acquires the privilege
of no longer being forced to marry without her consent the person
that inherits her ; but on the other hand she is not allowed to enter
into another marriage without his approval. If a third person
should marry her without the consent of the heir, he would be
guilty of an infraction of the heir's guardian rights, and according
to clan-law this leads to blood-feud.
Here belong the customs of the Arawaks, the Australians, the
Malayans, and most of the others mentioned.
3. All male relatives are entitled to such inheritance who, ac-
cording to the system of kinship prevailing, are next of kin.
30 INTRODUCTION [§ 2.
Thus the sister's son or mother's brother, according to mother-
right, and according to father-right the son or the brother on the
father's side, inherit the wives as well as the property and enter
into marriage with the former by inheritance. The brothers of the
deceased figure in almost all the customs mentioned. The sister's
son figures as heir, for example, among the Kolushes, the Barea,
and Kunamas, in equatorial Africa ; the son, among the Tunguses,
the Bakalai, the Bechuana, the Kafhrs. The only exception to the
inheritance of the son is his natural mother, who falls to a brother
of the father.
In accordance with the notion that the right of guardianship
resides in the whole clan, all members thereof are in a mediate
way supposed to be entitled to the inheritance, as is the case
among the Alfurs.
4. A legal custom prevailing among all clan-organisations is
the purchase of the bride. The family of the female, or its clan-
head, sells the future wife for a certain sum to the family of the fu-
ture husband, or to the latter in person. By this sale the family of
the female either renounces all claims to the wife, or certain de-
fined rights still remain witl^ them. When the wife is transferred
by marriage to the family of her husband, she remains there even
after his death. The family of her husband has to dispose of and
care for her : she stands under the guardianship of her husband's
family. Without the consent of the latter she is not allowed to en-
ter into marriage with a third person, and in case of such a mar-
riage her deceased husband's family receives the amount paid for
her as bride.
If a kinsman of the deceased husband marry the widow, no bridal
price is paid the family of the female, provided all rights have
passed to the family of the husband through the original bridal
purchase. Otherwise, a smaller payment is made at remarriage.
If the guardian-rights of the female's family are not totally
abolished by the bridal purchase, the relations between the family
of the female and the family of the husband may take various
shapes.
Thus among the Benget-Igorrots the wife belongs to the fam-
ily of the deceased husband, and among the Papuas of Geelvink
Bay and on the Aru islands the family of the husband gets the
bridal sum for the widow who enters into an alien marriage. No
bridal sum is paid among the Alfures of Burn and on the Aru
islands in case of leviratical marriages. The law of the Somali is
also to be compared here.
§ 2.] ETHNOLOGICAL JURISPRLDEXCE 31
The rights of the wife's family still appear in the custom of
pre-emption, which is mentioned among the Usbegs, in the law of
Timor, where the next of kin to the deceased can absolve himself
from the obligation of providing for the widow by the payment of a
certain sum to her family.
5. To the clan-guardianship already noticed, belongs the cus-
tom of the Karo-Karo according to which, if there be no near rela-
tive of the deceased to take the widow, the family chief assigns the
latter a spouse from the jNIarga of the deceased husband. And sim-
ilarly among the Circassians, the widow and her children pass to
another member of the clan. The provision here is quite charac-
teristic that the clan has no obligations in this line if the widow be
too old for marriage. With the Bechuana also the whole kindred
determines which among the kinsmen has to marry the widow.
6. The provisions of the Batak-law of Angola and Sipirong
are to be taken into consideration here according to which the
widow of the elder brother always falls to the younger brother,
while the marriage of the elder brother with the widow of the
younger is regarded as incest. On the other hand, with the Alfures
of Buru the eldest brother of the deceased inherits the widow of
the deceased, whereas a brother younger than the deceased hus-
band may not marr\' the latter's widow. This last provision ap-
pears to owe its existence to entirely specific causes. With the
IMalagasy the brother next succeeding marries the widow. With
the Khatties the widow of the elder brother falls to the younger,
while the widow of the younger brother may do as she pleases. It
thus appears that also in this instance the elder brother can make
no claim to the widow of the younger. With the Chassaks the
women pass from one brother to another in the line of succession,
apparently thus : the widow of the elder brother, always to the
next younger. With the Bechuana also the younger brother suc-
ceeds to the widow of the elder. And so it appears to be the rule
in general, that the next younger brother is in e\'ery case author-
ised and obligated to contract leviratical marriages.
7. A peculiar group is formed by the leviratical marriages of
the Calchaquis in the interior of Brazil, of the IMalagasy , and of
the Hebrews. In these instances the object of leviratical marriage
is to perpetuate the family of the deceased — an object which is
aimed at by many other features of the clan-system. Children be-
gotten in leviratical marriage are considered the children of the de-
ceased husband. The law of the Malagasy recognises all children
as such ; that of the Hebrews onlv the first son. AVith the Ossetes
32 INTRODUCTION [§ 2.
the same thing reappears as with the INIalagasy : only in this in-
stance the widow's children which are subsequently born out of
wedlock, also pass for the children of the deceased husband, just
as among the Kaffirs natural children of widows pass as the chil-
dren of the deceased husband and consequently fall to the latter's
heirs.
8. To the decadence of the clan-system belong those customs
according to which the obligation to marry the widow is only a
duty of propriety, and according to which the woman must consent
to the marriage ; in the first place, however, the provision of the
law of Anahuac whereby a leviratical marriage is permissible only
when the education of the deceased brother's children has to be
provided for.
9. To an entirely different group belongs the custom of Po-
napi, according to which, upon the death of a wife, the widower
marries her sister. This custom is also found among the North
American Indians, the Knistineaux and the Selish, and in many
other districts besides. It is found among the Somali together
with the customs above noticed. There may be a close relation
between this and the legal principle so widely diffused that the
wdfe's family stands security to the man in bridal purchase that he
shall keep his wife, and that if she die, a new one shall be substi-
tuted. Yet the matter might be considered from other points of
view, and more thorough investigation is demanded for an ade-
quate explanation of this phenomenon.
Numerous groups of facts similar to those just discussed may
be discovered in the jural life of the peoples of the earth, and this
being the case, it will no longer be possible to deny that the purely
comparative method is allowable in the province of jurisprudence;
and this holds true, whatever individual opinions may be as to
the value of the facts reported and the inferences drawn from
them.
That the inferences are unsafe, is at once evident. This comes
from the fact that sufficient material is not yet at hand and has not
yet been properly assorted. But it is just as perfectly evident that
inferences have to be drawn and will have to be drawn still. The
material would never be procured, if it could not be shown from
such inferences that a collection of facts in the direction indi-
cated would lead to solid scientific results. Furthermore it is only
through inferences of this sort that points of view can be won from
which further work may be directed with intelligence. For all ma-
terial is certainly not of equal value to science, and the tendency
§ 2.] ETHNOLOGICAL JURISPRUDENCE 33
to delve into irrelevant details is widely prevalent in learned cir-
cles, and especially in Germany. On the other hand, one must be
on one's guard against pronouncing a discovered fact irrelevant
because we do not happen to know at the time of any analogous
phenomenon. It is impossible to prescribe a detailed method of
procedure for the field of ethnological jurisprudence. Such a
method must first result from the very material to which it is
applied.
At present we can offer but a few general points for considera-
tion :
1. Although the collection of material must take place with
separate races and nations (and the most detailed observations are
here of the highest value), nevertheless in the causal analysis of
the jural customs of a single nation, it is highly expedient always to
adduce the corresponding jural facts of cognate as well as of non-
cognate peoples : for we may thus avoid such false conclusions as
easily arise from insufficient material in treating of a definite cus-
tom of a given people. This is but the extension of a view which
has already asserted itself in the investigation of the history of
law.
An exposition of what is stipulated in the law of a single Euro-
pean municipality would be much more exhaustive if expounded
from other sources beside its own and if the laws of kindred mu-
nicipalities were adduced in explanation. In wider fields, the re-
cent study of Indian Law has aided considerably in perfecting the
expositions of Germanic, Roman, Grecian, and Celtic customary
law. If legal customs exist which are more universal and which
prevail throughout extended ethnic fields, it is certain that an un-
derstanding of these is of proportionately more value if the expla-
nation of such a custom in a single nation is under consideration.
We do not wish to say by this that no attempt should be made to
expound the legal custom first from the more limited sphere in
which it appears. On the contrary, this endeavor should be aided
as much as possible, and historical investigation in particular
should be pushed as far as practicable in the separate provinces.
But in any single province of law, historical investigation will
always reach a point where original material no longer warrants
conclusions of demonstrable certainty. Vagrant hypotheses neces-
sarily arise, where the admission of facts from more extended re-
gions might lead to safe conclusions. It is quite obvious that in
considering the laws of peoples having no history, a comprehensi.e
understanding of the laws of all other peoples of the earth possesses
34 INTRODUCTION [§ 2.
incomparably higher value than in the case of peoples that do pos-
sess a history ; indeed it is indispensable in the first instance if
false conclusions are to be avoided. It must therefore be recom-
mended to those who intend to labor scientifically in the field of
ethnological jurisprudence, first to acquire at least a tolerable
knowledge of every existing legal system before entering upon
more limited fields of research : otherwise they will always be liable
to partial judgments. Even for the mere collection of legal cus-
toms, this will be expedient, for an investigator with European
opinions of law might very easily receive a wrong impression from
a legal custom discovered among a people living in a state of na-
ture. The causal analysis will be the more correct, in proportion
as the investigator's knowledge of all existing systems of law is
the more comprehensive.
2. The history of law deals with historical data in their chron-
ological succession. Ethnology in so far as it treats of peoples
having no history does not recognise such a connexion ; it has no
chronology. Ethnology takes no cognizance of decades or cen-
turies : it has to do with periods and strata onl}', somewhat like
geology. In any epoch you choose ethnology meets with all man-
ner of legal customs, from the lowest and crudest to those of the
highest development, existing near each other and among all na-
tions of the earth. The materials whereon it can found its conclu-
sions are like or analogous data, and such data among the different
peoples of the earth are separated from one another not by decades
but by hundreds and thousands of j'ears. Legal customs which are
practised to-day among one people, belong to the most primitive
periods of another. The chronology of ethnological jurisprudence
is not a computation of years from a point of time arbitrarily
adopted. It is the graduated scale of development which any
characteristic legal custom or conception has passed through
among the different people with whom it is found.
This idea can be transferred to historic nations also and with
important results. Every living historic nation still rests in its un-
dermost strata upon the primitive society whence it has arisen , and
upon this foundation strata upon strata of culture and civilisation
are piled. All these strata still lie one above the other in the posi-
tive law of a people of any period. Even in the most recent of
modern codifications there is an abundance of heirlooms from prim-
itive times, and we may trace in the current law of to-day the his-
tory of its development as easily as we can trace in the structure
of the human body the history of the human race. This point, too.
§ 2.] ETHNOLOGICAL JURISPRUDENCE 35
may often become of great importance in explaining any single
legal custom ; for it is often impossible to explain such customs
from the times in which they occur, it being necessary to recur to
periods long since past.
3. Hitherto, the science of jurisprudence has believed that it
possessed the most valuable material for research in the laws of
nations which had reached the highest plane of civilisation, and
that it could dispense altogether with the study of civil life among
the ruder and more uncivilised peoples. It is exactly upon this
point that ethnological jurisprudence must lay the greatest empha-
sis, for only in the laws of uncivilised peoples are the germinal con-
ditions of law to be discovered, and for universal history of the
development of law a knowledge of the latter conditions is indis-
pensable. As the science of physiology is based upon the physiol-
ogy of the cell, so will the future science of jurisprudence be
founded upon the germinal element of civil society' — the primitive
gens. And this primitive gens as an elementary form is to be found
at present only among purely aboriginal peoples.
4. Social customs and conceptions, as we find them among the
nations of the earth, are regarded by the ethnologist as organic
products. The fact of their existence can no more be subjected to
criticism than the fact of the existence of individual plant or ani-
mal species, than the fact of the existence of a solar system or of
the universe at large. They are regarded as natural growths, and
merely the causes that have produced them are made the subject
of ethnological research. In the same manner the legal customs
and conceptions of the various nations of the earth, are regarded
by ethnological jurisprudence as irreversible facts. They too are
not to be subjected to sesthetical or ethical criticism from the indi-
vidual standpoint. They are to be investigated objectively in ref-
erence to their causes, just as we examine a plant or an animal
in search of the laws of its growth and the conditions of its life.
In ethnology, therefore, and particularly in ethnological juris-
prudence, the question never arises as to whether a thing be good
or bad, right or wrong, true or untrue, beautiful or ugly. The sole
question is whether a certain custom or conception really exists in
the life of the nations ; and if it exist, why ? and if not, why ? No
importance can be attached here to the judgments of individuals
regarding such a custom or conception ; and if ethnology and eth-
nological jurisprudence are to acquire a strictly scientific character,
this purely objective standpoint is to be rigorously adhered to.
Individual estimation is an extremely inconstant factor, and
36 INTRODUCTION [§ 3, 1.
its recognition would utterly invalidate a strict and scientific treat-
ment of ethnological subjects. An exhibition of indignation on the
part of an ethnologist at relatively immoral practices, adds nothing
to the solution of ethnological problems. It matters not whether
a people live without the institution of marriage, practice cannibal-
ism, offer human sacrifices, impale its wrong-doers or burn its
witches and sorcerers ; for the sentimental disapproval of such
practices, in investigation, tends to disarrange that equipoise of
judgment which is requisite to determining the causal relation ex-
isting between ethnological phenomena. The ethnologist is called
upon to seek this causal relation with the cold indifference of the
anatomist. A person who speaks of senseless customs and sense-
less institutions, is not fitted to engage in ethnological research.
The above are the principal points of view which at present
admit of establishment for ethnological jurisprudence. Others
may suggest themselves as the science is further developed.
Section 3
THE ORIGIN OF LEGAL INSTITUTIONS
1. The Imitation Theory^
Of all phases of social life the law is that one in which philo-
sophical speculation has in our day been the least exercised. It
has been given full scope in comparative philology and mythology
in politics, in morals, in esthetics, in political economy ; but the
Codes have inspired its fear. It has left the law to the jurists, —
the mine to the miners. Has it recoiled, I know not why, from
the special studies which the development of that new vein would
demand ? Or is there between the juridical and the philosophic
spirit a certain incompatibility of nature?
Be that as it may, this surrender of the legal field to mere day-
1 [This passage is from the Introduction and Chapter VII of "Les
transformations du Droit." by Gabriel Tarde (Paris, 1st ed. 1893,
7th ed., 1912 ; the 7th edition is a reprint of the first, with the addition
of a Preface taking account of the criticisms of M. Girard, printed post,
as § 2). INI. Tarde, eminent as magistrate, psychologist, and sociologist,
died in 1909 ; an account of his work is given in the editorial preface to
the translation of his " Penal Philosophy " (Alodern Criminal Science
Series, 1913). ISIme. Tarde has consented to the translation; from ad-
vance copy of which, by Shcpord Barclay, of St. Louis, the parts presented
here were selected and edited.]
§ 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 37
laborers (known as commentators) and to men of business has
had unfortunate results. The science of Law itself has remained
isolated and sterile, dominated by its own domestic routine.
And the other sciences, too, have suffered, that of economics
especially, which has forgot its parentage and its rights of joint
inheritance and has unconsciously overpassed its natural bound-
aries. The socialistic reaction, arising so enthusiastically in the
latter half of the 1800 s, against the old-school economics was in
part due to the latter's unwitting encroachments ; for there was
no worthy and powerful theory of law to impose a rival and fra-
ternal check upon the ambitious theories of wealth put forth by
economics.
I. The Theory of a Uniform Ewlution; its Fallacies
But for some years past we have been witnessing the rise of a
new influence in criminal law, — the influence of Darwinism,
of evolution, of anthropology ; and this influence, rapidly increas-
ing and spreading, has begun to gain a foothold within the civil
field of law.^ Already, indeed, the learned researches of the
archaeologists of our legal system had prepared the ground. Until
they appeared, the Roman law was the only one studied histori-
cally with complete thoroughness. For the theoretical jurist,
it had always been what the Scriptures were to the. historian of
old, — a unique and sacred phenomenon, totally incomparable
with anything else, and hence, for lack of standards of comparison,
absolutely beyond the sphere of explanation. But when the
Egyptologists and the Assyriologists of to-day revealed to us the
Egyptian law, the Assyrian law ; when similar researches into the
relics of the Indo-European and Semitic families, of the Germans,
Slavs, Persians, Celts, as well as of the ^Moslems, of the Hebrews,
etc., furnished for us, little by little, a vast juridical museum
(of which ]\I. Dareste,- among us, might be called the conservator),
then the traditional orthodox legal science began to feel a sudden
expansion and rejuvenation.
Nevertheless, it would be misleading to suppose, because one
had noted many and striking resemblances between different
languages and founded a comparative philology, that he had
^ It is worth noting that in all epochs the reconstruction of a legal
system — the grafting of new ideas on the juristic tree — has begun
with the criminal law, the earliest branch to put forth new shoots, and
always ^the one most prominent for our attention.
2 "Etudes d'histoire du Droit," by M. Dareste, of the Institute (Lerose
et Forcel. 1889).
75IS7
38 INTRODUCTION [§ 3, 1.
made a theory of language. It would be a like error to persuade
oneself that it is sufficient for a lawyer-philosopher to have dis-
covered some resemblances between certain developments in
the law, more or less independent the one of the other, and thus
created a comparative jurisprudence. Those resemblances are
only the materials of the problem to solve ; the point is first to
limit them, to replace them in their natural positions, often dis-
turbed by excessive ingenuity, and to interpret them by tracing
back their causes.
These are of two kinds, organic or social. The first are found
in the inherent and hereditary wants of human nature, which
continue the same despite diversity of races and of tim.es; the
second, in wants derived and acquired by imitative contact between
man and man. It is needful to join these two incomplete acts to
understand the historical transformations of the Law, as well
as those of language, of religion, of institutions, of industries,
of manners. But, to join them, one must by all means not con-
fuse them, but rather distinguish them, with all the nicety pos-
sible, and give to each of them its proper part.
Not but that admirable philosophic works on the law have
appeared, here and there, exceptionally. Suffice it to cite the
leading effort of Sir Henry JNIaine, on "Ancient Law," and the
remarkable studies which followed it. But we find that the school
of evolution, although rapidly advancing, although quick to in-
spire flights beyond its cradle in Darwinism, has shown itself
most backward in respect of the Law. IMaine is not committed
to it except by a sort of collateral relationship, quite distant ; and
it was the historical school, very French in its origin, that antici-
pated the advent of either Darwin or Spencer into the world.
It is true that in penal law there has been dabbling with the doc-
trine of evolution for several years. But yet there is much more
of "criminal anthropology" than of penal evolution in questidn
therein. As to the civil law, it has remained outside the scope of
the movement until a much later period. Note, nevertheless,
that we already hear announced the terms "juridical anthropol-
ogy" and "juridical evolution" ; but more like the names which
old geographers used to give in advance to partly unexplored
regions of Africa or America. In reality, without ignoring the
merit of tiie first explorers of those unknown lands, we may be
allowed to believe that they have left quite a crop to be gleaned
after them. Further is it manifest that many explorers strive to
launch out in their footsteps.
§3, 1.] THE ORIGIN OF LEGAL IXSTITUTIOXS 39
The historians and archaeologists of the law had long since pre-
pared the roads for them. But history and archaeology appear,
unhappily, to be subjects the least in mind of the disciples of Herbert
Spencer, who, applying here a general formula of evolution, the
magic key of the universe, accept for explanation its application
pure and simple.
It is true that the new evolutionists of the Law are, in general,
also anthropologists,^ and we may anticipate from this junction
of anthropological researches with the grand constructive systems
of Darwin and Spencer the most fortunate result. We may ven-
ture to believe that a minute comprehension, in detail, of the
organs and needs of the individual, as furnished by the one, would
complement or temper the inordinate tendency to generalization
suggested by the other ; that the one would allow us for the first
time to introduce to the law of the future its true ideal, the pur-
suit of a Law truly natural conforming to the natural demands
of the human organism, while the other would unfold the necessity
of the ^■icissitudes encountered by the Law of the past in the course
of its history. But truth obliges me to confess that, until how
at least, this confluence of the two great schools has not been very
productive in stable ideas, nor do I yet see arising, among the
many small towers of Babel, hastily constructed, in the law, any
Eiffel tower to dim in its shadow the prior works of INIaine and of
Fustel de Coulanges. The "Ancient City" of the latter, despite
even its comments on the origin of the feudal system, unhappily
marred by the spirit of system and of useless polemics, stands as
one of those works which indirectly has best penetrated the very
life of the Law and the secrets of its changes.^ As to the "Ancient
Law" and other works of the great English law-philosopher,
although wholly devoid themselves of ambitious pretensions, they
w^ould seem to have extracted from our subject all the philosophic
sweet that it contains. But, nevertheless, that is an illusion;
1 For instance, M. Letoitrneau, author of the "Evohition juridique"
(1891) ancL. M. Giuseppe d'Aguanno, whose book entited "La genese
e I'evoluzione del diritto civile secondo le resultanze delle science authro-
pologiche e storico-soeiali " (Turin, 1890), will have considerable claim
on our attention. We refer again, in another line of thought, to the
work of Ihering on the "Struggle for Law." It is high time that the
famous "struggle for life" had a word to saj' in the law.
2 Excessive and exclusive study of the wTitten word led that great
historian, at the close of his career to become biased, so as to be unjust
in respect of the discoveries of others. It is curious, for instance, to see
him reproaching M. de Laveleye, ]M. Glasson. etc., for their use of the
comparative method, which was the very feature giving value to his
chief work, the "Ancient Cit3\"
40 INTRODUCTION [§ 3, 1.
and there remain yet, assuredly, many other discoveries to be
made in this field so little or so poorly explored. . . .
Much clearer ostensibly than the idea of a "legal anthropology"
is that of "legal evolution." Nevertheless, it also has great need
of being defined. If it does nothing more than to substitute for
the study of the Roman law that of the Aztec law, of the Peruvian
law, of the Fuegian law, of the Australian law, of the law of the
bronze age or of the stone age (rough or smooth), of all the bar-
barian or savage laws whatsoever, to get at the sources of law, the
result would only bring a certain amount of easy learning to the
aid of a large measure of imagination. And this latter will always
command approval of a special audience, if it has that " trite form
of originality" Avhich consists in being at one time slow and con-
fident, deductive and ingenious — adapted to conform at the
same time, by its scientific hypotheses, to the beaten track of
opinion and to the taste for novelty. Here, as to some extent
generally in sociology, we have greatly imposed upon the savages ;
since Spencer, who officially inaugurated the exploitation of that
mine of base metal, there are current a small number of stories,
always the same, ascribed to several tribes, American, African
or Oceanic, which have made the rounds of the sociological press
for a long time, under diverse heads. Without a shadow of proof
(unless it be such as gives but a surface indication), one is
asked to give credence to the idea a priori that the primitive social
state, the supposed starting point of Progress, is the same among
all savages. It is, however, impossible to close our eyes to the
profound dissimilarities which mark real savages, even the lowest ;
their word-roots, the grammatical structure of their languages;
their ceremonies and their beliefs, their germs of government
despotic or paternal, their manners in peace or in war, gentle or
fierce, honest or dishonest, their musical melodies, their efforts
at art, differ, out and out. But the scholars are not embarrassed
by such small things : the savages who are different, are so, they
say, because they have raised themselves more or less in the scale
of savagery ; even their differences are instructive from the point
of view of an original identity, of which they measure the degree
of departure ; that does not contradict it. As to savages which
have resemblances, they concede at once that those are entirely
spontaneous ; they do not in general take into account the great
probability of association which was bound to occur, either be-
tween them or between their ancestors, in the long night of their
history, or perhaps before it ; nor do they think of asking if, at that
§ 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 41
time, much more naturally than by any supposed formula of singu-
lar and inevitable evolution, may not be explained an important
part of those resemblances.
Unfortunately, this theory is strained. If, by evolution, we
are expected to understand a regulated series of phases, of changes,
equally inevitable and regularly repeated as those of insects,
despite purely accidental and supposedly insignificant variations,
is it not necessary, first of all, that the initial phase should be
regarded as everywhere the same ? The misfortune, for the trans-
formistic theory, is that having taken its birth among naturalists,
not sociologists or physicians, it is accustomed to consider as
the only possible type of development the single sort, of develop-
ment (notable for its routine features) shown by organical beings.
It persuades itself too readily that evolution means not only the
production of successive phases brought about in obedience to
laws of mechanics and of logic, but further reproduction in mul-
tiple examples of predetermined phases, by analogy to the suc-
cessive ages of an individual animal or vegetable.^
The idea does not occur to them that this law of the ages, thus
conceived on the model of those exceptional beings, could not
well be applicable, in its entirety, to the solar systems or to the
transformations of society ; that the growth of a language, of a
religion, of a body of laws, of an art, though it may conform as
well to a universal law as the growth of a seed or of a quadruped,
may yet otherwise be entirely original and unique in itself. It
allows itself too readily to think and to assert that, because every
living being is or appears to be - impelled unto death by an
internal impulse, there must be also, for every astronomical system,
although it may have reached its phase of stable equilibrium,
and equally for every language, for every religion, for every law,
although it has attained to a state of relative perfection and of
settled vitality, an internal necessity of death. Now, that sooner
or later it ought probably to encounter from without some destruc-
tive shock, in which would be swept away language, religion, legal
system (the most stable until then), nothing is easier to concede;
^ One is too apt to confound the connection, truly forcible, between
cause and effect, of the conditions with the conditioned, with the con-
nection, much more loose and fluctuating, of phase to phase, in any evolu-
tion whatsoever.
2 According to Dr. Wcit^sman ("Essais sur I'Heredite," 1892) living
monocellular beings are immortal ; they disintegrate themselves, but
where is the corpse? Death would be only a "practical process" (in-
vention) of life, but a fairly recent one. ]VI. Ddbaeuf also has very curious
views thereon, and most profound (in "La matiere brute et la matiere
vivante").
/
42 INTRODUCTION [§ 3, 1.
thus have perished the antique civiUzations of Asia which long
endured without any mishap from war; thus, perhaps, after all
will perish creeds attacked by science ; thus ancient China, per-
haps, by contact with Europeans. But that violent death, the
interruption of an immortality possible and normal, is a very dif-
ferent thing from the natural death which nothing living escapes
within a time limit approximately marked.^
Before generalizing into a paramount law these last phenomena
and many other apparent or real characteristics of life, it would
be well to ponder them a little. The model idea of development,
instead of being borrowed from natural life, could it not as well
be expected from astronomy or from comparative philology or
mythology? Are the laws of mechanics and the laws of logic,
the one reflected in the other, dominated by those of vegetation
and of animality? And is not the notion of development, as it
is suggested to us by the celestial mechanism, as being essentially
the result of an established and variable balance, or such even as
is suggested to us by the logic of individuality or of society as
being the result of some harmonious system, indefinitely durable,
of thoughts and wills operating without opposition, in good accord
among themselves, — is not that notion superior in definiteness,
in clearness, in explicative value, to the idea of that insensate and
fatal march toward death which our natural life suggests?
We shall attempt to outline or to indicate the principal features
of the evolution of the Law, considered as a high and complex
process of the logic of society ; but at the outset, we have to show
the insufficiency of social evolutionism such as it is generally
interpreted. A victim to its own fixed theory, it falls fatally
into two fallacies : 1° It exaggerates the number and significance
of the resemblances which strike the mind, at first sight, when we
compare the bodies of supposed foreign laws, one with another,
as well as the languages, religions, armies, nations, regarded in
their political, industrial, artistic and moral aspects; 2° It holds
all those resemblances, true or false, as spontaneous, without
according or attempting to accord its legitimate part to the prin-
ciple of imitation. It is curious to see those minds calling them-
selves " positivists " yield to the seduction of the marvelous, real-
ized (according to them) by those multiplied coincidences ; and
preferring, to the clear explanation of those resemblances by the
' "Some would like to know if colonies (of animals) disorganize and
expire of themselves at the end of a limited period as do the single in-
di\iduals which compose them. We have not been able to collect any
evidence to establish it." (Espinas, "Soeietes animates, " p. 513.)
I
§3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 43
contagion of example, their own obscure explanation of atavism
or of heredity. We may be allowed to enter into some develop-
ments of this subject.
The best minds may be warped by sj'stematic preoccupation.
For proof thereof I wish none other than INI. Dareste. "One
thing which modern works have clearly brought to light," says
he, at the opening of his book on the "History of Law," "is the
affinity, not to say identity, of diverse primitive legal systems.
Philology has disclosed by admirable discoveries a comm.on origin
for the greater part of the European languages, which it has found
connected with the ancient tongues, now extinct, of India and
Persia. Yet more close is the relationship of various laws. Not
only have they all undergone analogous transformations, but they
often reappear, one and another, feature for feature, and almost
word for word, across the most enormous reaches of distance and
the longest intervals of time, when any direct borrowing has not
been possible ; so that, to explain the resemblance which could
not be known to be fortuitous, it is necessary to admit either
that the two peoples had one origin and hence a common tradi-
tion, or that the same causes everywhere have the same effects."
Manifestly, ]\I. Dareste strains much for that last construction ;
moreover, we notice, he states the problem quite well, and restricts
himself, besides, to comparing the laws of superior races, to the
discreet exclusion of savages of every race. But, even within
those limits, we observe, he asserts much more than his book
proves. Be that as it may, since he expresses himself in that
manner, we need not be astonished to see JNI. Letourneau, who
extends to all tribes and nations known the field of his compari-
sons, ascribing the same unfortunate uniformity to the course
of their juridical transformations. Nevertheless with him the
truth often has the better of his predisposition ; he admits orig-
inal divergencies in the social development, emerging from the
lowest savagery, because it would cost him too much to merge
republican with monarchical tribes ; and that base of distinction,
although at best obviously too narrow, is well to note. In his
florid style, he proceeds also to portray strikingly the juridical
physiognomy peculiar to each people, entirely "sui generis";
and although he seriously misconceives therein, through a pro-
fessed horror of Romanists and imperialism, the commanding
originality of the Roman Law, he exalts beyond measure that of
the Athenian law, in his love for democracies.
The evolutionists, in spite of all, therefore, agree in affirming
44 INTRODUCTION [§ 3, 1.
the existence of a peculiar and necessary law of juridical evolution.
But their discord appears when they undertake to formulate it
and to define the phases which the law would surmount in pass-
ing through the course of its history. . . . The truth is [as the
present volume aims to demonstrate in detail] that in no one of the
principal branches of Law^ does the theory of a uniformity of evolu-
tion find any support. And for that matter, most evolutionists are
too careful and too sagacious to close their eyes to the important
dissimilarities which distinguish the historic transformations of
different Laws. But they believe themselves warranted to give
thereto but little weight, on the plea that if in each society evo-
lution was left to itself, it would adapt itself to their formula.
The misfortune is that this hypothesis is untenable. What Law
is there which, without influences external and accidental —
borrowings from some foreign law or innovations created by ori-
ginal genius or even indigenous — would ever be spontaneously
transformed? . . .
The word "evolution" is deceptive. It is so easy to pronounce
that it naturally imparts an impression like that of flowing over
sand, without obstacle or pause. But, if we enter into detail,
we perceive that the fluidity, the apparent continuity, attributed
thus to a series of changes, is imaginary. Take any law, and you
will see that its so-called evolution continues to decompose into
laborious importations, — most frequently ruddy with new ideas
added in, from time to time, from one side or another, suddenly,
none knows why. They have been grafted upon it, — be it by a
proselytic religion (Christian, Islamic, Buddhist), by external
conquest (the Roman law, absorbed more than imposed upon the
vanquished, even on the Egyptians and on the Greeks ; the Eng-
lish Law replacing the Hindu laws; the French Law islamized
in Algeria, etc.), or be it by internal revolutions, which transfer
the power of patricians to plebeians, or of the Senate to the Em-
peror, or of the Nobility to the Third Estate, etc., or by an inter-
mittent infatuation for foreign institution and laws. The ex-
amples of this last cause of juridical renovation are numerous : it
will suffice us to point out the influence exerted by the Roman
Law even beyond the Roman empire, by the Greek law among
the Barbarians, by the Chinese Law throughout all oriental Asia,
— by the Canon Law% in another way, upon the secular law of the
middle ages and of modern times.
Now during these painful engraftings, slow to heal and not
always successfully, the Law called national appears to have
§ 3, 1.] THE ORIGIN OF LEGAL IXSTITUTIONS 45
not the least tendency to "evolute"; it only seems inclined to
sit still. Each of those advances is an unexpected stroke of a
lash which arouses and swaj's it. Can any one seriously pretend
that the classic Roman Law waited and aspired to receive the
impulse given it by the propaganda of Christianity, and which
so strongly byzantinized it in its last stage. Who, from its birth,
predestined it to that regenerating impulse? And, to go back
further, was it the "actiones legis" of Roman law which of them-
selves tended to the formulary system ? The edicts of the praetors,
the voted laws, the royal edicts, etc., were mereh' so man}' inter-
mittent springs of the law, which never flowed without external
stimulus. This supposed necessity of juridical evolution is like
that discarded theory which insisted that all language passed
through the three successive phases of monosyllabism, of agglu-
tination, and of inflection. INIodern linguists know what value
to ascribe to that formula. . . .
II. The Theory of Imitation
No instance of similitude can be found in the Universe w^hich
has not as a cause one of the three great forms, superposed and
blended, in the universal repetition : undulation (for physical
phenomena), heredity (for living phenomena), imitation (for social
phenomena properly so-called). I need not repeat here ^ the
mutual bearings of these three factors in universal analogy. It
is clear that we should take account of the three, and not of the
last alone, to furnish a complete explanation of the analogies
presented by the world of society, which springs from the living
and expires into the physical order. There is then no doubt that
the influence of climates and races do not furnish the key to many
resemblances observed among social bodies of the same blood or
the same latitude. The importance of these two influences in
sociology has been much exaggerated, because of ignoring the
dominant part of the third, which always ends by using the others
or impressing them with its stamp. What is continuous, what is
essential, what is subject to laws susceptible of scientific formula-
tion, in the events of society, is the characteristic common to
them all, and exclusively proper to them collectively, namely,
that of being imitative or imitated. -
^ I have devoted to that subject my book on the "Lois de rimitation"
(Alean).
2 We do not even except inventions and discoveries in so far as they
are sociological facts. Not only are they ahvaj's in part imitative, formed
46 INTRODUCTION [§ 3, 1.
Whether imitation is conscious or unconscious, intelligent or
stupid, instruction or habit, matters not. Speaking, praying, work-
ing, fighting, doing whatsoever sort of social act, involves repeating
what one has learned from some one, who had acquired it from
some one else ; and so one after another back to the first framers
of each word-root transmitted identically from mouth to mouth,
for thousands of years, — like the waves of light or sound from
atom to atom, — back to the first authors of each form of rites,
of each method of labor, of each mode of war, fencing-boots, tac-
tics, strategic ruses, which pass from man to man during a period
more or less prolonged.
I do not say that Imitation is all of social reality ; it is but one
expression of the sympathy which antedates it and which it inten-
sifies in expressing; and it depends upon invention, the spark
from which it is only the greater light. It begins by being in
some sort a vassal to Heredity, as long as the social group is con-
fined to the family, and the effect of examples is limited to the
narrow circle of the relatives. Then, when it became free of the
family, when it even dominated in its turn, it yielded so much the
more to another rule : it was subjected, we know, to the higher
laws of Logic, as was undulation to the laws of mechanics. But it
is none the less certain that it alone weaves together the tissues
of society arranged by social Logic. It is the w^arp and woof of
humanity. The artist views it from the right side, the side of its
embroideries, of its variations bright and fleeting ; but which the
philosopher is bound to examine from the back, from the side of
its repetitions, — singly to be weighed, singly numberable, singly
formulable into statistical groups or into scientific laws. What
was physics before the theory of undulation had made its entry
therein, even though the laws of mechanics were already known ?
Very little. So will be sociology, as long as it does not accord
due place, a large and controlling part, to the theory of Imita-
tion.
From failing to observe the universality, the continuity, the
greater importance of the fact of Imitation in history, many
archeologists, many historians, even the most circumspect and lucid,
are led into most erroneous inferences. . . . INI. Fustel de
Coulanges himself, after remarking that the feudal system mani-
by a mental junction of various imitations, _but again, even in so far as
they are most original, they must be imitated to become social facts, not
merely individual facts. An invention not utilized, an idea not carried
out, not reflected in the soul of another, is as if it did not exist, socially
\'iewed.
§ 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 47
fested itself among peoples not in the least Germanic, in Southern
Gaul, the Byzantine Empire, Slavonia, Hungary, Ireland, the
same as among those nations who were not in the least Romanic,
concludes thus :
' ' It manifested itself among all races ; it is neither Romanic nor German ;
it belongs to human nature."
Nevertheless, before having recourse to a quasi-miraculous
hypothesis of spontaneous generation of that unique system,
everywhere the same, in Heaven-knows-how-many different
places, is there no room to inquire if its relative ubiquity — exag-
gerated, at that — is not explainable by simpler methods of ordi-
nary up-building of society, — that is to say, of Imitation ? Xow,
all the researches of the eminent historian that I have just cited
tend precisely to show that the scattered elements of the feudal
system existed almost in entirety in the institutions of the Roman
Empire, and that their simultaneous synthetic development has
been the result of the special circumstances in which the Roman
world of the West, especially Gaul, found itself after the fall of
the imperial power. . . .
All, then, that is clear, definite, characteristic in resemblances
of whatsoever category — whether of language, religion, politics,
economics, law — which the evolutionists have pointed out
among different peoples, even far apart, has Imitation for its cause.
Such, beyond doubt, are the striking analogies presented to those
different points of view, by the Hindus, the Germans, the Slavs,
the Celts, the Latins, the Greeks, — nations which some are
pleased to group, under the name of i\.ryan, in the same hypothet-
ical race. Whether that hypothesis prove correct or not, . . .
the misfortune is that, when once this family tree of the so-called
Aryans had been specifically described (as also that of the Semites
and of other extensive race-stocks) scholars began to detect,
among peoples unrelated to each other, resemblances in religion
and law, equal in exactness and in importance to those of the
races regarded as co-related. For instance, the several Aryan
peoples, as between themselves, show us nowhere any coinci-
dence more complete than that which I\I. Seignette ' has pointed
out between the customs of the Arabs before INIahomet and the
institutions of the primitive Romans. "The paternal authority
in all its rigor, the perpetual tutelage of the women, wills, the
' French translation of the "Code musulman" of Khalil, introduction,
p. xxxvii.
48 INTRODUCTION [§ 3, 1.
heredity of male descendants, patrons and gentiles, their tutelage
testamentary guardianship, the 'nexum,' the 'pignoris capio,
the noxal surrender, retaliation, composition for feuds, the rela-
tions of patron and client, — all these customs, inscribed in the
Roman law of the Twelve Tables, correspond to ante-islamitic
usages identically similar, in Arabia, of which some were continued,
the others abolished, by the Koran." If we recall the proximity
of Arabia and of India, where analogous customs prevailed, and
the mutual inclination of neighboring peoples to borrow their
civil institutions, much more than their religions and above all,
more than their idioms, it is easy to explain those resemblances
by imitative action. What confirms this interpretation is the
many other points of juridical contact between the Aryans and
the Semites. They are of such exactness that their spontaneous
appearance is absolutely inconceivable. ...
But, perhaps we have not sufficiently remarked upon the direct,
immediate action of Imitation upon the law, when it has the latter
itself as its objective. By that process, the juridical unity of
diverse classes and of diverse provinces of a nation cannot fail
to be wrought, in course of time. It unites classes as well as
provinces by the everlasting yearning of the inferior to imitate
the superior. The juridical customs of the higher classes de-
scend, through the various grades of the nobility, to the lowest
ranks of the commonalty, and help to obliterate the diversity of
their own customs. Likewise, the large cities pass on their char-
ters to the small, the small cities to the towns, and their disparity
of custom disappears. The most brilliant nations illumine in
the same way the more obscure. I have above already indicated
the contagious descent of the law of primogeniture from the no-
bility to the people. ... In a group of peoples in contact,
the most civilized communicates its Law to its neighbors by a
sort of juridical exosmosis. Thus, in the middle ages, the Ger-
man law penetrated into Bohemia and Poland ; and was intro-
duced there at the beginning through the most enlightened strata
of the population, through the cities. The law of Magdeburg
has served as a model for the greater part of the Cech cities of
the north and for nearly all the Polish cities. Italian influence,
during the same epoch, made itself felt in the laws of Dalmatia. . . .
§ 3, 1.] J THE ORIGIN OF LEGAL INSTITUTIONS 49
III. The Element of Logic in Evolution
But not all the similitudes, even of social origin, appearing in
legal systems (or, better say, juridical activities) of diverse peoples,
have Imitation as their cause. Many arise from Logic.
Though man is imitative, it is because he is inventive. Though
the influence of a flood of examples ceaselessly operates, like the
leveling process of the watersheds, whence millions of rivulets,
brooks, and rivers, each contributes to what may be called the
alluvial deposits of civilization, yet this, I repeat, is because from
time to time innovations, great or small — mountains or hills —
have risen up. And if man is inventive, it is because he is logical.
Logical or inventive — it is all one, at bottom. An invention, a
discovery, is but the response to a problem ; and that response
consists always in connecting with each other, through the ad-
justment of means to end, methods of action formerly isolated
and barren ; by connecting with each other, through the no less
fertile relation of principle to result, those ideas or perceptions
which previously seemed to have nothing in common.^ . . .
Now, though there are reasons to think that this work of logic,
as it progresses, should end in divergent results, characteristic
and artistic, there are also reasons to believe that, in many
respects, its effects will inevitably be more or less similar. These
similitudes will be of two sorts : some will be merely formal,
others substantial.
Here is an example of the first sort. ^I. Dareste points out,
in passing, an indisputable resemblance between the development
of the ^Moslem law and that of the Roman law ; but the main
thing is to interpret this correctly. The great Arabic jurists
worked on the rather narrow basis of the Koran, as the great
Roman jurists did on the no less narrow foundation of the law of
the Twelve Tables. The former, like the latter, developed the
law by means of doctrinal authority, changing constantly by
innovations under the pretext of construction. Hanifat, ]\Ialek,
Chefei, and Hanbal in the 700 s and 800 s, " created the INIoslem
Law, as Sabinus and Labeo before them had created the Roman
1 This is not the place to develop this thought. But the learned reader-
will not fail to supply examples drawn from the history of the sciences and
industries. The discovery of Newton, for instance, consisted in viewing
two ideas, until then strangers to each other, the fall of terrestrial bodies
and the attraction of gravitation of the moon around the earth, as two
effects of the same principle. The invention of the locomotive consisted
in uniting teleologically two modes of action, until then separated, the
steam piston and the movfiment on wheels, etc.
50 INTROPUCTION [§ 3, 1.
Law. Rome had had the Sabinians and the Prociilians. Islam
had the Hanifites, the INIalekites, the Chefeites and the Han-
bahtes, all equally orthodox," but of vision more or less broad.
"x\t last this great movement ended with the Arabs as it had at
Rome. At a certain moment, production ceased and sterility
came." This is very true. But to see correctly the significance
of this comparison it is needful to compare it with many others,
in the juridical world or even beyond it. The Hebrew Law was
developed entirely in the same way. The great rabbis had elaborated
the law of Moses, which became little by little the Mishnah and
the Talmud ; they founded rival schools, and their work, at last,
stopped, having reached a relative perfection. In the same way,
in every land which becomes civilized, we see learned grammarians
elaborate, refine, expand, and establish the national language, —
a sort of Koran fallen from the sky, of which they are the respect-
ful and ingenious commentators or falsifiers. ... A language,
especially on its grammatical side, is a logical ivhole. So, too, is a
religion, when reduced to theology. So, too, a Code. Amidst
ages of invasions and disasters, the Corpus Juris reigns yet in
Europe. Move remarkable still, the Mishnah — the Corpus
Juris of the Jews, elaborated by the great Hebrew jurists — per-
sists still, in spite of the dispersion of its people.
This inherent force of resistance in every system, and this
tendency of everything social to develop into a sj'stem, is a re-
semblance which has nothing imaginary about it ; and it is uni-
versal and deep-rooted. But what does it signify? Does it
mean that there is any magical formula for an evolution through
which everything must perforce pass ? By no means. It signifies
merely that man is a logical animal, — that his need for system
and coordination has periods of excitation followed by periods
of calm. We may observe the birth and grow^th of his religious
ideas, the logical elaboration of them, their consummation in
theologies ; the rise of new problems, and the new eft'orts to solve
them. ... So too in man's desires, and the process of their
harmonization, the logic of social growth proceeds in the same
manner. The human heart is born replete with aspirations as
incoherent as its thoughts; to make a world from that chaos,
to transform that incoherence into mutual advantage, be it in
the breast of the individual, be it consequently in the social group,
— that is the problem which confronts the first law-givers, often
the same as the makers of their creeds. It was solved by laws
regarded as divine, — the law of Moses, of Zoroaster, of j\Ianou,
§ 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 51
of ]\Iahomet. But, after a certain time, new requirements, new
domestic precepts engendered by the inventions of civilization,
by contact with foreigners, as in the case of Israel and of Islam,
became difficult to harmonize with the established laws. Then
would the jurists on the one hand, the casuists on the other, exert
themselves to disguise the inconsistencies or to absorb them into
some paramount harmony. They are supposed only to expound
the ancient law ; but, in reality, they are forced to substitute
in part for its commands others no less imperative, prompted by
the new requirements. . . .
Sir Henry j\Iaine has pointed out the important role of fictions in
transforming the law gradually. The authors of these ingenious
expedients produce, in the concrete, the same thing as did the
author of the law himself in creating it ; Mahomet, for instance,
did nothing more than re-cast the ancient customs of the Arabs
and adapt them to his epoch. Then there comes a moment when
the structure of jurisprudence and of casuistry seems complete.
People admire it, they call it sacred, — so long at least as the
social state be not reformed. But when this reform takes place,
the development by logic retains what is most attractive, always
the same at bottom. To be sure, modern legislators, in contrast
with the ancient, do not seem to take account of precedents.
However, that is but in mere appearance. The power of legisla-
tively upsetting everything which in theory belongs to our deputies
and senators, is but ostensible ; they are compelled to respect, in
a certain measure, the ancient laws, the juridical habits of the
people, and also to suggest for their needs, old or new, what
should satisfy them conformably to those habits. In fact, their
apparent omnipotence is nothing but a willing or enforced obe-
dience to those needs, to these commands of their electors. These
orders are for them what the commands of ]\Ioses were for the
rabbis, or the precepts of the Koran for the Arabian jurisconsults.
Oldtime jurisconsults or contemporary legislators equally exhibit
such submission to superior commands, which they work out
logically in subordination to hierarchical principles, conforming
the one to the other. After which, the statutes voted and pro-
mulgated are gi^^en effect by our commentators of to-day, pro-
fessors, judges, counselors, in the form of judicial decisions or of
scientific doctrine, — a mass of things of which their authors
never dreamed.
After all, then, the similitude of evolution, very vague and
altogether formal, between the Moslem Law and the Roman
52 INTRODUCTION [§ 3, 1.
Law, as alleged by ]\I. Dareste, is merely a case of resemblance,
on a larger and more prolonged scale. And it consists in this,
that evolution, in every category of social facts, has always as a
starting point a certain number of natural jierceytions or ideas
learned, of needs inborn or acquired, upon which operates a general
need (both innate and more and more developed) for logical co-
ordination ; lohich general need itself has its mci^situdes of agitation
and of appeasement, — the latter when it is satisfied for a time by
an imposing and monumental work, and the former when the
growth of new ideas and desires necessitates the work of remodeling
or of reform. . . .
IV. Law as a Branch of Sociology
Before concluding, I have to insist on the importance, sometimes
much ignored, of studying the law as a branch of sociology, if we
wish to grasp it in its living and complete reality. It is not,
furthermore, a mere branch of that great tree which can be severed
with impunity from the trunk, and which does not draw its sap
from its location in relation to the others, by reason of multiple
resemblances, and of differences not less instructive, which that
relationship reveals in their diverse modes of growth. Juridical
e^•olution most of all calls for elucidation in this way. Strictly
speaking, the development of a religion, of an art, of science
(such as geometry), of an industry (such as that of metals or of
textile fabrics), may be explained separately. Not so a body of
Law ; for the Law, among the other social sciences, has this distinct
characteristic of being, like language, not merely an integral part
but an integral mirror of social life. . . .
That is why so frequently, in the course of this study, I have
remarked the similitudes between the march of the law and the
march of language in the evolution of humanity. These simili-
tudes are the more interesting in that they evidently belong in
the category of those not caused by Imitation. To all the analo-
gies which I have pointed out in the foregoing, in passing, I could
add many. Let us gather some of them, at random, barely enough
to give to others a taste of the reaping here, and to furnish a pass-
ing illustration of the general truths announced by us.
Law and Language, we know, are imitative and follow routine
to a leading point. Nothing is evolved therefrom save by the
steady and combined play of three forms of imitation : the imita-
tion of others, under its two aspects, the copy of a contemporary
§ 3, 1.] THE ORIGIN OF LEGAL INSTITUTIONS 53
model ("fashion"), and the copy of an old model ("custom"),
and the imitation of itself ("habit"). But that which dominates
and gives the tone, is, both in Language and in Law, the influence
of custom. When the rush of novelties gathered by fashion, here
or there, exceeds a certain degree, always very low, the difficulty
of classifying them and placing them logically in a system of
theories or of institutions already long established, produces a
crisis, a disorder of the law or of the language ; and it must needs
be that one or the other either die thereof, or that it expel violently
a greater part of those undigested foods, too hastily swallowed.
^Moreover, it has always been impossible to implant and to keep
alive in any nation, even the most enslaved, a Language or a Law
made entirely of fragments, however logically and artistically
collected they may possibly be. Those excellent compositions
perished almost at birth, despite the insistence of the amalgamated
legislators or grammarians that they should live. Why? Pre-
cisely because logic is the supreme thing wanting. For this need
of Logic, in Language as in Law, divides asunder those who combat
it. And this combat infuses all the life, all the difficulty, all the
interest into the elaboration of the law and of language throughout
all time.
If there was no issue involved but to reconcile with each other
the elements of a law or of a language, so as to produce a regular
and coherent whole, the task would be very easy. But, comcident
with the effort of the grammarians or the jurists (or rather of the
entire public), thus conspiring, wittingly or unwittingly, but in-
variably, against such logical internal arrangement of a grammar
as refines it little by little of its exceptions and incongruities, or
of a codification which little by little is improved and systematized,
another and primary task is presented to put the grammar and the
codes in accord with the society which they should go^'ern, and to
perfect this accord constantly. This last accord itself is a logical
arrangement, in another sense of the word, — teleological, to
speak exactly. Xow, the state of society, if we include m one
glance the opposing ideas and claims which there confront each
other, is always, in great part, illogical and incoherent. For a
body of Law, therefore, as for the structure of a Language, the
problem of evolution consists in adapting it to itself as much as
possible, tchile also adapting it to a society which never very icell
adapts itself to itself.
It consists, in other words, in making the logical out of the
illogical. It follows that the danger is ever present of sacrificing
54 INTRODUCTION [§ 3, 1.
one of these two concurrent and contradictory aspirations. And
the grammarians, Hke the jurists, have a pronounced predilection
to insist improperly upon the former, while the public, happily,
has the contrary tendency. Hence, the two different maladies
by which the Law, and Language also, may be affected : namely,
either to accord with themselves, but not with the social environ-
ment, — like a revolutionary Constitution, or like Volapiik, the
most regular of languages ; or to harmonize fully with the social
world but not with themselves, — like the confused mass of the
English laws, and like most of our European languages. . . .
We cannot, of course, more than touch this vast subject. We
may remark, in closing, that if we attempt to embrace in but one
glance the successive phases of different languages, we perceive
nowhere any tendency of these various linguistic evolutions, much
as they seem independent, to converge toward one single language
or toward one single final state. To an analogous result the study
of the various juridical evolutions has led us. All that we see
clearly is the tendency to supremacy of one sole language or of a
very small group of languages, and of one sole Law, or of a very
small group of Laws, and of a language or of a Law^ common to
all classes of the society. Now this is the double inevitable con-
sequence of the long continued influence of Imitation. The
farther we trace back into the past, the more we discover of
distinct idioms, and of customs having the force of law ; so that
in the beginning we might suppose that there were as many lan-
guages and laws as villages.^ But, in proportion as the relations
between men multiply, the greater part of these linguistic and
juridical creations, so astonishingly multiplied, are impeded or
destroyed ; because a small number of them, and not always the
best, are indebted to circumstances historical, ethnical, geographi-
cal, much more than to their intrinsic superiority, for the privilege
of expanding over the globe. On the other hand, and simulta-
neously, changes are brought about in languages by borrowing of
"noble" words into common speech, of literary words into the
ordinary style — acquisitions often ironical, but always imitative.
And these changes correspond, in the Law, to those produced by
importation {e.g. the rule of primogeniture imported into the
plebeian birthright), and by the gradual extension to inferior
classes of some laws originally reserved to the superior classes.
1 This is so true that, even for our own epoch, the village, according
to M. Arsene Dumont, is the linguistic unit ("Rev. scientif.," 10 Sept.
1S92).
§ 3, 2.] THE ORIGIN OF LEGAL INSTITUTIONS 55
Little by little, in that way, is established one language alike for
all, and one Law alike for all.
2. CRITICISM OF THE IMITATION THEORY i
Unfortunately, it is necessary to confess that the views expressed
by M. Tarde are not at all those which we believe to be well
founded. Scarcely at any point are we able to join in his conclu-
sions. Assuredly, M. Tarde is a man of too much intelligence,
and of too keen a mind, but that much may be extracted from his
last work (like those w^hich preceded it), and but that this work
would be very rich in sound methods of thought, and in profitable
themes and reflections, and would advance a variety of fertile
ideas. But this is not the book on the evolution of law which the
friends of this science w^ould have desired — an inventory of the
researches already made, at once friendly and critical, setting
forth neither with an easy-going faith, nor with preconceived
hostility, the results which seem to be attained, those which appear
only probable, and those which are yet in doubt, giving conjecture
for conjecture without masking objections, and admitting more
frankly the legitimacy of the method and what it has accom-
plished.
It is, in truth, on the contrary, almost entirely a book of nega-
tive controversy, directed as well against the principle of the new
studies [on the evolution of law] as well as its applications. It is
a denial both of the whole and its parts. Going to the entirety
of the principle, M. Tarde rejects the doctrine that one evolution,
identical in its chief features, normally is presented under the in-
fluence of the same causes, and apart from all imitation, in the
juridical institutions of the most diverse peoples. He combats
the idea according to which the different groups of mankind, in their
social development, follow the same path of development ; which,
while it does not yet lead, and may perhaps never lead, to the same
social destiny, yet shows the same direction for all ; and according
to which those peoples which have proceeded more rapidly in the
march of evolution have necessarily passed the stages shown among
races of tardier development. Touching the detail of the matter,
he denies, for example, in criminal law, that our modern codes
have sprung from a system of private vengeance. In the field
of family law, he denies the priority of female kinship and the
1 [Bj' Paul Frederic Girard. Translated by Albert Kocourek, from
"Melanges de droit Romain (I, Histoire des Sources)," Recueil Sirey,
Paris, 1912.]
56 INTRODUCTION [§3, 2.
maternal family (which however is not to be confused with the
somewhat improper term "matriarchate" — according to the hypoth-
esis of a general phase of female authority) to the patriarchal family
and masculine relationship, from which, in turn, the modern family
arose. In the sphere of immovable property, he rejects the de-
velopment of collective proprietorship of the clan and the tribe,
leading to collective ow'nership in the family, and then to individ-
ual ownership. He opposes also a variety of other things which
appear to be clearly established from the bringing together of primi-
tive institutions.
In this respect, talent apart, and with all deference, this little
volume does not differ greatly from those which, thirty to fifty
years ago, protested in the name of orthodox spiritualism against
the intermixture of natural science in the domain of psychology,
or the current accounts of those who to-day combat, with the same
zeal, the pretension to the discovery of sociological laws. ]M.
Tarde's originality lies in this, that he does not reject these laws,
and that he repudiates, as frankly as anyone, the narrow skepticism
which sees in social facts only a fortuitous combination of con-
flicting contingencies. M. Tarde admits that juridical facts are
governed by law, or rather, in chief, by one law" ; and he renounces
all other explanations in order to make more room for his ow^n
explanation of this law of imitation. It is to this law that he
offers a holocaust of all the results which the investigations in
comparative law have been obliged to derive from other founda-
tions. We claim openly for these researches the right of existence.
We are quite ready to admit, that in the growth of law, imita-
tion has played a very important part — a part much more impor-
tant than is generally believed, if M. Tarde wishes. But it is not
allowable on this account to deny all other development, or to
draw the history of all other, or nearly all other, changes from a
single inventor wdiose discovery then in rapid waves has swelled
over the entire globe. It is much more likely that there have
been a great many inventors. They have been, w^e believe, count-
less, and their successive and similar inventions, greatly multiplied in
number and very limited in scope, have been the product of another
cause, as it were, the mechanical operation of circumstances. It
is seen, even in our own epoch, in astronomy, in physics, and in
chemistry, how the same discoveries and the same inventions have
been independently made, a few days apart by different scientists ;
at the moment when the general state of knowledge made these
inventions imminent, or when, as we may say, they were demanded
§ 3, 2.] THE ORIGIN OF LEGAL INSTITUTIONS 57
by surrounding conditions. The same multiplicity was all the
more necessary to produce juridical inventions in epochs and places
widely separated, among those where it must well be conceded,
notwithstanding ]M. Tarde, that communication was much more
rare and difficult than among the learned of the civilized world of
to-day. There, also, the same surrounding circumstances must
have urged into being, repeatedly, at divers times and in divers
places, the same fundamental juridical inventions ; afterwards
developed and transformed by a variety of partially identical in-
ventions, under the influence of similar circumstances, following
a mechanical operation, corresponding exactly to that which to-day
produces the discovery of the same planet or the same industrial
improvement by different men strangers to each other. There
can be no question there either of imitation, or of laws of imitation.
It is, we beheve, even precisely and solely when imitation is not
involved, when it is not a factor, and when legal development
clearly proceeds without any borrowing, in its independent origi-
nality, that we may, in the proper sense, inquire into the laws of
legal evolution ; according to which not only certain juridical in-
stitutions, but certain forms of such a given institution, appear
in each group at a definite period and not at another, after a certain
phase of development and before another.
i\I. Tarde summarizes nearly all the laws of juridical develop-
ment in that of imitation. We believe, on the contrary, that it
can scarcely be doubted that there are laws other than that of
imitation. The phenomena of imitation, however, cannot be
ignored ; they are a part of the aggregate of juridical development.
One who wishes to understand this development cannot omit
to study what produces it ; how, when by the will of an alien
power, or by reason of spontaneous imitation, a foreign legal insti-
tution is introduced in the law of a people, the alien element thus
incorporated may, as the case may be, either perish, or be gradually
eliminated, or lastly, be assimilated by an internal series of changes
which develops a new channel of imitation. But the phenomena
which constitute the true material of the history of comparative
law, those in respect to which the phenomena of imitation have
only a subordinate interest, like the detail of a picture, or a con-
dition of disease for knowledge of a condition of health, are the
facts of normal development which follow free of outside influences.
From an observation of these facts as minute and as extended as
possible, we may hope to derive at once a series of partial laws,
and, perhaps, in time a general formula which will embrace them
58 INTRODUCTION [§ 3, 2.
all. Of course, we have not yet attained a general principle which
may be here, as in other scientific studies, the crown and conclu-
sion of a mass of isolated discoveries. But it may, we think, be
regarded as demonstrated, that there are a number of special laws
of evolution.
Space does not permit a discussion of the details of all the points
raised by M. Tarde. We may, however, offer certain general ob-
servations. First, it appears to us, that M. Tarde in many connec-
tions has claimed too easily to have proved the nonexistence of a
determinate chain of evolution where he thinks he can show that it
has not operated in this or that particular case. Social laws do not
always have the clearness of mathematical laws. Practical appli-
cation of these laws may, in being masked or paralyzed by an in-
finitude of circumstances, prevent their being discerned. M.
Tarde appears, also, to forget in his discussions, that the absence
in a given group, of vestiges of a phase long since overshot by civili-
zation is a regrettable accident, but natural enough ; and that it
does not outweigh all the probative force of other positive vestiges
of the same phase found in numerous other societies. Such a fact
does not any more hinder a general conclusion, than it would, for
example, in linguistics or geology. Finally, we may be permitted
to ask, if, for the purpose of a discussion of problems which involve
all the observed facts past and present of human society, the mate-
rial assembled by ]M. Tarde is not somewhat scanty ?
So, with reference to the inductions, from our point of view per-
fectly legitimate, drawn from knowledge of primitive societies and
from existing customs of peoples less advanced than ourselves,
M. Tarde speaks of " a small number of anecdotes, always the
same, drawn from various American, African, or Oceanic tribes,
which have made the round of the sociological press, and which,
for a long time, will continue the operation under various labels."
It is, indeed, not necessary to say, and the explanation is sufficiently
clear, why always the same decisions are cited in the hand-books
of the law, and the same experiments entered in the compendia of
physics. In the first place, it is very commendable to invoke
the most convincing examples which have already been discovered ;
next, it is the height of modesty that the books which are not orig-
inal should freely copy one from another. But in resorting to
such books, it is not implied that no other materials are in exist-
ence. The student would err who supposed that there are no other
§ 3, 2.] THE ORIGIN OF LEGAL INSTITUTIONS 59
decisions than those cited in his ]\Ierlin ; and the candidate for
the bachelor degree would make a mistake if he thought that no
other experiments had ever been made than those entered in his
paper. But, holding strictly to the literature of comparative law,
M. Tarde, without resorting to the general works on sociology,
will be able to find some more anecdotes either in the excellent
" Zeitschrift fiir vergleichende Rechtswissenschaft," published
since 1878 under the direction of Franz Bernhoft, Georg Cohn,
and Josef Kohler ; or again in the numerous studies of all kinds and
shapes of Kohler; and again, for example, in the considerable
collection of concrete references assembled since some years with
great patience by a colleague of M. Tarde — Judge Post of
Bremen ; thus, from a geographical poiat of view, in the 700
pages of his " Afrikanische Jurisprudenz," or, from a systematic
standpoint, in his " Grundriss der ethnologischen Jurisprudenz."
And if M. Tarde speaks in this manner of the researches relating
to the existing customs of savage peoples of the present day, we
may doubt whether his information is more complete in that
which concerns the able inquiries made in our time into the his-
tory of the past. There, also, he takes the conclusions of elemen-
tary books of second and third hand as the sum of science ; and
he is astonished that he finds so little. A passage from the author
has it that in the renascence of historical legal studies at first
" only Roman law was investigated historically from its sources" ;
and then was followed by the Egyptian and Assyrian law,
and then again only, it seems, by " similar researches into
Indo-European and Semitic antiquities, the Germans, Slavs,
Persians, and Celts, as well as the ]\Iussulmans, the Hebrews,"
etc. This suffices to show a somewhat superficial notion of the
magnificent erudition and critical investigation first made in our
age in Germanic legal history, and perhaps rather than in
Roman law; which movement of research has since spread to
Slavic, Hindu, Greek, and Hebrew law, and has extended still
more tardily to Egyptian and Assyrian law. The very good book
of ]M. Dareste ("Etudes d'histoire du droit"), which is the most
solid and the best of those to which he has appealed, points out a
whole literature which he appears scrupulously to have avoided.
This, we believe, is the great defect of the book, and is the
general explanation of the defective solutions in which it results.
Being inclined by nature more to abstract reasoning than to sys-
tematic observation, ^I. Tarde has treated almost exclusiv.ely, by
a process of reasoning, questions which depend entirely on obser-
60 INTRODUCTION [§ 3, 2.
vation, and for which personal observation remains more indis-
pensable than anywhere else ; because the effort to sum up, and to
classify positive facts, is still liable to disregard what has already
long since been recorded in numerous collections, as is the case
for the greater part of the other sciences of observation. We will
give a final example of this, which seems to us to be striking.
]\I. Tarde speaks of the wonderful similarity observed by M.
Seignette ("Code musulman par Khalil") between the customs of
the pre-Islamitic Arabs and those of the Romans at the time of
the Twelve Tables — absolute paternal power, perpetual tutelage
of females, the will, inheritance and tutelage of the agnates, patron
and client, testamentary tutelage, nexum, pignoris capio, noxal
abandonment, retaliation, composition, etc. He finds here, as
always, the influence of imitation, and that "if we recall the
proximity of Arabia and India where similar customs have pre-
vailed . . . there is no difficulty in explaining these resemblances
by imitative action." It is easy to understand how one so adept in
the doctrine of imitation may heroically support the similarity be-
tween the legends of the Zulus and our children's tales, by supposing
an importation of these stories by merchants and European sol-
diers who on the whole were more occupied with the destruction
and spoliation of the natives than with the recital to them of the
Ass's Skin and Little Poucet. But this is an affirmation, and not
a demonstration. The method of science proceeds otherwise.
In order to ascertain if the similarity between the laws of Rome
and pre-Islamitic customs is derived or not by imitation from a
primitive system of law common to the Romans and the Hindus,
a scientific method of inquiry will discover if the same institutions
existed among the Hindus as among the Romans, on one hand, and
if, on the other hand, they are found among the founders common
to the two races, before their separation. Having determined for
a certainty that they exist among the Romans, and not among
the Hindus ; or, again, that they exist among both Romans and
Hindus, but that they developed among them only after the
separation, it may not only be supposed, but it will be proved, that
the first institutions have arisen independently under the influence
of identical causes among the early Arabians and the Romans ;
that the second have had the same kind of origin among the Hin-
dus and Romans ; and that those facts make very questionable
any explanation of imitation for those cases where the impossibility
of such a theory cannot be directly shown.
There, as in many other places, the error of M. Tarde proceeds
§ 4.] UNIVERSAL COMPARATIVE LAW .61
from this, that he wishes to treat a science of observation by other
methods than those of the sciences of observation. This does not
prevent an attentive reading of the book, which is still useful in
that, by its very character of opposition, it gives to the students,
who in future will pursue these studies, a good motive to test
their own ideas. But since, as we think, he has failed to shake
seriously any of the propositions of the doctrines which he combats,
his theory is very far from bringing a revolution, as some enthusi-
asts have too hastily proclaimed.^
Section 4
SCIENXE OF UNIVERSAL COMPARATIVE LAW 2
1. It is recognized, now, that the study of positive law of all
peoples, and in all ages, is scientifically possible and necessary.
Likewise, it is admitted that an examination of primitive and em-
bryonic stages is indispensable for full understanding of later
phases of growth ; and that comparison of different ideas is the
best method to determine the character and tendencies of legal
evolution. There is implanted in the minds of all scholars a
belief in the propriety and importance of experiential investigation
in all sciences, and especially in that of the law. The only objec-
tions which may be urged against this method relate to the intrinsic
difficulty of the investigation and the limits assigned to it ; not by
virtue of a preconceived idea of dogmatic order of the materials,
but on account of the means and efforts which must be employed.
A complete and universal study of juridical phenomena, in truth,
is a scientific ideal which we are able and ought to seek, but which,
for reasons easy to find, can never be fully attained. How many
peoples there are recorded which have disappeared leaving only
the scantiest traces of their history, or perhaps nothing ! How
many documents irreparably injured, or hidden, or indecipherable !
To what extent has the law been observed simply as custom, with-
1 [Mr. Tarde replied to this re\iew in a letter to the "Revue Philoso-
phique" (December, 1893, pp. G23-629, and republished in the preface
to later editions of his "Transformations du droit," Gth ed. 1909, pp. i-
\-iii). Professor Girard rejoined in "Revue Philosophique " (1894, Vol.
XIX, pp. 210-212) and republished in his "Melanges de droit Romain,"
Tome I, pp. 429-432.]
2 [By Giorgio del Vecchio, former professor at the University of Messina,
and now professor of Philosopliy of Law at the University of Bologna;
translated by Albert Kocourek from the French version of M. Rene Francez
("Extrait de la Revue Critique de Legislation et de Jurisprudence,"
Paris, 1910).]
62 INTRODUCTION [§ 4.
out other sanction, and without written form ! The difficulty of
knowing at this time with precision of the legal systems of peoples
which did not attain an elementary elaboration of law, either
legislatively or scientifically, is manifestly very great, and when
we deal with ages far removed, is frequently insurmountable.
Especially, knowledge of origins, and of prehistorical develop-
ments does not appear to be easy to obtain, except for him who
ignores the special conditions of an investigation of this kind, and
is disposed to supph% in default of documents and critical proofs,
the products of imagination, or dogmatic credulities. Neverthe-
less, the difficulties and the compass of the matter, instead of
causing a slothful or skeptical abandonment of the subject, ought
rather to induce more diligent efforts ; since the infinite richness and
variety of the phenomena of nature are a motive of zeal, and not
of discouragement to the naturalist who seeks to discover its laws.
To-day, notwithstanding considerable progress due to the labors
of a few indefatigable scholars, knowledge of universal juridical
phenomenology is rather incomplete and imperfect. This, it may
incidentally be remarked, is the cause, and partially, also, the
effect of the complete absence of this subject in the programs of
study. In this state of things, there being a lively and profound
belief, more or less clearly defined, of the necessity of this study,
it is not astonishing that its want makes itself felt indirectly.
Its absence is the cause of disorders and evils which disadvanta-
geously affect the system of studies and the economy of thought.
That which is understood as sociology, frequently is only a
collection of experienced facts which logically ought to appertain
to the science of universal comparative law, and, in a larger sense,
to juridical science from which these facts are excluded only by
virtue of a too narrow conception which it still supports. Those
institutions and those phenomena of social life, which, considered
from a certain stage of evolution, or under a like, special aspect
better known, show themselves unmistakably to be of a juridical
nature, are, on the contrary, rejected as beyond the "official"
scope of juridical science ; since they appear in a more primitive
form, among peoples less civilized, or even in different civiliza-
tions. For example, a work on the parental and patrimonial
regime of the Papuans or the Bogos, and perhaps even of the
Aztecs or the Koreans will have little chance of consideration by
the jurists who dislike to look beyond the horizon of the tradi-
§ 4.1 UNIVERSAL COMPARATIVE LAW 63
tional culture. At the same moment, they easily take refuge in
that collection, often chaotic, of facts and conjectures, which con-
stitutes what is called sociology, and which in its defective sys-
tematization bears precisely the mark of the imperfections of
contemporary culture. The truth is that the only sociology having
a reason for existence is one which treats the rides of method com-
mon to different sciences, from observation of human facts.
We shall show here, briefly, what these rules are in connection
with the law, and how they are able to accord and harmonize, in a
coherent program, as well with the science as with the philosophy
of law.
2. We must, first of all, proceed from the principle that all posi-
tive law whatsoever, and however it may appear in the order of
phenomena, is a natural fact ; that is to say, determined by suf-
ficient causes, and connected with all other aspects of reality. . . .
It is necessary clearly to understand the relativity of positive law,
in order that a phenomenon, and even a general phenomenon, will
not be confused with the law or with the criterion of valuation to
which, logically, the reality is subordinate. . . ,
From any such principle it follows at once that no juridical
institution is to be regarded as a prototype of others. All without
exception ought to be equally examined and analyzed in the
historical setting which produced them. For the same reason no
institution should be put aside or regarded as unworthy of scientific
investigation. All undervaluation in these matters is as unjusti-
fiable as all over-preference. Thus, as Post remarks, a feeling of
revulsion because a people live without marriage, practice human
sacrifices or cannibalism, or burn sorcerers and witches, is without
value in the solution of ethnological problems, but rather diverts
attention from the search for the causes of these phenomena.^ Who-
ever maintains that popular customs and beliefs are devoid of
meaning shows that he is not qualified for this study. Against
the judgment of Cicero ^ who declared the law of all peoples,
strangers to Rome, "poene ridiculum," we may urge the more
profound saying of Spinoza ^ — " non ridere, non lugere, neque
detestari, sed intelligere."
Another consequence of the principle stated is the necessity of
not neglecting the origins and the primitive phases of institutions
which we do not discover as completely formed and de^'eloped.
If it is admitted that in the empirical order of things, everything
' [See Section 2, supra, p. 36.] ^''T>e Orat." 1, 1, c. 44.
3 "Tract. Polit." c. 1, Sec. 4.
64 INTRODUCTION [§ 4.
results from a cause, and that nothing happens without sufficient
factors to produce it, then we shall be obliged in the study of all
juridical institutions to take account of their antecedents. And
the further back we go into the knowledge of these antecedents,
the better we shall attain a complete notion of the institution.
Comparison of the different phases of its growth, of the changing
aspects assumed accordmg to circumstances, is necessary for a
clear understanding of its present situation. For this purpose,
the most valuable information, in fact, is furnished by its original,
its rudimentary, and lowest forms of development, which to a
superficial observer would appear as of no importance. For this
reason it is also necessary to state that each product of evolution,
however advanced, sums up all earlier forces. The law of any
people in all stages retains the signs and residues of precedent
phases of growth, however remote. Juridical rules and beliefs of
the ages past survive in some sort in the present ; they are never
completely lost. But these elements mixed with others super-
vening later, and recast in a new form, frequently escape the
observer. . . .
A survival, unimportant though it may seem, may throw an
unexpected illumination over a mode of life which has disappeared
from view. A rare form preserved by unconscious tradition, a
custom profoundly rooted in spite of its discord with written law,
may permit an entire reconstruction of an age which has passed
away. Such a reconstruction is notably rendered possible by the
frequent fact that a detail which in a certain phase of culture ap-
pears as an anomaly, may be found in vigor in a complete and
harmonious system among other peoples of lesser culture.
3. The principle of method above indicated has a fundamental
importance. Nevertheless, it is insufficient to constitute a science
of juridical phenomena. It establishes the generic condition of an
investigation of this sort in so far as it has an empirical character,
but not its specific condition in that its object isJ2iridical phenomena
as such. From this arises the necessity equally fundamental of
determining from a logical standpoint what is to be understood
by law, and upon what elements the juridical character of a phe-
nomenon depends. . . .
This inquiry, of course, in its nature, goes beyond an empirical
investigation which as such seeks to assemble special and con-
crete juridical facts, and not to discover a logical universal form.
. . . Let it suffice to reaffirm that this formal idea is a necessary
condition to experience of juridical facts. It is recognized in all
§ 4.] UNIVERSAL COMPARATIVE LAW 65
phenomena of law but always in a special attitude, with a content
variable and logically accidental. On the contrary, it compre-
hends and limits in equal measure all possible cases in the juridical
sphere, surpassing, therefore, by far, the facts verified in the
domain of experience. Recognition of this transcendental condi-
tion of juridical experience does not diminish the value of experi-
ence itself. Rather, it puts experience in its true light and guaran-
tees its authority in its own field. In reality, we are able and
ought to borrow from experience as an inexhaustible fountain,
knowledge of the content that law has provided in space and time.
From what has been just said nothing which credits the study of
historical facts in which a juridical character is found, is an ob-
struction to going back in turn to the formal idea of which facts are
only the applications and illustrations.
4. In agreement with these fundamental criteria, an objective
study and comparison of juridical phenomena may be attempted.
We may therefore set up an autonomous science which may be
called the "science of universal comparative law." But in order
thoroughly to apprehend the basis and object of this comparison,
it is necessary to return to the principle which dominates its ma-
terials — the profound unity of human nature of which the law is a
necessary manifestation. We find here also one of the premises of
empirical investigation, the results of which however confirm and
illustrate this unity, but in reality rest upon it and draw from it
its scientific character.
Every man bears within himself the principle of law. Every
mind possesses the elements with which to elevate itself to its
proper empirical position as a personality whence it may har-
monize ethically with the personality of others. It is essential
not to lose sight of this eternal principle of justice which is firmly
anchored in the depths of the human mind, in order that the
manifold series of facts which issue from it, and which observation
attempts to discover, may be thoroughly understood.
Thus, we recognize at once that the psychological aptitude to
distinguish in a certain measure the just and the unjust, and to feel
and to conceive juridical truth is not the possession of a few men
only, but belongs to all persons. Again, law is not an isolated fact
which alone is encountered among this people or in that epoch ; but
everywhere that men are found, there are discovered traces of an
ethical system, and of a law which reflects a common activity of
man's spirit.
On the other hand, in the same way that the human mind devel-
66 INTRODUCTION [§ 4.
ops slowly from the most obscure forms of knowledge to clear
ideas, so also the law grows from a phase almost unconscious, and,
little by little, attains the stage of reflection. An obscure instinct
and a vague intuition of their objects is sufficient to generate among
men organizations and institutions which seem to indicate, so
complex is their structure, profound and mature thought. They
are not, however, less a product of mind and intelligence, although
created spontaneously, and, as it were, unconsciously. . . .
The unity of the human mind, in which the law has its source,
does not, in general, spring solely from the continuity and univer-
sality of law. A series of identities and resemblances which are
met in the positive law of all peoples is another special proof of this.
The prejudice which for a time dominated, especially under the
influence of the Historical School according to which each people
necessarily has a system of law peculiar to it, which is a part of that
people and fits its own conditions, and which as a result would be
different among other peoples, compelled a broader study of
juridical phenomena to yield. This study has already demon-
strated for a certainty that a large part of fundamental juridical
principles and institutions is the common heritage of all humanity
in all epochs. The modern specialists of comparative law insist
upon this proposition ^ because they well understand, without
expressly saying it, that this science has its true reason for existence
in the substantial unity of the human mind which is revealed in
the law.
The fact that juridical institutions are subjected to a process of
evolution may appear to negative this unity. On the contrary,
it provides a new confirmation ; since evolution itself manifests a
general attribute of humanity which is realized in an analogous
manner among different peoples widely separated in space and time,
and having no connection with each other ; where, otherwise, to
explain these phenomena, it would be necessary to revert to the
hypothesis of a common origin of the races which in many cases is
not verified, and where, for the rest, it would be insufficient to
justify the analogies observed. The same evolution governs the
general expression of the ethico-juridical system and special
institutions (such as property, the family, etc.). They pass through
a series of determinate stages in a definite order and frequently
1 Post, "Bausteine," i (1880), pp. 14, 54, "Ueb. die Aufgaben einer al-
gem. Rechtswiss." (1891), pp. 17-19 ; Kohler, [Introduction, See. 1, of this
volume, and] "Ueber die Methode der Reehtsvergleichung " in Griinhut's
Z. (1901), p. 274 seq.; Dareste *!' Etudes d'histoire du droit," V serie
(2<ied. 1908),p. xiiiseg.
§ 4.] UNIVERSAL COMPARATIVE LAW 67
with the most remarkable resemblances ; even to the point of the
smallest details, and among nations without any historical associa-
tion.
It is necessary to make reference to another fact which equally
confirms, on last analysis, the principle advanced, and, of which,
ordinarily, the generality and importance is not fully recognized.
We refer to the ease with which juridical institutions are adopted
by peoples other than those among whom they originated. This
aptitude reveals itself in the same proportion as the degree of
development to which it applies. Thus, it happens that the laws
and even the customs of the more developed nations are nearly
always understood (directly or indirectly) beyond the limits where
they originate; and are applied, frequently, with a great deal
more facility and rapidity than one would suppose in places where
a different law is already established. In this manner, the law of
each people is able to profit from elements elaborated by others
by renewing or reenforcing itself through their strength, or by
drawing from them partial adaptations according to the cir-
cumstances. The importance of this fact which intervenes almost
constantly in the vicissitudes of the law, and chiefly in its periods
of progress, will be hard to exaggerate. It implies that in essence
the force of juridical institutions, in general, exceeds the causes and
the contingencies which produce them ; for while being always
determined by historical conditions their internal logic neverthe-
less gives them an independent vitality, and renders them fit for
new adaptations, and a function infinitely greater than that
appearing at the time of their creation. In a word, the same in-
stitutions may be considered in an aspect other than that of
historical contingence ; they may be regarded as expressions or
products of the human mind ; and, we may say, from an universal
point of view, that they are siiperior to history.
It has been observed with justice ^ that the Historical School
never offered a sufficient explanation of the reception of Roman
law in Germany. It is now clear that this fact could not have
been understood by this school precisely because its concept of the
historical and national character of law was too narrow. Again,
it was because of the narrowness of the path on which this school
operated, that it was all the more incapable of acquiring the uni-
versal notion of this reception, which as has been stated is encoun-
tered among all peoples and in all epochs. Thus Roman law which
was received in Germany, on its part received a large number of
^ Bechmann, "Feuerbach und Savigny " (1894), p. 15.
68 INTRODUCTION [§ 4.
elements of Attic and other jMediterranean law. We may also
note, by way of further examples, the reception of Hindu law in
Burma, of the law of Islam in Africa, of German law among the
Slavs and Hungarians, and more recently of French law in many
parts of Europe and in America ; ^ without discussing the special
borrowings, equally very remarkable, in private and public law,
as for example, the English parliamentary system which has spread
and is spreading among other States.
It remains to bring to light a capital fact which to a certain
extent sums up the points already made. In the course of the
development of law the elements of general human significance
prevail over particular and strictly national elements which mark
the inferior phases of this development. Special rules disappear
and make way for more comprehensive rules conforming to ra-
tional and universal principles. In the progressive movement in
which juridical institutions of the peoples take on a rational
and universal character, they tend to coincide. In other words,
there comes about a convergence of special developments which
establishes a more extensive coordination and a more profound
harmony among the laws of different nations. This tendency is
only an aspect of the development of the human spirit ; likewise,
at the same time, it has a character of spontaneity and necessity ;
and it does not depend on external circumstances or influences.
Nevertheless, an explanation of this tendency is facilitated and its
realization is favored in the system of facts by the aptitude already
noticed with which juridical ideas are communicated among
different peoples — an aptitude which itself presupposes a definite
unity of human nature without which it would not be possible.
The conjunctures which, in consequence of diverse contingencies,
but with increasing frequency, occur among different groups are an
excellent means of recognizing that the essence of the human spirit
is always identical, and thus of establishing connections which are
based, at least in part, on a recognition of this unity of nature.
Thus, whether by the internal elaboration which goes on in the
bosom of the law of each people, or whether by the borrowings
which occur among different peoples, we arrive degree by degree to
^ CJ. Bernhoft, "Ueber Zweek und Mittel der vergleieh. Reehtswiss."
(Z. f. V. R., 1878), p. 27; Post, "Ueber die Aufgaben einer allg. Reehts-
wiss." p. 22 ; Kohler, "Ueber die Methode der Reehtsverg." p. 279. With
reference to the different kinds of transmission and imitation, direct or
indirect, conscious or unconscious, see Freeman, "Comparative Politics,"
2d ed., 1896; Emerico Aviari, "Critica di una'scienza delle legislazioni
comparate" (1857), pp. 53-69; Vadala-Papnie, "D' una scienza delle
legislazioni comp." (ext. Circolo Giuridico, Palermo, 1882).
§ 4.] UNIVERSAL COMPARATIVE L.\W 69
a realization of universal juridical criteria sufficient to govern all
humanity. In a word, there is established and perfected an
ensemble of common principles, a societas hiiviani generis based on
laws inherently natural to all persons. That which rationally is a
demand a priori is realized in history by a sluggish process operat-
ing amidst the most diverse and complicated changes.
It is precisely the mission of the science of universal compara-
tive law to collect and arrange the phases of this process which
reveals the achievement of an end toward which human reason
tends. Therefore, it ought itself to be an efficacious instrument
for the progressive unification of the law. This science is distin-
guished from legal history in the narrow sense, and dominates the
particulars of the law, just because its object has an universal
character. It does not embrace the data of juridical experience
as simple events which depend peculiarly on special causes, but
makes use of them so far as they represent, in a definite degree, the
development of the human spirit in the form of the law. The
point of view which is simply historical and clironological is thus
left behind. Every juridical form has the function which belongs
to it by reason of the idea which it cloaks, whatsoever may be the
epoch or the people where it is presented. Such a criterion, no
doubt, presupposes historical knowledge, but is itself superior to
history. It permits the grouping of the institutions ancient and
modern of the peoples of all parts of the world, wheresoever they
have realized the same juridical idea. Such an idea shows its
human significance precisely in that it appears uniformly among
remote peoples who are strangers to each other, in a form deter-
mined by their respective developments.
In directing its researches in this sense the science of universal
comparative law follows and retraces the steps of evolution of that
notion of law which is found unified and complete in pure reason.
Two methods are possible and in the end lead to the same result :
that the human mind produces the law in the system of phenomena,
and regards it in itself suh specie ceterni; and that it is the same
need of justice which, satisfied partially and by degrees in the course
of history, is affirmed categorically by conscience as an absolute
ideal to which the various facts in the empirical order of things
ought to adjust themselves.
5. From what has preceded it is easy to draw the conclusion.
If the science of universal comparative law is set in motion in the
domain of experience, and is supported by knowledge of juridical
phenomena, it is none the less subjected to a whole series of philo-
70 INTRODUCTION [§ 4.
sophical premises and constructions without which it would fall
of its own weight. While it is, and ought to be, an empirical
science, yet it marks the limits of the reconcilement of the science
and philosophy of law. The science of law discovers in the phil-
osophy of law its principles and its complement ; just as, in its
turn, the philosophy of law may and should profit for the applica-
tion and verification of its criteria, by that which science has
brought to light. ...
I
PART I
LAW AND THE STATE
Chapter I
FORMS OF SOCIAL ORGANIZATION
By J. W. Powell
Chapter II
EVOLUTION OF THE STATE
By Josef Kohler
Chapter III
OMNIPOTENCE OF THE ANCIENT STATE
By Fustel De Coulanges
Ch.\pter IV
CHIEFTAINRY AND KINGSHIP
Section 1. Cultural Importance of Chieftainrt
By Josef Kohler
Section 2. Authority of the King
By Fustel De Coulanges
Chapter V
RELIGION AND LAW
Section 1. Religious Origin of Ancient Law
By Fustel De Coulanges
Section 2. Religious Element in Hindu Law
By Henhy S. Maine
Section 3. Taboo as a Primitive Substitute for Law
By Josef Kohler
Chapter VI
EVOLUTION OF CRIMINAL LAW
Section 1. Primitive Criminal Law
By Ricsard R. Cherry
Section 2. Development of Justice
By L. T. Hobhouse
Section 3. Origin of Punishment
By Ellsworth Faris
Chapter VII
THE FORMS OF LAW
By Henry S. Maine
Chapter VIII
METHODS OF THE LAW'S GROWTH
By Henry S. Maine
Chapter I
FORMS OF SOCIAL ORGANIZATION ^
The officers of the Bureau have now been engaged for many
years in investigating the institutions of savagery, and while
these researches are far from complete and many questions are
unsettled it seems desirable, for many reasons, that an outline
of certain conclusions should be published.
Regimentation in sociology is the analog of organization in
biology. The accomplisliment of justice in institutions is the
analog of function in the biotic realm. Often the terms organ
and function are transferred from biology to sociology. This
double use of terms is a very general device of speech, and is both
legitimate and useful when properly understood ; but the terms
organ and function are tropes in sociology, and must be so under-
stood lest they should lead astray. By regimentation is meant
the grouping of people by institutional bonds, while the accom-
plishment of justice is the social function or office which a confed-
eration or group of people performs.
Two radically distinct methods of regimentation are found extant
in the world and recorded in the history of the past ; these may be
known as the t ribal syst em and the national system. By the
tribal system men are organized on thebasis^ of lonship, real or
artificial. By the national system men are organized on the basis
of territory. Thus kinship groups are found in tribal society,
territorial groups in national society. In history, transitional
forms are found, the most important of which are feudal. Thus
feudal society exhibits both methods, and forms a connecting link
in the evolution of tribal into national government.
In savagery families are organized into dans^ and clans some-
times into tribes, and tribes into confederacies. Sometimes
intervening units are discovered, but the family, clan, tribe, or
1 [By J. W. Powell. Reprinted, by permissiou, from the 15th Annual
Report of the American Bureau of Ethnology (The Smithsonian Institu-
tion). The original title of this study is " On Regimentation."]
73
74 LAW AND THE STATE [Part I.
confederacy are always found. In barbarism families, gentes,
tribes, and confederacies are organized into a hierarchy of units,
and there are sometimes intervening units. The difference be-
tween the clan of savagery and the gens of barbarism is important
and fundamental. The clan is a group of people reckoning kin-
ship in the female line, while the gens is a group of people reckon-
ing kinship in the male line. Tribes reckon. kinship in the male
or female line together with affinity, and adopted members of the
tribe are given artificial kinship. When tribes unite in confedera-
cies, artificial kinship is established as a legal fiction, and the mem-
bers of one tribe know the members of another tribe and address
them by kinship terms. The manner in which this kinship organi-
zation is elaborated varies greatly from tribe to tribe. Radical
differences exist between the tribes of savagery and the tribes of
barbarism. In barbarism patriarchies are found as concomitant
with nomadic tribes, but in savagery the patriarchy does not exist,
nor are savage peoples properly nomadic, as nomadism begins
with the domestication of animals and higher agriculture.
The plan of organizing states into units of different orders so
as to form a hierarchy of groups is denominated regimentation,
and it can be made cleiar by explaining primitive regimentation.
With national states, territorial organization obtains. People
are divided into bodies or groups by districts. No two nations
are organized in precisely the same manner ; though the general
plan is the same — i.e., by territorial boundaries — the specific
manner in which the organization is worked into detail is ever
variable. It is impossible here to set forth all these various
methods. It will be sufficient to take some one nation and explain
its organization as a type, and for this purpose the Government
of the United States is chosen.
The grand unit, or the nation, is divided into states and inchoate
states, or territories. States are divided into counties, and
counties are divided into townships, sometimes called towns. In
addition to the hierarchy of units thus enumerated, there are cities
and villages, Avhich are again divided into wards, and these again
into polling districts, while other districts are sometimes found.
The various units thus set forth are established for executive pur-
poses. This regimentation is that which obtains for executive
purposes.
There is another system of regimentation for judicative pur-
poses. In part, but only in part, judicial districts coincide with
executive districts, and there are national courts, state courts,
Chap. I.] FORMS OF SOCIAL ORGANIZATION 75
county courts, and municipal courts. Again, judicative functions
are differentiated, as criminal and civil, and special courts are
organized therefor, while other courts are organized, as railroad
commissions, warehouse commissions, etc.
A third system of regimentation is used for legislative pur-
poses, and in this system the districts correspond only in small
part with those established for executive and judicative purposes.
A fourth system of regimentation is established for operative
purposes. The General Government carries on works, states
carry on works, ct)unties carry on works, and cities and towns
carry on works.
Still a fifth system of regimentation is found, namely, that for
school purposes.
By the district system thus briefly and imperfectly elaborated
the people are organized or regimented into bodies, and special
functions are relegated to the several units. These functions are
constitutive, legislative, executive, operative, and judicative. It
is by constitutive action that regimentation is accomplished;
and it is by regimentation that specialization is accomplished.
This specialization is carried on to such an extent in the United
States that much of the government is local self-go^•e^nment.
Every school district has special functions, every township special
functions, every county special functions, every state special
functions, and every municipality special functions ; while general
functions are exercised over all by the Federal Government. Thus,
the people of the United States are constituted and regimented
into a congeries of hierarchies of units all woven into one com-
plex system as the Government of the United States, and so
adjusted in interdependent parts as to secure a high degree of
specialization.
In addition to the governmental regimentation, there is a vast
congeries of societies or corporations organized for religious, in-
dustrial, educational, and other purposes, all of which constitute
part of the state or nation.
The regimentation of all people is founded on natural families,
for there are husbands and wives, parents and children ; but such
families have lineal and collateral lines of kinship involving both
parents. A larger group than that composed of parents and
children is organized in the crudest society known. For this pur-
pose all of these persons reckoning consanguineal kinship tlirough
the female line are regimented or organized in a clan. The term
clan should always be used to designate this group, though it is
76 LAW AND THE STATE [Part I.
sometimes improperly used to designate other groups. The hus-
band and wife do not belong to the same clan, but the husband
belongs to the clan of his mother, while the wife belongs to the clan
of her mother. It is thus that the first constitutive unit of or-
ganized society is based on kinship reckoned through the female
line. The next unit recognizes kinship by affinity, and a number of
related clans that intermarry constitute the tribe. The term
tribe should always be used in this manner. Curiously enough
all of the terms which are used in defining the units of regimenta-
tion are often used promiscuously, so that clan, gens, tribe, and
confederacy, with many other terms which are synonymous, have
a vague meaning in popular estimation; but in science we are
compelled to give a definite meaning to fundamental terms. A
clan, then, is a union of persons w^ho reckon consanguineal kinship
in the female line ; a tribe is compounded of clans whose members
reckon kinship by consanguinity and affinity, while a confederacy,
which is more or less ephemeral, is a union of tribes reckoning
kinship as a legal fiction.
In the clan the group is ruled by an elderman. But this
elderman may or may not be the oldest living male in the clan ;
to understand this it becomes necessary to understand the
method of kinship naming in vogue in savagery. In the clan the
children of one woman are not only brothers and sisters to each
other, but also "brothers" and "sisters" to such of their cousins
as reckon kinship in the female line. Thus, if there be three sisters
their children call one another by reciprocal kinship names, as
"brothers" and "sisters"; but if there be three brothers their
children do not call one another by common kinship names, but
by the kinship names determined through their mothers ; that is,
they call one another cousins. Among the collateral descendants
through the female line there are thus a number of persons of
varying ages calling each other "brother" and "sister," though
the term used always has a further significance in that it designates
relative age, so that there is no single term for brother, but two,
one signifying elder brother and the other younger brother ; there
are also two terms for sister, one signifying younger and one elder.
Now, it is a law of savage society that one person must address
another in the clan, in the tribe, and in the confederacy by a kin-
ship term, and as superior age always gives authority, to address a
person as elder is a symbol of yielding authority, and to address
him as younger is a symbol of claiming authority. There is a
curious modification of this custom which is a legal fiction. If any
Chap. I.] FORMS OF SOCIAL ORGANIZATIOX 77
individual in the group of brothers exhibits superior abiUty,
the clan or some other constituted authority takes him out
of his kinship rank into a higher rank. Thus his kinship
name is changed; younger brother becomes "elder brother,"
and elder brother becomes "younger brother" by a legal fiction;
or the son may become the legal "father" and the father the
legal "son."
A promotion in kinship is always attended v.'ith much tribal
ceremony. Among the Iroquoian tribes it is called "putting a
spike on the horns." In some tribes it is called "adding a feather
to the bonnet," in others it is " adding a stripe to the war paint."
There is often a preliminary course of instruction for the ceremony,
which is performed by the priest. Important promotions may be
revoked, and a man who becomes unworthy in his office may have
his "horns" knocked off, or his "feathers" plucked out, or his
"paint" washed away. In all such cases he falls back to his
natural kinship name and state.
Every clan in a tribe receives a special name, which has come
to be known as its totem. Thus in a tribe there may be a buffalo
clan, a beaver clan, a cloud clan, a wind clan, an eagle clan, and a
parrot clan, with others. Sometimes the clan name is the common
name for all persons in the clan, but more often there is a group of
names signifying some real or mythologic characteristic of the
animal or object taken as the totem. For example, in the buffalo
clan there may be a name signifying "sitting bull," another "stand-
ing bull," still another "mad buffalo" ; and names taken from the
mythology of the buffalo may be used. The clan name or totem
is used to distinguish the members of one clan from the members
of another. It is never used in the first and second persons, but
always in the third person. In direct address the kinship name
expressing relative age must always be used. Uncles in the clan
are addressed as "fathers," cousins in the clan as "brothers" and
"sisters."
If two or more tribes unite in a confederacy, the first thing to
be considered in the council by which such a confederacy is es-
tablished is the kinship terms by which one tribe shall address
another. Where two unite, one may be called "father" and the
other "son," while with the females "mother" and "daughter"
are used. One may be called "elder brother" and the other
"younger brother," with "elder sister" and "younger sister."
In compounding many tribes in this manner curious complica-
tions arise.
78 LAW AND THE STATE [Part I.
We thus see that a savage tribe is regimented by kinship through
devices of naming, especially for the clan, tribe, and confederacy,
and these names are so constituted that relative age is always
expressed, for the elder has rights and the younger duties.
As in territorial organization special functions are relegated to
the several units, so in kinship regimentation special functions
are relegated severally to the hierarchy of bodies thus consti-
tuted — that is, certain offices are performed by the clan, others
by the tribe, and still others by the confederacy. The possession
of property which is exclusively used by the individual is inherent
in the individual, such as clothing, ornaments, and various utensils
and implements. Individual property can not be inherited,
but at death is consigned to the grave. That property which
belongs to the clan, such as the house, the boat, the garden, etc.,
inheres in the corporate person. No article of food belongs to the
individual, but is the common property of the clan, and must be
divided by the authorities of the clan, often according to some rule
by which some special part is given to the person who provides
the food. Thus when a hunter dispatches a deer a particular
portion is given to him ; other portions may be given to those
who assisted in its capture. All the rest is divided according
to the needs of the individuals of the clan. The women gather
fruits, seeds, or roots. That which is consumed at the time is
divided by like methods, but that which is preserved for future
use sometimes becomes the property of the clan. The elderman
of the clan is responsible for the training of children, and it is no
small part of his duty daily to exercise them in their games and
to instruct them in their duties. Thus h« who enforces clan
custom is the same person who instructs in clan custom,
and when councils of tribe or confederacy are held he is the
representative of the clan in such councils. The chief of the
confederacy is usually the chief of one of the tribes, and the chief
of the tribe is usually an elderman in one of the clans. There are
clan councils, tribal councils, and confederate councils, chief coun-
cilors and eldermen.
Another organization, which involves all civic relations, must be
explained. There is a body of men, and sometimes women also,
who are known as medicine-men, or shamans, or sometimes as
priests, who control all religious ceremonies, and who are diviners.
As disease is supposed to be the w^ork of human or animal sorcery,
it is their function to prevent or thwart sorcery. They have the
management of all ceremonies relating to war, hunting, fishinr".
Chap. I.] FORMS OF SOCIAL OKGAXIZATION 79
and gathering the fruits of the field and forest. It is their office
to provide for abundant harvests, to regulate the climate, and
generally to divine and control good and evil by means of cere-
monies. The principal shamans are men, but all the people are
united into shamanistic societies. Usually there is some de-
termined number of these societies, over each of which some
particular shaman presides, but he has subordinates, each one of
whom has some particular office or function to perform in the
societies. Sometimes a person may belong to two or more of these
societies ; usually he has the privilege to join any one, and a ^e^■ered
or successful shaman will gather a great society, while a shaman of
less skill will preside over a society more feeble. Let us call
these, ecclesiastic corporations, and call the shamans priests. The
only corporations in savagery are ecclesiastic. The way in which
they are regimented and controlled differs from tribe to tribe, and
there is a great variety of ceremonial observances. In all civic
councils the ecclesiastic authorities take part and have specified
functions to perform, and introduce into ci^'ic life the ceremonies
which they believe will procure good fortune. Perhaps the
ecclesiastic authorities may be more powerful than the civic
authorities, and the hereditary line of special ecclesiastic governors
may gradually overpower the ci\'ic constitution and absorb it as
a secondary element in the ecclesiastic constitution, for it must
be remembered that the chief priests are men ; the women play
a very small part in ecclesiastic affairs. Now, as the men manage
ecclesiastic affairs as chief priests, so civil affairs are managed
mainly by men as eldermen, and the conflict which sometimes
arises between the l^'o forms of government is mainly between
men and men — between able eldermen and able shamans. Some-
times both offices are combined in one person, and the great elder-
man may also be the great shaman.
There are five fundamental principles of justice ; that is, to
secure justice, five fundamental purposes must be considered :
Justice is the establishment of peace. Justice is the establish-
ment of equality. Justice is the establishment of liberty. Justice
is the establishment of equity ; and justice is the establish-
ment of truth. In all law, primitive and modern alike, these
princij)les are recognized, and all institutions are organized for
these purposes.
In the study of North American tribes it is always found that
the purpose assigned and recognized for the organization of that
unit is the establishment of peace. Two or more bodies have
80 LAW AND THE STATE [Part I,
come to war and finally agree to live in peace and make a treaty,
and the terms of the treaty are invariably of one character if they
unite as a tribe. If they unite as a confederacy, it is for other pur-
poses. This fundamental condition for the organization of a tribe is
that the one party agrees that its women shall be the wives of
the other, with a reciprocal obligation ; and this is the character-
istic which distinguishes tribes from confederacies. A body of
people that is organized for the purpose of regulating marriage is a
tribe, and a body of people organized for war is a confederacy.
Thus the organization of a tribe itself is the first recognition of the
principle of peace in the origin of constitutions.
The principle of equality is recognized in the method of distribut-
ing the spoils of the arrowy the fish net, and the fruit basket, which
is an equal division to all the members of the clan. The principle
of liberty is first recognized when slavery is established, and the
means of obtaining freedom are provided, and that is always the
case in savage society. Slaves are captured enemies, who there-
fore deserve to die. They are not always killed, but sometimes
(even quite often) adopted into the tribe. A captive can not
become a member of the tribe without some kinship position,
therefore he must be adopted by some woman as her child, and
adoption in savagery is often called new birth. Now, he takes
the kinship name under a legal fiction — that is, he is "younger"
to ever.A,' living person of the tribe at that time, and all persons sub-
sequently born are younger to him. This is not yet slavery. If
the captive belongs to a tribe of hereditary enemies who have from
time immemorial been designated by some opprobrious term, as
cannibals, liars, snakes, etc., then it may he that the captive is
doomed to perpetual younger brotherhood, and can never exer-
cise authority over any person within the tribe, though such
person may be born after the new birth of the captive. This
is the first form of slavery. Usually, though not invariably,
the captives adopted are children. Now such children may ulti-
mately become useful members of the tribe and by their virtues
even win rank in kinship, and a captive may thus pass from slavery
to freedom. The many methods adopted for conferring freedom
would be a long and weary story, but they are practically the same
as those conferring rank in kinship. This must be briefly ex-
plained, though it has been already shown in part. The successful
warrior, hunter, or food gatherer is rewarded by a special portion
of the spoil as an equity. Now he who has for a term of years
been successful in anv of the activities of tribal life and who ex-
Chap. I.] FORMS OF SOCIAL ORGANIZATION 81
hibits skill and wisdom therein is promoted by giving him an ad-
vanced kinship designation. One or more grades may be climbed
at one time and promotions may follow one another rapidly, so
that a brilliant youth may become an elderman, and gray-haired
men must address him as "father," and he must even call his
natural grandfather "grandson." By such methods primordial
equity is established.
That which in modern civilization is the highest function of the
court and best exhibits the talents of the advocate is the discovery
of facts ; but ready methods for discovering the truth prevail
in savagery. This is the function of the priest, who by some form
of divination discovers the facts. Thus it is that justice is dis-
tributed in its five elements of peace, equality, liberty, equity,
and truth.
Justice is not always performed in savage society, and it even
goes awry in civilized society ; hence we have remedies in savagery
and civilization alike. But sometimes there is no remedy,
when punishment is executed. We have already shown how
exogamous groups are organized. A man can not marry within
his clan, because already the clan has promised its women for the
wives of another clan, yet the marriage may be accomplished and
crime is done. This is incest. Often nominally the punishment
is death, and sometimes the law is executed, but there are many
W' ays by which justice may be done without inflicting the ultimate
penalty. The crime may be condoned and a price paid, and this
often done may ultimately result in a custom of marriage by pur-
chase. The clans of a tribe may prosper equally, and there may be
more men in one clan* than there are women in another, and men
may quarrel or even fight for wives, and such contest may ultimately
be regulated by law ; this results in marriage by wager of battle.
If the woman is unwilling, it may also require capture, and this
may be legalized under certain forms and ceremonies, and we have
marriage by capture. But young men and young women form
mutual attachments which are sometimes stronger than tribal
law, and they may abscond and live together as man and wife. If
they can successfully maintain themselves in the wilderness until
a child is born, the child becomes the certificate of marriage and
the wedding is thus legalized, and with this certificate the crime is
atoned. This is the only marriage by choice.
Now, in all of these extratribal marriages, crime is committed,
and the peculiar methods and ceremonies of marriage by purchase,
marriage by wager of battle, marriage by capture, and marriage
82 LAW AND THE STATE [Part I.
by choice result in the reestabhshment of justice as it is conceived
in the savage mind. We have already explained much of personal
law in the explanation of the law of marriage and the law of pro-
motion and reduction. Yet there are other subjects worthy of
present consideration. Murder is punished with death. The
crime is against the clan, and any member of the clan may become
the avenger, though often some particular person is delegated to
that office. The murderer may also be defended by his clan;
in such case the death of any of the murderer's clan atones for the
death of the murdered man, but the murderer may be declared
an outlaw by his clan, and any man of any clan may dispatch him
with impunity. In some cases murder may be atoned by sub-
stitution ; that is, the murderer may be expatriated, driven from
his home and clan, and thus become dead to his own people
and then be adopted by the injured family to replace the
murdered person. Thus the wife of the murdered man may
adopt the murderer for her husband ; in so doing he loses his own
name and all relations of kinship and adopts the name and rela-
tions of kinship of the murdered man. A quarrelsome man may
embroil clans, and this may be carried on to such an extent that
the clan will declare him an outlaw. Sometimes murder is atoned
by the payment of a stipulated or customary price, and usually
blood barter is graded by rank. Maiming is also avenged by the
clan, "an eye for an eye and a tooth for a tooth;" but it may be
compounded by common agreement between the belligerent
clans.
A belief in witchcraft is universal. A person suspected may
finally come to be universally recognized as practicing black art.
Such a wicked person is killed as an outlaw. The wizard may
not have such a reputation in his own clan, but may be accused
of witchcraft by another clan ; if there is a Avish to preserve him,
his witchcraft may be compounded.
We have already explained the equal division of property in the
clan, the equitable division made to the successful hunter, and
that personal property is inherited by the grave, while clan and
tribal property belong to a perpetual person. Theft sometimes
but rarely occurs ; when it does, the object stolen may be restored ;
when it can not be restored, the theft is compounded in some
multiple proportion. The only corporations in savagery are ec-
clesiastic, and crimes against the medicine societies are those which
result from the divulging of secrets or the teaching of rites by
unauthorized persons or the exercise of such rites by persons incom-
Chap. I.] FORMS OF SOCIAL ORGANIZATION 83
petent therefor. Proceedings for witchcraft are conducted b}'
the ecclesiastic bodies.
Such, in outhne, are the plan of regimentation and the funda-
mental principles of justice recognized in the most primitive tribal
states found among mankind. This stage of society is known as
savagery. Savages are primitive sylvan men ; they are denizens
of forest and wold without the skill necessary to clear away the
forests and establish higher agriculture and domesticate herds of
animals. When these feats are accomplished, then men are said
to have reached the stage of barbarism.
Savagery gradually develops into barbarism and barbarism itself
is represented in the plan of regimentation, which involves a
change in constitution, legislation, execution, administration, and
adjudication. The change of regimentation is represented by the
extinction of the clan and its replacement by the gens. The term
gens is here used to mean the unit of government herein described
as a group of persons who reckon consanguineal kinship in the male
line.
We have already described the double organization of every
savage tribe as civil and ecclesiastic, and noted the conflict which
arises between groups as thus organized. A powerful ecclesiastic
organization will sometimes absorb the civil organization, especially
when the priest and elderman is the same person. Quite often
the sacerdotal office is hereditary, descending from father to son,
and thus grows up a method of reckoning kinship in the male
line as fundamental. Now there are many circumstances in
primitive life which reinforce this tendency. When the men of
the clan have to go to the annual fishing ground for the summer
catch, they take with them their wives and children. Such wives
and children are no longer under the power of the eldermen ; they
are geographically separated from them, for the men of the clan
who work together are distinct from the men of the other clans
where each group fishes by itself. Hunting is often managed in
this manner by clans. Such annual hunting and fishing excursions
weaken the authority of the mothers, brothers, and uncles, and
strengthen the authority of husbands and fathers. But there are
two agencies which seem to be even more potent. Agriculture is
born in arid lands where irrigation is necessary, and the men of the
clan unite to manage the stream which is used in irrigation and
to protect the crops which lie under the canals, though the crops
themselves may be cultivated chiefly by the women. Here again
there is a geographical segregation of the women and children
84 LAW AND THE STATE [Part I.
under the immediate supervision and control of husbands and
fathers. Finally, animals are domesticated and there are flocks
and herds under the control of the men. The pasturage for one
clan flock is in one valley and for another clan flock in another
valley, for the property is thus kept apart ; and this also serves
to segregate the women from the men of their clan kindred and
place them under the authority of husbands and fathers. By all
of these methods clanship is broken down and a new fundamental
method of reckoning in kinship is developed through males ; this
is the gens. ]\Iuch time may be taken in making these changes,
while the authority of the clan is gradually weakened and the
authority of the gens established. Many of the tribes of North
America are in the transitional stage.
When the change is made, councils as well as ecclesiastic bodies
are still controlled by men, but the regimentation is radically
distinct. Perhaps the most fundamental change that comes is the
right of the father over his own children, especially' in deciding
their marriage relations, for this right is not transferred from clan
to gens, but from clan to father. With this change comes another
of fundamental importance. With the acquisition of herds, farm-
ing lands, and stores of grain, wealth is accumulated, and this
wealth is controlled by the gentile patriarchs. It is no longer
clan property, but gentile property in the possession and under the
control of the patriarch, who wields a power never known in
savagery. The patriarch now is always chief and priest and the
practical owner of the wealth ; he thus becomes the master of the
destiny of his retainers. A particular effect is noted in the council.
The number of persons who compose the council is gradually re-
duced, and these chiefs and councilors are regimented into patri-
archies for war and public works, while instruction falls mainly
into the hands of husbands and fathers, and the wife is no longer
controlled by her clansmen, for she is no longer under their pro-
tection. Thus the husband becomes the master of the wife and
children.
In the clan the head is an elderman and is an "uncle" or "great
uncle" because kinship is reckoned through females. This is
expressed in Indian tongues by the aphorism that "the woman
carries the clan," while in barbarism "the man carries the gens."
This is the first great revolution in tribal society accomplished by
the consolidation of power in the hands of the few, and the organiza-
tion of the gentile family. The gens is ruled by the patriarch who
represents the family in the councils of the tribe and the con-
Chap. I.] FORMS OF SOCIAL ORGANIZATION 85
federac}' and holds all the property in trust for the gens over which
he rules by civil law with civil sanction and ecclesiastical law with
ecclesiastic sanction.
In savage society there is no written language, hence the laws
are classed and expressed in terms of kinship, but in barbaric
society an additional mnemonic and classific method is developed,
which must now be delineated ; it arises out of ecclesiastic func-
tions of government and ultimately becomes dominant so as to
modify the kinship system. In savagery the world is divided into
regions — the east, west, north, south, zenith, nadir, and center.
This is continued in a more highly developed form in barbarism
until it finally becomes the dominant system. Sometimes the
regions are but five in number — east, west, north, south, and
center ; but more often the seven regions are recognized. Some-
times the number five, but more commonly the number seven,
becomes the sacred number. This division of the world into regions
is naturally born in the usages of language and at last becomes as
deeply woven into society as language itself, and the reality of the
regions becomes sacred, as language is held to be sacred. The
theory of the regions is not only woven into their speech and into
their institutions, but it becomes one of the principal elements of
picture writing and is represented by some form of the cross sig-
nifying the east, west, north, and south, to which are attached
some other devices for representing the zenith, nadir, and center.
Thus the swastika is found as a symbol among many savage tribes,
and it seems to be universal among barbaric tribes.
These world symbols often govern methods of architecture.
The theory of worlds is of vast extent and of profound influence.
It is found to pervade tribal society not only in America, but else-
where throughout the world. I am tempted in this place to go
to the Orient for an example to show how" laws and the maxims
of laws are formulated in savage and barbaric society, but I must
premise the statement by explaining one other method of formu-
lating laws. The particulars of law are often represented by
numbers — one number for each finger of the hand ; and the
reciprocal rights and duties by the five numbers represented
l\v the five fingers of the other hand. Thus by pointing in the
direction of one region with the proper finger of the right or
left hand any particular law or maxim can be expressed in
gesture speech.
I quote from the Sigalowada Sutta, a table of aphorisms pub-
lished by Rhys-Davids in his book on Buddhism, which might be
86 LAW AND THE STATE [Part I.
duplicated as a method of schematization in many of the tribes
of North America. The scheme in which the aphorisms are
arranged is by regions. It has the same design as a scheme, that
the swastika has as a picture writing, and both are as natural to
the human race as the recognition of the cardinal points. The
regimentation in kinship society is taken by analogy from the
recognized relationship of consanguinity and affinity for schematic
and mnemonic purposes. The following schemes prevail among
savage and barbaric people for a great variety of purposes : Schemes
of four, five, six, or seven are derived from the regions, schemes of
five are fixed and perpetuated by the number of fingers on the hand,
schemes of ten are derived from the number of fingers on both
hands, and schemes of twenty from the number of fingers and
toes, while schemes of four are sometimes found derived in a
fanciful way from the colors of the four regions — east, west,
north, and south. The scheme which Rhys-Davids records from
India is, first, a scheme of six regions ; second, it is a scheme of
reciprocal fives as the fingers on the hand are reciprocal. In the
second division of the sixth regional group it will be noticed that
the last aphorism violates the symmetry of the arrangement. In
all others there are five; in this there are six. This peculiarity
may be found anywhere in North America and South America.
It is the thirteenth of the baker's dozen. It is the common method
of showing that the tale is complete. Thus Rhys-Davids :
The Teacher was staying at the bambu grove near Rajagriha ; and
going out as usual to beg, sees the householder Sigala bowing down, with
streaming hair, and wet garments, and clasped hands, to the four quar-
ters of the heaven, and the nadir, and the zenith. On the Teacher asking
the reason why, Sigala says that he does this, "honoring, reverencing, and
holding sacred the words of his father." Then the Teacher, knowing
that this was done to avert evil from the six directions, points out to him
that the best way to guard the six quarters is by good deeds to men around
him — to his parents as the east, his Teachers as the south, his wife and
children as the west, his friends and relatives as the north, men devoted
to the religious life (whether Brahmans or Buddhist mendicants) as the
zenith, and his slaves and dependents as the nadir. Then in an orderlj'
arrangement, evidently intended to assist the memory, after some general
precepts and a description of true friendship, the chief duties men owe to
one another are thus enumerated under the'above six heads ; [for example] :
1. Parents and Children
Parents should —
1. Restrain their children from vice.
2. Train them in virtue.
3. Have them taught arts or sciences.
4. Provide them with suitable wives or husbands.
5. Give them their inheritance.
Chap. I.] FORMS OF SOCIAL ORGANIZATION 87
The child should say —
1. I will support them who supported me.
2. I will perform family duties incumbent on them.
3. I will guard their property.
4. I will make myself worthy to be their heir.
5. When they are gone, I will honor their memory.
I have spoken of phratries as a system of groups, sometimes
found in savagery and always in barbarism. We are now able
to explain the meaning of the phratry. There may be many clans
or gentes in a tribe, and two or more clans or gentes may con-
stitute an intervening unit which we call the phratry. With the
iNIuskhogean there are four phratries, one for the east, one for the
west, one for the north, and one for the south. With the Zufii
there are six phratries, one for the east, one for the west, one
for the north, one for the south, one for the zenith, and one for
the nadir. Thus the phratries are organized by m\'thologie
regions ; and this method of regimentation finds expression in the
structure of the council chamber, in the plaza, and in the plan of
the village. Here in the phratry we have the beginning of district
regimentation, which ultimately prevails in civilization.
The fabric of primitive society is a web of streams of kindred
blood and a woof of marriage ties. This tapestry is wrought in
wonderful patterns, for on it can be traced the outlines of primi-
tive mythology. Some scholars have seen in the fabric only the
mythic patterns enwrought and failed to discover the real institu-
tional foundation.
Chapter II
EVOLUTION OF THE STATE ^
1 . The State was originally a totem State, and consisted of the
union of various groups bound together by the unity of their
animal god, which sacred bond, however, gradually went to pieces,
leaving the clan or family tie. This is based, as was the sacred
bond, mainly on the unity of blood, but with the rejection of the
animal god which had fused the families together in one uniform
spirit. Worship of ancestors then took the place of the totem
belief, and it is the spirits of the dead that hold the family together,
give stability to the clan, and in the worship of which the whole finds
its consecration. All our cultural States were formerly clan-States ;
and in the unity of blood, the unity of descent, the unity of their
view of life, lay their strength. Such a clan-State does not require
clearly defined territory. It remains the same even when the
clans wander. The German tribes remained as they were, even
when they wandered from the Balkans over the endless Russian
plains to the Elbe, from there to the Rhine, to the Rhone, and
from there to Italy; and it is just the same with the numerous
Bantu tribes and Hamitic peoples who wander, constantly changing
their place of abode. There is an extraordinary communal nerve
in this clan connection ; and it is comprehensible that all phenom-
ena of life under these conditions are social in character; and
that all thought and action unite in the idea that each individual
is a member of the tribe whose famous ancestors are worshipped
as divine, and that he performs his great deeds in the sight of his
forefathers.
2. A tremendous change' takes place when the tribal tie gives
way to the territorial tie ; and this appears in two new legal insti-
tutions which embrace all life and activity. The first is that persons
are received into the nation who do not belong to the tribe ; so
1 [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Albrecht's trans.), Boston Book Co., 1914 ("Philosophy of Law Series,"
Vol. XII).]
88
Chap. II. ] EVOLUTION OF THE STATE
that the number of clans and famihes can constantly
and that in this way persons enter who do not worship the
spirits of the tribe, and whose ancestors are in no way con\
with the ancestors that compose the tribal cult. This is, of cc
a sign of a certain decline of ancestor worship, and the clans certaV
must have felt this for a long time, and have persecuted the in-
truders with all their might; nevertheless, this event, like every
other development that lies in the hidden folds of the world's
history, cannot be prevented. What universal history desires
may for a time be delayed by the mind of man, but cannot be
permanently suppressed.
3. A second factor comes under consideration. Whereas,
formerly, the tribe lived in and to itself, including only itself and
its slaves in the sphere of its power, and leaving its neighbors
alone even when they lived on the same land, the necessity now
arose of exercising complete dominion over a certain territory
in which the members of the State have the upper hand. Dis-
putes with those living outside the boundaries, however, became
so numerous and violent that there was no alternative but to extend
the authority to them also ; at least to the extent of repressing
certain activities injurious to the State, establishing certain police
regulations, and defending the State against the encroachment of
this alien population. Chieftainry especially is often very promi-
nent in this connection. Herewith the idea of the territorial State
is firmly established ; not only do the tribes admit others to their
ranks, but even persons who are outside the circle of those belong-
ing to the State must submit to the commands of the ruling people.
This was the system that was carried out in all our culture States
after the destruction of the old Germanic principle of personality.
Only in the Orient does the old system still exist ; but there is a
privilege that the Occidentals with their high culture have ob-
stinately wrestled from the Orient : the Occidentals refuse to
submit to the law and jurisdiction of Turkey and Persia, and wish to
live under their own laws and own authority, even on the territory
of these Oriental States.
4. A further division into classes of the population is sometimes
accomplished by way of conquest. It often happens that the con-
querors force back the original people entirely, or so decimate them
that they no longer play any part in the life of the State. But
not infrequently the old population is preserved as a second layer
or class, if for no other reason than because the conquerors are not
able to perform all the useful labor that is necessary to the main-
90 LAW AND THE STATE [Part I.
tenance of their life, and hence make use of the conquered in-
habitants as a servant class. The latter may be oppressed and
held in slavery or helotry, or they may be granted a freer position,
partly in recognition of their developed civilization, partly in
consideration of the fact that free labor appears to be more advan-
tageous, or that the original people are so far masters of the situa-
tion that the conquerors must live on terms of agreement with
them, and cannot utterly subjugate them.
In this way, a mixed population easily arises in which the
conquerors assume the role of masters, and form a sort of nobility
in contrast to the lower inhabitants.
Sometimes, another layer or class of population is formed by the
addition of some other people that is dragged from its own place
of abode and settled in the country.
All these circumstances oblige the tribal State to adapt itself
to the altered conditions, and to blend the added elements more
or less with the life of the State.
5. In the transition from the tribal State to the territorial
State, much of the unity of the people is transferred to the State
territory, and the State system of rulers now embraces the land
without reference to the inhabitants.
This might easily lead to the conclusion that a man's residence
on State territory established the fact of his belonging to the State.
This of itself would mean a tremendous transformation : there
could no longer be any citizenship independent of the place of
residence. But such a development could only thrive if the as-
pirations and endeavors of the different States were so uniform
that the change of allegiance from one to another could follow with-
out a displacement of interests. Hence, it was possible to carry
out this system in a confederacy of States ; so that its citizens
could belong to one or another of the individual States according
to their residence or place of abode. But as long as the interests
of States are so various, indeed, even antagonistic, and each State
develops independently to a certain extent, this system would be
detrimental. Neither would it be ethically desirable ; for in such
disputes and struggles, it is necessary for the individual to adopt
a certain definite course, and to make the collective interests of
one or another of the communities his own. Hence, it is still
necessary to maintain citizenship apart from the place of residence,
and to give it a greater significance in the position of the individual
in legal life ; also, in particular, to combine political activity with
citizenship.
Chap. II.] EVOLUTION OF THE STATE 91
6. In spite of the territorial principle, therefore, the difference
between citizens and aliens still exists ; and in such a way that
citizens still remain citizens, even if they settle in a foreign country ;
and that aliens living in the State must indeed submit to its laws,
but can have no part in the government, and that their family
conditions are regulated according to their hereditary rights.
Thus, a certain disagreement arises which, however, is allowed
to remain as long as it is not dangerous to the State. But if it
becomes undesirable, it then is necessary to drive the aliens out.
A complete solution of the disagreement has never been achieved,
and will not be here attempted. A compromise has been adopted
by some States, however, based on the principle that in certain
cases the alien becomes a citizen without further steps. Thus,
the rule has been established that an individual born in the covmtry
is a citizen, or, in some States, only if also his parents were born
there. And instances are not few where residence for some time
suffices to give aliens the right to acquire citizenship. In this
way the number of foreigners living in the country can be reduced,
and the discord spoken of above can be partly avoided.
Chapter III
OMNIPOTENCE OF THE ANCIENT STATE ^
The city had been founded upon a religion, and constituted
like a church. Hence its strength ; hence, also, its omnipotence
and the absolute empire which it exercised over its members. In
a society established on such principles, individual liberty could
not exist. The citizen was subordinate in everything, and without
any reserve, to the city ; he belonged to it body and soul. The
religion which had produced the state, and the state which sup-
ported the religion, sustained each other, and made but one ; these
two powers, associated and confounded, formed a power almost
superhuman, to which the soul and the body were equally enslaved.
There was nothing independent in man ; his body belonged to
the state, and was devoted to its defence. At Rome military ser-
vice was due till a man was fifty years old, at Athens till he was
sixty, at Sparta always. His fortune was always at the disposal
of the state. If the city had need of money, it could order the
women to deliver up their jewels, the creditors to give up their
claims, and the owners of olive trees to turn over gratuitously the
oil which they had made.-
Private life did not escape this omnipotence of the state. The
Athenian law, in the name of religion, forbade men to remain
single.^ Sparta punished not only those who remained single,
but those who married late. At Athens the state could prescribe
labor, and at Sparta idleness. It exercised its tyranny even in
the smallest things ; at Locri the laws forbade men to drink pure
wine; at Rome, Miletus, and Marseilles wine was forbidden to
women .^ It was a common thing for the kind of dress to be in-
variably fixed by each city ; the legislation of Sparta regulated the
1 [By FusTEL DE CouLANGEs, " The Ancient City" ; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
- Aristotle, '''Econom.," II.
3 Pollux, VIII. 40. Plutarch, "Lvsander," 30.
* Athenwus, X. 33. .mian, "V. H.," II. 37.
92
Chap. III.] OMNIPOTENCE OF THE ANCIENT STATE 93
headdress of women, and that of Athens forbade them to take with
them on a journey more than three dresses.^ At Rhodes and
Byzantium the law forbade men to shave the beard.^
The state was under no obhgation to suffer any of its citizens
to be deformed. It therefore commanded a father to whom such
a son was born, to have him put to death. This law is found in
the ancient codes of Sparta and of Rome. We do not know^ that
it existed at Athens ; we know only that Aristotle and Plato in-
corporated it into their ideal codes.
There is, in the history of Sparta, one trait which Plutarch and
Rousseau greatly admired. Sparta had just suffered a defeat at
Leuctra, and many of its citizens had perished. On the receipt of
this news, the relatives of the dead had to show themselves in public
with gay countenances. The mother who learned that her son
had escaped, and that she should see him again, appeared af-
flicted and wept. Another, who knew that she should never again
see her son, appeared joyous, and went round to the temple to
thank the gods. What, then, was the power of the state that
could thus order the reversal of the natural sentiments, and be
obeyed ?
The state allowed no man to be indifferent to its interests ; the
philosopher or the studious man had no right to live apart. He
was obliged to vote in the assembly, and be magistrate in his turn.
At a time when discords were frequent, the Athenian law per-
mitted no one to remain neutral ; he must take sides with one or
the other party. Against one who attempted to remain indifferent,
and not side with either faction, and to appear calm, the law pro-
nounced the punishment of exile with confiscation of property.
Education was far from being free among the Greeks. On the
contrary, there was nothing over which the state had greater con-
trol. At Sparta the father could have nothing to do with the edu-
cation of his son. The law appears to have been less rigorous at
Athens ; still the state managed to have education in the hands of
masters of its own choosing. Aristophanes, in an eloquent passage,
shows the Athenian children on their way to school ; in order, dis-
tributed according to their district, they march in serried ranks,
tlirough rain, snow, or scorching heat. These children seem al-
1 ^'Fragm. Hist. Grsec." Didot, t. II. p. 129, 211. Plutarch, "Solon,"
21.
2 Athenceus, XIII. Plutarch, "Cleomenes," 9.
"The Romans thought no marriage, or rearing of children, nay, no feast
or drinking bout, ought to he permitted aoeording to every one's appetite
or fancy, without being examined and inquired into." Plutarch, "Cato
the Elder," 23.
94 LAW A^TD THE STATE [Part I.
ready to understand that they are performing a pubHc duty.^
The state wished alone to control education, and Plato gives the
motive for this : - " Parents ought not to be free to send or not to
send their children to the masters whom the city has chosen ; for
the children belong less to their parents than to the city."
The state considered the mind and body of every citizen as be-
longing to it ; and wished, therefore, to fashion this body and mind
in a manner that would enable it to draw the greatest advantage
from them. Children were taught gymnastics, because the body
of a man was an arm for the city, and it was best that this arm
should be as strong and as skilful as possible. They were also
taught religious songs and hymns, and the sacred dances, because
this knowledge was necessary to the correct performance of the
sacrifices and festivals of the city.^
It was admitted that the state had a right to prevent free in-
struction by the side of its own. One day Athens made a law for-
bidding the instruction of young people without authority from the
magistrates, and another, which specially forbade the teaching of
philosophy.^
A man had no chance to choose his belief. He must believe and
submit to the religion of the city. He could hate and despise the
gods of the neighboring city. As to the divinities of a general and
universal character, like Jupiter, or Cybele, or Juno, he was free
to believe or not to believe in them ; but it would not do to enter-
tain doubts about Athene Polias, or Erechtheus, or Cecrops.
That would have been grave impiety, which would have endangered
religion and the state at the same time, and which the state would
have severely punished. Socrates was put to death for this crime.
Liberty of thought in regard to the state religion was absolutely
unknown among the ancients. Men had to conform to all the
rules of worship, figure in all the processions, and take part in the
sacred repasts. Athenian legislation punished those by a fine who
failed religiously to celebrate a national festival.^
The ancients, therefore, knew neither liberty in private life,
liberty in education, nor religious liberty. The human person
counted for very little against that holy and almost divine authority
which was called country or the state. The state had not only, as
1 Aristophanes, "Clouds," 960-965. '^ Plato, ^'Laws," VII.
' Aristophanes, "Clouds," 966-968.
* Xenophon, ^'Memor.," I. 2. Diogenes Laertius, ^'Theophr." These
two laws did not continue a long time ; but they do not the less prove
the omnipotence that was conceded to the state in matters of instruction.
5 Pollux, VIII. 46. Ulpian, Schol. in Demosthenes ; " in Meidiam."
Chap. III.] OMNIPOTENCE OF THE ANCIENT STATE 95
we have in our modern societies, a right to administer justice to
the citizens ; it could strike when one was not guilty, and simply for
its own interest. Aristides assuredly had committed no crime, and
was not even suspected ; but the city had the right to drive him
from its territory, for the simple reason that he had acquired by
his virtues too much influence, and might become dangerous, if he
desired to be. This was called ostracism; this institution was
not peculiar to Athens ; it was found at Argos, at Megara, at Syra-
cuse, and we may believe that it existed in all the Greek cities.^
Now, ostracism was not a chastisement ; it was a precaution
which the city took against a citizen whom it suspected of having
the power to injure it at any time. At Athens a man could be put
on trial and condemned for incivism — that is to say, for the want
of affection towards the state. A man's life was guaranteed by
nothing so soon as the interest of the state was at stake. Rome
made a law by which it was permitted to kill any man who might
have the intention of becoming king.- The dangerous maxim that
the safety of the state is the supreme law, was the work of antiq-
uity.^ It was then thought that law, justice, morals, everything
should give way before the interests of the country.
It is a singular error, therefore, among all human errors, to be-
lieve that in the ancient cities men enjoyed liberty. They had not
even the idea of it. They did not believe that there could exist
any right as against the city and its gods. We shall see, farther on,
that the government changed form several times, while the nature
of the state remained nearly the same, and its omnipotence was
little diminished. The government was called by turns mon-
archy, aristocracy, democracy ; but none of these revolutions gave
man true liberty, individual liberty. To have political rights, to
vote, to name magistrates, to have the privilege of being archon,
— this was called liberty ; but man was not the less enslaved to
the state. The ancients, especially the Greeks, always exagger-
ated the importance, and above all, the rights of society ; this was
largely due, doubtless, to the sacred and religious character with
which society was clothed in the beginning.
1 Aristotle, "Pol.," VIII. 2, 5. Scholiast on Aristoph., "Knights," 851.
2 Plutarch, "Publicola," 12. ^ Cicero, "De Legib.," III. 3.
Chapter IV
CHIEFTAINRY AND KINGSHIP
Section 1
CULTURAL IMPORTANCE OF CHIEFTAINRY i
1. There is scarcely another institution that has done so much
for the growth of culture as chieftainry, the consequence of the
peculiar psychic constitution of humanity, of the suggestive influ-
ence of strong natures, and of the tremendous power which the
recklessness and superiority of individual genius exercises over
other persons ; in other words, the consequence of super-mankind
and of the existence of overpoweringly strong natures. The spirit
of history was obliged to use this means in order to advance man-
kind, even though it were by force and compulsion ; for such strong
natures are able to arouse and stir up the nations and to overcome
a stagnant and halting evolution. Certain progressive movements
of culture are always agreeable to them, and in order to bring these
movements about, they apply powerful methods which universal
history would not otherwise know. Their effect may be likened
to that of a volcanic eruption, which does indeed work great destruc-
tion, but also raises up new lands, and brings them within the reach
of culture.
2. The historical beginnings of chieftainry are probably origi-
nally to be found principally in bands of youths ; at any rate, to a
great extent, though not exclusively. In other ways, too, a bold
warrior or powerful brigand could seize the authority of a chief.
The dangers that threatened a community from outside, in partic-
ular, frequently gave rise to autocracy ; for it required a strong
and ingenious personality who could inspire the mass and hold
it to withstand attacks from without. If once such an individual
by victory has averted the external danger, he gains the confidence
^ [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
96
Chap. IV, § 1.] CHIEFTAIXRY AXD KINGSHIP 97
of the people, and there is no hmit to his power within the nation ;
successes abroad have always served as a shield and cloak for the
true tyrant.
3. When once the chieftain has obtained control, it will later be
possible for him to surround himself with a religious nimbus.
Provided the priests are not against him, it is easy for him to
appear as the son of heaven, or of the sun, or as some kind of divine
messenger, and to act as the exponent of the divine law. The
result will be that the whole foundation of the law is displaced,
and that the law will appear as an issue of his personality. Now
he is in a position to svray and rule the people at will. Thence-
forward, his subjects are mere tools in his hands, and the sacred
relics of tradition dissolve under his power as soon as he desires it ;
as soon as he seeks the advantage of the State in something else.
The further presentation of chieftainry and the development of
the idea among the different nations does not lie within our
province ; but it is certainly our task to describe what chieftainry
did for the development of culture, and how it later became
kingship.
4. Its influence on culture undoubtedly lies mainly in this, that
it protected the country against outside enemies, and thus secured
the peace and quietude necessary to its inward development. In
addition, it furthered the idea of the State and repressed the con-
stant dissipation of the population by kin-revenge and self-vindica-
tion ; for the chief wishes to maintain order and strives, in order to
extend his power, to take the administration of justice entirely
into his own hands. He is also inclined to develop the resources of
the country ; for the more it produces, the more his power and
wealth are increased, as he alone controls the country's goods.
5. Chieftainry develops into kingship under the influence of two
ideas : first, the idea that permits the State as well as the chief to
be recognized as a personality. Even though the chief be the
unrestricted representative of the State, yet the conception is un-
avoidable that he has the State in his hands only temporarily, and
this again will give rise to the thought that he is only an organ of the
State and that the latter, though it be temporarily embodied in
him, is yet distinct from him.
The second important idea is that of duty, the thought that the
advantage of the chief is not the sole consideration, and that, as an
organ of the State, he must act for its benefit. This idea can only
develop fully, of course, where the conception of morality is already
grown. Nevertheless, it must appear, in earlier times in the form
98 LAW AND THE STATE [Part I.
of a religious commandment, wherever religious notions have
become firm enough to allow clear principles and regulations to
be formulated ; for which, above all things, a separate priesthood
is necessary which as the exponent of the good may succeed in
upholding religion, e\'en when opposed to the ruler. Wherever
this religion exists, it will require logical action in certain directions,
and the indulgence of certain considerations, and will, therefore,
also demand of the sovereign that he shall not give way to his
moods. Thus, the way is levelled for further development ; and
whoever feels it his duty to care for the welfare of the people, who
even takes an oath to do so, as, for instance, among the Aztecs, is no
longer a chief but a king.
6. Kingship, like chieftainry, has a great task to perform in the
development of culture, and this is accomphshed in several ways.
(a) The person who acts is firmly established in his place, and
can therefore influence certain cultural tendencies far more inci-
sively and logically than can any other organ of the State. This,
of course, also involves a great weakness : the personality of the
sovereign becomes of extreme importance, and there are wide
mental and psychic differences among personalities. One person
may be fitted by nature to rule, while another lacks all talent in this
direction. It has been attempted to solve this difficulty by making
kingship elective ; so that in this way a person could be chosen
who had already proven by his deeds that he was suited to the
office ; but this system failed, because it led to corruption, and to
constant upheavals, and to internal struggles. A modified form of
elective kingship is found among some peoples, where of the mem-
bers of the royal family, one is chosen to reign who appears to be
particularly able ; or, in some nations, a member who proves to be
unfitted is deposed in favor of another member. But this system
also gives rise to many disputes, quarrels, and enmities.
(b) Kingship brings with it a certain strengthening of the whole
situation and frequently also greater protection against danger
from without.
(c) It may prevent not only destructive movements among the
people from gaining the upper hand, but also the appearance of
powerful party elements which in the form of plutocracy, class
spirit, and party tyranny are a hindrance to the real progress of
the State.
(d) Kingship may create an intellectual centre, and advance
both arts and sciences ; though such an arrangement is not with-
out its disadvantages ; for the bad features of the patronage of a
Chap. IV, § 2.] CHIEFTAINRY AND KINGSHIP 99
Mseceniis are often increased if such patronage exists by the grace
of the king.
7. The principal remedy against the disadvantages of kingship,
especially in as far as they relate to the contingency involved in
getting an able personality for the head of the government, is to
place other powers beside the king, such as the popular assembly or
representatives of the people, and the ministry.
Section 2
AUTHORITY OF THE KING i
1. Religious Authority
We should not picture to ourselves a city, at its foundation,
deliberating on the form of government that it will adopt, devising
and discussing its laws, and preparing its institutions. It was not
thus that laws were made and that governments were established.
The political institutions of the city were born with the city itself
and on the same day with it. Every member of the city carried
them within himself, for the germ of them was in each man's belief
and religion.
Religion prescribed that the hearth should always have a su-
preme priest. It did not permit the sacerdotal authority to be
divided. The domestic hearth had a high priest, who was the
father of the family ; the heart of the cury had its curio, or phra-
triarch ; every tribe, in the same manner, had its religious chief,
whom the Athenians called the king of the tribe. It was also
necessary that the city religion should have its supreme priest.
This priest of the public hearth bore the name of king. Some-
times they gave him other titles. As he was especially the priest
of the prytaneum, the Greeks preferred to call him the prytane ;
sometimes also they called him the archon. Under these different
names of king, prytane, and archon we are to see a personage who
is, above all, the chief of the worship. He keeps up the fire, offers
the sacrifice, pronounces the prayer, and presides at the religious
repasts.
It may be worth while to offer proof that the ancient kings of
Greece and Italy were priests. In Aristotle we read, " The care of
the public sacrifices of the city belongs, according to religious
1 [By FusTEL DE CouLANGES, "The Ancient City"; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
100 LAW AND THE STATE [Part I.
custom, not to special priests, but to those men who derive their
dignity from the hearth, and who in one place are called kings,
in another prytanes, and in a third archons." ^ Thus writes Aris-
totle, the man who best understood the constitution of the Greek
cities. This passage, so precise, shows, in the first place, that the
three words king, prytane, and orcJion were a long time synonymous.
So true is this, that an ancient historian, Charon of Lampsacus,
writing a book about the kings of Lacedsemon, entitled it *' Archons
and Prytanes of the Lacedjemonians.- It shows also that the
personage to whom was applied indifferently one of these three
names — perhaps all of them at the same time — was the priest
of the city, and that the worship of the public hearth was the
source of his dignity and power.
This sacerdotal character of primitive royalty is clearly indicated
by the ancient writers. In .^schylus the daughters of Danaus
address the king of Argos in these terms : "Thou art the supreme
prytane, and watchest over the hearth of this country." ^ In
Euripides, Orestes, the murderer of his mother, says to ]Menelaus,
"It is just that I, the son of Agamemnon, should reign at Argos."
And Menelaus replies, "Art thou, then, fit, — thou, a murderer,
— to touch the vessels of lustral water for the sacrifices ? Art thou
fit to slay the victims?"^ The principal office of a king was,
therefore, to perform religious ceremonies. An ancient king of
Sicyon was deposed because, having soiled his hands by a murder,
he was no longer in a condition to offer the sacrifices.^ Being no
longer fit for a priest, he could no longer be king.
Homer and Virgil represent the kings as continually occupied
with sacred ceremonies. We know from Demosthenes that the
ancient kings of Attica performed themselves all the sacrifices that
were prescribed by the religion of the city ; and from Xenophon
that the kings of Sparta were the chiefs of the Lacedaemonian
religion.^ The Etruscan. Lucumones were, at the same time,
magistrates, military chiefs, and pontiffs.'^
The case was not at all different with the Roman kings. Tra-
dition always represents them as priests. The first was Romulus,
who was acquainted with the science of augury, and who founded
the city in accordance with religious rites. The second was
1 Aristotle, "Polit.," VII. 5, 11 (VI. 8). Comp. Diomjsius, II. 65.
- Suidas, V. Xdpuiv. ^ ^sch., ''Supp.," 361 (357).
'^Euripides, '''Orestes," 1605.
6 Nic. Damas., "Frag. Hist. Gr.," t. III. p. 394.
^Demosthenes, "in Neser." Xenophon, "Gov. Laced.," 13.
^ Virgil, X. 175. Livy, V. 1. Ccnsorinus, 4.
Chap. IV, § 2.] CHIEFTAIN RY AND KINGSHIP 101
Numa : he fulfilled, Livy tells us, the greater part of the priestly
functions ; but he foresaw that his successors, often having wars
to maintain, would not always be able to take care of the sacrifices,
and instituted the flamens to replace the kings when the latter were
absent from Rome. Thus the Roman priesthood was only an
emanation from the primitive royalty.
These king-priests were inaugurated with a religious ceremonial.
The new king, being conducted to the summit of the Capitoline
Hill, was seated upon a stone seat, his face turned towards the
south. On his left was seated an augur, his head covered with
sacred fillets, and holding in his hand the augur's staff. He
marked off certain lines in the heavens, pronounced a prayer, and,
placing his hand upon the king's head, supplicated the gods to show,
by a visible sign, that this chief was agreeable to them. Then,
as soon as a flash of lightning or a flight of birds had manifested the
will of the gods, the new king took possession of his charge. Livy
describes this ceremony for the installation of Xuma ; Dionysius
assures us that it took place for all the kings, and after the kings,
for the consuls ; he adds that it was still performed in his time.^
There was a reason for such a custom ; as the king was to be su-
preme chief of the religion, and the safety of the city was to depend
upon his prayers and sacrifices, it was important to make sure,
in the first place, that this king was accepted by the gods.
The ancients have left us no account of the manner in which the
Spartan kings were elected ; but we may be certain that the will
of the gods was consulted in the election. We can even see from
old customs which survived to the end of the history of Sparta,
that the ceremony by which the gods were consulted was renewed
every nine years ; so fearfid were they that the king might lose the
favor of the divinity. "Every nine years," says Plutarch, "the
Ephors chose a very clear night, but without a moon, and sat in
silence, with their eyes fixed upon the heavens. If they saw a
star cross from one quarter of the heavens to the other, this in-
dicated that their kings were guilty of some neglect of the gods.
The kings were then suspended from their duties till an oracle
came from Delphi to relieve them from their forfeiture." -
2. Political Authority
Just as in the family the authority was inherent in the priest-
hood, and the father, as head of the domestic worship, was at the
1 Livy, I. 18. Dionysius, II. G; IV. 89. - Plutarch, "Agis," 11.
102 LAW AND THE STATE [Part I.
same time judge and master, so the high priest of the city was at
the same time its political chief. The altar — to borrow an ex-
pression of Aristotle — conferred dignity and power upon him.
There is nothing to surprise us in this confusion of the priesthood
and the civil power. We find it at the beginning of almost all
societies, either because during the infancy of a people nothing but
religion will command their obedience, or because our nature feels
the need of not submitting to any other power than that of a moral
idea.
We have seen how the religion of the city was mixed up with
everything. Man felt himself at every moment dependent upon
his gods, and consequently upon this priest, who was placed be-
tween them and himself. This priest watched over the sacred fire ;
it was, as Pindar says, his daily worship that saved the city every
day.^ He it was who knew the formulas and prayers which the
gods could not resist ; at the moment of combat, he it was who
slew the victim, and drew upon the army the protection of the gods.
It was very natural that a man armed with such a power should be
accepted and recognized as a leader. From the fact that religion
had so great a part in the government, in the courts, and in war,
it necessarily followed that the priest was at the same time magis-
trate, judge, and military chief. "The kings of Sparta," says
Aristotle,^ " have tliree attributes : they perform the sacrifices,
they command in war, and they administer justice." Dionysius
of Halicarnassus expresses himself in the same manner regarding
the kings of Rome.
The constitutional rules of this monarchy were very simple ; it
was not necessary to seek long for them ; they flowed from the rules
of the worship themselves. The founder, who had established the
sacred fire, was naturally the first priest. Hereditary succession
was the constant rule, in the beginning, for the transmission of
this worship. Whether the sacred fire was that of a family or that
of a city, religion prescribed that the care of supporting it should
always pass from father to son. The priesthood was therefore
hereditary, and the power went with it.^
A well-known fact in the history of Greece proves, in a striking
manner that, in the beginning, the kingly office belonged to the man
who set up the hearth of the city. We know that the population
of the Ionian colonies was not composed of Athenians, but that it
1 Pindar, "Nem.," XI. 5. = Aristotle, "Polities," III. 9.
3 We speak here only of the early ages of cities. We shall see, farther
on, that a time came when hereditary succession ceased to be the rule,
and we shall explain why at Rome royalty was not hereditary.
Chap. IV, § 2.] CHIEFTAINRY AND KINGSHIP 103
was a mixture of Pelasgians, ^Eolians, Abantes, and Cadmeans.
Yet all the hearths of the cities were placed by the members of the
religious family of Codrus.
It followed that these colonists, instead of having for leaders
men of their own race, — the Pelasgi a Pelasgian, the Abantes an
Abantian, the .Eolians an .Eolian, — all gave the royalty in their
twelve cities to the Codridse.' Assuredly these persons had not
acquired their authority by force, for they were almost the only
Athenians in this numerous agglomeration. But as they had es-
tablished the sacred fires, it was their office to maintain them.
The royalty was, therefore, bestowed upon them without a contest,
and remained hereditary in their families. Battus had founded
Cyrene in Africa ; and the Battiadte were a long time in possession
of the royal dignity there. Protis founded ^Marseilles ; and the
Protiadse, from father to son, performed the priestly office there,
and enjoyed great privileges.
It was not force, then, that created chiefs and kings in those
ancient cities. It would not be correct to say that the first man
who was king there was a luck}- soldier. Authority flowed from
the worship of the sacred fire. Religion created the king in the
city, as it had made the family chief in the house. A belief, an
unquestionable and imperious belief, declared that the hereditary
priest of the hearth was the depositary of the holy duties and the
guardian of the gods. How could one hesitate to obey such a
man ? A king was a sacred being ; ^aaiXel^ lepol, says Pindar.
Men saw in him, not a complete god, but at least "the most power-
ful man to call down the anger of the gods"; ^ the man without
whose aid no prayer was heard, no sacrifice accepted.
This royalty, semi-religious, semi-political, was established in
all cities, from their foundation, without effort on the part of the
kings, without resistance on the part of the subjects. We do not
see at the origin of the ancient nations those fluctuations and
struggles which mark the painful establishment of modern societies.
1 Herodotus, I. 142-148. Pausanias, VI. Strabo.
^Sophocles, "CEdipus Rex," 34.
Chapter V
RELIGION AND LAW
Section 1
RELIGIOUS ORIGIN OF ANCIENT LAW »
Among the Greeks and Romans, as among the Hindus, law was
atfirst a^paxt of JieJigioii., The ancient codes of the cities were a
collection of rites, hturgical directions, and prayers, joined with
legislative regulations. The laws concerning property and those
concerning succession were scattered about in the midst of rules
for sacrifices, for burial, and for the worship of the dead.
What remains to us of the oldest laws of Rome, which were called
the Royal Laws, relates as often to th e wg csliip as to the relations
of civil life. One forbade a guilty woman to approach the altars ;
another forbade certain dishes to be served in the sacred repasts ;
a third prescribed what religious ceremon5' a victorious general
ought to perform on re-entering the city. The code of the Twelve
Tables, although more recent, still contains minute regulations
concerning the religious rites of sepulture. The work of Solon was
at the same time a code, a constitution, and a ritual ; it regulated
the order of sacrifices, and the price of victims, as well as the mar-
riage rites and the worship of the dead.
. Cicero, in his Laws, traces a plan of legislation which is not en-
tirely imaginary. In the substance as in the form of his code, he
imitates the ancient legislators. Now, these are the first laws that
he writes : " Let men approach the gods with purity ; let the temples
of the ancestors and the dwelling of the Lares be kept up ; let the
priests employ in the sacred repasts only the prescribed kinds of
food ; let every one offer to the Manes the worship that is due them."
Assuredly the Roman philosopher troubled himself little about the
old religion of the Lares and Manes ; but he was tracing a code in
MBy FtrsTEL DE CouLANGEs, "The Anmerit City;" translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
104
Chap. V, § I'.J RELIGION AND LAW 107
imitation nat a unanimous vote was sufficient to make a law bind-
insert rul^ecision of tiie people required to be ratified by the pon-
At Ro the augurs were required to attest that the gods were
pontiff e to the proposed law.^
could k ay, when the tribunes of the people wished to have a law
"religion by the assembly of the tribes, a patrician said to them,
As ther''ight have you to make a new law, or to touch existing laws ?
*Teligiorho have not the auspices, you, who, in your assemblies,
decisiol no religious acts, what have you in common with religion
judge?-'red things, among which must be reckoned the laws ? " ^
marpni this we can understand the respect and attachment which
wertLncients long had for their laws. In them they saw no human
as "k, but one whose origin was holy^-^^It was no vain word when
talto said, "To obey the laws is to obey the gods.^^He does no
iiore than to express the Greek idea, when, in Crito, he exhibits
Socrates giving his life because the laws demanded it of him. Be-
fore Socrates, there was written upon the rock of Thermopylae,
^'Passer-by, go and tell Sparta that we lie here in obedience to its
laws." The law among the ancients was always holy, and in the
time of royalty it was the queen of the kings. In the time of the
republic it was the queen of the people. To disobey it was
sacrilege.
In principle the laws were immutable, since they wer^-divine
It is worthy of '•" lark that they were never aJjrrOgated. Men
could indeed make new ones, but old G^iss still remained, howcAer
they might conflict with the new, ones.. The code of Draco was not
abolished by that qf Solon ; ^ nor were the Royal Laws bj' those of
the Twehe Tables<^ The stone on which the laws were engraved
was inviolable ;y<5r, at most, the least scrupulous only thought them-
selves permitted to turn it round. This principle was the great
cause of tl^e confu=^io'i which is observabk among ancient laws.
Contrpcflictory la\\s and those of different epochs were found
together, and all claimed respect. In an oration of Isaeus we find
two men contesting an inheritance ; each quotes a law in his favor ;
the two laws are absolute contraries, and are equally sacred. In
the same mor ner the code of ]\Iaim preser\es the ancient law which
establishes primogeniture>;^nd has another by the side of it which
enjoins an equal division among the brothers.
The ancient law never gave any reasons. Why should it? It
was not bound to give them ; it existed because the gods had made
^fbionysius, IX. 41 ; IX. 49. = Dionysius, X. 4. Livy, III. 31.
' Andocides, I. 82, 83. Demosthenes, "in Everg.," 71.
108 LAW AND THE STATE [Part I.
^j it.'^t was not discussed — it was imposed-V^t was a work of au-
~~" I thority ; men obeyed it because they had faith in it^Xf
During long generations the laws were not written ; they were
transmitted from father to son, with the creed and the formula of
prayer. They were a sacred tradition, which was perpetuated
^5», around the family hearth, or the hearth of the city*
/ The da}' on which men began to commit them to writing, they
/ ^C(/nsigned them to the sacred booksf to the rituals, among prayers
and ceremonies^ Varro cites an ancient law of the city of Tuscu-
lum, and adds that he read it in the sacred books of that city.^
Dionysius of Halicarnassus, who had consulted the original docu-
ments, says that before the time of the Decemvirs all the written
laws at Rome were to be found in the books of the priests.- Later
the laws were removed from the rituals, and were written by them-
selves ; but the custom of depositing them in a temple continued,
and priests had the care of them.
Written or unwritten, these laws were always formulated into
very brief sentences, which may be compared in form to the verses
of Leviticus, or the slocas of the book of Manu. It is quite prob-
able, even, that the laws were rhythmical.^ According to Aris-
totle, 1 otbre the laws were written, they were sung."* Traces of
this (;ustom have remained in language ; the Romans called the
\a\vs~csrmina — verses ; the ^^-eeks said voji^l — songs.^
These ancieiit-verses were invariable texts. To change a letter
of them, to displace a wo«^, to alter the rhythm, was to destroy
the law itself, by destroying the bvaj^red form under vhicli it was
revealed to man. The law wflB like pray^bir, which was greeable
to the divinity only on Condition that it was re^^ited correctly, and
which became impious if a single word in it w??^ changed ><^ In
primitive law, the exterior, the letter, is everything ; there is no
need of s< »king the sense or spirit of if>- The value of th^e law is not
in the nn il principle that it contains, but in the words that make
up the fc 'ula,3^ts force is in the sacred words that comj^ose ij^^
Among he ancients, and especially at Rome, the idea qf law
was inseparably connected with certain sacramental word^y If, l^ ,
for example, it was a question of contract, one was expected to ^a,y,
Dari s'pondes? and the other was expected to reply, Spondeo. If
' Varro, "L. L.," VI. 16. ^ DionT/sius, X. 1.
3 ^lian, '''V. H.," II. 39. ' Aristotle, "Probl.," XIX. 28.
5 N^/uw, to divide; v6ij.os, division, measure, rlivthm, song. See Phi-
tarrh, "De Musiea," p. 1133; Pindar, "Pyth.," XII. 41 ; ' i'ragm.." 199
p.iEdit. Hei/ne). Scholiast on Aristophanes, "Knights," 9; N6fiot KaXoOvrm
u et's deovs i'lfxiioi.
Chap. V, § 1.] RELIGION AND lAW 109
these words were not pronounced, there was no contract. In vain
the creditor came to demand payment of the debt — the debtor
owed nothing; for what placed a man under obhgation in this
ancient law was not conscience, or the sentiment of justice ; it
was the sacred formula^s When this formula was pronounced
between two men, it established between them a legal obligation.
Where there was no formula, the obligation did not exist.
The strange forms of ancient Roman legal procedure would , not t^ rt
surprise us if we but recollected that ancient law was a religion, a '
sacred text, and justice a collection of rites.><-The plaintiff pursues
with the law — agit lege. By the text of the law he seizes his adver-
sary : but let him be on his guard ; to have the law on his side, he
must know its terms, and pronounce them exactly. If he speaks
one word for another, the law exists no longer for him, and cannot
defend hiin,.>^- Gaius gives an account of a man whose \'ines had been
cut by his neighbor ; the fact was settled ; he pronounced the law.
But the law said trees ; he pronounced vines, and lost his case.
Repeating the law was not sufficient. There was also needed an
accompaniment of exterior signs, which were, so to say, the rites of
this religious ceremony called a contract, or a case in law. For this
reason at every sale the little piece of copper and the balance were
employed. To buy an article, it was necessary to touch it with
the hand — ma?icipatio ; and if there was a dispute about a piece
of property, there was a feigned combat — manuum consertio.
Hence were derived the forms of liberation, those of emancipation,
those of a legal action, and all the pantomime of legal procedure.
As law was a part of religion, it participated in the mysterious ^^ >'^'\' *
character of all this religion of the cities. The legal formulas, like ^ '
those of religion, were kept secret. They wete concealed from the
stranger, and even from the plebeian-X^his was not because the
patricians had calculated that they shomd possess a great power
in the exclusive knowledge of the law, but because the law, by its
origin and nature, long appeared to be a mystery, to which one
could be initiated only after having first been initiated into the
national worship and the domestic worship^^
The religious origin of ancient law also explains to us one of the
principal characteristics of this law. Religion was purely civUr^
that is to say, peculiar to each city.^^here could flow from it,
then fore, only a civil law.XBut it is necessary to distinguish the
sense which this word had among the ancients. When they said
that the law was civil, — jus civile, vo/jloi ttoXltlkoI, — they did not
understand simply that every city had its code^as in our day every
110 LAW AND THE STATE [Part I.
^«<^'^^ state has a code. They meant that their laws had no force, or
^^1^ power, except between the members of the same cityJ^To live in
a city did not make one subject to its laws and place him under
their protection ; one had to be a citizen. The law did not exist
for the slavey'oio more did it exist for the stranger.
We shall see, lurther along, that the stranger domiciled in a city
could be neither a proprietor there, nor an heir, nor a testator ; he
could not make a contract of any sortVor appear before the ordi-
nary tribunals of the citizens. At Athens, if he happened to be the
creditor of a citizen, he could not sue him in the courts for the pay-
ment of the debt, as the law recognized no contract as valid for
him.
IC6^ These provisions of ancient law were perfectly logical. Law
^ was not born of the idea of rii^ice, but of religion, and was not
so conceived as going beyond itX In order that there should be a
' 'legal relation between two men, it was necessary that there should
■^ already exist a religious relatioivKjthat is to say, that they should
worship at the same hearth and have the same sacrifices"><^Vhen
this religious community did not exist, it did not seem that there
could be an}' legal relationJ\Now, neither the stranger nor the
slave had any part in the religion of the cit;y>\A foreigner and a
citizen might live side by side during long years, without one's
thinking of the possibility of a legal relation being established be-
tween them. Law was nothing more than one phase of religioiiX
Where there was no common religion, there was no common law.^'
Section 2
RELIGIOUS ELEMENT IN HINDU LAW i
The most ancient of the books containing the sacred laws of the
Hindus appear to me to throw little light on the absolute origin of
law. Some system of actual observance, some system of custom
or usage, must lie behind them ; and it is a very plausible conjec-
ture that it was not unlike the existing very imperfectly sacerdotal-
ised customary law of the Hindus in the Punjab. But what they
do show is, if not the beginning of law, the beginning of lawyers.
They enable us to see how law was first regarded, as a definite
0^^^ subject of thought by a special learned class : and this class con-
sisted of lawyers who were first of all priests. XThere are signs of
the ancient identity of the two professions in the earliest recorded
1 [By Sir Henry S. Maine. Reprinted from "Early Law and Custom,"
by permission of Henry Holt and Company, New York.]
Chap. V, § 2.] KELIGION AND LAW 111
usages of several races, Celts, Romans and Greeks. Nobody,
for example, will understand the ancient Roman lawyer, with that
obstinate adherence of his to texts which has characterised his
profession during so many centuries, and that method of stating
his facts in inflexible formulas which has only just died out in this
country, unlessjt is realised that the jurisconsult sprang from the
pontiff or priestyNA.ll through the jNIiddle Ages the lawyer who was
avowedly a priest held his own against the lawyer who professed to
be a layman ; and ours is the only country in which, owing to the
peculiar turn of our legal history, it is difficult to see that, on the
v\hole, the canonist exercised as much influence on the course of
legal development as the legist or civilian. If the Roman Empire
had merely transmitted its administrative system to Western
Europe, and if it^ had not bequeathed to it a coherent bodyujl
codified_secular_law maldng considerable approach to complete-
ness, it is very doubtful Vvdiether the general law of the West would
not even now reflect a particular set of religious ideas as distinctly
as tlie Hind u law reflects th e sacerd otal conceptions of the Brah-
mans^
It is necessary first, of all, to observe how the priestly character
of the Brahmanical authors of the law-books aftected their view of
conduct, a word which must be used at the outset in preference to
'law.' Shortly, this view is intimately affected throughout by
their belief as to the lot which awaits human beings after death.
This lot will be made up of various experiences, some of which
correspond to direct reward or punishment in Heaven or Hell as
conceived by the Western religions. But the Hindu belief con-
cerning the posthumous state of man and the Buddhist belief
which has mainly sprung from it, differ from the most widely
diffused Western beliefs in that the Transmigration of Souls fills
as large a space as direct reward and punishment, and in that
rewards and punishments in all their forms are regarded, not as
eternal but as essentially transitory. . . . When a man still con-
taminated by impurity dies, his spirit passes through a series of
purgatories ; from the last of these it escapes to clothe itself with
one animal shape after another, and at last it finds embodiment in
a human frame, which at first will probably be frail or sickly.
But, after a second birth through the study of the Scriptures, the
virtuous at death pass straight into Heaven, where their stock of
virtue will keep them for long ages; but it will gradually wear
out, until some remnant of it carries them back to earth, to reap-
pear among the prosperous and the powerful. ' ]Men of all castes.
112 L^W AND THE STATE [Part I.
if they fulfil their assigned duties, enjoy in Heaven the highest
imperishable bliss. Afterwards, when a man who has fulfilled his
duties returns to this world, he obtains, by virtue of a remainder of
merit, birth in a distinguished family, beauty of form, beauty of
complexion, strength, aptitude for learning, wisdom, wealth, and
the gift of fulfilling the laws of his caste or order. Therefore in
both worlds he dwells in happiness, rolling like a wheel from one
world to the other' (Apastamba, ii. i. 2. 2 and 3). Even the
gods in Heaven, who are looked upon as not much more than men
of extraordinary virtue, will in time exhaust their store of merit
and pass out of blessedness. 'It is by favour of the Brahmans,'
says Vishnu (xix. 22), 'that the gods reside in Heaven.'
The Wheel mentioned in the above passage from Apastamba
is a favourite image with these writers. They figure existence as
a wheel spinning round. Religious pictures, representing the
circle of life with its various compartments, with Heaven at the
top and Hell at the bottom, and with human and animal existence
at the sides, are common in the East ; but though they are not
unknovv'n to Hindus, they are more frequently found among
Buddhists, who must have borrowed the symbol of the Wheel
from an older Hinduism, and who appear to attach to it a special
spiritual significance. . . .
... It is very probable that these beliefs were themselves com-
pounded of divers more ancient parts, and that direct reward or
punishment, and indirect reward or punishment by transmigra-
tion, did not originally belong to the same body of doctrine.
Heaven and Hell and the Transmigration of Souls are, however,
all referred to in the oldest of the law treatises, though briefly and
slightly. In the more recent writings (some of them, however,
not so modern as INIanu) these subjects occupy a great space, and
have been vastly amplified by gloomy and fantastic imagination.
Heaven, as is not unusual in religious systems, is but faintly
sketched ; but the Hells, or, as they would more properly be called,
the Purgatories (since they are essentially transient), are de-
scribed with the utmost minuteness of detail. They are twenty-
two in number, each applying a new variety of physical or moral
pain. . . .
The sojourn of the sinful soul in each of these places of punish-
ment is, as I have said, always terminable, but its length is ex-
pressed in language suited to astronomical magnitudes. If, for
example, a Brahman be slain, as many as are the pellets of dust
which his blood makes on the soil — that is to say, on the burnt-up
Chap. V, § 2.] RELIGION AND LAW 113
soil of India — so many are the periods of a thousand years the
slayer must pass in Hell (Manu, xi. 208). The duration of pun-
ishment is imagined by the Buddhists with even greater extrava-
gance ; and indeed on all these subjects they seem to have outdone
the doctrine of the Hindus. The frightful Buddhist pictures of
torments in hell are tolerably well known. They are mostly of
Chinese origin, and probably exaggerate (but do not more than
exaggerate) the criminal justice administered from time immemo-
rial in the great organised Chinese Empire and its dependent king-
doms, in which the highest importance seems always to have
been attached to the deterrent effects of punishment.
The series of Purgatories, is, however, at last worked through,
and the soul or portion of life emerges to begin a course of trans-
migration which may bring it again to humanity. ... It is hard
not to smile at the grotesque particularity of detail with which such
writers as Vishnu and ^Manu depict the transmigration of souls.
'Criminals in the highest degree enter the bodies of all plants
successively. Mortal sinners enter the bodies of worms or insects.
Minor offenders enter the bodies of birds. Criminals in the fourth
degree enter the bodies of aquatic animals. Those who had com-
mitted a crime affecting loss of caste enter the bodies of amphibi-
ous animals' (Vishnu, xliv. 2). These general statements are
followed by a prodigious number of others, mentioning the class
of creature into which particular sinners enter. There is perhaps
a natural fitness in some of them, but others look like arbitrary
assertions or wild guesses. One who has appropriated a broad
passage becomes a serpent living in holes. One who has stolen
grain becomes a rat. One who has stolen water becomes a water-
fowl. But what is to be said of the transformation of the stealer
of silk into a partridge ; of the thief of linen into a frog ; of the
cattle-stealer into an iguana? I may venture at the same time
to suggest that what seems to us most difficult to understand
in these beliefs once appeared simple and natural. It has been
observed that savages look upon the transmutation of one creature
into another as almost an easy, everyday process. Primitive men,
living constantly in the presence of wild animals, preying on them
and preyed upon by them, do not seem to have been struck by the
immense superiority of the man to the brute. They appear to
have been impressed by the difference between living things and
everything else, but to have considered the forms of animate being
as separated from one another by a very slight barrier. . . .
But these Hindu law-books have wrought up the ancient belief
114 LAW AND THE STATE [Part I.
into a moral and theological philosophy of the greatest precision
and amplitude. Their special principle is that man's acts and
experiences in one form of being determine the next. Whether he
will in a future existence become a plant, a reptile, a bird, a
woman, a Brahman, or a semi-divine sage, depends on himself.
He goes out of the world what his own deeds have made him ; and
the impossibility of dissociating the past from the future is declared
by these writers in language of much solemnity. If a man departs
modified by voluntary sinfulness or involuntary impurity, and if
he has not expelled the taint by due penance, he will become one
of the lowest creatures ; if he dies purer than he was born, he may
reach the highest stage of humanity or become indistinguishable
from divinity. The whole theory is saved from contempt by its
power of satisfying moral cravings, and by the apparently complete
explanation which it offers of the unequal balance of good and
evil in this world. . . .
With these explanations, some features of those writings which
are at first sight very perplexing become comparatively intelligible.
Thus, they are chiefly called law-books because they contain
rules of conduct stated with the utmost precision. But what hap-
pens to a man if he disobeys the rule? This is the principal
question to the modern jurist. What is the punishment, or, as
the technical phrase is, the Sanction ? Understood in the modern
sense, it is hardly noticed in the oldest of these books. It is in
fact to be inflicted in another state of existence, and therefore,
though it may be asserted, no directions can be given about it.
Thus the place which in a modern law-book is taken by the Sanc-
tion — that is, by the various penal consequences of refusing to
obey a law — is taken in these writings by Penances. You are to
punish yourself here, lest a worse thing happen to you elsewhere.
These penances are set forth in the most uncompromising language
and in apparent good faitji-^ In one place, the penitent is told to
mutilate himself and to walk on in a particular direction till he
drops dead. In another he is to throw himself three times into the
fire, or to go into battle and expose himself as a target to the enemy.
For one great crime he is to extend himself on a red-hot iron bed,
or to enter a hollow iron image, and, having lighted a fire on both
sides, to burn himself to death. For the comparatively ^'enial
offence of drinking forbidden liquor a Brahman is to have boiling
spirit poured down his throat. Other penances are extraordinary
1 "Apastamba," i. i. 15; "Gautama," xxii ; "Vishnu," xxxiv.
XXXV.
Chap. V, § 2.] RELIGION AND LAW 115
from the length and intricacy of the self-inflictions which they sup-
pose. The old books hint a doubt here and there as to the efficacy
of penance : what good can it do, they say, since the evil deed itself
remains ; still, they add, the authoritative opinion is, that the
penance should be performed. *j\Ian in this world,' writes
Gautama (xix. 2), 'is polluted by a vile action, such as sacrificing
for men unworthy to offer a sacrifice, eating forbidden food,
speaking what ought not to be spoken, neglecting what is pre-
scribed, practising what is forbidden. They (i.e. some Brahman
authorities) are in doubt if he shall perform a penance for such a
deed or if he shall not do it. Some declare that he shall not do it,
because the deed shall not perish. (But) the most excellent opinion
is that he shall perform a penance.' This opinion is then sup-
ported by copious quotations from the Hindu scriptures. The
remarkable thing is, that no one of these writers seems to feel, what
would be our doubt, whether anybody could be got to perform the
severer penances.
How then does what we should call Law — that is, law, civil or
criminal, enforced by sanctions or penalties to be inflicted in this
world — first make its appearance in these books ? It appears
in connection with the personage whom we call the King. His
authority is more or less assumed to exist in the oldest of these
treatises, but, all taken together, they suggest that the alliance
between the King and the Brahmans was very gradually formed.
The most ancient of the books give comparatively narrow place to
the royal authority, but the space allotted to the King and his
functions is always increasing, until in the latest treatises (such as
]\Ianu) the whole duty of a King is one of the subjects treated of at
the greatest length and with the greatest particularity. It may be.
observed that, with the increased importance attributed to the
King, there is a change in the sacerdotal view of his relation to the
law. In what appear to me to be the most ancient portions of these
books, the King is only represented as the auxiliary of the spiritual
director. He is to complete and enforce penances. 'If any
persons,' says Apastamba (ii. v. 10. 13), 'transgress the order of
their spiritual director, he shall take them before the King. The
King shall consult his domestic priest, who should be learned in the
law and in the art of governing. He shall order them to perform
the proper penance, if they are Brahmans, and reduce them to
reason by forcible means, except corporal punishment and servi-
tude, but men of other castes, the King, after examining their
actions, may punish even by death.' In a later treatise (Vishnu,
116 LAW AND THE STATE [Part I.
III. 2) the duties of a King are summed up in two rules : he is to
protect his people ; he is to keep the four castes, and the four
orders of Student, Householder, Hermit, and Ascetic, in the prac-
tice of their several duties ; or, in other words, he is to enforce the
whole social and religious system as conceived by the sacerdotal
lawyers. The further progress of change consists in the further
exaltation of the personage who in the passage fromApastamba is
called the King's domestic priest. In the end, the law-books come
to contemplate an ideal tribunal composed of the King, with
learned Brahmans as assessors. The later writings clothe the
King with right divine. He is formed of eternal particles drawn
from the substance of the gods. 'Though even a child, he must
not be treated lightly, from an idea that he is a mere mortal.
No; he is a powerful divinity who appears in human shape'
(Manu, Yii. iv. 8). But he has lost in actual personal power.
He can only act with the advice of his Brahman assessors. 'Just
punishment cannot be inflicted by an ignorant and covetous King,
who has no wise and virtuous assistants, whose understanding
has not been improved and whose heart is addicted to sensuality.
By a King, wholly pure, faithful to his promise, observant of the
Scriptures, with good assistants and sound understanding, may
punishment be justly inflicted ' (Manu, vii. xxx. 31).
From this point the law set forth in these treatises becomes true
civil law, enforced by penalties imposed in this world by the Court
itself. The Brahmans themselves no doubt from first to last
claim a considerable benefit of clergy. 'Corporal punishment,'
it is written, 'must not be resorted to in the case of a Brahman ;
he at most can have his crime proclaimed, or be banished, or be
branded.' At the same time the abstract doctrine of punishments
or penal sanctions found in INIanu (vii. 17 et seq.) might satisfy
the English jurists who make the sanction the principal ingredient
in a law, so uncompromisingly is it declared. Jeremy Bentham
could hardly complain of such language as this: 'Punishment
governs all mankind ; punishment alone preserves them ; punish-
ment wakes when their guards are asleep ; if the King punish not
the guilty, the stronger would oppress the weaker, like the fish in
the sea. The whole race of man is kept in order by punishment ;
gods and demons, singers in heaven and cruel giants, birds and
serpents, are made capable by just correction of their several
enjoyments' (IVIanu, loc. cit.). The full consequences of juridical
doctrine like this do not, however, appear in such a law-book as
the extant ]Manu, which, besides a great deal of civil law, contains
Chap. V, § 2.] RELIGION AND L.\W 117
a mass of sacerdotal rules, mostly, as it seems to me, in a state of
dissolution and decay. A still later treatise, Xarada,^ is almost
wholly a simple law-book, and one of a very interesting kind. The ^
ancient Brahmanical system has been toned down and tempered ~ ' ^
in all its parts by the good sense and equity of the school of lawyers ?^ v&^
from whom this book proceeded. The portions of it which deal 5/?/^4/r
with Evidence appear to me especially remarkable, not only for ic/^C
the legal doctrine, which (though the writer believes in Ordeals) ^^sf~
is on the whole extremely modern, but for the elevation of moral '
tone displayed in its language on the subject of true and false
witness, which should be set off against the unveracity attributed
to the modern Hindu. *No relatives, no friends, no treasures, be
they ever so great, are able to hold him back who is about to dive
into the tremendous darkness of Hell. Thy ancestors are in
suspense when thou art come to give evidence, and ponder in their
mind, "Wilt thou deliver us from Hell or precipitate us into it?"
Truth is the soul of man ; ever^1:hing depends upon truth. Strive
to acquire a better self by speaking the truth. Thy whole lifetime,
from the night in which thou wert born up to the night in which
thou wilt die, has been spent in vain if thou givest false evidence.
There is no higher virtue than veracity; nor is there a greater
crime than falsehood. One must speak the truth, therefore,
especially when asked to bear testimony' (Xarada, pp. 42, 43,
Jolly). The somewhat analogous passage in INIanu (viii. 112) is
defaced by the often reprobated qualification, ' In case of a prom-
ise mad e for the preservation of a Brahman, it is no deadbTsriT
to tak e a light oath.'
The difficulties under which the student of the so-called Sacred
Laws of the Hindus has so long laboured have been almost entirely
caused by the transitional character of the book which was first
introduced to European scholarship as the original source of Hindu
Law. If the sample of this branch of Hindu literature first
translated into a Western language had been Narada, it would
have been regarded as a law-book of a familiar type, and the traces
of sacerdotal influence which are to be found in it would probably
have been neglected. If, on the other hand, the book first made
accessible had been Gautama, or Baudhayana, or Apastamba, it
would probably has been set down at once as a manual of practical
religious conduct, the Whole Duty of a Hindu ; the law contained
in it would probably have been considered adventitious or acci-
' The "Institutes of Narada" have been translated into English by
Dr. Julius Jolly. London: Triibuer & Co., 1871.
lis LAW AND THE STATE [Part I.
dental. But Manu, which Sir \Yiliiam Jones made famous in
Europe, neither falls wholly under the one description nor wholly
under the other. And so long as it stood by itself there was the
greatest difficulty in determining its place in the general history of
law. . . . The whole of the literature to which it belongs sprang,
it would now appear, from a double origin ; in part from some bod}'
of usage, not now easy to determine (though the recent investiga-
tion of local bodies of Indian custom has thrown some light upon
it), but chiefly from the Hindu scriptural literature. The last
exercised by far the most important influence. Its creators, far
back in antiquity, did not start with any idea of making or stating
law. Beginning with religious hymnology, devotional exercises,
religious ritual, and theological speculation, some of their schools
were brought to Conduct, and to stating in detail what a devout
man should do, what would happen to him if he did it not, and by
what acts, if he lapsed, he could restore himself to uprightness.
Gradually there arose in these schools the conviction that, for the
purpose of regulating Conduct by uniform rules, it was a simpler
course to act upon the rulers of men than on men themselves, and
thus the King was called in to help the Brahman and to be conse-
crated by him. The beginning of this alliance with the King was
the beginning of true civil law.
Nothing which thus happened seems to me to be very unlike
wha t would have happened in the legal history of Western Europe,
if the Canonists had gained a complete ascendency over Comrnon
Lawyers and Civilians. The system \Mliich they would have
established might be expected to gi\c great importance to the
purgation of crime by penances. This in fact occurred ; the pref-
erence of the ecclesiastical system with its penances over the
secular system with its cruel punishments, had much to do, as may
be seen from the legendary stories, with the popularity of St.
Thomas (Becket^yC^Then. it would be probable that, in the case
of graver sin, the ecclesiastical lawyer would invoke the aid of the
secular ruler to secure the proper expiation^and this again oc-
curred in the form of entrusting the severer punishments to the
secular arm. Finally, if the sole advisers and instruments of the
European King in the administration of civil and criminal justice
had been ecclesiastics, they would have been driven in the long run
to construct a system of civil and criminal law with proper sanc-
tions enforced by the Courts. But the system would have been
deeply tinged in all its parts with ecclesiastical ideas, and though it
would possibly have borrowed some or many of its rules from older
Chap. V, § 2.] RELIGION AND LAW 119
usage, it would have been very hard to detect their sources and
their precise original form.
I said that this ancient literature threw less light on the begin-
ning of lave than on the beginning of lawyers. But it is of course to
be understood that the men who conceived and framed it were
much more than lawyers. All the world knows that they were
also in some sense priests ; but they were much more than priests. )\
What we have to bring home to ourselves is the existence in ancient
Indian society of a sole instructed class, of a class which had an
absolute monopoly of all learning. "^^^ included the only lawyers,
the only priests, the only professors, the sole authorities on taste,
morality, and feeling, the sole depositaries of whatever stood in the
place of a science. These books are one long assertion that the
Brahmans hold the keys of Hell and Death, but they also show
that the Brahmans aimed at commanding a great deal more than
the forces of the intellect, and that all their efforts came to be
directed towards bringing under their influence the mighty of the
earth of another sort, the conquering soldier and the hereditary
king. They were to become partners with princes m their au-
thority, their advisers and assessors. 'A jyiigand a BraJiman
deeply versed in the^Vedas, these two uphold the moral order of
the'^world ; ' thus it is written in one of the oldest of the books.
Doubtless, the alliance between Brahman and King was often
sealed, and produced great effects ; for, amid^the "obscurities of
early Indian history, the fact does seem to emerge that, although
religions doubtless at first extended themselves by conversion,
they were established over wide areas and again overthrown much
less by propagandism than by the civil power. On the whole, the
impression left on the mind by the study of these books is, that a
more awful tyranny never existed than this which proceeded from
the union of physical, intellectual, and spiritual ascendency. At
the same time it would be altogether a mistake to regard the class
whose ideas are reflected in the literature as a self-indulgent ecclesi-
astical aristocracy. It is not easy, I must admit, to describe
adequately the intensity of the professional pride which shows
itself in all parts of their writings. Everybody is to minister to
them ; everybody is to give way to them ; the respectful saluta-
tions with which they are to be addressed are set forth with the
utmost minuteness. They are to be free of the criminal law which
they themselves prescribe. 'A Brahman,' writes Gautama,
120 LAW AND THE STATE [Part I.
'must not be subjected to corporal punishment, he must not be
imprisoned, he must not be fined, he must not be exiled, he must
not be reviled or excluded (from society).' Their arrogance
perhaps reaches the highest point in a passage of the law-book of
Vishnu, where it is written that ' the Gods are invisible deities ; the
Bralimans are visible deities. The Brahmans sustain the world.
It is by favour of the Brahmans thatThe Gods reside in Heaven.'
Yet the life which they chalk out for themselves is certainly not a
luxurious and scarcely a happy life. It is a life passed from first
to last under the shadow of terrible possibilities. The Brahman in
youth is to beg for his teacher ; in maturity, as a married house-
holder, he is hedged round with countless duties, of which the
involuntary breach may consign him in another world to millions
of years of degradation or pain ; in old age, he is to become an
ascetic or a hermit. It is possibly to this combination of self-
assertion with self-denial and self-abasement that the wonderfully
stubborn vitality of the main Brahmanical ideas may be attributed.
As I have shown, the sacerdotal legal system, as a system, owes
probably much of its present authority to its adoption by the
Anglo-Indian Courts of Justice as the common law of India ; but
some of the points of belief which underlie it, as they do the whole
Brahmanical literature, make the most durable part of the mental
stock of every Hindu. . . .
Section 3
TABOO AS A PRIMITIVE SUBSTITUTE FOR LAW ^
The law issues commands and prohibitions, the essence of which
is not that the rights of the individual shall be preserved, but that
the original interests of culture in general shall be promoted>/
Under this head belong the many regulations in respect to sanita-
tion, to the promotion of rnorality in general, to the preservation of
a certain state of the earth's surface (the supervision of rivers, con-
servation of forests, etc.). Here, too, belong the manifold statutes
that refer to education, social and economic conditions, etc. This
is the field of cultural advancement through police and penal
regulations.
In connection with this stands the law of taboo.
Taboo in general means forbidden, and refers to everything
1 [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Albrechfs trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
Chap. V, § 3.] RELIGION AND LAW 121
that, for reasons based on mystical and religious grounds, is for-
bidden to the individual, the whole or a part of the people\r^hus
the conception grows out of primitive mysticism, but it has a
strongly formative effect, for a great deal of what is necessary to
human progress is accomplished by means of such prohibitions.
We need only recall the great number of sanitary measures that
could not have arisen except in this way. Of course, originally,
the taboo was enveloped in a mass of so-called superstitions, that
is, in a mass of ideas which, in one direction or another, gave ex-
pression to a principle of faithr^ily to die out later because they
were merely of temporar}^ significance, and disappeared in the
light of more advanced knowledge.
In this way the custom of taboo could, to a great extent, take
the place of our police regulations ; for. as soon as priesthood and
chieftainry become more powerful^not only thosa things are
tabooed that have hitherto been sacred^ut the priests and chiefs
have the right of putting others under tabo^<^ If they do not
exercise this right arbitrarily, but on rational grounds, the taboo
becomes a beneficial means of removing the absurdities and
indecencies of the peoplpfknd investing life with a certain dig-
nity and sublimity.
I
Chapter VI
EVOLUTION OF CRIMINAL LAW
Section 1
PRIMITIVE CRIMINAL LAW i
The earliest view which we obtain of poHtical society shows us
in each case the same system prevaihng for the redress of wrongs
and punishment of offences, namely, a system of private revenge
and personal redress of injuries. Each person avenged, in what-
ever manner he thought right, a wrong done him by another, and
the customs of the tribe sanctioned his doing so with impunity.
The idea of retaliation is one deeply rooted in man's nature. A
savage or a child naturally revenges an injury by inflicting a similar
one on the aggressor. Retribution in kind is viewed, even in
civilised societies, with satisfaction. An eye for an eye, a tooth
for a tooth ; whoso sheddeth man's blood, by man shall his blooji
be shed — such is the rule in all early societies. As Mr. Mo^Te,
in speaking of the -Roman Law, well says: "A system of self-
redress, in the form of private vengeance, preceded everywhere
the establishment of a regul&r judicature ; the injured person,
with his kinsmen or dependents, made a foray against the wrong-
doer, and swept away his cattle, and with them perhaps his wife
and children, or he threatened him with supernatural penalties
by 'fasting' upon him, as in the East even at the present day;
or, finally, he reduced his adversary to servitude, or took his life." -
There are only slight traces of this system of self-redress in the
Roman Law of the time of Gains and Justinian. Still there are
sufficient to prove, conclusively, that the early history of Law was
the same in Rome as elsewhere. When we apply ourselves to
^ [By Richard R. Cherry, Barrister-at-Law ; Reid Professor of Consti-
tutional and Criminal Law fin the University of Dublin. Reprinted from
"Lectures, Growth of Criminal Law in Ancient Communities," Macmil-
lan & Co., London, 1890.] / N
2 Justinian, "Insts.," ed. Moyle, vol. i, p. 614. \
( 122 \
J
Chap. VI, § 1.] EVOLUTION OF CRIMINAL LAW 123
other systems of law which, from various causes, did not develop in
the same manner as the Roman Law did — such, for instance, as the
Brehon Laws of Ireland, and the legal systems of Semitic nations
— we find the system of private retaliation in full vigour, even
in the most highly developed stage to which the law ever attained.
There can be no doubt, also, that the primitive history of English
Criminal Law was in this respect exactly the same. "The fact,"
says Mr. Justice Stephen, "that private vengeance of the person
wronged by a crime was the principal source to which men trusted
for the administration of criminal justice in early times, is one of
the most characteristic circumstances connected with English
Criminal Law, and has had much to do with the development of
what may, perhaps, be regarded as its principal distinctive peculiar-
ity, namely, the degree to which a criminal trial resembles a private
litigation" ("Hist, of Criminal Law," i. 245). The development
of both the English and Roman systems has, in a great measure,
obliterated the traces of this system of primitive retaliation ; and
it is difficult to trace in them the various steps of the progress to
a mature system of law. It is here that we invoke the aid of the
other systems of law which I have mentioned. The Brehon Laws,
arrested in their growth, at an early stage of legal development,
by the unfortunate history of Ireland, throw a flood of light upon
the early history of Penal Law, and supply us with the missing
link of legal history. They exhibit to us, flourishing in full vigour,
institutions and methods of procedure, of which only very slight
traces remain in the Roman Law, and the very remembrance of
which has been almost entirely lost in our own more perfect system
of Criminal Law.
The primitive method for the redress of wrongs was, as I have
said, simple retaliation upon the person of the wrongdoer. At
this stage of human progress. Law, in any sense in which we use
the term, cannot be said to have existed. It would be absurd
to call savage retaliation Law ; still this system of retaliation is the
germ from which Penal Law has gradually de^■eloped itself ; and
we can, by comparing the laws of different nations at different
periods of their development, actually trace the stages by which
the practice of retaliation became transformed into a regular sys-
tem of Criminal Law. The first stage in this progress was the
growth of a custom for the injured person to accept some pecuniary
satisfaction in lieu of his right of vengeance. The wrongdoer
might thus buy off the revenge which he dreaded, if he chose to do
so. This was, at first, a purely voluntary matter on both sides.
124 LA.W AND THE STATE [Part I.
There was no compulsion whatsoever. It lay entirely in the
discretion of the injured person whether he would accept pecuniary
satisfaction or wreak his vengeance on the wrongdoer. And the
latter, if he were strong enough, could safely defy his enemy, and
refuse to give any satisfaction. It was altogether a matter of
private bargaining ; the injured man, according to his power, and
according to the fierceness of his anger, exacting whatever sum
he could from the wrongdoer. Gradually, liowever, a regular
scale of payment was established — at first, for slight injuries,
and then, afterwards, for more serious oflFences. Custom has
enormous force among uncivilized nations. Men, naturally, and
without any constraint, were satisfied to accept the same compen-
sation as others in similar positions had been content with. Still
there was no compulsion — no constraint whatsoever — and no
intervention of any judicial authority.
It must not be forgotten tlia^ the right of personal revenge
was also m many cases a duty. Aman was bound by all the force
of religion and custom to averige the death of his kinsman. This
duty was by universal practice imposed upon the nearest male
relative — the avenger of blood, as he is called in the Scripture
accounts. Among most nations, murder, like any other oflFence,
could be compounded for between the wrongdoer and the nearest
relative of the slain. We never hear of the death fine in historical
times in Greece, but in Homer it is referred to more than once.
Thus, in the 9th Book of the Iliad, Ajax, in reproaching Achilles
for not accepting the oflFer of reparation made to him by Agamem-
non, reminds him that even a brother's death may be appeased
by a pecuniary fine, and that the murderer, having paid the fine
may remain at home among his own people free. One of the scenes
said to have been depicted on the shield of Achilles is a dispute
about a death fine. Among the ancient Germans the custom
prevailed universally. Tacitus tells us that atonement was
made for homicide by a certain number of cattle, and that by that
means the whole family was appeased. By the Lex Salica the
fine was paid in money, and varied according to the rank, sex,
and age of the murdered person.^ The early English laws were
based on the same principle : the fine for homicide is constantly
referred to in the laws of Edgar and Athelstan. In Sweden the
death fine was also recognized by the name kinbote, as a compen-
sation for homicide. In the Roman Law there is no trace of it,
' See "Lex Salica," edited by Hessels and Kern. Titles 14, 24, 35,
41-45.
Chap. VI, § 1.] EVOLUTION OF CRIMINAL LAW 125
SO far as I am aware ; but the provision of the Twelve Tables re-
garding homicide has not been preserved to us ; and it is only
from an incidental reference, many centuries later, that we learn
that death was the penalty imposed for the crime. It is possible
that, as in the case of lesser injuries, primitive Roman Law al-
lowed a murderer to compound for his offence by a money pay-
ment; but it is more probable, I think, that the law regarded
the life of a Roman citizen as too sacred to be atoned for by money
payment. Among Semitic nations the death fine was very gen-
eral, and it continued to prevail in the Turkish Empire down to
our own day ; but the acceptance of a death penalty was distinctly
forbidden to the Jews by the Mosaic legislation. The life of a
man was considered too sacred to be atoned for by money. ^ Re-
ligious influence had much to do everywhere, as we shall see, with
the development of Criminal Law.
The death fine was, of course, a most important matter in cases
where it was permitted to be paid and received, and it is in refer-
ence to it that a dispute would naturally arise : firstly, because its
amount would necessarily be larger than that for lesser injuries ;
and, secondly, because the acceptance of too small a fine would
naturally be looked upon as an evasion of his duty by the avenger
of blood. The latter might accept a fine, but he could not, with-
out disgrace, accept any small compensation for the death of his
kinsman.
The first germ of any judicial proceeding is to be found in the
settlement of the amount of these fines by the tribal assembly,
which was held periodically among most primitive nations- Each
party would naturally appeal to it, and probably in early times
its principal work was the settlement of such disputes- At first
the settlement was only suggested, neither party being bound
by the decision ; and it was not, apparently, for a very long period
that any attempt was made to enforce decrees as to the amount
of the fines. Where both parties were willing to refer the matter
to the assembly, the decision of the latter was of course binding,
and gradually it came to be usual and customary to do so.
We have, in English Law, very little trace of such a s,vstem
as that which I have endeavoured to describe, but the Brehon Laws
give us an exact picture of this state of society ; and there can be
little doubt that it preceded, ever^^vhere, the establishment of a
regular judicial system.
In fixing the amount of the fine to be paid, the Tribal Assembly
^ See Numbers, xxxv. 31.
12G LAW AND THE STATE [Part I.
would naturally pay attention to the likelihood of the injured
person being satisfied with its decision. Thus the feelings of the
aggrieved party, rather than the moral guilt of the offender, or
even the amount of damage inflicted, was the primary matter
which regulated the amount of the fine. At a later period, when
law was fully developed, and the decisions of courts of justice
regularly enforced, traces of this system remained in the rules
regarding the penalty for different offences. The curious rule by
which, according to Roman Law, a theft detected in the act was
punished by a fine of twice the amount of that inflicted for a
theft not so detected, is undoubtedly to be traced to this source.
"The reason," says Mr. Poste, " why furtum manifestum was sub-
jected to a heavier penalty than furhnn Jiec manijestmn, was not
because the barbarous legislator supposed that detection in the
act was an aggravation of the offence, but because he wished, by
the amplitude of the legal remedy offered, to induce the aggrieved
party not to take the law into his own hands and inflict summary
vengeance on the offender." ^
The Roman Law only exhibits, incidentally, as it were, traces
of the existence of such customs ; but the Brehon Laws exhibit
the system in full operation. The " Book of Aicill " mentions with
great detail the various circumstances which are to be taken into
account in fixing the amount of fines ; and instances are recorded
where injured persons refused, for various reasons, to accept the
amount fixed.
How then did this purely voluntary system become transformed
into a regularly enforced payment of the fines was a matter of
gradual dcA'elopment. The Brehon Law tracts, for instance, con-
tain no provision whatsoever for the enforcement of the fines, so
that we are much puzzled to know what obligation there was on
any one to pay. We .may conjecture that when first tribal as-
sembhes or kings began to decide disputes authoritatively, they
gave (if the wrongdoer were present) such assistance as was neces-
sary to the complainant in exacting the punishment imposed. If
the wrongdoer did not attend, there was, so far as we can learn,
no means of compelling him to do so ; but the principle of retalia-
tion was again invoked here. He who refused to pay the fine was
deprived of its benefits. If any man refused to pay the fine im-
posed upon him by law for any offence, he was declared henceforth
incapable of recovering fines for offences against himself. In
other words, he was outlawed. There can be little doubt that
^ Paste's "Gaius," p. 460.
Chap. VI, § 1.] EVOLUTION OF CRIMINAL LAW ^^
outlawry was the first punishment imposed by socitv^, ^
more archaic a body of law is the more minute are its prow^
regarding outlawry. Such is the conclusion at which Sir J:x.
Maine arrives: — "The earliest penalty for disobedience to the
court was probably outlawry. The man who would not abide by
its sentence went out of the law. If he were killed, his kinsmen
were forbidden, or were deterred by all the force of primitive opin-
ion, from taking that vengeance which otherwise would have
been their duty and their right." ^ The introduction of the sys-
tem of outlawry is extremely important in that it marks the real
origin of Criminal Law. In ancient law there is no such thing
as a crime. The word " crimen " . . . is of comparatively modern
origin in Roman Law, and necessarily implies a judicial proceeding
of some kind.
Criminal Law, as distinct from Penal Law, involves some ele-
ment of public condemnation — such was a sentence of outlawry.
The right of vengeance, or the penalty paid and accepted in lieu
of it, is a matter more of private than of public law. The term
"poena" does not, like "crimen," involve anything of a public
nature. "There can be little doubt that the term 'poena' origi-
nally meant not so much penalty as composition for injury ; the
earliest 'poense' were sums in consideration of which the injured
person consented to forego his customary right of self-redress,
and the penal sums recovered by the plaintiff in a Roman action
on delict attest the nature of the practice, though in them the
'penalty' is usually fixed by the State, and not bj^ the parties." ^
The prototype of a modern criminal trial appears in the solemn
proclamation at the tribe meeting, after full inquiry, of the sentence
of outlawry. In Iceland the sentence was pronounced at the
Althing by the Law man. In the Saga of Gisli the outlav\-,^ we
have an account of the manner in which sentence of outlawry was
passed in that country. Gisli in a quarrel had slain his opponent.
He flies, and is pursued by Bork the Stout, brother of the slain
man. "The next thing that happens is that Gisli sends word to
his brothers-in-law, Helgi, and Sigurd, and Vestgen, to go to the
Thing (i.e. local assembly held periodically) and offer an atone-
ment for him that he might not be outlawed. So they set oft' for
the Thing, the sons of Bjartmar, and could bring nothing to pass
about the atonement ; and men go so far as to say that they be-
' See his chapter on "The King in his relation to early ci\'il justice,"
in ^'Early Law and Custom," pp. 170-174.
* Moijle, "Insts. of .Justinian," vol. i, p. 616.
3 "The Story of Gisli the Outlaw." Ed. by Sir G. Dasenl.
128 LAW AND THE STATE [Part I.
haved ver^y ill, so that they almost burst out Into tears ere the suit
was o'ver. They were then very young ; and Bork the Stout was
snj very wroth they could do nothing with him." In England it
was, under the old law, necessary that a man should be solemnly
called at four county courts ^ before the sentence of outlawry could
be pronounced against him. In theory outlawry still exists in
our law, though it has long since become obsolete in practice.
Such is a slight sketch of the manner in which Criminal or
Penal Law appears to have originated in all legal systems. When
we pass this initial stage we find that Laws developed themselves
differently in different countries, according to differing circum-
stances of government, occupation, and temperament of the
people. Different acts became crimes under different systems,
but the general principle which underlay all Avas the principle of
revenge. Those acts have everywhere come to be regarded as
crimes which in early times tended to provoke vengeance or retali-
ation. The judicial authority, either the king or tribal assembly,
at first regulated the manner in which this vengeance was to be
enforced, and the terms upon which it might be commuted. Indi-
viduals were constrained to obey by sentences of outlawry.
Gradually, then, partly in order to suppress disorder, and partly in
consequence of the disappearance, for various reasons, of the sys-
tem of pecuniary fines, a regular system of Criminal Law came into
existence; the same acts being punished as offences as were for-
merly liable to fine or personal revenge. We thus see how completely
different the early development of Criminal Law, as a matter of
fact, was, from what, according to the principles of analytical
jurisprudence, we might naturally suppose it to have been.
Section 2
DEVELOPMENT OP JUSTICE ^
L To the civilized man it seems the merest truism to say that
the business of Government is to make and execute laws, to see
that crime is suppressed, and that its subjects are maintained in
possession of their just rights. Not only so, but the broad lines
upon which justice is administered are to him so familiar and
1 The County Courts were, in all probability, a survival, among the
Anglo-Saxons, of the periodical tribal assembly of the Teutonic nations.
- [By L. T. HoBHOUSE. Reprinted from "Morals in Evolution," by
permission of Henry Holt and Company, New York. Abbreviated and
omitted book-titles with the detail of editions are supplied by the author's
reference list on p. xiii seq., Vol. I of the original work.]
Chap. VI, § 2.] EVOLUTION OF CRIMIXAL L.\W 129
seem so clearly marked out by reason and common sense that if
he were to think of their origin at all he would naturally imagine
that here, if anywhere, we had to do w4th simple and elementary
moral ideas, implanted in men by nature, and needing no training
nor experience to perfect them. Thus, what could be more
obvious to begin with than the distinction of civil and criminal
justice ? A may trespass upon the rights of B, but he may do so
without fraud, violence, or any criminal intent. In such cases
the loss suffered by B must be made good, but no further punish-
ment should fall upon A, That is, there is ground for a civil
action. Or, on the other hand, in injuring B, A may have com-
mitted an offence against the social order. In that case he must
be punished as a criminal, and is not to escape merely by making
good the loss inflicted on B. He has offended society, and society
insists on punishing him. But, further, if A is a wrong-doer,
it must be proved that he is a responsible agent. He must have
done wrong with intention, and, if so, he alone ought to suffer.
Socially, no doubt, his fall must affect his innocent wife and
children, but this is a regrettable result, not a consequence which
the law goes about to inflict. Lastly, whether in a civil or criminal
case, the function of the law is to set up an impartial authority,
before whom the question is argued. Both sides are heard.
Evidence is cited, and witnesses called, whose testimony the
court is free to sift and weigh. Formalities and rules have to be
observed, but apart, perhaps, from some which are archaic, they
are devised mainly as safeguards against wrongful decisions, and
the real business of the inquiry is to get at truth as to the
material facts. In the end, the decision being given, the court
can freely use the executive power of Government to enforce it.
Elementary as all this sounds, it is, historically speaking, the
result of a long evolution. The distinction between civil and
criminal law, the principle of strictly indi\'idual responsibility,
the distinction between the intentional and the unintentional,
the conception of the court as an impartial authority to try the
merits of the case, the exclusive reliance on evidence and testimony,
the preference of material to formal rectitude, the execution of
the court's decision by a public force — all are matters very im- -->
perfectly understood by primitive peoples, and their definite *
establishment is the result of a slow historical process. Perhaps
no other department of comparative ethics gives so vivid an idea of
the difficulty which humanity has found in est§,l]|^i^iii;^gj^ie simple
elements of a just social order. \>->*^^
130 LAW AND THE STATE [Part I.
2. The growth of law and justice is pretty closely connected in
its several stages with the forms of social organization. In
quite the lowest races there is, as we have seen, scarcely any-
thing that is strictly to be called the administration of justice.
Private wrongs are revenged by private individuals, and any one
whom they can get to help them. The neighbours interfere in
the least possible degree, and how far a man's family, or the
wider group to which he belongs, will stand by him, is a question
which is decided in each particular case as its own merits, or the
inclinations of those concerned, direct.^ But even at a very low
stage this uncertain and fitful action begins to take a more defi-
nite shape. We find something that corresponds roughly to our
own administration of justice, and from the outset we find it in
two broadly distinct cases. There are occasions upon which a
1 See the aecoimt of the Veddahs and Fuegians (original work, ch. ii).
With these may be joined the Andamanese, who live in small communities
numbering from twenty to fifty individuals, and have no distinct institu-
tions for the maintenance of order or the settlement of disputes. Each
group, indeed, has a chief, but liis powers are extremely limited, extending
to little beyond the right of calling the people together and exercising over
them what influence he can. There is no form of covenant, no oath, no
form of trial, no ordeal. Justice is left altogether to the aggrieved party,
who shoots an arrow at his enemy or throws a burning faggot at him, the
neighbours playing their part in the matter by running away until the
quarrel is over, which at any rate prevents the spread of the mischief. The
law of vengeance is not developed. A relative maj' avenge the death of a
murdered man, but it is not necessary that anything should happen.
The neighbours are afraid of the murderer, and he finds it desirable to
absent himself for a while. Not uncommonly a man will show his resent-
ment, not by punishing the 'wrong-doer, but by destrojang all the property
that he can lay hands upon, including his own. The chief's property
alone will be respected. In other words, the Andaman Islander, like the
Malay, is apt to run amok, and such men are not resisted because they
are held to be possessed. Conjugal fidelity among this monogamous
people is enforced by the husband, but in punisliing the guilty party he
runs the risk of retaliation. There appears, however, says Mr. IMan, to
be an understanding that the greater the provocation offered the less is
the risk incurred by the injured person or his friends, in avenging the
wrong — a sentiment which very aptly characterizes the degree in which
justice is recognized as a public matter at this stage of social development.
There is no definite redress, but an injured man may hope to earrj^ the
support of the neighbours with him in rough proportion to the strength
of his case. Injuries done by a member of another tribe lead to more
regular feuds and are avenged if possible by a night attack upon the
neighbouring camp, which, if successful, results in tlie slaughter of the
males and the destruction or appropriation of the property of the van-
quished. The women of the enemy, it may be noted, are not deliberately
Ivilled ; at any rate their death is not, as among some more advanced
peoples, a matter for boasting ; and the child captive would be treated
kindly with a view to its adoption by the captors' tribe. Cannibalism,
the frequent concomitant of savage warfare, is held in horror, but is attrib-
uted by the southern Andamanese to the inhabitants of the northern
island. {E. H. Man, "Journal of the Anthropological Institute," vol.
xii. 108 seq.)
Chap. VI, § 2.] EVOLUTION OF CRIMINAL LAW 131
whole community will turn upon an offender and expel him, or
put him to death. Sometimes, indeed, this is merely a kind of
lynch law directed against a man who makes himself unbearable
or commits some crime which touches a general feeling of resent-
ment into life. But beyond this there are at almost, if not quite,
the lowest stages certain actions which are resented as involving
the community as a whole in misfortune and danger. These in-
clude, besides actual treason, conduct which brings upon the people
the wrath of God, or of certain spirits, or which violates some
mighty and mysterious taboo. ^ The actions most frequently re-
garded in this light are certain breaches of the marriage laws and
witchcraft. The breaches of the marriage law which come in
question here are confined to those transgressions of the prohibi-
tions of intermarriage, upon which primitive races lay such ex-
traordinary stress. A mere violation of the marriage tie is gener-
ally in savage society a private matter, avenged by the husband
alone, or by those whose duty it is to help him ; but a breach of the
rules of exogamy, a marriage within the totem, for example, or a
marriage outside the permissible class, is regarded as an offence
endangering the community herself, and only to be wiped out by
the extinction of the offender. A Central Australian tribe, for
instance, which has no regular means of enforcing any law, will
make up a war party to spear the man and woman who have
married in defiance of these customs.^ Similarly common action
will often be taken to protect the community from witchcraft,
obviously a terrible offence in a society which firmly believes in
it. Among the North American Indians a public sentence was
often pronounced and carried out by the chiefs in cases of sorcery,
and sometimes also in cases of cowardice or breaches of the marriage
customs.^ The punishment of witchcraft is as widespread as the
fear of it, and, prompted as it is by the sense of a danger to the
whole community, is often peculiarly ferocious, and directed to
the destruction of every one connected with the offender.^
' C/. Steinmetz, "Ethnologisehe Studien zur ersten Entwickelung der
Strafe," ii. pp. 328-341.
2 Sometimes the old men of the tribe wnll in\dte a neighbouring group
to execute the criminal. Cutting and burning are sometimes substitutes
for death. {Spencer and Gillen, "Native Tribes of Central Australia,"
p. 495.)
^ Knhler, "Zeitschrift fiir vergleichende Rechtswissenschaft." 1897,
pp. 412-416. For the punishment of sorcery, see Waitz, iii. p. 128.
■• "The punishments affecting sorcerers can scarcely be called punish-
ments. They are acts of annihilation." — Post, ii. p. 395, where numer-
ous instances are given from all parts of the world. In some cases, the
whole family of the offender perishes with him.
132 LAW AND THE STATE [Part I.
The object of the community in exterminating the criminal is
not so much to punish the wicked man as to protect itself from a
danger, or purge itself from a curse. Achan takes the accursed
thing, the thing which had been devoted to Jahveh. The taboo
on the thing devoted is at once communicated to Achan himself
as though it were a poison or an infection, or, to take another
metaphor, a charge of electricity. It passes from the spoil ap-
propriated to the appropriator, and no resource remains but to
de\'ote Achan with all his family and belongings, everything, in
fact, which the accursed thing had infected. The Roman criminal,
if his offence bore a religious character, was "sacer" — separated
from men, made over to the offended deities.^ His goods were set
apart {consecratio honorum), for they were involved in his impurity.
He was banished, so that none might come into contact with his
accursed person. He was cut off from fire and water, not primarily
because fire and water were necessary to his life, so that he was
sentenced to death by being deprived of them, but rather for fear
that his accursed touch should pollute the sacred elements and
convey the pollution to others. That the criminal suffered in
consequence was a satisfactory collateral effect, but the main thing
was to secure the fire and water from pollution.-
Thus far, then, public punishments, where they are any more
than an explosion of indignant feeling, may be regarded as public
action taken for the sake of public safety. The community is
threatened with palpable treason, or with occult magic influence,
or by the wrath of the gods.^ It protects itself by destroying the
traitor, or sacrificing, or, at any rate, getting rid of, the witch.
It is a kind of public hygiene rather than a dispensation of justice
which is in. question.
1 Thus the undutiful son is "sacred" to the parental deities. "Si
parentem puer verberit, ast olle plorassit, puer divis parentum saeer
esto." {Bruns, "Fontes Juris Romani Antiqui," p. 14.) Treason to a
client, or ploughing up a neighboui''s landmark, would also render a man
"saeer." Cf. the curses in Deut. xxvii. At bottom the idea of some
North American Indians is similar, among whom the murderer is taboo,
because haunted by the ghost of the victim. {Kohler, "Z. f. vgl. Rechts-
wst.," 1897, p. 408.)
^ Jhering, "Geist des Romisehen Rechts," i. pp. 275-277, etc.
' Among the German tribes the worst offenders were sacrificed to the
gods, unless the latter showed signs of grace, in which case the offender
became a slave of the gods, or was sold into slavery, or became an exile.
The great offences were : — breach of the peace of the temple, the army,
or the meeting, of a special festival, or finally of the house ; grave-robbing,
treason, raising an army in rebeUion, arson, black magic ; anti-social
crimes of peculiar depravity, such as breach of a sworn peace, unnatural
desire, and acts of cowardice, such as desertion from the army ; concealed
murder and theft, in opposition to open murder and robbery. {Schroder,
"Lehi'buch der Deutschen Reehtsgeschichte," pp. 74 and 76.)
Chap. VI, § 2.] EVOLUTION OF CRIMINAL L.\W 133
3. With the redress of wrongs, the maintenance of private
rights, and the punishment of the bulk of ordinary offences, it is
different. For these purposes primitive society has no adequate
organization. Administration of justice in this sense is in the
main a private matter. It is for the sufferer to obtain redress
or to revenge himself, and in the lowest stages of all, the vengeance
is, as we have seen, casual, arbitrary and unsystematized. But
as the family and the clan acquire definite and coherent structure
a systematic method of redress grows up. The leading character-
istics of this method are two — (1) that redress is obtained by re-
taliation, and (2) that owing to the solidarity of the family the
sufferer will find support in obtaining the redress that he seeks.
The individual man, woman or child no longer stands by himself
or herself, but can count with considerable certainty on the pro-
tection of his relatives, who are bound to avenge a wrong done
to hiiri, or to stand by him in exacting vengeance by every tie of
honour and religion. In other words, this is the stage of the blood
feud. " He that sheddeth man's blood, by man shall his blood
be shed," is the earliest law given in the Old Testament, and on
this point the Old Testament may be said to be a faithful reflection
of the historical facts.
Thoug h the blood feud is an expressinn of vpn^ ypHnrp. this
vengeance is by no means wholly without regulations and rules
of its own. There is a rough justice recognizable in its working,
though it is not the justice of an impartial third person surveying
the facts as a whole. There is no question of a just judge render-
ing each man his due, but rather of a united kin sympathizing
with the resentment of an injured relation when expressing itself
in certain traditional forms. Justice as we understand it — the
rendering to each man his due as judged by an impartial authority
— is not distinctly conceived as a social duty in primitive ethics
and that is what, morally speaking, differentiates the primitive
ethical consciousness from the ethical consciousness at a higher
stage of development. Yet primitive ethics works upon rules in
which a certain measure of justice is embodied. Thus in the first
place custom prescribes certain rules of retaliation which are
recognized as right and proper and have the approval of the
neighbours and clansmen. The simplest and earliest of these rules
is the famous Lex Talionis, " An eye for an eye, and a tooth for
a tooth," familiar to us from the chapter of Exodus, but far earlier
than Exodus in its first formulation. We find it, like many other
primitive rules of law, in the recently-discovered code of King
134 LAW AND THE STATE [Part I.
Hammurabi/ which is earlier than the Book of the Covenant
perhaps by 1300 years, and we find it at the present day among
people sociologically at an earlier stage of development than the
Babylonians of the third millennium before Christ. We find it
applicable to bodily injuries,^ to breaches of the marriage law,^ and
perhaps we may say in the rules of the twofold restitution for
theft and in the symbolic form of mutilating the offending member
even to the case of offences against property.^ In some cases the
idea of exact retaliation is carried out with the utmost literalness —
a grotesque literalness sometimes, as when a man who has killed
another by falling on him from a tree is himself put to death by
exactly the same method — a relation of the deceased solemnly
mounting the tree and, much one would say at his own risk, de-
scending upon the offender.^ More often, of course, vengeance
is simpler. Stripes, mutilation or death are inflicted without any
attempt to imitate the original offence, though there may very
well be a grading of the vengeance in proportion to the original
wrong. The homicide is slain, the adulterer speared, beaten, or
mutilated, the thief slain, enslaved or forced to make restitution,
the defaulting debtor enslaved or flogged.^
4. But at a fairly early stage in the growth of social order a
fresh principle is introduced tending to mitigate the blood feud
and so maintain peace and harmony. For the special vice of the
system of retaliation is that it provides no machinery for bringing
the quarrel to an end. If one of the Bear totem is killed by a
1 Hammurabi, § 195. If a man has struck his father, his hands one
shall cut off.
196t If a man has caused the loss of a gentleman's eye, his eye one shall
cause to be lost.
197. If he has shattered a gentleman's limb, one shall shatter his
limb.
200. If a man has made the tooth of a man that is his equal to fall out,
one shall make his tooth fall out, etc.
2 See instances in Post, ii. pp. 240, 241. .
5 The adulterer has to jaeld his own wife to the injured husband {loc.
cit., cf. Waitz, iv. 361).
** The thief loses eye or hand. Similarly the adulterer or ravisher may
be castrated — and with this we may perhaps compare the punishment of
the unchaste \vife by prostitution. The perjurer loses his tongue or the
" schwurfinger. " (Post, I.e.)
^ In the Leges Henriei, Pollock and Maitland, vol. ii. pp. 470, 471.
Mutilation is punished by retaliation among the Barea and Kunama, the
Whydah, Bogos, and Congo people. {Post, ii. 241.)
s E.g. among the Cherokees the defaulting debtor was tied to a tree and
flogged. {Waitz, iii. p. 131.) In other tribes disputes as to money
matters were regulated by arbitrators chosen by the conflicting parties.
Those who were prevented by illness or any real obstacle from pa\ang
their debts, were not compelled to do so, but those who could pay and
did not fell into general contempt.
Chap. YI, § 2.] EVOLUTION OF CRIMINAL LAW 135
Hawk, the Hawk must be killed by one of the Bears, but it by no
means follows that this will end the matter, for the Hawks
may now stand by their murdered clansmen and take the life of
a second Bear in revenge, and so the game goes on, and we have
a true course of vendetta. Accordingly peaceable souls with a
view to the welfare of both families, perhaps with the broader
view of happiness and harmony within the communit}', intervene
with a suggestion of peace. Let the injured Bears take compensa-
tion in another form, let them take cattle or other things to make
good the loss of the pair of hands which served them. In a word,
let the payment of damages be a salve to vindictive feelings. In
that way the incident may come to an end and peace will reign.
When such a practice becomes a customary institution we enter
upon the stage of composition foroffences,a stage peculiarly charac-
teristic of the settling down of barbarous tribes into a peaceable
and relatively civilized state, and especially of the growth of the
power of a chief whose influence is often exerted to enforce the
expedient of composition upon a reluctant and revengeful family.
As the institution takes shape a regular tariff is introduced, so
much for an injury, so much for the loss of an eye, so much for a
life. Often a distinction between classes of crime appears. For
some it is the rule that composition should be accepted. Others
are recognized as too grave to be washed out except by blood.
Thus among the German tribes murder and rape excited blood-
revenge, while other injuries were punishable by fine, and the
fine is significantly called " faida," as being the feud commuted for
money. ^ The distinction lasted into the ^Middle Ages, even in a
period when the fine or a part of it went to the king. Our Leges
Henrici still distinguish emendable offences, in which sacrilege
and wilful homicide without treachery are included, from un-
emendable offences such as housebreaking, arson, open theft,
aggravated homicide, treason against one's lord and breach of
the church's or the king's peace.^ These are crimes which in the
1 Waitz, "Deutsche Verfassungfsgeschichte," i. p. 437, who, however,
denies that the fine was a merely buying off of revenge.
"^ Post, "Afrikanische .Jurisprudenz," ii. 30, gives a list of ten African
peoples in which composition is allowed for all offences. In three others
it is allowed for all cases e.xcept the gravest, such as murder ; among the
Kimbundas, for all except sorcery and treason ; among the Barolong for
all except rebellion, and among the Kaffirs for all except treason, sorcery,
and sometimes murder. In mediaeval England there was much local
variation in the fines. At Lewes the fine for bloodshed was 7/4, for
adultery S/4, the man paying the King, the woman the Archbishop. In
Shropshire the fine for l)loodshed was 40/-. In Worcestershire rape was
not emendable. {Pollock and Mailland, ii. p. 457.)
136 LAW AND THE STATE [Part I.
Anglo-Saxon term had no bot — no bot or money payment atoned
for them — they were bot-less, boot-less. Even when the bot
was payable it stood at first at the discretion of the injured family
to accept or reject it, and we find the Germanic codes in the early
Middle Ages setting themselves to insist on its acceptance as a
means of keeping the peace.^ If the fine is not forthcoming of
course the feud holds.
But when injuries are being assessed, not only must there be
a distinction between the injuries themselves, but also between
the persons injured. There must be a distinction of rank, age, sex ;
a free-born man is worth more than a slave, a grown-up person
than a child, generally speaking a man than a woman, a chief
or person of rank than a free man. And so we have the system of
"wergilds" familiar to us in the early stages of our own history,^
and again recognizable in the code of Hammurabi.^ In one form
or another the system of composition prevails or has prcA'ailed
almost to this day over a great part of the barbaric world, among
the North American Indians,^ in the Malay Archipelago,^ in New
Guinea, among the Indian hill tribes, among the Calmucks and
Kirghis of the steppes of Asia, among the rude tribes of the Cau-
1 Charlemagne's capitulary of 802 forbids the kin to increase the evil
by refusing peace to the manslayer who craves it. {Jenks, "Law and
Politics," p. 102.) In England, down to the ninth and tenth centuries,
the aggi-essor might elect to bear the blood feud, but by an ordinance of
Alfred, the injured party might have the help of the ealdorman to enforce
payment. (Pollock and Maitland, i. 47.)
'2 Among the Germanic peoples, in the early mediaeval period, the
wergild of a noble was generally double that of a free man. A post in
the King's ser^aee trebled the wergild of the official's hereditary rank.
The Liti (Horige) had as a rule half the wer of free men,_ whilst slaves
according to strict principle had none, but only a valuation. In fact,
however, some barbarian codes assigned them half the wer of a litus.
(Schroder, pp. 345, 346.)
3 Hammurabi illustrates two subsidiary points. (1) An offence against
a man of higher rank may be unemendable (i.e. punished by retaliation),
while the same offence against a man of lower rank is commutable. (2)
The rank of the aggressor may influence the punishment as well as that
of the sufferer. Injuries to eye or limb of a "gentleman" are punished
by retaUation (sections 196, 197), but in section 198, "If he has caused
a poor man to lose his eye or shattered a poor man's limb, he shall pay one
mina of silver." Further, by section 199, the slave has no ^ver — for the
same injury the aggressor "shall pay half his price." Similarly for the
loss of a tooth (sections 200, 201). . . .
^ Kohler, "Zeitschrift fiir vergl. Rechtswissenschaft," 1897, pp. 406, 407 ;
Alvord, in "Schoolcraft," v. 653; Morgan, "League of the Iroquois,"
331, 332. (Failing a present of a belt of white wampum the family of
the deceased appointed an avenger.)
5 Wailz, V. p. i. 143. The wergild varies from 200 to 1000 gulden
according to the rank of the dead man. In case of poison, the poisoner
becomes the slave of the family. A paramour may be enslaved by the
husband if taken in the act, but if the matter is brought before a court,
money compensation must be accepted.
Chap. VI, § 2.] EVOLUTION OF CRIMIXAL LAW 137
casus, the Bedouins of the Arabian desert, the Somali of East
Africa, the negroes of the West Coast, the Congo folk of the interior,
the KafRrs and Basutos of the South. ^
5. Primitive vengeance, then, may be exacted by retaliation or
compounded by money payments. In either method a rough
justice is embodied, but it is justice enforced by the strong hand.
Even graver differences separating barbaric vengeance from civil-
ized justice have now to be mentioned. These differences are inher-
ent in the nature of the social organization upon which the blood
feud rests. For the blood feud is retribution exercised by a family
upon a family ; it rests upon the support which each individual
can count upon from his own immediate relations, possibly from
his whole clan ; it rests, in a word, upon the solidarity of the
kindred. But the effect of this solidarity upon the working of
retributive justice is by no means wholly favourable. In the
first place it has the effect that the lives of members of other clans
are held indifferent. A perfect illustration is afforded by the
Ungani Xagas, a tribe of the Xorth-East frontier of India who live
in villages composed of two or more "khels," as their clans are
called, which, though living side by side and intermarrying,^
are for purposes of defence independent communities. A hostile
tribe may descend upon the village and massacre all the members
of one "khel" while the other "khels" sleep peacefully in their
beds and do not raise hand or foot to protect their neighbours.
This is cold-blooded, but it is not without a certain reason. The
exterminated "khel" has incurred a feud from which the others
are free. If they rise in its defence they not only incur the danger
of the present fight, but they also involve themselves in the per-
manent feud.' Next, in so far as justice rests on the blood feud,
and the blood feud is of the nature of a private war between distinct
families or clans, it follows that public justice will not deal with
offences committed within the family. These do not excite the
blood feud. In some cases no fixed punishment appears to be
assigned for them, but this may happen not only because they do
not belong to the province of public custom, but also, perhaps,
because they are too rare for any definite custom to have arisen for
dealing with them. Like parricide among the Romans, they repre-
1 Post, ii. pp. 256, 257. - The khel is exogamous.
^ Godden, ".J. A. I.," xx\n. p. 167. Similarly in contemporary Africa,
so far as blood revenge holds, the slaying of any one outside the clan is
no more regarded as -wTong than the killing of an enemy in battle among
us. {Post, " Afrikanische Jurisprudenz," i. 60.)
138 LAW AND THE STATE [Part I.
sent the absolute ultimate of human wickedness. Further, gen-
erally speaking, there is no need for any recognizable general rule,
because offences within the family are dealt with by the arbitrary
justice of the paterfamilias or of the kin collectively, who, even if
other means of enforcing authority failed, have always the ready
remedy of outlawry, which puts the offender at the mercy of the
firstcomer.^ Outlawry from the clan is the most effective of all
weapons, because in primitive society the exclusion of a man from
his kinsfolk means that he is delivered over to the firstcomer ab-
solutely without protection. An illustration may be drawn from
the early history of Mahommed's teaching, when the Korais, who
found that Mahommed's gospel was very inimical to their gains,
wanted above all things to put him out of the way and made the
most strenuous eft'orts to induce Mahommed's uncle, who was head
of the clan, to disown him. Had the uncle consented, Mahommed
would have been left without protection and might have been dis-
patched by any one without fear of consequences, but till the
death of the uncle the clan stood by him ; and the leading men of
Mecca, powerful as they were, were not bold enough to take upon
themselves a blood feud with Mahommed's family.^ The fear
of the blood feud is the great restraint upon disorder in primitive
society, and conversely he whose death will excite no blood feud
has no legal protection.
So far the negative side of clan justice. The positive side has
peculiarities not less startling to the modern mind, for since it is
a member of one body who has done a wrong to a member of another
body, the whole body to which the offending member belongs is
held responsible by the whole body to which the injured member
belongs ; and it is not merely the original criminal who may be
punished, but logically any member of his family may serve as a
substitute. Responsibility is collective, and therefore also vicari-
ous. Sometimes the whole family of the oft'ender is destroyed with
1 Among African peoples there is, generally speaking, no blood feud
for homicide within the clan. But among the South-Western Arabs the
parricide is put to death, and for fratricide the father may put the offender
to death or demand the blood price. {Post, "A. J.," i. 63.) Among the
Bogos the slayer of brother or father would be Idlled on the spot if taken.
But if he escapes, his fate will depend on the question whether his victim
has or has not left children. If so they will take up the feud. If not he
can make his peace Avithout payment, and then inherit Ms brother's prop-
erty and Avidow. (lb., ii. 60.) In the Malay region the murder of a rela-
tive is dishonouring, but has no money penalty. {Waitz, v. i. 149.) For
illustrations of the variety of customs under this head, see Steinmetz,
ii. 153-176.
2 Palmer, "Introduction to the Koran," pp. 24, 25.
Chap. VI, § 2.] EVOLUTION OF CRIMINAL LAW 139
him.^ Sometimes any relation of the offender may suffer for him
vicariously. John, who has done the deed, being out of reach,
primitive vengeance is quite satisfied with the life of Thomas, his
son, or brother, or cousin. Just as in the blindness of warfare
the treacherous act of an enemy is generalized and perhaps avenged
in the next battle by a retaliation which does not stay to ask
whether it is falling on the innocent or the guilty, so in the primitive
blood feud. The wrong done is the act of the family or clan to
which the aggressor belongs, and may be avenged on any member
of that family or clan.^ Sometimes the retaliation is made more
specific by a fresh application of the Lex Talionis, and to the rule
"eye for eye," there is the pendant "son for son, daughter for
daughter, slave for slave, ox for ox." You have slain my son?
Then the true and just retribution is that I should slay yours.^
It is my daughter who is slain? Then it is with your daughter
that you must pay for her. Sometimes vengeance is specially
1 E.g. among the Kaffirs, at Loango, and among the Barolong, the
relatives are held responsil)le for payment hy the accusers, and on the
Gold Coast the relatives of the sorcerer are slain or enslaved along with
him. {Post, "A. J.," i. 46.) Among the North American Indians the
family and the whole tribe were held responsible for a mm-der committed
by one of them. {Waitz, iii. 132.) In Anglo-Saxon law it was possible
for a family to be enslaved for a theft by the father. {Pollock and Mait-
land, i. 56.)
^ For instances, see Post, "Grundriss," i. 230 ff. Professor Tylor
instances the Bedouins, Australians, South Sea Islanders, and Kaffirs,
as peoples among Avhom the blood feud involved the whole clan. (" Con-
temp. Re\aew," 1873, p. 59.) In some cases the wergild involved the
sla^dng of several persons for one. Thus by Anglo-Saxon law, six ceorls
must die for one thegn. {Pollock and Maitland, ii. 450.) Edmund set
himself to suppress feuds, forbidding attacks on the kindred unless they
harbour the homicide. Mahometan law, while admitting retaliation,
restricts it to the offender. {Post, loc. cit.) But the kin are liable for
money composition. {Dareste, p. 64.) In many African tribes a creditor
will seize and sell as a slave any relation of the debtor's whom he can find,
or even any member of the same town. It is not surprising to learn that
this method of distraint is a fruitful source of war. {Post, " A. J.," ii. 140.)
A still wilder development of \'icarious revenge is found in the Gazelle
Peninsula among the Papuas, where the husband whose wife has been
stolen, goes into the bush and kills the first man he meets. This man's
kindred do the same thing, and the process is repeated till the stroke lights
upon the original offender, wliose goods have to pa3- all the damage.
{Kohler, "Z. f. vgl. Rechtsw.," 1900, p. 381.) Cf. a similar practice in
S. Guinea. {Post, "A. J.," ii. 22.)
' The most astonishing case is in the treatment of the builder in the
code of Hammurabi, 229 : — " If a builder has built a house for a man and
has not made strong his work, and the house he built has fallen, and he
has caused the death of the owner of the house, that l)uilder shall be put
to death.
230. If he has caused the son of the owner of the house to die, one
shall put to death the son of that builder.
231. If he has caused the slave of the owner of the house to die, he
shall give slave for slave to the owner of the house." Though barbaric,
these sections might have a use if suitably posted in modern suburbs.
140 LAAV AND THE STATE [Part I.
directed against the chief as representing the clan. Sometimes
it may be visited on any male, or even on any adult member of
the clan, children alone being excluded. Sometimes this last shred
of humanity is torn away. The principle is pushed to its furthest
and most revolting development among the head-hunting tribes
common in South-East Asia, in which magical ideas combine with
those of revenge, and the skull of the enemy has a potency of its
own which makes its possession desirable in itself. The head
of a child or woman of the hostile body is no less coveted an
object than that of the fighting warrior, and is probably easier to
obtain. When the principle of composition arises collective
responsibility is reduced, by a less barbarous logic, to a common
pecuniary liability. The clan are collectively responsible for the
blood money due from a member, and by the same logic they
are the collective recipients of blood money due to any member.^
And as with blood money so with other debts.- There is a col-
lective liability — a conception which in this softened form has
its uses in the social order, and is in fact enforced and applied
to the commune — though in right it belongs rather to the clan —
by many Oriental Governments.^
6, Further, with the theory of collective responsibility goes
almost necessarily the failure to distinguish between accident
and design. In primitive society the real gravamen of a charge
against an aggressor is that he has done an injury. How he did
the injury, whether of set purpose or by accident, is a matter of
less moment. jNIy son, or brother, or cousin, or clansman, is
killed ; that is enough for me : I must have some satisfaction out
of the man who did it, and, Avhat is more, my family must have
some satisfaction out of his family. Furthermore, the whole
distinction between design and accident is by no means so clear
to primitive man as it is to us, for though it needs little reflec-
1 E.g. among the Bogos and Bedouins {Post, i. 253), and compare Post,
"A. J.," i. 45 and ii. 35. For collective claims on the blood money, c/.
Tacitus, "Germania" (ap. G. Waitz, "Deutsche Verfassungsgeschichte,"
i. 32), "recipitque satisfactionem universa domus."
2 E.g. at Great Bassam. {Post, "A. J.," i. 45.) Among the Yoruba,
Tshi, and Ewe speaking peoples, collective responsibility which formerly
applied generally is now restricted to debts. {Ellis, " Yoruba-speaking
Peoples," 229.) Cf. Waitz, iv. 306. — In Yucatan the whole family is
responsible for debt.
^ And elsewhere ; e.g. at Sierra Leone and in several other parts of
Africa, responsibility for debt extends to the Commune. {Post, "A. J.,"
i. 75.) In the Malay constitution the family is responsible for its mem-
bers, the suku (elan) for its families, the village for its sukus, the district
for its villages. {Waitz, v. i. 141.)
Chap. VI, § 2.] EVOLUTION OF CRIMINAL LAW 141
tion and a very moderate amount of self-knowledge to distinguish
between what one has done one's self by accident or by design,
and a very moderate degree of reasoning power to -apply the
distinction to other men — still, the nascent reflection of the
savage is strangled at birth by the prevailing theory of witchcraft
and possession. If a tree falls upon a man's head the savage
holds that a spirit guided it. If a man, cutting a branch from
a tree, dropped his axe on to another's head, it may not have
been the man's own soul which guided the axe, but it was another
soul which possessed him temporarily ; he was possessed by some
spirit, and as possessed he should be put out of the way.^ The
treatment of the subject in the Hebrew codes illustrates the difS-
culty which is experienced even at a higher stage in strictly dis-
tinguishing between the two spheres of design and accident. Each
code assigns a city of refuge for the excusable homicide, but
none makes it perfectly clear whether it is unintentional or unpre-
meditated man-slaying that is in view. The Book of the Covenant
simply says, "If a man lie not in wait, but God deliver him (the
victim) into his hand, then I will appoint thee a place whither he
shall flee. And if a man come presumptuously upon his neighbour
to slay him with guile, thou shalt take him from mine altar that
he may die."- In Deuteronomy there is an attempt to define
accident. The city of refuge is appointed for "whoso killeth
his neighbour unawares and hated him not in times past." The
first qualification would be true of unintentional, the second
of unpremeditated homicide. Then follows a somewhat elaborate
illustration of a case of pure accident.^ " As when a man goeth into
the forest with his neighbour to hew wood, and his hand fetcheth
a stroke with the axe to cut down the tree, and the head slippeth
from the helve, and lighteth upon his neighbour, that he die,
he shall flee unto one of these cities and live:" and then it is
once more stated that the slayer ought not to die, "inasmuch
as he hated him not in time past," which would be true of any want
of premeditation. Furthermore, even in this relatively enlightened
code the unintentional slayer is not fully protected. It is clearly
anticipated that the "avenger of blood" will pursue him "while his
heart is hot, and overtake him because the way is long," and smite
him mortally, and there is no hint that the avenger will be punished.
I Post, "A. J.," ii. 29. In West Equatoria the man who injures another
in cutting down a tree is held the agent of an indweUing magical power,
and must submit to the ordeal of Mbundu drinking. (76.)
■ Exodus xxi. 13, 14.
' Deut. xix. 4-6.
142 LAW AND THE STATE [Pabt I.
Nor was the alternative, exile to the city of refuge, a merely
nominal penalty. Finally, in the Priestly Code there is an elabo-
rate attempt to distinguish different cases. The cities of refuge are
appointed for every one that "killeth any person unwittingh-,"
or, as the margin renders it, "through error." (An attempt is
made to render the meaning clearer by specifying the implements
used, of iron, wood or stone.) On the other hand, he who has
killed another, "lying in wait" or "in enmity," is to be put to
death by the avenger of blood "when he meeteth him." In
intermediate cases the congregation shall judge. "But if he
thrust him suddenly without enmity, or hurled upon him any-
thing without lying in wait, or with any stone, whereby a man
may die, seeing him not, and cast it upon him, so that he died,
and he was not his enemy, neither sought his harm : then the
congregation shall judge between the smiter and the avenger of
blood according to these judgments." ^ Even here, then, the three
cases of accident ("seeing him not"), assault without intent to
kill ("thrust him suddenly") and unpremeditated homicide
("without lying in w^ait") seem to be in a measure confused.
And even in this code the avenger may sla^^ the man-slayer any-
where outside the borders of the city of refuge until the death of the
high priest.
Not infrequently in early law we find the distinction that luiin-
tentional homicide is atonable by paying the wergild, while de-
liberate murder gives rise to the blood feud. Thus in the code of
Hammurabi - the homicide might swear that the blow was unin-
tentional and escape with a fine. So, again, though Germanic
law begins by holding a man equally imputable for all that he has
done, it is an ancient mitigation that for unintentional homicide
the wer is due, and the blood feud should not be waged. ^ The dis-
entanglement of innocent from culpable homicide was a very
gradual achievement in mediaeval Europe though aided by the
Civil and Canon Law, and the forfeiture of goods — the direct
1 Numbers xxxv. 15, 20, 21, 22-24.
2 Hammurabi, 206-208.
' Pollock and Maitland, ii. 470 and 471. In many eases, however, the
innocent homicide can only escape by a recommendation to mercy. In
the Anglo-Saxon law the distinction is not so much between intentional
and unintentional as between open and secret slaying. {Ih., i. 52.) This
recalls the difficulties in Deut. and Numbers. Generally speaking, ac-
cording to Post, "A. .1.," ii. 28, the responsibility of the agent is not
presumed as a ground of his punishment in Africa. But in some eases,
as in Aquapin and Ashanti, the penalty for an accidental offence is re-
duced, and later (in contradistinction to earher), Kaffir law imposes, as
a rule, no penalty on accidental homicide.
Chap. VI, § 2.] EVOLUTION OF CRIMINAL L.\W 143
survival of the wergild — remained in theory in English law down
to 1828.1
It is a natural, though, to our minds, a bizarre consequence that
in early justice animals and even inanimate objects ma\' be re-
garded as appropriate subjects of punishment. The slaying of
offending animals is provided for in the Book of Exodus. ]Many
cruel punishments were inflicted upon animals in the code of the
Zendavesta,^ and the same thing occurred in mediaeval Europe,
where, perhaps under the influence of the ^Mosaic legislation, it
even survived in isolated cases to the sixteenth or seventeenth
century.^ The punishment of animals and inanimate objects was
no mere wreaking of blind fury on innocent creatures. Probably
to the primitive mind the ox that gored a man, the sword that slew,
and the murderer that wielded it were much more on one level than
they can be to us. The animal or tool, if not conscious themselves,
might be endued with a magic power or possessed with an evil
spirit. It was well to get rid of them before they did more harm.
If not destro}'ed they might be purified. Thus in the English law
of Deodand, which was not abolished till the middle of the last
century, there is a survival of the view that an%i:hing that has
killed a man must undergo a kind of religious purification ; a cart,
for instance, which ran over a man, or a tree which fell on him
was confiscated and sold for charity — at bottom merely a some-
what humanized version of the ancient Athenian process whereby
the axe that had slain a man was brought to trial, and, if found
guilty, solemnly thrown over the boundary. It need hardly be
added that where responsibility is extended to animals and inani-
mate objects, it is apt to be inadequately defined in the case of
idiots, lunatics, and minors."*
The principle of collective responsibility does not necessarily
disappear with the rise of public justice under central authority.
It lingers on, partly through sheer conservatism, but also in many
cases for political reasons, to a late date. Thus it is particularly
1 Blackstone, iv. p. 188. In practice "as far back as our records reach,"
the defendant could obtain a pardon and writ of restitution. The clear
demarcation of indi\ddual responsibility is far from being uni\^ersal in
ci\T[lized law. In the Mahometan world a man's family is collectively
responsible even for damage done by him involuntarily. {Post, "Grun-
driss," ii. 216, cf. Darcste, p. 64.) ' In China involuntary offences are
punished, though on a reduced scale. In the Japanese code of 1871 acci-
dental injury to parents is hea\ily punished. {Post, ii. p. 218.)
^ Entirely, no doubt, under the influence of magical ideas.
' For other instances, see Post, ii. 231.
* See Post, ii. 219, and, for the variation of custom under this head,
Westermarck, "Moral Ideas," pp. 265-277.
144 LAW AND THE STATE [Part I.
common to find that in political offences the family of the offender
suffers with him. The principle of collective responsibilit}- has
always been maintained in the Far East, in China/ in the Korea,
and, under the influence of Chinese civilization, in Japan, while it
is noteworthy that for political oft'ences the parents and children
might be punished under French law right down to the time of
the Revolution. Parallels could be found in the laws of the ancient
East, of ancient Persia," and of many states of mediaeval Europe.
It is, in fact, only the decay of the joint family system and the rise
of the free individual as the basis of the modern State which
definitely does away with this principle, so fundamentally irrec-
oncilable with the strictly ethical notion of justice. An interesting
transitional phase is to be found in the Old Testament, where the
visiting of the sins of the fathers upon the children is very definitely
laid down as a piece of Divine justice in the earlier legislation (I
mean in the second Commandment), whereas in the time of Ezekiel
it was strongly maintained to be an injustice that when the fathers
had eaten sour grapes the children's teeth should be set on edge.
It was, in fact, part of the ethical revolution introduced by the
later prophets to establish morally for the Jewish code the principle
of individual responsibility.^
1 Post, ii. p. 226. With this is associated punishment for unintentional
offences. (76., 217.) In Chinese law, accidental parricide is still capital,
though the older law appears to have been mitigated. A man who acci-
dentally killed his mother in attempting to defend her, was sentenced
to the lingering death, commuted by special decree to decapitation, sub-
ject to the Empress's pleasure. See, for various instances. Alabaster,
p. 159 ff. A wdfe killing her husband unintentionally is sentenced to
decapitation. {lb., 192.) A misdeed which however indirectly caused
the death of a senior relation is also punished, if the relative be a parent,
by death. {lb., 320 seq.) A senior relative is punishable for a junior's
offence, even if he knows notliing of it. E.g. a father was sentenced to
one hundred blows because (unknown to him) his son had abducted a girl.
{Alabaster, p. 152.) A junior relation is still more heavily punishable
for the offence of a senior. If a man murders four members of one family
he suffers the lingering process, and his male children, irrespective of age,
die with him in equal number to those murdered. In the case of Wang
Chih-pin a child of ten was condemned to death for murders by his father.
In another instance, the children were condemned to be castrated, the
father ha\'ing killed three persons. {lb., 164.) The motive is partly to
punish the murderer's spirit by cutting off his male descendants, on whose
offerings he depends in the new Ufe. {lb., 58.)
2 Post, ii. 227.
3 Ezek. xviii. 2; Jer. xxxi. 29. The result is embodied in Deut. .xxiv.
16. " The fathers shall not be put to death for the children, neither shall
the children be put to death for the fathers : every man shall be put to
death for his own sin." The same transition is found in the law of the
Visigoths. "Let not father for son, nor son for father, nor brother for
brother fear any accusation, but he alone shall be indicted as culpable
who shall have committed the fault." {Sutherland, "Origin and Growth
of the Moral Instinct," ii. 168.) By Salic law a man might cut himself off
from his family, but then, of course, he also lost its protection. {lb., 167.)
Chap. VI, § 2.] EVOLUTION OF CRIMINAL LAW 145
7. With the evohition of social order, and in particular with
the growth of central authority, the redress of wrongs begins to
take the form of an independent and impartial administration of
justice. Let us trace this growth in outline from its beginnings.
The blood feud proper is revenge guided and limited by custom.
It is not justice. It is waged by two conflicting parties, and there
is no impartial third party to judge between them. But even in
barbaric society the blood feud does not rage wholly without check.
The public opinion of the group is always a force to be reckoned
with. Every man's rights and obligations are fixed by custom.
The very vengeance taken on those who infringe them is a custom,
and directed in all its details by tradition. The headman or the
elders of the clan or village are prepared to listen to complaints,
to decide whether a wrong has been done, and, if so, what the
reparation ought to be. The injured party may appeal to them if
he pleases, and it may be that the aggressor will abide by their
decision. If so, the affair is arranged perhaps by composition,
perhaps by a stated penalty. Otherwise the parties will fight
it out or it will come to a feud. In short, there is an effort on the
part of the leading men to keep the peace and adjust the quarrel.
Sometimes they will intervene of themselves if a feud becomes
serious and threatens the general peace. ^
The "court," if so it may be called, appears at this stage rather
as peacemaker than judge." • The disputants may ignore it, pre-
ferring to trust to their own strength and that of their friends.
Yet it is from the first the avenger's interest to have public opinion
with him. He relies on the countenance and practical help of
his kindred and fellow-tribesmen. At least he must avert their
opposition. If the facts are peculiarly flagrant the neighbours
will be with him and he will have the less difficulty in executing
vengeance.^ Perhaps even the kindred of the wrong-doer will
refuse to stand by him. Thus it becomes the interest of the
avenger to make his case plain to the neighbours and they in
^ Thus among the Esquimaux, according to Reclus, murder was avenged
bj^ the nearest relative, but if fresh retaliation ensued, several villages
intervened and the chief men pronounced sentence, otherwise public inter-
vention was very rare. ("Primitive Folk," p. 85.)
^ Thus among the Kondhs we read that society intervenes to prevent
revenge by composition, "which has in \aew exclusively the private satis-
faction of individuals, not the vindication of any civil or moral rules of
right." Hence, notwithstanding this intervention, retaliation is generally
the sole remedy for wTongs of wiiatever order. {Macpherson, "Memorials
of Service in India," p. 81.)
^ There may ])e no trial and no set form of justice, but merely, as among
the Central Australians, a meeting convened by the elder men to carry
out the act of vengeance. (See Spencer and Gillen, ii. 556-568.)
146 LAW AND THE STATE [Part I.
turn wish to hear what the accused party has to say. A palaver
is held. The avenger comes with his kinsmen and friends. They
state their case and announce their intention of seeking revenge.
The accused is also present, backed by his kin, and repels the de-
mands made on him. It may be that the matter is settled between
the groups concerned. It may be that the neighbours or the chief
give sentence, but even so it does not follow that they enforce it.
They may give the appellant their moral support,^ and leave it to
him to obtain satisfaction as best he can. But of course their
decision helps him to get the opinion of the tribe on his side, and
their moral force will be translatable into physical force. It will
mean so many more backers for him, and so many less for his
opponents. This support may be disdained by the strong, but it
will be valued by the weak, and will be upheld by those who desire
internal peace. Thus even under the clan and tribal organiza-
tion of society some form of public intervention may arise alongside
of private redress. Feuds are averted by the adjustment of dis-
putes, or, if a wrong has been done, by getting the complainant
to accept composition, and the aggressor to undergo some penalty
which w^ill be a mitigated form of revenge, or by bringing the two
parties to fight it out under the regular forms of a duel.
Such methods of mitigating the blood feud are stimulated by
the growth of the kingly power — that is to say, of an organized
force outside the contending families or clans, which can summon
them before its bar, decide their cause, and require them to keep
the peace. The king, whose duty and interest it is to maintain
public order, treats crime — or certain kinds of crime — no longer
as an offence against the individual whom it primarily affects, but
as a menace to public tranquillity, a breach of his "peace." ^
1 Thus among the North American Indians, the Ojibways and the
Wyandots and other tribes have a council before which the avenger gets a
judgment in his favour. He then demands compensation, and that fail-
ing, takes revenge. {Kohler, "Z. f. v. R.," 1897, p. 407.) So again in
the Malaj^ region cases come before the chief of the suku, or, if grave,
before a gathering of cliiefs, but the execution of the murderer falls to the
nephew of the deceased. (Waitz, v. i. 143.)
^ Common in Germanic law. See, for England, Pollock and Maitland,
ii. 451. The Kaffirs distinguish (1) offences against the Idng, which
consist in infringements upon his property or the number of his subjects.
In these they include treason, sorcery, murder, cruelty, rape, and abor-
tion. (2) Offences against private people, which include adultery, immo-
rality, theft, injury to a garden, etc. A similar distinction is found among
the Kimbunda. {Post, "A. J.," ii. .54.) This is in effect a rudimentary
distinction between civil and criminal justice, and shows at least one
avenue of transition to the conception of public crime. The notion of
injm-y to an indi-vidual is applied to the king, but owing to the king's
special relation to the community, the notion in being applied to him is
Chap. VI, § 2.] EVOLUTION OF CRIMINAL L.\W 147
This, if he is strong enough, he will punish directly ; if not suffi-
ciently strong, he will deprive the offender of his protection,
put him outside the king's peace, and compel him by fine to buy
back what he has lost. Thus we find crime punishable by wite as
well as by bot — a fine to the king side by side with compensation
to the kinsfolk.
But from moral assistance the transition to physical assist-
ance is not very difficult in idea, however slow and cumbrous it
may have been in practice. There is more than one method of
transition. Sometimes we find the public authority, the elders
or the whole body of the neighbours, or later the regular magistrate
exerting themselves to arrest the offender and handing him over
to the avenger of blood for execution, or judging between the
avenger of blood and the man-slayer, whose act was "unwitting."
Thus in Deuteronomy, if the deliberate murderer flies to a city of
refuge, "then the elders of his city shall send and fetch him thence
and deliver him into the hand of the avenger of blood that he may
die." ^ But without taking an active part in the pursuit and cap-
ture of the offender the court had an effective weapon in the power
of outlawry. Since in accordance with early ideas all personal
rights depend upon membership of a society united for mutual
protection, it follows that the man excluded from the group
is in the position of a stranger and an enemy ; he is a wolf's
head, a wild animal whom the firstcomer may put to death at
sight, with whom nobody may associate, to whom nobody may
give food or lodging. Outlawry can therefore be applied
either as a punishment or as a process — as a method of bringing
the accused into court. \Vliat more reasonable than that if he
will not submit to law he shall lose the protection of the
law? With this weapon, potent in proportion as the social
order is developed, the court of early law consolidates its
authority, and from being a casual institution of voluntary
resort for those who wish the sympathy of their neighbours in
avenging their wrongs, becomes an established authority with
compulsory powers before which either party can be summoned
to appear at the instance of his opponent.
unavoidably extended and modified. In fact, potentially it covers all anti-
social action.
1 Deut. xix. 12. So still in the priestly code, Numbers xxxv. 12-25.
The Law of the Germanic peoples in the Frankish period, appears in a
transitional stage. The Eastern Goths, Burgundians, Bavarians, and
Anglo-Saxons left execution to the complainant. The law of the Western
Goths excluded private execution ; the Salic law gave the complainant
the choice. {Schroder, p. 371.)
148 L.'VW AND THE STATE [Paht I.
S. But we are still a long way from a modern Court of Justice.
The primary function of a court thus established is not so much
to discover the merits of the case and make an equitable award,
as to keep the peace and prevent the extension of wild and irregular
blood feuds. What the court has to deal with is the fact that a
feud exists. A comes before it with a complaint against B of
having killed his kinsman, or stolen his cattle, or carried off his
daughter. Here is a feud which, in the absence of a court, A will
prosecute with his own right-arm, and that of his kinsmen if he
can get them to help him. B, again, will resist with the help of his
kinsmen, and so there will be a vendetta. The court, whose
primary object is to secure a settlement, does not go into nice
questions as to the precise merits and demerits of A and B, but it
can prescribe certain tests w^hereby the appellant or the defendant
may establish his case. It sets the litigant " a task that he must
attempt. If he performs it, he has won his cause." ^ The perform-
ance of tjiis task*is* not, to our minds, proof of the Justice of his
cause. It is rather the compliance with a legal and orderly
method of establishing a case, but at the stage we are considering
it was probably regarded as satisfying justice, at least, as far as
justice claimed to be satisfied.
What task, then, would the court award? It might be that
the litigant should maintain his cause with his body. The parties
would then have to fight it out in person or by their champions.
Here we have the method of the blood feud, but regularized, limited,
and transformed into the judicial duel. Again, the court might
put one or both parties to the oath. But this is not the oath of
the modern Law Court — that is to say, it is not a solemn assevera-
tion of the truth of certain evidence of fact, but an assertion of
the general justice of the claim alleged, or of its injustice, as the
case may be. And as the feud will not be waged by the individual
claimant alone, but with the aid of all his kindred, so the court
will expect the kindred to come and take the oath along with him.
Hence the institution of oath-helpers, the compurgators, who are in
point of fact the fellow-clansmen, all bound to the duty at this
stage of swearing their friend out of the difficulty, just as before
they were bound to help him out of it by arms. The compurgators
are simply the clansmen fighting with spiritual weapons instead of
carnal ones. Success in the cause will depend not on the opinion
formed by the court as to the veracity of one side or the perjury of
the other, but on the ability of the parties to get the full number of
1 Pollock and Maitland, ii. 602.
Chap. VI, § 2.] EVOLUTION OF CRIMINAL LAW 149
compurgators required, on formal correctness in taking the oath,
and if both parties fulfil all conditions and no further means are
available for deciding between them, on certain rules as to the
burden of proof/
The provision of such further means of deciding between the
parties is logically the next step. So far, the judicial process has
appeared merely as a regularization of the blood feud, but both the
oath and the judicial combat point the way to a higher ideal.
The court itself is not in a position to try the merits of the case
unless it be some very simple matter of the criminal caught red-
handed, but it may refer the decision to the Unseen Powers,
to the Gods, or to the magical qualities inherent in certain things.
Thus the judicial duel, instead of being a mere carnal fight regu-
larized and limited by certain rules, may be conceived rather
as an appeal to the judgment of God, and the victory as His sen-
tence which the court hesitates to pronounce on the basis of its
merely human wisdom. Similarly the oath — though less than
evidence as we conceive evidence — is also more, for it is an appeal
to powers in which primitive man implicitly believes, to take ven-
geance on him who swears, if his cause be not just. Hence the
form of the oath is everything, for the Unknown powers are great
sticklers for form. The oath-taker calls down their punishment on
himself and his family b}' a set formula which they will rigidly obey.
If in the formula he can leave himself any loophole of escape the
oath is void : it is no true summoning of the vengeful powers, and
the court will disregard it, but if it is complete and sound in point
of form, then there is no escape. One of two things must happen :
either the oath was true or the curse will fall, and thus perjury
brings its own punishment.^
Hence it is that for any given charge the law may call upon
a man to purge himself by oath, or perhaps to purge himself along
' Which oath prevailed in ease of a conflict, would be decided according
to the custom ruling the case. One party would be "nearer to the oath"
than the other. For instance, where the criminal is caught in the act,
the oath of the prosecutor with his oath-helpers is conclusive proof and
the offender has no opportunity of self-defence. (Schroder, p. 363;
cf. Pollock and Mnitland, ii. 579.) In the Frankish period the complain-
ant might also, if the circumstances allowed, demand the ordeal ; in other
cases, with a few exceptions, the burden of proof was on the opposite
side. (Schroder, op. cit., pp. 363-366.) Where the oath is not decisive,
the parties go to the duel or to the ordeal.
^ Thus the subsequent misfortune is taken as proof of perjury, and
sometimes with a certain inconsistency the secular arm is then called in
to increase the penalty. Thus among the Kondhs of Orissa. and also
among the Congo people, if the curse falls, the oath-taker is banished
along with his family. (Post, ii. 493.)
150 LAW AND THE STATE [Part I.
with a specified number of oath-helpers who will suffer with him
if the oath is false, and the oath-helpers required may be increased
according to the seriousness of the crime. If the oath fails the
prescribed punishment follows. If it is duly taken, then either
the accused was innocent, or he has inflicted the punishment
entailed by the broken oath on himself and his oath-helpers.
But the consequences of a false oath were not immediately
apparent. If the court wished to have the judgment of the Un-
seen Powers before it, some more summary process was necessary.
This was found in the Ordeal, a test to which both parties could
be submitted if necessary", and of which the results were immediate
and manifest. Probably no institution is more universal at a
certain stage of civilization than that of testing the truth or falsity
of a case by a certain magico-religious process — the eating of a
piece of bread, the handling of burning iron or boiling oil, jumping
into water, walking through fire, exposure to wild beasts, and so
forth. The details vary, though even in details resemblances
crop up at the most remote periods and in the most remote places,
but the general principle is still more clearly constant through the
ages and the climes. Truth cannot at this stage be tested by
human evidence. At most the criminal caught red-handed may
be summarily dispatched upon the evidence of eye-witnesses given
there and then, but the complicated civil or criminal processes of
the civilized world imply an intellectual as well as a moral develop-
ment which makes them impossible at an early stage. It is the
gods who judge ; the man who can handle hot iron is proved by
heaven to be innocent; the woman whom the holy river rejects
is a witch ; he whom the bread chokes is a perjurer. Nor are
these tests wholly devoid of rational basis ; it is not so difficult
to understand that the guilty man would be more liable to choke
than the innocent, not because bread is holy, but because his
nerves are shaken. It is quite intelligible that in a credulous age
the false oath would bring its curse in the form of a will paralyzed
by terror, just as we know that amongst many savages witch-
craft really kills through the sufferer's intense fear of it. Lastly,
if the criminal may be ready to take his chances of the curse in
preference to the certainties of the scaft'old, he may find it difficult
to get compm-gators to stand by him, and in the face of their plain
knowledge involve themselves in the same risk.
Chap. VI, § 3.] EVOLUTION OF CRIMINAL LAW 151
Section 3
THE ORIGIN OF PUNISHMENT i
The following discussion of the origin of punishment is under-
taken with a view of obtaining some Hght on a difficult subject
by means of the genetic method of approach. Our institutions
are so complex and our tendency to idealize the existent is so
inveterate that we are driven from one theory of punishment to
another in the effort to justify what may, perhaps, have no real
justification.
It is believed that a clear statement of the origin of punishment
will throw some light on the nature of the punishing attitude. . . ,
Punishment is nowhere regarded as a specific instinct. It is
not a part of the "original nature of man." Its manifestations
grow out of the instinct of pugnacity and its accompaniment, the
emotion of anger. But even these instinctive reactions are not
themselves simple and direct, but are, in their turn, dependent
on the thwarting of other instincts and impulses. Fighting and
anger are social in their nature, requiring for their arousal, the
presence of another animal of the same or related species which
enters into some sort of competition or opposition and attempts
to check the carrying out of any one of the stronger impulses.^
Hunger, thirst, the desire for the possession of any object, or the
sex instinct, can, most obviously, be the occasion of the arousal
of the fighting reaction if a sufficiently serious check is encoun-
tered.
But the fighting reaction is not punishment. There is a popular
use of the word in which one prize-fighter is said to receive "pun-
ishment" from the other, and the "natural punishments" are
referred to by Herbert Spencer, but for such uses of the term there
is only a metaphorical justification. Neither combat nor ca-
lamity is sufficiently social in character to deserve the designation
of punishment.
The common statement is that punishment is derived from this
feeling of anger and reaction of fighting in a direct fashion. ]Mac-
Dougall,^ for example, follows Laing in deriving the whole puni-
tive situation from the "primal law" which is thought of as aris-
ing out of a situation within a small tribe of kinsmen in which
1 [By Ellsworth Faris. Reprinted by permission, from the " Interna-
tionalJournal of Ethics," Vol. XXV, No. 1 (October, 1914).]
2 MacDougall: "Social Psychology, p. 59.
^ "Social Psychology," p. 282.
152 L-WV AND THE STATE [Part I.
the patriarch, who wished to have control of the females of the
group, drove off the younger males of the tribe as they grew up
and forced those who remained to submit to his direction and con-
trol. The result of disregarding these directions wa§, in every
case, punishment by the patriarch, who might go to any length
until submission was reached. In short, punishment is held
to follow directly upon the opposition, by any one, to the opera-
tions of the sex instinct.
The same general notion appears in Pollock and Maitland,^
in which the original situation is described as one in which each
member of the group was his own avenger, and the position de-
fended, that punishment follows directly upon the opposition of
any member of the group to the serious purposes and plans of
another. Naturally, the place for the origin of the institution of
punishment will, accordingly, be found in the tribe. An eye for
an eye and a tooth for a tooth is held to be the natural and normal
way in which a member of the group answers the action of an-
other in opposing his acts.
The analogy which suggested this theory is, as will be readily
seen, the phenomena of struggle for leadership that occurs occa-
sionally among gregarious animals. Rival candidates for the
leadership of a herd of elephants have been observed to fight des-
perately, and the defeated one w^anders off to lead a life of com-
parative solitude as a "rogue." But it is not difficult to see that
such an effort to banish one member of the group is a very different
sort of undertaking from the normal punitive situation. In fact,
there is very little resemblance between a duel to the death and
any normal procedure of punishment. In punishment there is
an endeavor to be fair and just to which the old account does not
do justice. There is, even in extreme punishments, a mental
measurement of the oft'ence with the penalty and some rough equa-
tion results. But in the "primal law" situation, there is only the
deadly struggle between infuriated and excited rivals.
There is abundant reason for questioning whether any one
inside the primitive group was ever punished, at least by those
within his own tribe. In an instinctive way the members of the
^roup are bound together and in the most homogeneous groups
ley do not punish each other. Present-day people of some
1 ''History of the English Law."
Chap. VI, § 3.] EVOLUTION OF CRIMIXAL L-\W 153
iinpivljjyprl ^i - . ri'ho i^ f^nTintjvm^^ tlipir r- h iklreil. The writer,
during a residence of several years among the Bantus of the upper
Congo river, in which time the people were under constant obser-
vation, failed to observe a single case of the punishment of a
child. This is not a deliberate or reflective process, but rather
an instinctive and uncritical one. The child in a small community
that is homogeneous and in a situation where outside influences
do not penetrate, will find himself fitting in to the social situation
where he grows up and is without the stimulus to commit acts of
an anti-social character.
And when, by any chance, such an act is committed, it is highly
improbable that it will arouse any resentment whatever; in the
event that it does, there is no remedy, and the tribe simply does
nothing save where the offence is so serious as to break all bounds.
The situation is analogous to that in which one breaks or damages
his own property by accident ; it is regrettable, but there is no
remedy save an imprecation. It is impossible for some people
to thrust a knife into their own flesh for, in some way, the weapon
refuses to enter. The primitive tribe is a unit in just as real a
sense. Every member is to be credited with the good deeds of
the whole and to be blamed to the faults of any one. Expulsion
from the tribe in extreme cases might take place.
The Congo State government in the old days was never at a
loss in the effort to apprehend criminals, for while the direct pur-
suit of a native in the forest would be like trying to overtake an
antelope, such a chase is quite unnecessary. The tribe is a unit
to such an extent that it is only necessary to send to the village
for the chief, whose dignity will not permit him to flee in any ordi-
nary emergency, and to cause the arrest and detention of this
chief, if necessary, after which the man who is wanted always
comes in voluntarily and surrenders. The only alternative to
doing so would be to leave the country entirely ; for existence
would be unbearable with the head of the tribe in bondage on
account of the offending member's failure to give himself up.
The point in this connection is that physical force is not the
means of securing this supreme degree of sociality which will lead
a man to give himself up to a fate that is desperate in the extreme.
The earlier theories on this point are probably erroneous. The
t\T)ical group control did not depend on force. The fact that the
military leader of a war-like people was often, perhaps usually,
a man of great strength, has led to the totally unwarranted infer-
ence that the rule was to the one who was physically the strongest.
154 LAW AND THE STATE [Part I.
The savage is very ready to admire physical strength, but the
leadership of one who is physically strong will not depend on this
fact entirely or chiefly. He who rules must do so on account of
some measure of wisdom in ruling and on account of the support
he has from the loyalty of the rest of the group. Achilles is the
greatest warrior among the besiegers, but the leadership lies not
with him who sulks in his tent or who is indifferent to the death
of his own people in unequal strife. Those who have assigned the
dominant part in earlj- group control to force, physically under-
stood, have failed to understand that the sneer and scorn of those
within our own group are infinitely more powerful forces.
An incident personally observed on the l^pper Congo river
illustrates quite adequately the part played by public opinion in
group control. A gigantic young warrior, under the influence of
foreign and alien ideas, which were beginning to appear in the
community following the European occupation, violated some
minor point in the native system of taboos and was quite unre-
pentant when attention was called to it. The matter came to the
attention of the oldest woman of the tribe who set out at once in
indignation to find him. He hurried off to his hut, but she fol-
lowed him to the very door, uttering all the while a stream of
indignant protest to which the man vainly attempted to respond,
but without opportunity of interrupting the unbroken course of
her invective. He went into his hut and she crouched at the
door; he retreated into the inner room, but she only raised her
voice. The end of the unequal contest was reached when he came
to the door, hesitated a moment, and then ran off into the forest,
leaving the field to the victor. But the victor was a woman nearly
a hundred years old, gray-haired, toothless, shrunken and lean, so
frail that a blow from the fist of the warrior would have crushed
her skull. She was the incarnation of public opinion and there
was more power in her voice than in his muscle. Nor would it be
just to say that it was his fear of the consequences which restrained
him from resorting to force to rid himself of the troublesome adver-
sary. The fact is that the force of the expressed common will is
so strong that it does not occur to the individual to contest it.
Obedience is unreflective and almost instinctive. For just as the
parental instinct urges the mother to care for her child, so the
child's instinct impels him to respond to the mother. And there
is no need to explain why the child obeys the mother, the phenom-
enon requiring explanation being the failure on the part of the child
to respond, when this does occur.
Chap. VI, § 3.] EVOLUTION OF CRIMINAL LAW 155
It seems clear to the writer that the explanation of the tension
and friction in modern groups, including family groups, is most
easily found in the complexity of the groups in which modern chil-
dren grow up. An analogy to the primitive simplicity of conduct
is to be found in the absence of errors in the speech of primitive
children. If a language is pure and has no foreign idioms and if
the children are not in the company of those who speak other
languages or dialects, then it is probable that they will make no
errors in grammar. My own observations confirm this conclu-
sion. During my residence among the Congo tribes no child was
ever heard by me to make a mistake in grammar. The influences
are all homogeneous, the stimuli are all consistent, and there is
no occasion for an erroneous reaction in the matter of the vocal
gesture called language. The language is almost perfect in its
regularity. The real phenomenon that demands explanation is
that a mistake should be made at all, for the normal method of
response will be to adopt the conventional words if these are re-
ceived from a consistent source.
It is confidently believed that a careful report of the facts and
conditions among present-day savages would establish the non-
existence of the punishment of children among many of them.^
V. Stef ansson says •: " We count it as one of the chief triumphs of
the four-year expedition of the American jMuseum of Natural
History to the Eskimo that we discovered why it is that children
are not punished ; for such immaterial things is the money of
scientific institutions expended!"- He then gives the two pre-
vious explanations that have been assigned, namely, that the
children are so good that they do not need it, and secondly, that
the Eskimos are so fond of their children that they cannot bear
to punish them. Both of these explanations are rejected in favor
of the theory that the belief of the natives that every child is the
reincarnation of the spirit of an honored ancestor is the real
explanation of the forbearance of the parents under circumstances
which the white man often found very trying. Whether this
explanation points out the real cause of the phenomenon or whether
it was a theoretical formulation which grew up to account for the
practice and to justify it, is not important for this discussion.
The main thing to observe is that there is no punishment of chil-
dren among these people. With the coming of the white man,
the group will be more and more subject to outside influences and
1 [See "The Point Barrow Eskimo," Vol. I, p. 248.]
2 V. Stef ansson, "My Life with the Eskimo," p. 395.
156 Ll.'VW and the state [Part I.
there will be increasing opportunities for tension ; but during the
ages when they were living their own life, there was no thought of
punishing the children.
Stefansson also deals at length with the subject of the immense
power of public opinion in the Eskimo society. Resort to force
is so rare as to be almost negligible. They are a unit, rule is not
by force, though there is always a leader. The authority of the
leader depends, however, not on his strength, but on the extent of
his influence with the larger group. ^
Absence of punishment is also the characteristic of the Japanese
system of governing children. President Sato of Sapporo College
in a conversation with the writer, says that the Japanese do not
punish their children even yet, although the foreign influences are
very pronounced at the present time in Japan. But for a long time,
the system was homogeneous and unified and the momentum of it
endures till the present. It is true that President Sato considers
that the Japanese are too indulgent with their children and that
they should exercise more careful control over them, but the fact
of the absence of a system of physical punishments for children
is highly significant.
The solidarity of the truly primitive group in this respect can,
therefore, hardly be overstated. There is no remedy for an in-
fraction of custom by a member of a group. No physical force is
used or can be used. The whole of the remedy is vocal disap-
proval, reproach, and scorn. But for reasons that will later
appear in this discussion, it is contended that scorn and ridicule
are the most powerful weapons that are available in the service of
conformity.^
This much is, therefore, clear from the discussion so far. Pun-
ishment could not have arisen within the early group owing to the
absolutely social character of their early organization and the ab-
sence of physical force from their methods of dealing with each
other. It is recognized that offences might occur and did some-
times occur which would be so serious as to dissolve the bonds
entirely, but as will be seen, such a situation was met by a mode
of reaction that is not properly called punishment.
How, then, did punishment arise? If it did not begin inside
the group in some sort of formal infliction of penalty or violence
1 Op. cit., p. 365.
2 The Roman Assembly of the Tribes eould not inflict death, only
a fine, for the life of a Roman was sacred inside the walls. (Maine,
"Ancient Law": 375.) But the military court could inflict the death
penally.
Chap. VI, § 3.] EVOLUTION OF CRIMINAL LAW 157
of force, did it originate in the reactions against the enemies of
the tribe ? This question will now be considered.
II
The really primitive group, we have seen, was probably bound
together by ties of an instinctive nature which made it impossible
to proceed in any way against one of the number for an offence
that should work injury to the offender. The opposing theory
finds the origin of punishment in the wars with the enemies of
the tribes. \Yestermarck thinks that the instinct of resentment,
in most cases " sympathethic resentment," but always some strong
emotional state of mind, is the key to the understanding of the
punishing reactions. Hobhouse finds a cognitive basis for the
origin of punishment in the concepts that are formed when
the evil effect of the oft'ence is observed.^ Steinmetz traces it to
the expansion of personality that follows the retaliation against
an affront.
But it seems quite unnecessary to go beyond the simple, in-
herited reaction of all gregarious animals of the carnivorous type,
all females with young, and even insects of the social kind, as bees
and wasps. There is a natural, inherited reaction, of defence
against the attack of a stranger or an enemy. The savage fights
anyone from the outside who has attacked his child or his brother
or his father or any of his kindred or clan, and does so just as a
hive of bees or a nest of hornets responds to a disturbance of a
hostile nature. The reaction is not due to reflection, does not
arise out of concepts of justice or right or propert}', and is not due
to any antecedent feeling. The beginning of the whole process
is this reaction of a protective character absolutely essential to
the preservation of the group, which takes into account only the
dangerous character of the enemy and the need of securing his
annihilation.
The fixed character of the primitive group is one of its most
striking characteristics. In general, it is almost true that the
only way to become a member of the group is to arrange to be born
into it. There is, to be sure, a natural tendency toward the
enlargement of the social group, but for the primitive man, e^•en
the nature peoples of the present day, it is often true that the whole
world is divided into just two classes, namely : kin who cannot
^ [See the next preceding Section of this Chapter for the views of
Hobhouse.]
158 LAW AND THE STATE [Part I.
become enemies, and enemies who can never become kin. The
former are ne^'e^ Hable to punishment for reasons shown, and the
latter are equally exempt from punishment because they are the
object of attack in war.
The attack on an enemy or a stranger who offends is often made
when the dictates of prudence or self-interest would make an-
other course of action desirable, but the tribe is without any other
alternative. Just as a rattlesnake exhausts his venom in futile
strikes and is captured with impunity, so many a native tribe would
have been able to maintain itself and get ahead, if it had been able
to take a cool and rational attitude toward attacks, but this is not
possible. The attack is made because there is nothing else to do.
Just what punishment is will presently appear, but it is evident
that an attack which ceases only with annihilation of the enemy,
which is without any relation to the nature or gravity of the offence
committed, and which is directed towards those who are thought
of in the most abstract way as enemies, is not yet the sort of
reaction that we call punishment. It may be called a war, a
feud, a vendetta, or a foray, but the disregard of consequences,
the lack of measure or restraint, the wholly impersonal relation
that is assumed, marks the phenomenon off from true punishment.
The literature of feuds and the vicarious infliction of suffering
on the innocent members of the group is very complete, but the
following personally observed circumstance will bring out the facts
that it is desired to emphasize in this connection. A native woman
of the Upper Congo secured the remission of the payment of dowry
and returned in a perfectly regular and legal manner to her father,
but passed with unseemly haste to the home of the co-respondent.
The deserted husband, in a fit of jealousy, came from his distant
village with a party, and proceeded in the darkness to fire the
hut in which the couple was sleeping, but, as it was afterwards
explained, included some near-by huts because the huts of the
enemy were not very well built. The next morning saw a counter
foray into the villages of the house-burners, but this attack was
directed against a remote portion of the enemy's village in order
that they might be taken by surprise as the news of the affair had
not spread. Accordingly, an approach was made and a volley
fired at close range, killing a man and a woman who did not know
that there was any trouble between the two communities. After
this, slaughter went on merrily for several months.
Now it is significant for this discussion to note that the group
has no censure for those who are the occasion for trouble of this
Chap. VI, § 3.] EVOLUTION OF CRIMINAL LAW 159
kind. The woman whose action caused the death of several of
her tribe is not reproached, even by those who are the heaviest
losers in the fighting. The actions of the quarrelsome members
of the tribe, in so far as they affect outsiders, are accepted unques-
tionably and the whole tribe joins in the natural, normal, and
often joyously exciting reaction called out by the instinct of
pugnacity. Nor is there any blame for the enemy. He is con-
ceived as doing his part. He is not supposed to take into account
the interest of a group other than his own ; he is thought of in the
most abstract fashion as a target and source of danger, game and
hunter in one, and with nothing even resembling a fellow-feeling.
There was a little Congo lad who owned a chicken which one
day appeared with only one leg because the boy felt obliged to
practice economy by eating one leg and letting the rest of the fowl
wait ! This killing on the installment plan is hardly to be thought
of as cruelty, but is due to the fact that the fowl is viewed from
the point of view of food alone. The lad would as soon have
thought of showing mercy to a potato or a mango, as to a chicken ;
for merc\" and consideration belong to the members of your own
family and are unthinkable in any other situation. The cannibal
tribes, which are not the lowest but represent the highest develop-
ment among the peoples of the Congo valley, often stick the liv-
ing victim full of bamboo skewers to preempt portions of the meat
before the slaughter !
A social attitude toward a member of another group is, therefore,
unthinkable. A snake, a leopard, a slaughtered sheep, or a crushed
worm is not more abstractly treated. It is felt that an attitude
of this sort cannot by any stretch of meaning be taken to include
punishment.
The conclusion is, therefore, that there is no punishment of any
one in a thoroughly primitive society. The whole universe is
divided into two classes for the theoretically primitive savage,
and these are the members of his own group whom he does not
ever think of striking or punishing in any way, and the rest of the
world who are to be watched carefully at all times but who are
to be destroyed if they are found in an attitude of attack.
A thoroughly analogous situation is found in the attitude of
civilized nations in their international relationships. The citi-
zens of a foreign country, so long as they remain on their own terri-
tory, are not subject to punishment by any other nation whose
citizens may have suffered injury. If an expedition is made across
the border and damage is done the goods and persons of another
160 LAW AND THE STATE [Part I.
nation, there is no punishment by the nation that receives the
injury. Any attempt at redress by a foreign nation inside our
territory is war. There are only two courses open to an offended
people in such a case. They can send an attacking force across
the border to avenge the wrong, but this is not punishment, it
is war. 'The only other course open to the injured government
is to appeal in a friendly way for the government of the offenders
to take cognizance of the offence and do justice. But clearly here
the injured nation is not punishing anyone. They may appeal to
another to punish, but this appeal is a friendly and social act.
Punishment must, therefore, be administered by the group to
which the oft'ender belongs. But we have seen that when the
group is homogeneous, it is impossible for the category of punish-
ment to have any place. There are groups organised within
civilized society which are so thoroughly social that there is no
thought of punishment within the circle, as for example, a college
faculty or a social club.
Ill
For a situation which would make the attitude of formal pun-
ishment possible, we must have a society that has grown so com-
plex that there are varying degrees of relationship and of fellow-
feeling. This is, to be sure, the natural result of a prosperous
community for, as populations multiply and migrations are ren-
dered necessary by part of the company in order to find more
room, it is inevitable that some distant tribes should also be
distant kin and the reaction of enmity would tend to become
modified. Indignation would be present, but it would be tempered
by other feelings, in case an oft'ence should be committed. The
presence of slavery as an institution is also one of the early mani- .
festations of complexity. Exogamous marriages also imply alli-
ances with otherwise hostile tribes and these alliances are often
of the most serious and binding nature. Also there are numerous
temporary alliances for barter and for protection.
In such a complex situation it would he a rare case in which an
offender would not have some friends within the very group that
is concerned. Should two slaves, for example, have a serious
quarrel, there might be nothing in the way of a battle to the death
if they were of different tribes. But the owner of the two would
naturally wish to save his property. In case of a federation of
villages, the leaders would naturally be in favor of an amicable
settlement of feuds between constituent members of the larger
Chap. VI, § 3.] EVOLUTION OF CRI.AIIXAL LAW 161
organization. There will be those in such a complex group who
would wish to see the offender destroyed, that is, they would take
the part of an enemy. There would also be those who would
wish to have him escape entirely and who would, therefore, defend
his cause. And there is necessary in any real punitive situation
an impartial umpire who has interests on both sides.
Here, then, is the solution to the problem of the origin of pun-
ishment. So long as there are just two groups in the social world
of the savage, no punishment could take place, but when there
are three or more groups in his world, the attitude of formal
punishment becomes a natural one. There is the group to which
the offender belongs, the group which he has attacked, and a third
which is relativeh' neutral and has interests in both.
Our institutions of punitive justice exhibit this phenomenon
quite accurately. The criminal is the expression of a group and
is normally quite loyal to the group ideals and the code of his
clan. This group is represented before the bar by counsel, ap-
pointed, if necessary, by the state itself, and the counsel for the
defence is interested in making such a showing in the trial of the
cause that the rights of the defendant will be fully protected.
There is also the group which the prisoner has attacked, repre-
sented by the prosecuting attorney whose sole task it is to paint
the offence in the blackest colors, or, in other words, to represent
his enemies and to destroy him, if possible. The fact that he is
said in our legal procedure to represent the "people" should not
blind us to the fact that there is also a third group necessary in the
situation, represented by the judge and the jury. These stand
for the great body of those who are not directly concerned and
who are, in reality, attempting to arrange the conflicting claims.
The jury is supposed to have no interest in the case and preferably
to have no knowledge of the matter, to be, therefore, wholly dis-
interested and of another social group entirely.
According to this discussion, punishment is a practice that has
arisen out of group activity and owes none of its origin to private
vengeance or the rule of force within the group. Punishment is
the expression of the clashing of groups; with a "buffer-group"
to lessen the shock. It is a phenomenon of social psychology and
can only be approached intelligently from the social point of view.
Chapter VII
THE FORMS OF LAW^
The most celebrated system of jurisprudence known to the
world begins, as it ends, with a Code. From the commencement
to the close of its history, the expositors of Roman Law consist-
ently employed language which implied that the body of their
system rested on the Twelve Decemviral Tables, ana therefore
on a basis of written law. Except in one particular, no institu-
tions anterior to the Twelve Tables were recognised at Rome.
The theoretical descent of Roman jurisprudence from a code, the
theoretical ascription of English law to immemorial unwritten
tradition, were the chief reasons why the development of their
system differed from the development of ours. Neither theory
corresponded exactly with the facts, but each produced conse-
quences of the utmost importance.
I need hardly say that the publication of the Twelve Tables
is not the earliest point at which we can take up the history of
law. The ancient Roman code belongs to a class of which almost
every civilised nation in the world can show a sample, and which,
so far as the Roman and Hellenic worlds were concerned, were
largely diffused over them at epochs not widely distant from one
another. They appeared under exceedingly similar circumstances,
and were produced, to our knowledge, by very similar causes.
Unquestionably, many jural phenomena lie behind these codes
and preceded them in point of time. Not a few documentary
records exist which profess to give us information concerning the
early phenomena of law ; but, until philology has effected a com-
plete analysis of the Sanskrit literature, our best sources of knowl-
edge are undoubtedly the Greek Homeric poems, considered of
course not as a history of actual occurrences, but as a description,
not wholly idealised, of a state of society known to the writer.
However the fancy of the poet may have exaggerated certain
1 [By Sir Henry S. Maine. Reprinted from "Ancient Law," bj' per-
mission of Henry Holt and Company, New York.]
162
Chap. VII.] THE FORMS OF LAW 1G3
features of the heroic age, the prowess of warriors and the potency
of gods, there is no reason to beheve that it has tampered with
moral or metaphysical conceptions which were not yet the sub-
jects of conscious observation ; and in this respect the Homeric
literature is far more trustworthy than those relatively later
documents which pretend to give an account of times similarly
early, but which were compiled under philosophical or theological
influences.
If by any means we can determine the early forms of jural
conceptions, they wall be invaluable to us. These rudimentary
ideas are to the jurist what the primary crusts of the earth
are to the geologist. They contain, potentially, all the forms
in which law has subsequently exliibited itself. The haste
or the prejudice which has generally refused them all but the
most superficial examination, must bear the blame of the un-
satisfactory condition in which we find the science of jurispru-
dence. The inquiries of the jurist are in truth prosecuted much as
inquiry in physics and physiology was prosecuted before observa-
tion had taken the place of assumption. Theories, plausible and
comprehensive, but absolutely unverified, such as the Law of
Nature or the Social Compact, enjoy a universal preference over
sober research into the primitive history of society and law ; and
they obscure the truth not only by diverting attention from the
only quarter in which it can be found, but by that most real and
most important influence which, when once entertained and be-
lieved in, they are enabled to exercise on the later stages of juris-
prudence.
The earliest notions connected with the conception, now so
fully developed, of a law or rule of life, are those contained in the
Homeric words "Themis" and "Themistes." "Themis," it is
well known, appears in the later Greek pantheon as the Goddess
of Justice, but this is a modern and much developed idea, and it
is in a very different sense that Themis is described in the Iliad
as the assessor of Zeus. It is now clearly seen by all trustworthy
observers of the primitive condition of mankind that, in the in-
fancy of the race, men could only account for sustained or periodi-
cally recurring action by supposing a personal agent. Thus, the
wind blowing was a person and of course a divine person ; the sun
rising, culminating, and setting was a person and a divine person ;
the earth yielding her increase was a person and divine. As,
then, in the physical world, so in the moral. When a king de-
cided a dispute by a sentence, the judgment was assumed to be
164 LAW AND THE STATE [Part I.
the result of direct inspiration. The divine agent, suggesting
judicial awards to kings or to gods, the greatest of kings, was
Themis. The peculiarity of the conception is brought out by
the use of the plural. Tliemistes, Themises, the plural of Themis,
are the awards themselves, divinely dictated to the judge. Kings
are spoken of as if they had a store of "Themistes" ready to hand
for use ; but it must be distinctly understood that they are not
laws, but judgments, or, to take the exact Teutonic equivalent,
" dooms." " Zeus, or the human king on earth," says IVIr. Grote, in
his " History of Greece," " is not a law-maker, but a judge." He is
provided with Themistes, but, consistently with the belief in their
emanation from above, they cannot be supposed to be connected
by any thread of principle ; they are separate, isolated judgments.
Even in the Homeric poems we can see that these ideas are
transient. Parities of circumstance were probably commoner
in the simple mechanism of ancient society than they are now, and
in the succession of similar cases awards are likely to follow and
resemble each other. Here we have the germ or rudiment of a
custom, a conception posterior to that of Themistes or judgments.
However strongl}^ we, with our modern associations, may be
inclined to lay down a j)riori that the notion of a Custom must
precede that of a judicial sentence, and that a judgment must
affirm a custom or punish its breach, it seems quite certain that
the historical order of the ideas is that in which I have placed them.
The Homeric word for a custom in the embryo is sometimes
"Themis" in the singular — more often "Dike," the meaning of
which visibly fluctuates between a "judgment" and a "custom"
or "usage." No'^09, a Law, so great and famous a term in the
political vocabulary of the later Greek society, does not occur in
Homer.
This notion of a divine agency, suggesting the Themistes, and
itself impersonated in Themis, must be kept apart from other
primitive beliefs with which a superficial inquirer might confound
it. The conception of the Deity dictating an entire code or body
of law, as in the case of the Hindoo laws of ]\Ianu, seems to belong
to a range of ideas more recent and more advanced. "Themis"
and "Themistes" are much less remotely linked with that per-
suasion which clung so long and so tenaciously to the human mind,
of a divine influence underlying and supporting every relation of
life, every social institution. In early law, and amid the rudi-
ments of political thought, symptoms of this belief meet us on all
sides. A supernatural presidency is supposed to consecrate and
Chap. VII.] THE FORMS OF LAW 165
keep together all the cardinal institutions of those times, the
State, the Race, and the Family. ]Men, grouped together in the
different relations which those institutions imply, are bound to
celebrate periodically common rites and to offer common sacrifices ;
and every now and then the same duty is e\en more significantly
recognised in the purifications and expiations which they per-
form, and which appear intended to deprecate punishment for
involuntary or neglectful disrespect. Everybody acquainted
with ordinary classical literature will remember the sacra gentilicia
which exercised so important an influence on the early Roman
law of adoption and of wills. And to this hour the Hindoo Cus-
tomary Law, in which some of the most curious features of primi-
tive society are stereotyped, makes almost all the rights of persons
and all the rules of succession hinge on the due solemnisation of
fixed ceremonies at the dead man's funeral, that is, at every point
where a breach occurs in the continuity of the family.
Before we quit this stage of jurisprudence, a caution may be
usefully given to the English student. Bentham, in his "Frag-
ment on Government," and Austin, in his "Province of Juris-
prudence Determined," resolve every law into a command of the
lawgiver, an obligation imposed thereby on the citizen, and a sanc-
tion threatened in the event of disobedience; and it is further
predicated of the command, which is the first element in a law, that
it must prescribe, not a single act, but a series or number of acts of
the same class or kind. The results of this separation of ingredi-
ents tally exactly with the facts of mature jurisprudence ; and,
by a little straining of language, they may be made to correspond
in form with all law, of all kinds, at all epochs. It is not, how-
ever, asserted that the notion of law entertained by the generality
is even now quite in conformity with this dissection ; and it is
curious that, the farther we penetrate into the primitive history
of thought, the farther we find ourselves from a conception of law
which at all resembles a compound of the elements which Bentham
determined. It is certain that, in the infancy of mankind, no
sort of legislature, nor even a distinct author of law, is contem-
plated or conceived of. Law has scarcely reached the footing
of custom ; it is rather a habit. It is, to use a French plirase,
"in the air." The only autlioritative statement of right and
wrong is a judicial sentence after the facts, not one presupposing
a law which has been violated, but one which is breathed for the
first time by a higher power into the judge's mind at the moment
of adjudication. It is of course extremely difficult for us to realise
166 LAW AND THE STATE [Part I.
a view so far removed from us in point both of time and of associa-
tion, but it will become more credible when we dwell more at length
on the constitution of ancient society, in which every man, living
during the greater part of his life under the patriarchal despotism,
was practically controlled in all his actions by a regimen not of law
but of caprice. I may add that an Englishman should be better
able than a foreigner to appreciate the historical fact that the
"Themistes" preceded any conception of law, because, amid the
many inconsistent theories which prevail concerning the character
of English jurisprudence, the most popular, or at all events the
one which most affects practice, is certainly a theory which as-
sumes that adjudged cases and precedents exist antecedently to
rules, principles, and distinctions. The "Themistes" have too,
it should be remarked, the characteristic which, in the view of
Bentham and Austin, distinguishes single or mere commands from
laws. A true law enjoins on all the citizens indifferently a number
of acts similar in class or kind ; and this is exactly the feature of
a law which has most deeply impressed itself on the popular mind,
causing the term "law" to be applied to mere uniformities, suc-
cessions, and similitudes. A command prescribes only a single act,
and it is to commands, therefore, that "Themistes" are more akin
than to laws. They are simply adjudications on insulated states
of fact, and do not necessarily follow each other in any orderly
sequence.
The literature of the heroic age discloses to us law in the germ
under the "Themistes" and a little more developed in the concep-
tion of " Dike." The next stage which we reach in the history
of jurisprudence is strongly marked and surrounded by the ut-
most interest. Mr. Grote, in the second part and ninth chapter
of his History, has fully described the mode in which society
gradually clothed itself with a different character from that de-
lineated by Homer. Heroic kingship depended partly on divinely
given prerogative, and partly on the possession of super-
eminent strength, courage, and wisdom. Gradually, as the im-
pression of the monarch's sacredness became weakened, and
feeble members occurred in the series of hereditary kings, the
royal power decayed, and at last gave way to the domin-
ion of aristocracies. If language so precise can be used of the
revolution, we might say that the office of the king was usurped
by that council of chiefs which Homer repeatedly alludes to and
depicts. At all events from an epoch of kingly rule we come
everywhere in Europe to an era of oligarchies; and even where
Chap. VII.] THE FORMS OF LAW 167
the name of the monarchical functions does not absolutely disap-
pear, the authority of the king is reduced to a mere shadow. He
becomes a mere hereditary general, as in Lacedsemon, a mere
functionary, as the King Archon at Athens, or a mere formal
hierophant, like the Rex Sacrificulus at Rome. In Greece, Italy,
and Asia Minor, the dominant orders seem to have universally
consisted of a number of families united by an assumed relation-
ship in blood, and, though they all appear at first to have laid
claim to a quasi-sacred character, their strength does not seem to
have resided in their pretended sanctity. Unless they were pre-
maturely overthrown by the popular party, they all ultimately ap-
proached very closely to what we should now understand by a
political aristocracy. The changes which society underwent in
the communities of the further Asia occurred of course at periods
long anterior in point of time to these revolutions of the Italian
and Hellenic worlds ; but their relative place in civilisation ap-
pears to have been the same, and they seem to have been exceed-
ingly similar in general character. There is some evidence that
the races which were subsequently united under the Persian mon-
archy, and those which peopled the peninsula of India, had all
their heroic age and their era of aristocracies ; but a military and
a religious oligarchy appear to have grown up separately, nor was
the authority of the king generally superseded. Contrary, too, to
the course of events in the West, the religious element in the East
tended to get the better of the military and political. Military
and civil aristocracies disappear, annihilated or crushed into in-
significance between the kings and the sacerdotal order ; and the
ultimate result at which we arrive is, a monarch enjoying great
power, but circumscribed by the privileges of a caste of priests.
With these differences, however, that in the East aristocracies
became religious, in the West civil or political, the proposition
that a historical era of aristocracies succeeded a historical era of
heroic kings may be considered as true, if not of all mankind, at
all events of all branches of the Indo-European family of nations.
The important point for the jurist is that these aristocracies
were universally the depositaries and administrators of law. They
seem to have succeeded to the prerogatives of the king, with the
important difference, however, that they do not appear to have
pretended to direct inspiration for each sentence. The connection
of ideas which caused the judgments of the patriarchal chieftain
to be attributed to superhuman dictation still shows itself here
and there in the claim of a divine origin for the entire body of
168 LAW AND THE STATE [Paht I.
rules, or for certain parts of it, but the progress of thought no
longer permits the solution of particular disputes to be explained
by supposing an extra-human interposition. What the juristical
oligarchy now claims is to monopolise the knowledge of the laws,
to have the exclusive possession of the principles by which quarrels
are decided. We have in fact arrived at the epoch of Customary
Law. Customs or Observances now exist as a substantive aggre-
gate, and are assumed to be precisely known to the aristocratic
order or caste. Our authorities leave us no doubt that the trust
lodged with the oligarchy was sometimes abused, but it certainly
ought not to be regarded as a mere usurpation or engine of tyranny.
Before the invention of writing, and during the infancy of the art,
an aristocracy invested with judicial privileges formed the only
expedient by which accurate preservation of the customs of the
race or tribe could be at all approximated to. Their genuineness
was, so far as possible, insured by confiding them to the recollec-
tion f)f a limited portion of the community.
The epoch of Customary Law, and of its custody by a privileged
order, is a very remarkable one. The condition of jurisprudence
which it implies has left traces which may still be detected in legal
and popular phraseology. The law, thus known exclusively to a
privileged minority, whether a caste, an aristocracy, a priestly
tribe, or a sacerdotal college, is true unwritten law. Except this,
pthere is no such thing as unwritten law in the world. English
case-law is sometimes "spoken of as unwritten, and there are some
English theorists who assure us that if a code of English juris-
prudence were prepared we should be turning unwritten law into
written — a conversion, as they insist, if not of doubtful policy,
at all events of the greatest seriousness. Xow, it is quite true that
there was once a period at which the English common law might
reasonably have been termed unwritten. The elder English
judges did really pretend to knowledge of rules, principles, and
distinctions which were not entirely revealed to the bar and to the
lay-public. Wliether all the law which they claimed to monopo-
lise was really unwritten, is exceedingly questionable ; but at all
events, on the assumption that there was once a large mass of
civil and criminal rules known exclusively to the judges, it presently
ceased to be unwritten law. As soon as the Courts at AYest-
minster Hall began to base their judgments on cases recorded,
whether in the year-books or elsewhere, the law which they ad-
ministered became written law. At the present moment a rule
of English law has first to be disentangled from the recorded
Chap. VII.] THE FORMS OF LAW 169
facts of adjudged printed precedents, then thrown into a form of
words varying with the taste, precision, and knowledge of the par-
ticular judge, and then applied to the circumstances of the case
for adjudication. But at no stage of this process has it any char-
acteristic which distinguishes it from written law. It is written
case-law, and only different from code-law because it is written
in a different way.
From the period of Customary Law we come to another sharply
defined epoch in the history of jurisprudence. We arrive at the
era of Codes, those ancient codes of which the Twelve Tables of
Rome were the most famous specimen. In Greece, in Italy, on
the Hellenised sea-board of Western Asia, these codes all made
their appearance at periods much the same everywhere, not, I
mean, at periods identical in point of tune, but similar in point of
the relative progress of each community. Everywhere, in the
countries I have named, laws engraven on tablets and published
to the people take the place of usages deposited with the recollec-
tion of a privileged oligarchy. It must not for a moment be sup-
posed that the refined considerations now urged in favour of what
is called codification had any part or place in the change I have
described. The ancient codes were doubtless originally sug-
gested by the discovery and diffusion of the art of writing. It is
true that the aristocracies seem to have abused their monopoly
of legal knowledge ; and at all events their exclusive possession of
the law was a formidable impediment to the success of those popu-
lar movements which began to be universal in the western world.
But, though democratic sentiment may have added to their popu-
larity, the codes were certainly in the main a direct result of the
invention of writing. Inscribed tablets were seen to be a better
depository of law, and a better security for its accurate preserva-
tion, than the memory of a number of persons however strength-
ened by habitual exercise.
The Roman code belongs to the class of codes I have been de-
scribing. Their value did not consist in any approach to symmet-
rical classification, or to terseness and clearness of expression, but
in their publicity, and in the knowledge which they furnished to
everybody, as to what he was to do, and what not to do. It is,
indeed, true that the Twelve Tables of Rome do exhibit some
traces of systematic arrangement, but this is probably explained
by the tradition that the framers of that body of law called in the
assistance of Greeks who enjoyed the later Greek experience in
the art of law-making. The fragments of the Attic Code of Solon
170 LAW AND THE STATE [Part I.
show, however, that it had but Httle order, and probably the laws
of Draco had even less. Quite enough too remains of these collec-
tions, both in the East and in the West, to show that they mingled
up religious, civil, and merely moral ordinances, without any regard
to differences in their essential character; and this is consistent
with all we know of early thought from other sources, the severance
of law from morality, and of religion from law, belonging very
distinctl}^ to the later stages of mental progress.
But, whatever to a modern eye are the singularities of these
codes, their importance to ancient societies was unspeakable.
The question — and it was one which affected the whole future of
each community — was not so much whether there should be a code
at all, for the majority of ancient societies seem to have obtained
them sooner or later, and, but for the great interruption in the
history of jurisprudence created by feudalism, it is likely that all
modern law would be distinctly traceable to one or more of these
fountain-heads. But the point on which turned the history of
the race was, at what period, at what stage of their social progress,
they should have their laws put into writing. In the Western
world the plebeian or popular element in each State successfully
assailed the oligarchical monopoly, and a code was nearly univer-
sally obtained early in the history of the Commonwealth. But,
in the East, as I have before mentioned, the ruling aristocracies
tended to become religious rather than military or political, and
gained, therefore, rather than lost in power; while in some in-
stances the physical conformation of Asiatic countries had the
effect of making individual communities larger and more numerous
than in the W^est ; and it is a known social law that the larger the
space over which a particular set of institutions is diffused, the
greater is its tenacity and vitality. From whatever cause, the
codes obtained by Eastern societies were obtained, relatively,
much later than by Western, and wore a very different character.
The religious oligarchies of Asia, either for their own guidance, or
for the relief of their memory, or for the instruction of their dis-
ciples, seem in all cases to have ultimately embodied their legal
learning in a code ; but the opportunity of increasing and consoli-
dating their influence was probably too tempting to be resisted.
Their complete monopoly of legal knowledge appears to have
enabled them to put off on the world collections, not so much of the
rules actually observed as of the rules which the priestly order
considered proper to be observed. The Hindoo Code^ called the
Laws of Manu, which is certainly a Brahmin compilation, un-
Chap. VII.] THE FORMS OF LAW 171
doubtediy enshrines many genuine observances of the Hindoo race,
but the opinion of the best contemporary orientaHsts is, that it
does not, as a whole, represent a set of rules ever actually adminis-
tered in Hindostan. It is, in great part, an ideal picture of that
which, in the view of the Brahmins, ought to be the law. It is
consistent with human nature and with the special motives of their
authors, that codes like that of jManu should pretend to the highest
antiquity and claim to have emanated in their complete form from
the Deity. Manu, according to Hindoo mythology, is an emana-
tion from the supreme God ; but the compilation which bears his
name, though its exact date is not easily discovered, is, in point of
the relative progress of Hindoo jurisprudence, a recent production.
Among the chief advantages which the Twelve Tables and simi-
lar codes conferred on the societies which obtained them, was the
protection which they afforded against the frauds of the privileged
oligarchy and also against the spontaneous depravation and de-
basement of the national institutions. The Roman Code was
merely an enunciation in words of the existing customs of the Ro-
man people. Relatively to the progress of the Romans in civilisa-
tion, it was a remarkably early code, and it was published at a time
when Roman society had barely emerged from that intellectual
condition in which civil obligation and religious duty are inevi-
tably confounded. Now a barbarous society practising a body of
customs, is exposed to some especial dangers which may be ab-
solutely fatal to its progress in civilisation. The usages which a
particular community is found to have adopted in its infancy and
in its primitive seats are generally those which are on the whole
best suited to promote its physical and moral well-being ; and, if
they are retained in their integrity until new social wants have
taught new practices, the upward march of society is almost certain.
But unhappily there is a law of de^'elopment which ever threatens
to operate upon unwritten usage. The customs are of course
obeyed by multitudes who are incapable of understanding the
true ground of their expediency, and who are therefore left in-
evitably to invent superstitious reasons for their permanence. A
process then commences which may be shortly described by saying
that usage which is reasonable generates usage which is unreason-
able. Analogy, the most valua})le of instruments in the maturity
of jurisprudence, is the most dangerous of snares in its infancy.
Prohi})itions and ordinances, originally confined, for good reasons,
to a single description of acts, are made to apply to all acts of the
same class, because a man menaced with the anger of the gods for
172 LAW AND THE STATE [Part I.
doing one thing, feels a natural terror in doing any other thing
which is remotely like it. After one kind of food has been inter-
dicted for sanitary reasons, the prohibition is extended to all food
resembling it, though the resemblance occasionally depends on
analogies the most fanciful. So again, a wise provision for insur-
ing general cleanliness dictates in time long routines of ceremonial
ablution ; and that division into classes which at a particular crisis
of social history is necessary for the maintenance of the national
existence degenerates into the most disastrous and blighting of all
human institutions — Caste. The fate of the Hindoo law is, in
fact, the measure of the value of the Roman Code. Ethnology
shows us that the Romans and the Hindoos sprang from the same
original stock, and there is indeed a striking resemblance between
what appear to have been their original customs. Even now,
Hindoo jurisprudence has a substratum of forethought and sound
judgment, but irrational imitation has engrafted in it an immense
apparatus of cruel absurdities. From these corruptions the Ro-
mans were protected by their code. It was compiled while usage
was still wholesome, and a hundred years afterwards it might have
been too late. The Hindoo law has been to a great extent em-
bodied in writing, but, ancient as in one sense are the compendia
which still exist in Sanskrit, they contain ample evidence that
they were drawn up after the mischief had been done. We are
not of course entitled to say that if the Twelve Tables had not been
published the Romans would have been condemned to a civilisa-
tion as feeble and perverted as that of the Hindoos, but thus much
at least is certain, that ivith their code they were exempt from the
very chance of so unhappy a destiny.
Chapter VIII
METHODS OF THE LAW'S GROWTH ^
When primitive law has once been embodied in a Code, there is
an end to what may be called its spontaneous development.
Henceforward the changes effected in it, if effected at all, are
effected deliberately and from without. It is impossible to sup-
pose that the customs of any race or tribe remained unaltered
during the whole of the long — in some instances the immense —
interval between their declaration by a patriarchal monarch
and their publication in writing. It would be unsafe too to affirm
that no part of the alteration was effected deliberately. But from
the little we know of the progress of law during this period, we are
justified in assuming that set purpose had the very smallest share
in producing change. Such innovations on the earliest usages as
disclose themselves appear to have been dictated by feelings and
modes of thought which, under our present mental conditions, we
are unable to comprehend. A new era begins, however, with the
Codes. Wherever, after this epoch, we trace the course of legal
modification, we are able to attribute it to the conscious desire of
improvement, or at all events of compassing objects other than
those which were aimed at in the primitive times.
It may seem at first sight that no general propositions worth
trusting can be elicited from the history of legal systems subse-
quent to the codes. The field is too vast. W^e cannot be sure
that we have included a sufficient number of phenomena in our
observations, or that we accurately understand those which we
have observed. But the undertaking will be seen to be more
feasible, if we consider that after the epoch of codes the distinction
between stationary and progressive societies begins to make itself
felt. It is only with the progressive societies that we are concerned,
and nothing is more remarkable than their extreme fewness. In
spite of overwhelming evidence, it is most difficult for a citizen of
' [By Sir Henry S. ]Maine. Reprinted from "Ancient Law," by per-
mission of Henry Holt and Company, Xew York.]
173
174 LAW AND THE STATE [Part I.
Western Europe to bring thoroughly home to himself the truth
that the civilisation which surrounds him is a rare exception in the
history of the world. The tone of thought common among us, all
our hopes, fears, and speculations, would be materially affected,
if we had vividly before us the relation of the progressive races to
the totality of human life. It is indisputable that much the
greatest part of mankind has never shown a particle of desire that
its civil institutions should be improved since the moment when
external completeness was first given to them by their embodi-
ment in some permanent record. One set of usages has occasion-
ally been violently overthrown and superseded by another; here
and there a primitive code, pretending to a supernatural origin,
has been greatly extended, and distorted into the most surprising
forms, by the perversity of sacerdotal commentators ; but, except
in a small section of the world, there has been nothing like the
gradual amelioration of a legal system. There has been material
civilisation, but, instead of the civilisation expanding the law, the
law has limited the civilisation. The study of races in their
primitive condition affords us some clue to the point at which the
development of certain societies has stopped. We can see that
Brahminical India has not passed beyond a stage which occurs in
the history of all the families of mankind, the stage at which a rule
of law is not yet discriminated from a rule of religion. The mem-
bers of such a society consider that the transgression of a religious
ordinance should be punished by civil penalties, and that the viola-
tion of a civil duty exposes the delinquent to divine correction.
In China this point has been passed, but progress seems to have
been there arrested, because the civil laws are co-extensive with all
the ideas of which the race is capable. The difference between the
stationary and progressive societies is, however, one of the great
secrets which inquiry has yet to penetrate. Among partial ex-
planations of it I venture to place the considerations urged at the
end of the last chapter. It may further be remarked that no one
is likely to succeed in the investigation who does not clearly realise
that the stationary condition of the human race is the rule, the
progressive the exception. And another indispensable condition
of success is an accurate knowledge of Roman law in all its princi-
pal stages. The Roman jurisprudence has the longest known
history of anyset oTTiuman institutions. The character of all the
changes which it underwent is tolerably well ascertained. From
its commencement to its close, it was progressively modified for
the better, or for what the authors of the modification conceived
Chap. VIII.] METHODS OF THE L.\w's GROWTH 175
to be the better, and the course of improvement was continued
through periods at which all the rest of human thought and action
materially slackened its pace, and repeatedly threatened to settle
down into stagnation.
I confine myself in what follows to the progressive societies.
With respect to them it may be laid down that s pcial necessities
and social opinion are always more or less in acfvance of X,aw.
^We"may come indefinitely near to the closing of the gap between
them, but it has a perpetual tendency to reopen. Law is stable ;
the societies we are speaking of are progressive. The greater or
"Tess happiness of a people depends on the degree of promptitude
with which the gulf is narrowed.
A general proposition of some value may be advanced with
respect to the agencies by which Law is brought into harmony with
society. These instrumentalities seem to me to be three in num-
ber. Legal Fictions, Equity, and Legislation. Their historical
order~is that in which I have placed them. Sometimes two of
them will be seen operating together, and there are legal systems
which have escaped the influence of one or other of them. But I
know of no instance in which the order of their appearance has
been changed or inverted. The early history of one of them.
Equity, is universally obscure, and hence it may be thought by
some that certain isolated statutes, reformatory of the civil law,
are older than any equitable jurisdiction. My own belief is that
remedial Equity is everywhere older than remedial Legislation;
but, should this be not strictly true, it would only be necessary
to limit the proposition respecting their order of sequence to the
periods at which they exercised a sustained and substantial in-
fluence in transforming the original law.
I employ the word "fiction" in a sense considerably wider than
that in which English lawyers are accustomed to use it, and with a
meaning much more extensive than that which belonged to the
Roman "fictiones." Fictio, in old Roman law, is properly a term
of pleading, and signifies a false averment on the part of the plain-
tiff' which the defendant was not allowed to traverse; such, for
example, as an averment that the plaintiff was a Roman citizen,
when in truth he was a foreigner. The object of these "fictiones"
was, of course, to give jurisdiction, and they therefore strongly
resembled the allegations in the writs of the English Queen's
Bench and Exchequer, by which those courts contrived to usurp
the jurisdiction of the Common Pleas : — the allegation that the
defendant was in custody of the king's marshal, or that the plain-
176 LAW AND THE STATE [Part I.
tiff was the king's debtor, and could not pay his debt by reason of
the defendant's default. But nowj^employ the express ion "Leg al
Fiction" to signify any assumption which conceals, or affects tjo
conceal, the fact that a rule of law has undergone alteration, it^
letter remaining imchanged, its operation being modified. The
words, therefore, include the instances of fictions which I have
cited from the English and Roman law, but they embrace much
more, for I should speak both of the English Case-law and of the
Roman Responsa Prudentium as resting on fictions. Both these
examples will be examined presently. The fact is in both cases
that the law has been wholly changed ; the fiction is that it remains
\ what it always was. It is not difficult to understand whynctions
in all their forms are particularly congenial to the infancy of
societj\ They satisfy the desire for improvement, which is not
quite wanting, at the same time that they do not offend the
superstitious disrelish for change which is always present. At a
particular stage of social progress they are invahiable expedients
for overcoming the rigidity of law, and, indeed^ without one of
them, the Fiction of Adoption which permits the family tie to be
artificially created, it is difficult to understand how society would
ever have escaped from its swaddling-clothes, and taken its first
steps towards civilisation. We must, therefore, not suffer our-
selves to be affected by the ridicule which Bentham pours on legal
fictions wherever he meets them. To revile them as merely
I fraudulent is to betray ignorance of their peculiar office in the his-
torical development of law. But at the same time it would be
equally foolish to agree with those theorists who, discerning that
fictions have had their uses, argue that they ought to be stereo-
typed in our system. There are several Fictions still exercising
powerful influence on English jurisprudence which could not be
discarded without a severe shock to the ideas, and considerable
change in the language, of English practitioners; but there can
be no doubt of the general truth that it is unworthy of us to effect
ah admittedly beneficial object by so rude a device as a legal fiction.
I cannot admit any anomaly to be innocent, which makes the law
either more difficult to understand or harder to arrange in har-
monious order. Now, among other disadvantages, legal fictions
are the greatest of obstacles to symmetrical classification. The
rule of law remains sticking in the system, but it is a mere shell.
It has been long ago undermined, and a new rule hides itself under
its cover. Hence there is at once a difficulty in knowing whether
the rule which is actually operative should be classed in its true
Chap. VIII.] METHODS OF THE L.\w's GROWTH _ 177
or in its apparent place, and minds of different casts will differ as
to the branch of the alternative which ought to be selected. If the
English law is ever to assume an orderly distribution, it will be
necessary to prune away the legal fictions which, in spite of some
recent legislative improvements, are still abundant in it.
The next instrumentality by which the adaptation of law to
social wants is carried on I cal l Equit y, meaning by that word any
body of rules existing by the side of the original civil law, founded
~on~ distinct principles and claiming incidentally to supersede the
civil law in virtue of a superior sanctity inherent in those principles.
"T^he Equity whether of the Roman Prsetors or of the English
Chancellors, differs from the Fictions which in each case preceded
it, in that the interference with law is open and avowed. On the
other hand, it differs from Legislation, the agent of legal improve-
ment which comes after it, in that its claim to authority is grounded
not on the prerogative of any external person or body, not even
on that of the magistrate who enunciates it, but on the special
nature of its principles, to which it is alleged that all law ought to
conform. The very conception of a set of principles, invested
with a higher sacredness than those of the original law and demand-
ing application independently of the consent of any external body,
belongs to a much more advanced stage of thought than that to
which legal fictions originally suggested themselves.
Legislation, the enactments of a legislature which, whether it
take the forms of an autocratic prince or of a parliamentary as-
sembly, is the assumed organ of the entire society, is the last of the
ameliorating instrumentalities. It differs from Legal Fictions
just as Equity differs from them, and it is also distinguished from
Equity, as de^Jiving its authority from an external body or person.
Its obligatory force is independent of its principles. The legisla-
ture; whatever be the actual restraints imposed on it by public
opinion, is in theory empowered to impose what obligations it
pleases on the members of the community. There is nothing to
prevent its legislating in the wantonness of caprice. Legislation
may be dictated by equity, if that last word be used to indicate
some standard of right and wrong to which its enactments happen
to be adjusted ; but then these enactments are indebted for their
binding force to the authority of the legislature and not to that of
the principles on which the legislature acted ; and thus they differ
from rules of Equity, in the technical sense of the word, which
pretend to a paramount sacredness.
PART II
PERSONS
Chapter IX
KINSHIP
Section 1. The Tribe
Section 2. The Clan
By J. W. Powell
Chapter X
THE PATRIARCHAL THEORY
Bt George E. Howard
Chapter XI
TOTEMISM AND EXOGAMY
Section 1. Exogamy as a Survival of Group Marriage
By Josef Kohler
Section 2. Origin of Exogamy
By Andrew Lang
Chapter XII
WOMEN IN PRIMITIVE SOCIETY
By L. T. Hobhouse
Chapter XIII
MARRIAGE
Section 1. Forms of Marriage
By Josef Kohler
Section 2. Tribal Marriage Law
By J. W. Powell
Section 3. Religious Basis of the Family
By Fustel de Coulanges
Section 4. Marriage in Greece and Rome
By FtJSTEL DE Coulanges
Chapter XIV
PATRIA POTESTAS
By Henry S. Maine
Chapter XV
WOMgN AND MARRIAGE UNDER CIVILIZATION
By L. T. Hobhouse
Chapter XVI
CHILDREN AND THE FAMILY
By Josef Kohler
Chapter XVII
ADOPTION AND ARTIFICIAL RELATIONSHIP
Section 1. Survey of Artificial Relationships
By Josef Kohler
Section 2. Religious Basis of Adoption
By Fustel de Coulanges
Chapter XVIII
SLAVERY
Section 1. Historical Importance of Slavery
By Josef Kohler
Section 2. Theories of Slavery
By Henry S. Maine
Chapter XIX
CAPITIS DEMINUTIO
By Rudolph Sohm
Chapter XX
EXISTIMATIONIS MINUTIO
By Rudolph Sohm
180
Chapter IX
KINSHIP 1
Section 1
THE TRIBE
So far as is now known, tribal society is everywhere based on
kinship. In the simplest form of which there is any knowledge,
the tribe consists of a group of men calling one another brother,
who are husbands to a group of women calling one another sister.
The children of these communal parents call all the men fathers,
and all the women mothers, and one another brother and sister.
In time these children become husbands and wives in common,
like their parents. Thus the kinship system recognizes husbands
and wives, fathers and mothers, sons and daughters, brothers and
sisters, and grandparents and grandchildren. The only kinship
by affinity is that of husband and wife. The only collateral kin-
ships are those of brother and brother, sister and sister, and
brother and sister. The lineal kinships are father and son,
father and daughter, mother and son, mother and daughter, with
grandparents and grandchildren also recognized. There is no
recognized father-in-law, mother-in-law, brother-in-law, nor sister-
in-law ; there is no uncle, no aunt, no cousin, no nephew, no niece
recognized.
It will thus be seen that all of the collateral kinships of uncle
and aunt and nephew and niece are included in the lineal kinship of
parent and child, and cousins of whatever degree are reckoned as
brothers and sisters. Let any person be designated as Ego. Then
all the men of the antecedent generation are his fathers, and all
the women his mothers ; all the males of his own generation are his
brothers, and all the females his sisters ; and all the males of the
following generation are his sons, and all the females his daughters.
' [By J. W. Powell. Reprinted, by permission, from the 3d Annual
Report of the American Bureau of Ethnology (The Smithsonian
Institution).]
181
182 PERSONS [Part II.
Selecting the Ego from any generation and reckoning from him the
antecedent and subsequent generations, the following consanguin-
eal kinship groups will be found : Ego will be one of a group of
brothers ; there will be a group of sisters, a group of fathers, a
group of mothers, a group of grandfathers, and a group of grand-
mothers ; there may also be a group of sons and a group of daugh-
ters, a group of grandsons and a group of granddaughters.
In the use of the terms " brother," " sister," " father," " son,"
** mother," " daughter," " grandfather," " grandson," " grand-
mother," and " granddaughter" in this manner, it must be clearly
understood that in every case the term applies to every one of the
members of a group, only a part of whom bear the relation which
that term implies among ci^'ilized peoples, who classify by degrees
of consanguinity.
Thus, the father-group embraces the father and all his own
brothers ; but as the father calls all his male cousins brothers, it
also includes the father's male cousins. The father-group there-
fore includes the father and all of those persons whom the father
calls by the name of " brother."
Ego calls all the sons of his father and mother brothers ; he
calls also all his father's brothers' sons, and his father's sisters'
sons, and his mother's brothers' sons, and his mother's sisters'
sons, brothers. And if there be male cousins of the second, third,
fourth, fifth, or any other degree, he calls them all alike brothers.
The brother-group, therefore, may be very large. In like manner
the mother-group, the sister-group, the son-group, and the daugh-
ter-group may be correspondingly large. The grandfather-group
and the grandmother-group include all collateral kindred of that
generation; and in like manner the grandson-group and the
granddaughter-group include all the collateral kindred of their
generation. Under this system all kinships may be thrown into a
very few groups, and each one of these groups is designated by the
kinship term properly belonging to the person in the group nearest
of kin to Ego.
The essential principle of this method of reckoning kinship is
that collateral kinship is not recognized. All, of the kindred are
included in the lineal groups ; and in every generation a group of
brothers is constituted, including all of the males of that genera-
tion, anda group of sisters is constituted, including all of the females
of that generation.
That such a kinship body has ever existed is a matter of infer-
ence ; its discovery as an objective fact has not been made. How-
Chap. IX, § 1.] KINSHIP 183
ever, it is predicated upon very strong inferential evidence. In
the forms of society actually found among the lower tribes of
mankind, institutions are discovered that are believed to be
survivals from such a form of tribal organization. And the philo-
logic evidence is perhaps still stronger; in fact, the hypothesis
was originally based solely upon linguistic data, as languages have
been found in which terms for husband, wife, father, mother, son,
daughter, elder brother, younger brother, elder sister, and younger
sister occur, together with those expressive of the kinships that
arise through the recognition of grandparents and grandchildren,
while terms for collateral kinships are not found.
All tribes that have yet been carefully studied present a more
elaborate form of social organization than that above described.
This more highly developed structure is usually exhibited, among
other things, in a more elaborate system of classifying kinships.
Additional groups are constituted, so that certain collateral kin-
ships are differentiated.
In the brothers and sisters of parents four natural kinships are
possible, namely, (a) paternal uncle, called by the Romans pat-
runs; (b) maternal uncle, called by the Romans avunculus; (c)
paternal aunt, called by the Romans amita; and (d) maternal
aunt, called by the Romans matertera. The recognition of these
four groups would lead to the recognition of the correlative cousins,
in four classes, male and female in each class ; and if terms were
used distinguishing sex, eight classes of cousins would arise through
the four classes of uncles and aunts. In this direction the first
step in the differentiation of additional kinships is made. Let
us call paternal uncles ixitruates, maternal uncles avunculates, pater-
nal aunts amitates, and maternal aunts uiaterte rates.
Let us suppose that the relation of husband and wife is not
the same as the relation of brother and sister ; that is, that men
do not marry their own sisters, but a brother-group marries a sister-
group in common. In this case fathers' sisters will no longer be
mothers, but will constitute a group of amitates. In like manner,
mothers' brothers will no longer be fathers, but will constitute a
group of avunculates. The institution of a group of amitates
will necessitate the establishment of the correlative cousin-groups.
Thus, with the reduction of the father-group there will be a cor-
responding reduction of the brother and sister groups ; and with
the reduction of the mother-group there will be an additional
corresponding reduction of the brother and sister groups ; that is,
the paternal aunts and maternal uncles will carry with them their
184 PERSONS [Part II.
correlative nephews and nieces, and such nephews and nieces will
be subtracted from the brothers and sisters. In this stage of kin-
ship development there is still communal marriage. It may not
always be actual, as gradually restrictions are thrown around it ;
but if not actual, it is always potential. The form of kinship now
reached is not an inference from philology and the survival of
customs, but is an observed fact among some of the tribes of the
earth.
The recognition of patruates (paternal uncles) must next be
considered. Such a recognition results in the establishment of
two additional cousin-groups, as the sons and daughters of pat-
ruates are taken out from the " brothers" and " sisters" of Ego.
At this stage brothers and sisters are still own (natal) and collat-
eral, but the collateral brothers and sisters include only the
children of mothers' sisters, and this because a group of mater-
terates is not established.
We have now reached that kinship system which is perhaps
the most widely distributed among existing tribes of mankind. It
will be well, then, to describe it once more, that it may be clearly
understood :
The brother-group consists of the sons of a woman, together
with the sons of all of her sisters, own and collateral ; and the
sister-group is of like extension. The son-group is coextensive
with the brother-group to which the son belongs; the daughter-
group is coextensive with the sister-group to which the daughter
belongs; the father-group is coextensive with the brother-
group to which the father belongs ; and the mother-group has
a like extension. The patruate-group is coextensive with the
brother-group of the paternal uncle ; the amitate-group is co-
extensive with the sister-group to which the paternal aunt belongs ;
the avunculate-group is coextensive with the brother-group to
which the maternal uncle belongs ; but there is no materterate-
group (maternal aunt).
The essential characteristic of this system of kinship is that
the brother-group consists of own brothers,' together with the
collateral brothers that come through maternal aunts ; and that
the sister-group consists of own sisters, together with the collateral
sisters that come through maternal aunts ; and it matters not
whether maternal uncles and paternal uncles are distinguished
from each other. They may or may not be thrown into one group.
The cousins which arise from the discrimination of paternal and
maternal uncles and paternal aunts may be thrown into two, four.
Chap. IX, § 1.] KINSHIP 185
or six groups ; but the general system does not seem to be affected
thereby. Where this system of kinship prevails, the brother and
sister groups are on the mother's side, the children belonging to
their mothers and not to their fathers, and descent is said to be in
the female line.
There is another system of tribal organization which widely
prevails. In this the mother's sisters are recognized as mater-
nal aunts, and a materterate-group is constituted of the mother's
sisters, own and collateral, and the cousins arising therefrom are
taken out from the brother and sister groups. But in this case the
father's brothers, own and collateral, are still considered as fathers ;
there is no patruate group. The brother-group is thus composed
of the sons of the father with the sons of all his brothers, own and
collateral. It is therefore a large group, and the sister-group cor-
responds therewith. When the brother and sister groups arise
through paternal uncles, children belong to their fathers, and
descent is said to be in the male line.
From the above statements it will be seen that one of the funda-
mental principles used in classifying kinships in tribal society is
that which arises from the discrimination of generations. The
simple communal form first described is classed in groups of kindred
on characteristics of generations and sex, and in the various sys-
tems which develop from it the characteristic of distinct genera-
tions still remains, although collateral descents are to some extent
differentiated from lineal descent.
It would seem that generation-groups extending collaterally
many degrees would speedily become confused, as a series of
generations might be much shorter in one line than in another.
If three sisters have each three daughters, the eldest daughter
of the eldest sister may be many years older than the youngest
daughter of the youngest sister, and in several generations the
discrepancy of ages might become very great. W^e do not know
in all cases how this confusion is avoided, but in some tribes a
method of adjustment has been discovered which is very simple.
It must always be remembered that relative age is expressed
in the kinship terms of this stage of culture. Thus there are
two terms for brother, one signifying elder brother, the other
younger brother. There are also two terms for sister — elder
sister and younger sister. In the Shoshonian cases to which
reference is here made, if a male child is born who is a " group "
brother of Ego's father, but younger than Ego, Ego does not
call him father, but younger brother. In one case discovered,
186 PERSONS [Part II.
Ego calls the "group" father born after himself, son. Among
the same tribes, in the case of uncles, the uncle born after the
nephew is called nephew.
A case like the following has been discovered : There are two
brothers born of the same mother ; the elder brother calls a par-
ticular person son, because that particular person was born after
himself; but the younger calls him father, because he was born
prior to himself. This method of adjusting generations has been
discovered in but few cases, viz., among the Shoshonian tribes,
and perhaps among the Wintuns. In this stage language fre-
quently lends its aid to adjustment. This is the case when the
kinship name is a reciprocal term with a termination signifying
elder or younger. Thus, in a Shoshonian tribe ain is such a re-
ciprocal term used by uncle and nephew ; the termination sen is
diminutive. The nephew calls his uncle ain, the uncle calls the
nephew ainsen or aitsen, little uncle ; and in this case, if the uncle
was born after the nephew, the nephew would be called ain and
the uncle aitsen. A reciprocal relationship term, i.e., one designat-
ing a relatioi\ship and used by both parties, is common.
In some of the cases adjustments are known to have been made
by convention, and individuals have been taken from one genera-
tion and placed in another, by agreement of the elder women of the
clan.
Unadjusted kinships are frequently discovered, so that the
kinships claimed seem strange to civilized persons accustomed
only to the kinships recognized in the higher states of culture.
Thus it has frequently been found that an adult has claimed a
child for his grandmother and a babe for his father. The subject
is one of interest, and deserves careful study.
The method of classifying and naming by kinship terms the
six groups of cousins, their children and their children's chil-
dren, has been neglected, in order that the general subject might
not be buried in details, and from the further consideration that
the principles of tribal organization , can be set forth without
the aid of such additional facts.
In the above statements the fundamental principles of tribal
kinship have been explained, and they may be restated as follows :
I. — A body of kindred constituting a distinct body-politic
is divided into groups, the males into groups of brothers and
the females into groups of sisters, on distinctions of generations,
regardless of degrees of consanguinity ; and the kinship terms used
express relative age. In civilized society kinships are classified on
Chap. IX, § 2.] KINSHIP 187
distinctions of sex, distinctions of generations, and distinctions
arising from degrees of consanguinity.
II. — When descent is in the female hne, the brother-group
consists of natal brothers, together with all the materterate male
cousins of whatever degree. Thus mother's sisters' sons and
mother's mother's sisters' daughters' sons, &c., are included in a
group with natal brothers. In like manner the sister-group is
composed of natal sisters, together with all materterate female
cousins of whatever degree.
III. — ^Vlien descent is in the male line, the brother-group is
composed of natal brothers, together with all patruate male cousins
of whatever degree, and the sister-group is composed of natal
sisters, together with all patruate female cousins of whatever
degree.
IV. — The son of a member of a brother-group calls each one
of the group, father ; the father of a member of a brother-group
calls each one of the group, son. Thus a father-group is coex-
tensive with the brother-group to which the father belongs. A
brother-group may also constitute a father-group, and grand-
father-group, a son-group and a grandson-group. It may also
be a patruate-group and an avunculate-group. It may also be
a patruate cousin-group and an avunculate cousin-group ; and
in general, every member of a brother-group has the same con-
sanguineal relation to persons outside of the group as that of every
other member.
The principles enunciated above may be stated in another way,
namely : A kinship body is divided into brother-groups and sister-
groups, and group is related to group lineally and collaterally ;
and every group bears a distinct relationship to every other group.
It will thus be seen that the brother-group and the sister-
group constitute the fundamental units of tribal society.
A tribe may be defined as follows : A tribe is a congeries of
brother-groups and sister-groups, and every group recognizes a
distinct correlative consanguineal kinship with every other group ;
and series of groups are related to series of groups by the ties of
affinity, i.e., marriage ; to explain which necessitates the considera-
tion of the clan.
Section 2
THE CLAN
In tribal society the tribe, or body-politic, is divided into
groups of brothers and groups of sisters. One form of the brother-
188 PERSONS [Part II.
group includes not only the sons of one woman, but also the sons of
her sisters ; and not only the sons of her natal sisters, but also the
sons of her collateral sisters ; i.e., the brother-group includes the
natal brothers, together with all of the male cousins of the first,
second, or n collateral line, reckoning always through females.
Sister-groups are constituted in like manner.
Another form exists in which to the natal brothers are added
all male cousins to the n degree that come through paternal
uncles, reckoning always through males. Sister-groups are con-
stituted in like manner.
With some tribes the brother and sister groups arise from male
descent ; but a much larger number of tribes have these groups
constituted through female descent. The two systems of kinship
are at the base of two distinct systems of clan organization.
Wlien the brother and sister groups arise through female de-
scent, a larger group is constituted, reckoning kinship through
females only. The constitution of this larger body, a group of
groups, must be clearly understood. Every brother-group has
its correlatiAje sister-group. Take, then, a brother-group and
a sister-group that are thus correlated and call them the Ego
group. The mothers of the Ego group constitute another sister-
group within themselves, and the brother-group to which they are
correlated are the avunculates of the Ego group. Call this brother
and sister group the first ascendant of the Ego group. The
mothers of the first ascendant group constitute another sister-
group within themselves, and the brother-group to which they are
correlated are the avunculates of the first ascendant group. Thus
a second ascendant brother and sister group is constituted. In the
same manner third, fourth, and ii'^ ascendant brother and sister
groups may be constituted.
Returning now to the Ego group. The sisters of the Ego group
have sons and daughters who are brothers and sisters to one an-
other, and they constitute a first descendant brother and sister
group. The sisters of the first descendant group have children
who are brother and sister to one another and constitute a second
descendant group. In the same manner the third, fourth, and w
descendant group may be constituted. The Ego group, together
with the ascendant groups and descendant groups, constitute a
lineal series of brother and sister groups, reckoning always through
females. Such a body is here called a group of enates, and kinship
thus reckoned is called enatic kinship. On the other hand, if the
brother and sister groups come through paternal uncles, and the
Chap. IX, § 2.] KINSHIP 189
lineal series is reckoned exclusively through males, it is called a
body of agnates, and the kinship is called agnatic kinship.
Whenever enatic or agnatic kinship is recognized, the tribe
becomes much more highly composite than in the case of the
communal family. There are always several co-ordinate groups of
people united into a larger group, the tribe. For the present let
us use the term " tribe" for the name to distinguish the group of
the highest order, and the term " clan" to distinguish each of the
co-ordinate groups of the second order into which the tribe is
divided.
The first characteristic of the clan is thus reached. A clan is
one of the co-ordinate groups into which a tribal state is divided.
The tribe itself is a body of intermarrying cognates ; so that, in
the tribe, kinship by consanguinity and affinity is recognized.
Within the clan, kinship by affinity is not recognized ; that is,
the husband and wife do not belong to the same clan, and kinship
by consanguinity is limited to kinship traced through females, or to
kinship traced through males, as the case may be ; and in both, but
a part of the cognates are included. In one case the clan is enatic,
and in the other it is agnatic. In the one case descent is through
females, in the other through males. An enatic clan consists of a
brother-group and a sister-group in each of the generations repre-
sented in the clan, and the kinship is reckoned only through
females. An agnatic clan consist of a brother-group and a sister-
group in each of the generations represented in the clan, and the
kinship is reckoned only through males.
A second characteristic of a clan may therefore be given : A clan
is a body of either enatic or agnatic kindred.
When the clan is enatic it usually has a common worship of a
tutelar god. This must be distinguished from the tribal worship,
which is more miscellaneous, and based upon polytheism. The
tutelar god, or totem, is often an animal ; or sometimes it may be a
river, a mountain, the sun, or some other object; in which case
the members of the clan call themselves the children of the animal,
the river, the mountain, or the sun, as the case may be. When
the clan is agnatic, the tutelar god is usually some ancestor who
has distinguished himsels for valor or wisdom.
A third characteristic of a clan is thus reached : A clan is a body
of kindred having a tutelar god, totemic or ancestral, who is con-
sidered to be the father of the clan.
When the clan is totemic it usually takes the name of its tutelar
god as its name, and the picture-writing, or s\Tnbol of the tutelar
190 PERSONS [Part II.
god, is used as a badge to distinguish the clan. That the members
of a cLan have descended from a common parent, seems at present
to be usually a legal fiction. In tribal society age is greatly re-
vered, and " elder-rule" largely prevails ; so the gods are spoken of
as " fathers," or more usually " grandfathers," or even " ancient
fathers," and sometimes simply as " ancients," that is, " the
venerable." But the tutelar god is especially the guide and pro-
tector of the clan, and is therefore called " father," and it seems
that in many cases a myth is developed, explaining this fatherhood
as being real. When the tutelar god is a real ancestor (and such
seems to be the case when the clan is agnatic) the clan takes the
name of the ancestor.
A fourth characteristic of a clan is therefore reached : A clan is a
body of kindred having a common name, the name of its tutelar
deity.
The clan, whether enatic or agnatic, is composed of brothers
and sisters in each generation ; and in the custom-law of this
stage of culture brothers and sisters cannot intermarry. In
like manner, when the clan is enatic, by the same custom-law a
mother cannot marry her son, natal or fictitious ; and when the
clan is agnatic a father cannot marry his daughter, natal or fictiti-
ous. Thus it, is that marriage within the enatic or agnatic group
is incest, and is usually punished with death. The rules for mar-
riage outside of the clan are various, and the subject need not here
be entered upon. It is sufficient to note that the group is exoga-
mous. It will be seen that the term " exogamy" is here used in a
sense altogether different from that given it b}^ McLennan and the
writers of his school.
The fifth characteristic of a clan, therefore, is reached : A clan
is a group of exogamous kindred.
As a clan is a brother-group and sister-group in each generation,
though these ties are in small part real, and in large part artificial,
yet they are considered to be the closest, and to combine the group
into the firmest union. The body, therefore, constitutes a feud-
group to secure one another's rights and to avenge one another's
wrongs. The clan is held responsible by the tribe for the conduct
of its members. All controversies arising within the clan are
settled by the clan ; controversies arising between members of
different clans are settled by the tribe. For personal injury,
especially for maiming and murdering, every clan holds every
other clan responsible. Out of this arises the blood-feud, and out
of blood-feud arises outlawry ; for when a clan finds that one of its
Chap. IX, § 2.] KINSHIP 191
members has become so outrageous in his conduct that the other
members no longer wish to hold themselves responsible therefor,
the clan formally declares that the culprit no longer constitutes
one of the community. The offender is expelled from the clan and
becomes an outlaw, and any one may kill him.
^1 sixth characteristic of a clan has been reached : A clan is a
feud-group of kindred.
In tribal society great wealth is not accumulated. The indirect
personal relations which arise through property are of minor im-
portance as compared with direct personal relations, which are
regulated by kinship and relative age. The institution of personal
property is very slightly developed, and such property, especially
in the lower forms of tribal society, is destroyed at the death of the
individual. It is a widely-spread law in savage society that
personal property is inherited by the grave. The tenure to the
greater part of property is communal, and inheres in the clan.
A seventh characteristic of a clan has therefore been reached :
The clan is the chief property-holding group.
It has already been mentioned that elder-right, in some form
or other, is universally recognized in tribal society. In gen-
eral, coeteris paribus, the elder has authority over the younger, and
in all tribal languages a special device is found to facilitate this
custom, viz., individuals must always address each other by kin-
ship terms in which relative age is expressed ; thus, there is no
general term for " brother," but a special term for " elder brother,"
and another for " younger brother." This elder-rule applies to
the clan, as the eldest man of the clan is its chief, and such a chief,
whose rulership is by right of superior age, will here be called the
2)resbyarch.
An eighth characteristic of a clan has therefore been reached:
A clan is a presbyarchy.
Let these characteristics be combined into a definition : A
clan is one of the co-ordinate groups into which a tribe of cognatic
people is divided, and is based upon enation or agnation, has a
totemic or ancestral tutelar god, a common name for its members,
is exogamous, is a feud-group, a proprietary group, and is ruled
by a presbyarch.
There are many other characteristics of a clan that are found,
now here, now there. For example, sometimes a clan will not
eat the animal or some portion of the animal whose name it bears ;
it will thus have what is usually called a " taboo." Sometimes the
several clans of a tribe Mill claim as their own, particular hunting
192 PERSONS [Part II.
or fishing grounds. Sometimes a clan will have a body of personal
names to be given to its members, which the clan claims as its
own. Often a clan has a particular place assigned to it as the site
for its residence or residences in the village group, and will occupy
the same relative place in the village wherever the tribe may have
a permanent or temporary residence. Thus there are many rights
and duties which inhere in a clan and which may be said to charac-
terize it. But the eight characteristics included in the above
definition are those most commonly found. In the definition of
the clan thus given, the tribe has been assumed to be of very simple
structure — as composed of a number of co-ordinate clans. But
this simple structure is not universal — in fact, a more complex
structure is more common. Wlienever a tribe has a more complex
structure, the characteristics above enumerated may not all
inhere in every one of a number of co-ordinate groups, but ma}^ be
distributed among groups of different orders. It occasionally
happens, also, that some of these characteristics are not found in
any group. Some of these cases must next be considered.
Let one of the most frequent cases be taken first. Suppose that
a tribe, becoming very large, divides in such a manner that seg-
ments from every one of the clans separate from the parent tribe
and organize a new tribe with the same clans. Thus the clans
found in the parent tribe are represented in the new tribe. Suppose
that this fissiparous generation of tribes continues until there are
five, ten, or twenty tribes, every one having the same clans as
every other. Under such circumstances the same clan extends
through many tribes, and any one tribe has in its body-politic no
more than a segment of any clan ; but every tribe is composed of
like segments. Now, such a uniform division of tribes is rarely
found. The division is usually more irregular, from the fact that
the departing body which is organized into a new tribe usually
takes with it segments of only a part of the clans ; and as these
divisions occur from time to time, no two tribes are likely to have
representatives of exactly the same clans, and it may sometimes
happen that two tribes may "be found in the same body of cognate
tribes that will have entirely diverse clans. The segmentation
of clans in this manner complicates the definition of a clan. It
is no longer one of the co-ordinate groups of a tribe. These co-
ordinate groups are but segments of clans, and each such segment
is likely to become a distinct feud-group and a distinct proprietarj^
group. Sometimes in such a case all the segments will yet recog-
nize one presbyarch, but oftener a distinct presbyarch for each
^
Chap. IX, § 2.] KINSHIP 193
segment is developed. Enatic or agnatic distinctions, the common
tutelar god, the common name and the characteristic of exogamy
are more likely to remain permanent.
This fissiparous generation of tribes leads to a complication in
the definition of the term " tribe," as such cognate tribes are likely
to unite into confederacies, with a council and a chief presiding
over the larger body thus constituted ; and in the various changes
which may be wrought upon the different groups of several orders
in a confederacy by many redistributions of characteristics, it
sometimes becomes difficult to say just what order of groups shall
be called tribes. Confederacies also form alliances, and though
they are apt to leave the confederacies or tribes of which they are
composed independent and autonomous, except for oftensive or
defensive purposes against more foreign peoples, they doubtless
sometimes continue and become more thoroughly cemented by
the development of kinship ties and governmental organizations.
Sometimes clans divide into sub-clans, while yet remaining in
the same tribe. The nature of this division in enatic clans is not
clearly understood. It may be that it does not occur normally
but that the apparent instances are due to the recoalescing of tribes.
Be this as it may, it occurs w4th agnatic clans. Agnatic clans
may be ruled by a presbyarch, and may be divided into segments,
each one of which is ruled by a patriarch, the patriarchies being
subordinate groups within a presbyarchal agnatic clan. Lnder
these circumstances, however, the authority of the presbyarch is
likely to wane, and the patriarchies are likely to be more enduring,
and so the clan is divided into sub-clans. Thus it happens that
the presbyarchy is not always a characteristic of a clan.
Again, the members of enatic clans do not always have a common
name. This has been found true of most of the Shoshonian tribes
of North America, of the Wintuns, and of other peoples in the
western portion of the United States. \\Tiether a common name
was never used, or whether such common names have been lost
in the flux of time is uncertain. A common name, therefore, is
not an invariable characteristic of a clan.
The most enduring characteristics of a clan, therefore, are these :
enatic or agnatic kinship, exogamy, and feud-protection. But
even these may be distributed among different groups; so that
the ideal definition of a clan above given will apply in all its parts
to but few clans ; yet in most of its parts it will appl>- to nearly all
clans. But there are cases when these characteristics are so dis-
tributed through the various groups of a body-politic that it will
194 PERSONS [Part II.
be well nigh impossible to decide which should be called the clan.
Under such circumstances it perhaps will be best to apply the
term "clan" to the group based upon enation or agnation, as the
case may be, and perhaps it will always be found that such a group
is exogamous.
In Australia there seems to be another complication. Fison
and Howitt describe a very peculiar condition of affairs which
seems to extend through many of the tribes of that great island.
Among them, marriage within a prescribed group still remains.
Enatic kinship, a tutelar god, and a common name still attach to
the clan, but clans are divided into many segments constituting
the different tribes. It seems also that a limited marriage, or the
right to temporary sexual association, is still communal. It seems
further that two or more systems or tribes are in somewhat the
same stage of institutional culture. These different systems of
tribes appear not to be cognate, or, if cognate, they are very re-
motely so. But having been long associated, and having com-
mon institutions in the respects above named, the clans in the differ-
ent non-cognate tribes have become assimilated, so that a clan with
a totemic name in one group of tribes has come to be considered
as the equivalent of another clan having another totemic name in
another group not cognate to the first; that is, the clan of one
group is supposed to be equivalent to the clan of another group,
and temporary marriage rights extend across the lines which demar-
cate non-cognate groups.
Some of the Australian clans present another interesting varia-
tion. It must be understood that a clan is composed of a lineal
series of brother-groups, one for each generation, together with a
lineal series of sister-groups, one for each generation. In the case
under consideration the series of brother-groups is distinguished
from the series of sister-groups by a different name. Thus the
clan is divided, the males from the females, and the enatic kindred
are separated into two groups, the daughters falling into the
group of their mothers, and the sons falling into the group of
their mothers' brothers.
Still other tribes in Australia have a clan system in which the
brother-group of one generation is distinguished from the brother-
group of the next generation by a different name, but the brother-
group of the third generation takes the name of the brother-group
of the first generation. The same change of names occurs in the
series of sister-groups. The grandmother belongs to a group
having the same name as the granddaughter.
Chap. IX, § 2.] KINSHIP 195
The typical tribe which has been described, is a body of kindred
divided into brother and sister groups, ever}^ group having some
kinship with every other group. Marriage is without the clan
but within the tribe, therefore a man cannot marry into his own
sister-group, but must marry into some cousin-group. To the
consanguineal tie an affinital tie is added. A male cousin becomes
the husband, and a female cousin becomes the wife. In many
cases the brother-group of the husband becomes a husband-group,
and the sister-group of the wife becomes a wife-group. The brother-
group of the husband is related to all the other groups of the
tribe, and the sister-group of the wife is also related to all the other
groups of the tribe. It is interesting to study the effect which
marriage (real or potential) has in changing the consanguineal
kinships into affinital kinships. Among the tribes of North
America there is much diversity in this respect, but the subject
is too much burdened with details to be considered here.
CHAPTER X
THE PATRIARCHAL THEORY ^
I. Statement of the Theory
Students of comparative institutions have generally regarded
the family as the unit or germ from which the higher forms of social
organism have been evolved. A German scholar declares that
among all the races of antiquity "the constitution of the family
was the basis and prototyjje of the constitution of the state." ^
The same theory is clearly set forth and the process of political
expansion carefully described by Plato and also by Aristotle,^
who base it upon their own obserAation both among " Hellenes and
barbarians," and each illustrates it by reference to the Cyclops of
Homer.^ It is not wholly improbable, as will presently appear,
that the family in some form must be accepted as the initial society,
possibly among all the races of mankind. At a very early ethnical
period the family, so far as it implies great authority, perhaps
1 [By George E. Howard. Reprinted by permission, from "A History
of Matrimonial Institutions," Vol. 1, p. 9 seq.. The University of Chicago
Press, 1904.]
2 Mnrquardt, "Das Privatleben der Romer," I, 1. The theory is also
held by Bluntsckli, "Theory of the State," 182-89; Schrader, ""Sprach-
vergleichung und Urgeschichte," 391-95; Leist, " Alt-arisehes Jus Gen-
tium," 113; Muller, "Handbueh der klass. Alterthumsrassensehaft,"
IV, 18-20; Gilbert, "Handbueh der griech. Staatsaltertniimer," II,
302; Maine, "Village Communities," 15 ff . ; "Ancient Law," 118 ff. ;
^' Early Law and Custom," chap, iii ; Fustel de Coulanges, .'''Ancient
City," 111 ff. ; Grote, '''History of Greece," I, 561; Thumser, "Die
griech. Staatsalterthiimer," 28 ff.
^ Plato, ^'Laws," Book III, 680, 681; Jo w)e«, ^'Dialogues," IV; 209;
Aristotle, "Politics," Book I, 2 ff. ; Jowett, I, 2 ff. These are followed
by Cicero, "De Officiis," I, 17.
^ "They (the Cjclops) have neither assemblies for consultation nor
themistes, but everj^one exercises jurisdiction over his waves and his
children, and they pay no regard to one another." — "Odyssey," Book
IX, 106 ff., as rendered by Maine, "Ancient Law," 120. Cf. "Odyssey,
Book VI, 5 ff. ; Brtjaiit's Trsms., I, 144, 215, 216. On the themistes, as
inspired commands of the hero-king, handed down to him from Zeus by
Themis, see Maine, chap, i ; and on the import of the passage in Homer
compare ibid., 120, with Freeman, "'Comparative Politics," 379 n. 20, and
Botsford, "Athenian Constitution," 3, 4.
196
Chap. X.] THE PATRIARCHAL THEORY 197
even the despotic power of the house-father over his wife and
children, may often have been "patriarchah" To admit this, how-
ever, is very different from accepting as the primordial cell of social
development the strictly defined patriarchal family of Sir Henry
Maine's " Ancient Law." In this book, which made its appear-
ance in 1861, we are told that the "effect of the evidence derived
from comparative jurisprudence is to establish that view of the
primeval condition of the human race which is known as the
Patriarchal Theory." ^ The primitive family as thus conceived is
substantially the Roman family, not in all respects as it actually
appears in the historical period, but as it is thought that it must
have been before the process of transformation and decay began.
It is a much more extended group than the modern family, em-
bracing under the headship of the eldest valid male parent all
agnatic descendants and all persons united to it by adoption, as
well as slaves, clients, and other dependents.- The power of the
house-father is most despotic, though exercised during his entire
lifetime over the unmarried daughters and over even the married
sons and their wives and children. Thus originally, it is said, the
Roman jpater familias has power of life and death, vita necisque,
over his children. He may sell them into slavery, and sons, even
those who hold the highest offices of state, can originally own no
property.^ The patriarch is king and priest of the household.
As a sort of " corporation sole," he is likewise its representative and
administrator ; for the property is regarded as a part of the family,
and on the death of the house-father the family devolves upon the
universal successor."* A characteristic feature of the patriarchal
family is agnation, or the system of tracing kinship through males
1 "Ancient Law," 118.
- Clients, servants, and even those admitted to the hearth as guests,
by observance of the proper rites, were regarded as members of the family
gi'oup and sharers in the sacra. Hearn, "Aryan Household," 73, 107 f.;
Fustel de Coulanges, "Ancient City," 150; Maine, op. cit., 156 ff., 185 ff.
(sacra).
3 For the Roman patria potestas see Paste, "Gains," 61 ff. ; Leist,
"Graeco-itaUseheRechtsgeschichte," 57-102; Sohm, "Institutes," 120 ff.,
356 &., 385-95; Bernhdft, "Romische Konigszeit," 175 ff. ; Puchta,
"Institutionen," II, 384 ff. ; Morey, "Outlines of Roman Law," 23, 24;
Sc/ie!/r/, "Institutionen," 271, 272 ; Kuntze, "Excurse," 570 ff. ; Maine,
"Ancient Law," 123 ff., 130 ff., 227, 228; Hadley, "Roman Law," 119 ff . ;
Clark, "Earlv Roman Law," 25; Muirhcad, "Hist. Int. to the Private
Law of Rom^e," 27 ff., 118, 222; Lange, "Romische Alterthiimer," I,
112 ff . ; Grupen, "Uxore romana," 19 ff., 37 ff. ; Bader, "La femme
romaine," 75 ff. ; Tardieu, "Puissance paternelle," 5 ff. ; Bourdin, "Con-
dition de la mere," 9 ff. On the power of the father to expose female
infants during the early empire, see Capes, "Age of the Antonines," 19 f.
•• Maine, "Ancient Law," 122, and chap. vi.
i
198 PERSONS [Part II.
only.^ Agnatic relationship "is in truth the connection between
members of the family, conceived as it was in the most ancient
times."- Its foundation is "not the marriage of father and mother,
but the authority of the father. ... In truth, in the primitive
view, relationship is exactly limited by jxitria potestos. Where
the potestas begins, kinship begins ; and therefore adoptive rela-
tives are among the kindred. Where the potestas ends, kinship
ends ; so that a son emancipated by his father loses all rights of
agnation. And here we have the reason why the descendants of
females are outside the limits of archaic kinship." Indeed "it is
obvious that the organization of primitive societies would have
been confounded, if men had called themselves relatives of their
mother's relatives." ^ The basis of the patriarchal family is the
pairia potestas, but in its "normal shape" it has not been and could
not be "generally a durable institution."^ Yet its former uni-
versality may be inferred from certain derivative institutions, such
as the perpetual tutelage of women, the guardianship of minors, the
relation of master and slave, and especially from agnation which is
found "almost everywhere" and is "as it were a mould" retaining
the imprint of the paternal powers after they have ceased to exist.''
Applying this test chiefly, Maine finds evidence of the existence of
the potestas aniong the Hebrews as well as all the peoples of the
Aryan stock ; and he believes that it would be hard to say " of
what races of men it is not allowable to lay down that the society in
which thev are united was originallv organized on the patriarchal
modeL"6^
The patriarchal family as thus constituted is the "type of an
archaic society in all the modifications which it was capable of
assuming." From it as in concentric circles have been succes-
sively evolved all the higher forms of political organization.
Everywhere, as at Rome, "the aggregation of families forms the
gens or house. The aggregation of houses makes the tribe. The
aggregation of tribes constitutes the commonwealth." ^ The state
> On the Roman agnation see Posfe, "Gains," 113 ff. ; Leist, ^'Graeeo-
italische Rechtsgeschichte," 64 ff. ; Sohm, "Institutes," 124, 355 ff.
Puchta, "Institutionen," II, 17 ff. ; Moyle, "Institutiones," I, 155, 150
Morey, op. cit., 6, 34 ; Kuntze, "Excurse," 435-37 (" Agnation sverband")
Lange, " Romische Alterthiimer," I, 211 ff. ; Muirhead, "Hist. Int. to the
Private Law of Rome," 43 ff., 122 ff. ; Hadley, "Roman Law," 130 ff. ;
Maine, op. cit., 56, 141 ff.
2 Maijie, op. cit., 142. ^ Ihid., 144. ^ Ibid., 141.
5 Ibid., 141 ff., 145 ff. 6 Ibid., 118 ff., po.s.s/m.
^ Ibid., 123, 124, 128. See the table of comparative groups in Schrader,
''Spraehvergleiehung und Urgeschiehte," 394. For the Ionic groups
cf. 5c/iOOTflnn, "Antiquities," 317,364; "Athenian Constitution," 3-10;
Wachsviuth, "Hist. Ant.," I, 342 f. ; MUllcr, "Handbuch," IV, 17-22;
Chap. X.] THE PATRIARCHAL THEORY 199
is therefore the result of the expansion of its primordial cell ; ^ and
the genealogical organization of society precedes and overlaps the
territorial. All these groups, lower and higher, regard themselves
as united by the bond of kinship. But, as a matter of fact, the
kinship is often assumed ; and the heterogeneity of blood is ex-
plained as the result of the fiction of adoption by which relationship
is artificially extended and strangers are admitted to the sacra.
"Without this fiction, says Maine, "I do not see how any one of the
primitive groups, whatever were their nature, could have absorbed
another, or on what terms any two of them could have combined,
except those of absolute superiority on one side and absolute sub-
jection on the other." Society could hardly have escaped from
its "swaddling clothes." - Furthermore, a strong motive for the
artificial extension of the family is derived from the worship of
ancestors. The earnest desire of the ancients for male issue to
perpetuate the family rites has tended to foster adoption, and it
probably accounts for the levirate and other similar expedients to
provide an heir.^
II. Criticism of the Theory by Spencer and McLennan
The patriarchal family of the " Ancient Law," whose leading fea-
tures have now been presented, reappears with slight modification
Grote, "Hist, of Greece," III, 52, 53. In general, cf. Fustel de Coulanges,
"Ancient City," 141 ff. ; Hear7i, "Aryan Household," 63 ff., 112 fif.,
passim; Leist, " Graeco-italische Rechtsgeschichte," and " Alt-arisches
Jus Gentium."
1 For Freeman's well-known theory of political expansion see "Com-
parative Politics," chap. iii.
- Maine, "Ancient Law," 125 ff., 26. On the new mode of adoption
in India see Maijne, "Hindu Law and Usage," 88 ff. ; Lyall, "Asiatic
Studies," chap. \ai ; "Fortnightly Review," Jan., 1877; Jolly, "Hindu
Law of Partition," 144-66. On the formation of non-genealogical clans
see Hearn, "Aryan Household," 296 ff. Cf. Post's discussion of "Kiinst-
liche Verwandtschaf t " in "Studien zur Entwicklungsgeschichte des
Familienrechts," 25-42; Kohler, "ZVR.," V, 415-40.
^ Maine, "Early Law and Custom," chaps, iii, iv, viii. For ancestor-
worship see especially Fustel de Coulanges, "Ancient Citv," 9-52; Hearn,
"Aryan Household," 15 ff., 45, 46, 59, 60; Tylor, "Primitive Culture,"
II ("Animism"); Mayne, "Hindu Law and Usage," 55, 438; Lyall,
"Asiatic Studies," chap, ii ; Duruy, "Hist, of Rome," I, 206; Zimmer,
"Altindisches Leben," 413; Botsford, "Athenian Constitution," 24, 25,
passi7n, who holds against Schroder, "Sprachvergleichung" (2d ed.),
613-15, that ancestor-worship arose before the separation of the Aryan
races. Fustel de Coulanges, "Ancient City," 49-51, and Hearn regard
the religious tie as of more importance than the blood-bond in the for-
mation of the gentile groups, "Aryan Household," 66 ; and Leist, "Graeco-
italische Rechtsgeschichte," 7 ff., 11 ff., also makes the formation of the
first recognized groups of relationship depend on the sacra. Cf. Kohler,
in " ZVR.," VI, 409-17, for animism ; and for additional references, a sub-
sequent note.
200 PERSONS [Part II.
in the later writings of Sir Henry Maine. ^ It has been widely
accepted. Yet it was inevitable that a theory which on its face
appears to neglect many of the most remarkable facts everywhere
observable in the social life of primitive men ^ should arouse most
serious doubt. Nor will it do, with Starcke,^ to excuse the author
on the ground that his conclusions are intended to be true only for
the domain of the law-books, of comparative jurisprudence ; for
obviously his language will not bear that construction.
Herbert Spencer was the first writer to subject Maine's hypoth-
esis to a luminous criticism.^ First he points out that JNIaine
has not been entirely guiltless of "the lofty contempt" entertained
by civilized peoples for their barbarous neighbors, which he himself
censures as a serious error. For he "has practically disregarded
the great mass of the uncivilized" peoples, and "ignored the vast
array of facts they present at variance with his theory." Nor, in
favor of a primitive patriarchal state, is it safe to assume that "the
implicit obedience of rude men to their parents is doubtless a
primary fact." For, "though among lower races, sons, while
young, may be subordinate, from lack of ability to resist ; yet that
they remain subordinate when they become men cannot be assumed
as a uniform, and therefore as a primary, fact." This objection is
sustained by reference to many savage and barbarous tribes
among which parents exercise little or no control over the children.
Again, it is by no means established that " the history of political
ideas begins, in fact, with the assumption that kinship in blood is
the sole possible ground of community in political functions."
On the contrary, "political co-operation arises from the conflicts
of social groups with one another ; " ^ and though it may be facili-
tated by a feeling of common descent, examples of political com-
1 "Early Hist, of Institutions," 64 ff., 115 ff., 217 ff., 306-41 ; "Village
Communities," 15, 16, passim ;^ "Early Law and Custom," chaps, iii,
iv, and especially chaps, vii, viii, where adverse criticism is considered.
Cf. McLennan, "' Patriarchal Theory," 1-23, for a collation of the more
important passages of Maine's wi-itings.
2 "The rudiments of the social state, so far as they are known to us at
all, are known through testimony of three sorts — accounts by contempo-
rary observers of civilization less advanced than their own, the records which
particular races have preserved concerning their primitive history, and
ancient law." Of these three sources of information, Maine regards an-
cient law as the best. He fails entirely to appreciate the true importance
of the first soiu'ce, from which, obviously, are derived most of the data
of recent ethnical, and anthropological, and sociological investigation,
including nmch that Maine himself has presented. Cf. the criticisms by
Spencer, "Principles of Sociologv," 1,713, 714; Lubbock, ^'Origin of Civi-
lization," 6 ff. ; McLennan, "Patriarchal Theory," 29, 30.
3 "Primitive Familv," 94, 95.
« "Principles of Sociology," I, 713-37. ^ j^d,^ 716, 717, 540-53.
Chap. X.] THE PATRIARCHAL THEORY 201
bination may be produced in which relationship is not considered.
Furthermore, it is hard to conceive how so advanced a conception
of government as is impHed by the patria postestas could exist in the
" infancy of society ; " nor has it yet been proved that in the primi-
tive state the individual is entirely lost in the family group, which
holds all property in common. Instances of "personal monopoly"
of property among low races are not wanting. Finally the assump-
tion that in the primordial state women remained in perpetual
tutelage is without foundation.^ . , .
But the patriarchal theory has been vigorously attacked in its
very strongholds, the laws of the Hebrews and the primitive cus-
toms of the Indo-Germanic peoples. The well-known polemic of
the late J. F. ]McLennan is of special interest in this connection.-
Among none of the Aryan races, the Romans only excepted, does
he find the patria potestas or the strict rule of agnation ; while
among them all, he believes, abundant evidence of original pro-
miscuity and of the maternal system of kinship is disclosed. Even
the Hebrew Scriptures, where ]Maine perceives "the chief linea-
ments" of the patriarchal society,^ so far from revealing the
patria potestas and agnation, bear witness to "beena" ^ marriage
1 Mr. Spencer also points out that Maine does not take into account
"stages in human progress earlier than the pastoral or agricultural." —
Op. cit., I, 724 fif.
- "The Patriarchal Theory," edited and completed by Do7iald Mc-
Lennan (London, 188.5).
3 "Ancient Law," 118-20, 12.3.
* The marriage of Jacob with Laban's daughters is the case in point. In
"beena" marriage — the name given to the institution in Ceylon — "the
young husband leaves the family of his birth and passes into the family
of his wife, and to that he belongs as long as the marriage subsists. The
children born to him belong, not to him, but to the family of their mother.
Living with, he works for, the family of his wife ; and he commonly gains
his footing in it by service. His marriage involves usually a change of
village ; nearly always (where the tribal system is in force) a change of
tribe — so that, as used to happen in New Zealand, he may be bound even
to take part in war against those of his father's house ; but always a change
of famih-. The man leaves father and mother as completely as, with
the patriarchal family prevailing, a bride would do ; and he leaves them
to live with his wife and her family. That this accords with the passage
in Genesis will not be disputed." "Patriarchal Theorj," 42, 43. Never-
theless, in this case INIcLennan is certainly mistaken. We have here to
do with that form of wife-purchase called "marriage by service;" see
Lichtschein, "Die Ehe," 10, 11; the argument of Wake, "Marriage and
Kinship," 239-44; and Fricdrichs, " Familienstufen und Eheformen,"
"ZVR.," X, 207, 208. "Beena" marriage existed, however, among other
Semitic peoples and possibly also among the Hebrews: Smith, "Kinship
and Marriage," 108, 175-78, 146. It is found also in Africa and in many
other places : Wake, op. cit., 149, 299-301 ; McLennan, op. cit., 43 ; Wester-
marck, "Human :Marriage," 109,389-90; Tylor, "On a Method of Inves-
tigating Institutions." 246 ff. ; Starcke, op. cit., 78; Hellwald, *'Die
mensch. Familie," 255, 266.
202 PERSONS [Part II.
and the recognition of kinship in the female ^ Hne. Sir Henry-
Maine in this connection refers incidentally to Sir Robert Filmer in
whose " Patriarchia " the existence of the patria potestas among the
ancient Hebrews is alleged. But, as McLennan justly observes,
"to those who have studied the controversy between Locke and
Filmer- it may seem wonderful that the truth of Filmer's main
position could be thus lightly assumed by anyone, and especially
by any lawyer, who had read Locke's masterly reply to the plead-
ings of his opponent." ^ The principal conclusions of ^McLennan
are sustained in a striking way, for a sister-branch of the Semitic
race, by the researches of Wilken and Robertson Smith into the
marriage customs of early Arabia.^ The ancient Hebrews did not
have agnation ; yet they " traced descent from the father for the
purposes of what we may call rank, or a feeling of caste," and this
was the source of paternal power.'' The house-father exercised a
high degree of authority over his wives and children, but he can
scarcely be regarded as a patriarch in the strict sense of the term.^
1 On the Hebrew family see ''Patriarchal Theory," 35-50, 132, 133,
243-47, 273, 274 note, 289, 306, 307, 315, passim.
"^Filmer's "Patriarchia, or the Natural Power of Kings," appeared
in 1680; Locke s "Two Treatises on Government," in 1690. Both works
are reprinted in the ninth number of Morley's "Universal Library."
' See "Patriarchal Theory," 36 ff., 243 ff., 273 note, where a summary
of Locke's argument, with additional evidence against the existence of
agnation and patria potestas and in favor of an original maternal system
among the Hebrews, 'wall be found.
* Robertson Sviith, '''Kinship and Marriage"; Wilken, "Das Matriar-
chat bei den alten Arabern," a work suggested b^^ Smith's "Animal
Worship and Animal Tribes," "Journal of Philology," IX, 75-100. These
writers have found among these Semitic tribes the system of kinship
through the mother in actual use, with traces of polyandry, exogamy,
and the totem gens; and Wilken believes that he^finds evidences of early
promiseuitv. See especiallv Kohler, "Ueber das vorislamitische Recht
der Araber," " ZVR.," VIII, 238-61 ; and Friedrichs, "Das Eherecht des
Islam," ibid., VII, 240-84, especially 255 ff., who shows that the Moham-
medan house-father exercises great authority over his wife, yet she has
her own property and receives a dower. At present, relationship in Arabia
is generally counted in the male line ; and therefore, Westermarck, "Human
Marriage," 102, note 4, regards the conclusion of Smith that originally
the system of female kinship exclusively prevailed as "a mere hypothesis."
5 Wake, "Marriage and Kinship," 244.
^ According to Eivald the ancient Hebrew father might "sell his child
to relieve his own distress, or offer it to a creditor as a pledge." — "The
Antiquities of Israel" (London, 1876), 190; Westerrnarck, op. cit., 228;
and the Levitieal law prescribes death as the penalty for striking a parent
(Leviticus 20 : 9 ; Exodus 21 : 15, 17) ; but the penalty could only be ad-
ministered through appeal to the whole community, Westermarck, op. cit.,
228. Cf. Michaelis, "Commentaries on the Laws of Moses," I, 444,
who shows that the mother, as well as the father, might sometimes choose
wives for the sons ; while McLennan and Locke prove that the position
of the mother in Israel was higher than is consistent with Roman patriar-
chalism.
Chap. X.] THE PATRIARCHAL THEORY 203
III. The Theory in the Light of Recent Research
Let us now see somewhat more in detail what light is thrown by
recent investigation on the controversy between Maine and Mc-
Lennan. Westermarck has taken great pains to enumerate the
uncivilized peoples, chiefly non-Aryan, among whom descent and
usuallj' inheritance follow the paternal side ; ^ and he finds that the
number is "scarcely less" than the number of those among whom
the female line is exclusively recognized. But in many of these
cases it seems probable that, the parental rather than the agnatic
system prevails, though the male line may take precedence. In
some instances rank or authority descends from father to son, while
in other respects the female line predominates. Doubtless more
frequently than is usually imagined a mixed system rather than a
strictly paternal or a strictly maternal system would be found to
exist.2 As the result of his inquiry, Westermarck rejects the hy-
pothesis that kinship through the mother is a primitiveand universal
stage, though he does not substitute the agnatic theory in its place.
Starcke, on the other hand, after an extended examination of the
customs of rude races, especially in America and Australia, suggests
that the paternal as a general rule probably preceded the maternal
system which arose only with the development of the gentile
organization.^ But Starcke's evidence can scarcely be accepted as
convincing.
Similar difficulties are presented by the question of the prev-
alence of the so-called patriarchal power among non-Aryan races.
Many apparent examples of despotic authority can be enumerated ; ^
but it is often hard to determine whether, as in the cases of the
Arabs and Hebrews, we have to do merely with a high degree of
1 "Human Marriage," 97-104, notes. Cf. Friedrichs, "Ueber den
Ursprung des Matriarehats," "ZVR.," VIII, 371-73; Kohler, ibid., VI,
403 (Korea); VII, 373 (Papuas).
2 Compare Wake, "Marriage and Kinship," 267 ff., 362 ff., 382, 396 ff. ;
especially Friedrichs, " Familienstuf en iind Eheformen," " ZVR.," X, 209-
12; and Darr/un, "Mutterreeht und Vaterrecht," 3, 28, 118. who believed
the so-called "mixed systems" are merely a consistent union of two en-
tirely different principles — the principle of relationship with the prin-
ciple of power or protection.
3 Starcke, op. cit., 26, 27 (Australia), 30 (America), 58 ff., 101 ff. Com-
pare the criticism of Helhvald, "Die mensch. Familie," 456 ff. ; and on the
development of the patriarchal familv, see Lippert, "Kulturgeschichte,"
II, 505-54.
* Westermarck, op. cit., 224-35, gives an enumeration. Noteworthy
examples of patriarchal power are afforded by the ancient Peruvians and
Mexicans, and by the modern Chinese and Japanese. On the Xahua
and Mava natives see Bancroft. "Native Races," II, 247-53, 663-68.
Cf. Kohler. "Das Recht der Azteken." "ZVR.," XI, 54, 55; also ibid.,
VI, 374 (Chinese), 333, 334; VII, 373 (Papuas).
204 PERSONS [Part II.
power on the part of the house-father or with a genuine patria
potestas of the Roman type. Naturally, as Westermarck suggests,
the father's authority among savages "depends exclusively, or
chiefly, upon his superior strength ;" ^ while anything like a patri-
archal "system" can only arise later under the influence of ances-
tor-worship and more developed social and industrial conditions.
Where authority depends solely or mainly upon brute force,
it is evident that a very protracted patriarchal despotism over
the sons is hard to conceive. INIoreover, much error has doubtless
arisen through falsely assuming that paternal authority and
mother-right are incompatible ; whereas they may well coexist, as
will presently appear.
For the Indo-Germanic or Aryan peoples the investigations of
Zimmer, Schrader, Delbriick, Kohler, and especially the researches
of Leist, enable us to speak with a higher degree of confidence,
though only for the period covered by positive linguistic and legal
evidence. Bachofen, McLennan, and after them many other
writers,^ . . . have maintained that among all branches of
the Aryan stock conclusive proofs exist of a former matriar-
chate, or, at any rate, of exclusive succession in the female
line. But this view is decidedly rejected, if not entirely over-
thrown, by the philologists, and depends for its support on the
presence in later institutions of alleged survivals. The judgment
of Delbriick must probably be accepted as decisive for the present
state of linguistic, if not of all scientific, inquiry. He declares
that "no sure traces of a former maternal family among the Indo-
Germanic peoples have been produced." ^ Similar conclusions are
reached by Schrader, Max Miiller, and Leist.^ Also, among the
' Westerniarck, op. cit., 225.
-Bachofen, "Das Mutterreeht ; " McLennan, "Studies," I, 121 ff.,
195 £f.; idem, "Patriarchal Theory," 50 ff., 71 ff., 96 ff., 120 ff., 250 ff. ;
Dargun, "Mutterreeht und Raubehe," 8, 13, passim; Giraud-Teulon,
"Les origines du mariage," 130 ff., 286 ff., 329 ff. ; idem, "La mere ehez
certaines peuples de Tantiquite " ; Lipperf, "Gesehiehte der Familie,"
4 ff. ; Lubbock, "Origin of Civilization," 153, 154. Kohler, "Indisehes
Ehe- und Familienreeht," "ZVR.," Ill, 393 ff., holds that the primitive
Aryans must necessarily have recognized relationship tlirough the mother.
For the literature of this subject see the next chapter.
^Delbriick, "Das Mutterreeht bei den Indogermanen," "Preussiche
Jahrbiicher," XCVI, 14-27, a clear summary of the results of recent
research. Cf. his "Die Indogermanischen Verwandtschaf tsnamen "
(Leipzig, 1889). According to Hellwald, "Die mensch. Familie," 453-80,
especially 459, 460, patriarchalism was fully established at the earliest
dawn of Indie history ; but there are nevertheless traces of earlier mother-
right.
* Schrader, " Sprachvergleichung und Urgeschiehte" (2d ed.), 536 ff. ;
Jevon's Translation, 369 ff. ; Leist, "Alt-arisches Jus Gentium," 51-58.
Max Miiller declares that "whether in unknown times the Aryas ever
Chap. X.] THE PATRIARCHAL THEORY 205
institutional writers, Wake declares that "primitively among the
peoples belonging to the wide-spread Aryan or Indo-European
stock, while relationship was acknowledged through both parents,
descent was traced preferably in the male line;" ^ and Bernhoft,
constrained through the evidence presented by Schrader and
Delbruck, believes that it is now placed "beyond question that
the primitive Aryans did not live according to mother-right,"
but were united in family groups resembling th6 south Slavonian
house communities.- On the other hand, Dargun, the foremost
defender of the theory of mother-right, thinks that Bernhoft
has "capitulated" too easily.^ In his last monograph, entitled
"Mutterrecht und Vaterrecht,"he maintains essentially the conclu-
sion of his " Mutterrecht und Raubehe," that before their separa-
tion the Aryan people had developed the system of kinship "through
the mother as the only or chief basis of blood-relationship " and had
"subordinated their entire family law to this principle."*^ But
the later treatise contains a very important modification, or
perhaps, more justly speaking, extension, of the author's theory.
Setting aside as still an open question the general prevalence of
promiscuity or sexual communism at the very dawn of distinctively
human life, Dargun conceives that, before any system of kinship,
maternal or agnatic, became recognized as a principle of customary
family law, there must have existed a family, or rather parent-
group (Elterngruppe), in which the father was protector and master
of the mother and her children. This parent-group is the "hypo-
thetical primordial cell of the family," brought together by sexual
reciuirements and the need of sustenance and protection. It is
"structureless, devoid of any firm bond, since it rests neither upon
the principle of relationship nor that of legalized power." Its
resemblance to the patriarchal family, though misleading, "is not
without significance." For it "forms the necessary stage of an
passed through that metrocratie stage in which the children and all fam-
ily property belong to the mother, and fathers have no recognized position
whatever in the family, we can neither assert nor den^^" — "Biographies
of Words," xvii.
' Wahc, "Marriage and Kinship," 359 ff., especially 382, where a thor-
ough and detailed criticism of McLennan's theory is given.
- Bernhoft, "Die Principien des eur. Familienrechts," " ZVR.," IX, 418,
419, 437 ff. See also his "Romische Konigszeit," 202 ff. ; and his articles
in " ZVR.," VIII, 11 ; IV, 227 ff. ; and compare Dargun, "Mutterrecht und
Vaterrecht," 91-94, 108. Starckc, op. ctt., 101-18, also gives a searching
examination of the theory of McLennan and the earlier views of Dargun,
rejecting their concJusions.
^ ^'Mutterrecht und Vaterrecht," 108.
■• Dargun, "i' Mutterrecht und Raubehe," 13. CJ. the "Mutterrecht
imd Vaterrecht," 95, 117 ff., passim.
206 PERSONS [Part II.
evolution which in analogous manner is also passed through by
property. Inductively it is still demonstrable that individualism
and atomism, not communism, as is usually assumed, are the
starting point of evolution." ^ As a general rule, according to
Dargun, the structureless parent-group is superseded by the mater-
nal family, whose basis is mother-right, or the exclusive legal
recognition of blood-relationship in the female line. Only in
rare cases does the patriarchal agnatic family follow immediately
upon the primitive group, without prior development of mother-
right ; ^ and hence, under exceptional conditions hindering the rise
of the maternal system, do we find a form of the family in which,
from a very early period, the house-father is the source of author-
ity, practical or legalized.
Aside from his theory of evolution, in his principal thesis, which
he fairly sustains by powerful argument, Dargun has rendered to
science a distinct service. It is, he insists, highly necessary care-
fully to distinguish between poiver and relationship. "Mother
right" does not involve "maternal power" or the matriarchate,
though sometimes actually united with it ; nor does the headship
of the house-father as provider, protector, and master imply agna-
tion, the so-called " father-right." There is no contrast between
power and relationship. " Mother-right in the sense of exclusive
maternal kinship is compatible with a patriarchate just as exclu-
sive." They may, and often do, coexist. It follows that the
presence of the maternal system of kinship does not imply the
existence of maternal power ; just as it does not imply the non-
existence of paternal authority. The distinction between power
and kinship is justly declared to be an " indispensable key" for the
solution of the greatest difficulties arising in this branch of sociolog-
ical science, the disregard of which has often vitiated or confused
the argument even of the foremost investigators.^ With the aid
of his key Dargun examines the linguistic evidence, which he finds
favorable to the existence of mother-right among all the Aryan
peoples after the separation, though united with a real supremacy
of the house-father ; * and he protests vigorously against the ten-
dency, even on the part of Leist, to confound old Indie with old
1 Dargun, -I'Mutterrecht und Vaterrecht," 41, 42, 4 ff., 28, 29-42, 118,
passim.
"- Ibid., 41.
3 Ibid., 3 ff., 28, 36, 86 ff., 155, passim. As remarked in the text, the
whole work is concerned with the thesis in question. The distinction is
also made in the "Mutterrecht und Raubehe," 18.
^ See "Mutterrecht und Vaterrecht," 86-116, for his criticism of the
linguistic argument.
Chap. X.) THE PATRIARCHAL THEORY 207
Aryan law ; for the " Indians of the Vedas are in many respects
more advanced than the Germans a thousand or the Slavs two
thousand years later." ^ Valuable as the criticism of Dargun un-
doubtedly is, notably his distinction between power and relation-
ship, it can scarcely be admitted that he has done more than re-
open the question of the existence at any time of mother-right
among the Aryans. His results are negative. He has not shifted
the burden of proof ; while his argument tends to confirm the vievr
of the philologists that from the primitive stage the Aryan father
was head of the household.^
But the patriarchal theory, strictly considered, fares little better
than the maternal at the hands of recent investigators. Leist,
who has been able with wonderful completeness to reconstruct the
juridical life of the early household, though largely on the basis of
old Indie sources, declares positively that " the Aryan people has
not within itself a single element of patriarchalism." ^ This
statement, as Bernhoft observes,"* is perhaps too sweeping, even
when tested by the results of Leist's own researches ; but the
patriarchal family of Sir Henry Maine does not appear. The
evolution of juridical conceptions among the old Aryans, according
to Leist, presents two general phases. First is the rita stage, or
period of fixed, divinely appointed order, of natural law, corre-
sponding to the Greek cosmos or ylmsis and the Latin ratum or
ratio naturalis. In this " natural history " or pantheistic stage
there is at first little idea of law as something to be separately con-
' Ibid., 91, 92. C/. a similar protest against conclusions as to the
primitive Arj^ans derived from Greek and Roman sources, ibid., 116;
and "Mutterrecht und Raubehe," 14.
• "Mutterrecht und Vaterrecht," 69, denies that women have ever
attained political headship ; but (113, 114) declares, though the researches
of the philologists make it probable that the Aryans lived under the rule
of house-fathers, that neither this fact nor any other circumstance tells
against the view that mother-right coexisted from antiquity ; while, in
a still more remote period, this may have implied matriarchal power
in the family ; but of such a matriarchate no proofs are presented.
' Leist, "Graeco-italische Rechtsgeschichte," 64. This work is con-
tinued in the " Alt-arisches Jus Gentium," the two books really constituting
a single treatise. Compare the more conservative view of Jolly, "Ueber
die rechtliche Stellung der Frau," 4 ff., 20-22, and "Hindu Law of Parti-
tion," 76 ff., who, however, denies the existence of an authority on the
part of the Hindu husband equal to that of the Roman pater.
^Bernhoft, "Zur Geschichte des eur. Familienrechts," "ZVR.," VIII,
12, 15, who also regards the view of Darqun, "Mutterrecht und Raubehe,"
8, 13, as extreme. Cf. his "Principien des eur. Familienrechts," "ZVR.,"
IX, 416, n. 39. Kohler favors the patriarchal svstem and agnation for
the Indie peoples, in " ZVR.," VII, 201, 210, 216 ; 'X, 85. Hearn, "Aryan
Household," chaps, iii-vi, pasKirn, takes practically the same view as
Maine regarding the patriarchal theory, rejecting entirely for the Aryans
the matriarchal hypothesis.
208 PERSONS [Part II.
templated. Under rita is comprehended the unchangeable order
observable in the material world as well as in the physical and
social life of man ; but the universe and the creative energy, the
All and Varuna, are identified or blended in thought.^ Only
slowly are these concepts differentiated and the immutable order
of nature becomes looked upon as dhama, or a holy ordinance
established by Varuna, who now appears as a protecting and
creative spirit.
Dhama thus forms a means of transition to the second juridical
phase, that of dharnia, or divine law, corresponding to the Greek
themis and the Latin fas.^ In the dharma period, law is regarded
as inspired by the gods, whose earthly agent, the priest or hero-
king, is intrusted with its application ; and in it the rules governing
civil and public conduct, according to modern conceptions, are
not distinguished from those relating to manners, moralit}^ or
religion. When history dawns, our early Aryan ancestors had
already entered the dharma phase of evolution ; and even now the
Hindus have scarcely gained the third phase, prevailing in the
civilized West, in which the element of "civil law" is separate
from all other ingredients.^
Of the family relations of our primitive ancestors in the rita
period we know little, except through inference or analogy. The
so-called "natural forms" of marriage by purchase and capture
were doubtless practiced, but probably not exclusively ; and these
customs were handed down to the second period, though they were
modified to bring them into harmony with the higher ethical and
1 The riia-conception is well expressed by Dr. Botsford: "This man-
kind learned from the revolution of sun and stars, from the succession
of the seasons, from the unchanging movements of nature. The concep-
tion thus gained was transferred to human modes of activity. The sexes
in marriage were subject to the naturalis ratio, as well as the continuance
of the race through successive generations. The relation of parents to
children with their reciprocal obligations and privileges — the protec-
tion and support which the father, as the stronger, offered, the kind care
of the mother for her infants, the reverence and affection with which the
children requited their services, the love of youth and maiden, leading
to marriage — all these rested, in the rita period, on the one foundation
of natural law." — "Athenian Constitution," 29, 30.
2 The discussion of the two general phases of rita and dharma, with
their transitional stages, constitutes one of the most valuable parts of
LeisVs contribution to comparative jurisprudence: "Alt-arisches Jus
Gentium," 3, 111 ff., 132, 133, 174 ff., 606; " Graeco-italische Rechts-
geschiehte," 175-285. Cf. Botsford, op. cit., 24, 25, 26 ff., for an excellent
account; on the Roman stages see Muirhead, "Private Law of Rome,"
14-23; and for the Greek themis and the themistes of the hero-kings
consult Maine, "Ancient Law," chap. i.
3 For a definition of dharma see Bernhoft, "Ueber die Grundlagen der
Rechtsentwicklung bei den indogermanischen Volkern," "ZVR.," II. 266
ff., 261 ff.
Chap. X.] THE PATRIARCHAL THEORY 209
social ideas which had then gained predominance.^ Whether or
not the absolute power of the father and the strict rule of agnation
prevailed it would be as difficult to affirm as to deny.^ In the
dharma period the ancient rita conception of marriage as an ordi-
nance of nature, whose real purpose is to provide posterity, is still
retained ; but it gains a social character.^ The central principle
of the Aryan household is the Hestia- Vesta cult, or the worship of
the sacred hearth. To gain the protection of the ancestral gods
the hearth-fire must be kept always burning ; and the care of the
family sacra is the special function of the house-father, who is lord
and priest of the family. But the house-mother holds a worthy
position in the domestic worship. From the first kindling of the
hearth-fire at the nuptials, she appears as co-priestess and helper
of her husband in the sacred rites. The whole life-partnership
of the wedded pair is shaped and dominated by lofty religious
motives. The Aryan housewife is not the chattel of her hus-
band ; she is a free woman and shares in his highest sacred func-
tions. The primary purpose of the union is the birth of a legitimate
son to perpetuate the paternal line and to foster the ancestral cult.^
So paramount is this motive that, in case no son is born in wedlock,
resort may be had to adoption, or to analogous expedients for the
fictitious extension of fatherhood. For among the Aryans, as
Maine suggests, the fiction of adoption is of the highest legal
importance ; and, indeed, very widely among the races of man-
1 Leist, " Alt-arisehes Jus Gentium," 122 ff., 125-33.
- Bofsford, "Athenian Constitution." 10 ff., 21 ff., 25 ff., divides the
rita period into two stages: that of the "primitive Aryan household,"
and that of the "earlj^ Aryan household," and thinks that the latter stage
is represented by the house-communities of the southern Slavs ; but this
may be doubted. Dr. Botsford favors the existence of agnation and the
absolute power of the father in the rita period ; and believes that the liberal
tendencies, presently to be pointed out, are a development of the dharma
period, beginning before the separation (24-26). On agnation and the
power of the early Aryan house-fathers see Sckradcr, "Spraehvergleichung
und Urgeschichte," 386 ff. ; Zimmer, " Altindisehes Leben," 319 ff.,
326 ff. ; Delhruck, "Die indogermanischen Verwandtschaftsnamen," 382,
586-88. 543, 544 ; JoUij, "Ueber die reehtliche Stellung," etc., 4 ff., 20-22 ;
"Hindu Law of Partition," 76 ff.
' Leist, op. cit., 80.
* On ancestor- worship, in connection with the literature already cited,
p. 13, note 4, see Leist, "Graeeo-italische Rechtsgeschichte," 7 ff., 121 ff. ;
"Alt-arisehes Jus Gentium," 59-118; Zimmer, "Altindisehes Leben,"
318 ; Schneider, "Die Naturvolker," I, 202 ff., II, 64 f., 75, 76. 108, 126 f.,
255 ff., 369; Kohler, "Indisches Ehe- und Familienrecht," "ZVR.," Ill,
408 ff. ; "Studien iiber kiinstliche Verwandtschaft," ibid., V, 423-25;
also for the Papuas, ibid., VII, 373. For the influence of ancestor-worship
among the Slavs see Kovalewsky, "Mod. Customs and Anc. Laws of Rus-
sia," 33 ff. ; among the American aborigines, Peei, "Ethnographic Reli-
gions and Ancestor- Worship," ^'Am. Antiquarian," XV, 230-45, and
"Personal Divinities and Culture Heroes," ibid., 348-72.
210 PERSONS [Part II.
kind it has served a useful purpose in social progress.^ Here also
the Aryan wife appears as co-priestess with her husband. Each
is regarded as having a share in the begetting of the child, and they
unite in giving the son in adoption to another household.- Ac-
cordingly the wife is not the mere chattel of her husband, who
owns the children by virtue of his proprietorship in the mother.^
The house-father appears in the sacred books as lord of the wife,
who owes him reverence and obedience ; yet she is not reduced to
patriarchal slavery. With the husband she exercises joint control
over the sons ; and these are released entirely from parental
authority when they marry and establish new households.^ The
male line takes legal precedence ; but the maternal kindred are
clearly recognized in a way wholly inconsistent with strict agna-
tion.^ According to the primitive Indie conception the wife is
regarded as incapable of property. Neither the widow nor the
daughters could inherit, the estate passing to the sons as in theory
^McLennan, "Patriarchal Theory," 10-14, 275 ff., 282, 284, 294
criticises Maine's theory of adoption. Kohler's investigations show that
adoption, artiiieial brotherhood, milk- kinship, and like institutions have
widely prevailed and rendered important service. Adoption, he holds,
may arise in different motives ; sometimes being due to sexual commu-
nism, when it is a means of assigning the children to particular fathers ;
but very generally arising in the desire for descendants to perpetuate the
family-worship : ^' Studien iiber die klinstliche Verwandtschaft," "ZVR.,"
V, 415-40 ; see also for much important matter his various other writ-
ings in "ZVR.," Ill, 408-24, 393 ff. (India); VI, 190 (Chins), 345 (Indian
Archipelago), 377-79 (China), 403 (Korea) ; VII, 218 ff. (Punjab) ; VIII,
100 (Rajputs), 109-12 (Dekkan), 243, 244 (Arabia). See also Post,
"Familienrecht," 25-42, for an interesting account ; also Maine, "Hindu
Law and Usage," 60 ff., 77, 99-207; Leist, " Alt-arisches Jus Gentium,"
103 ff., 115, 606; Tornauw, "Das Erbrecht nach den Verordnungen des
Islams," "ZVR.," V, 151; Friedrichs, " Familienstuf en xmd Eheformen,"
ibid., X, 237-45; Starcke, "Primitive Family," 146, 233; Hue, ^'Chinese
Empire," II, 226.
2 Leist, op. cit., 103, 115, 504 ff. On the position of the house-mother
cf. Hearn, "Aryan Household," 86-91.
3 Leist, op. cit., 122, 123, 126 ff., successfully combats the theory of
Kohler ("Indisehes Ehe- und Familiem-echt," "ZVR.," Ill, 394), who de-
clares that it is a cardinal principle of Indo-Germanic legal evolution
that "die Vaterschaft Veruht auf dem Rechte des Mannes am Weibe,
Icraft dessen dem Hausvater das Kind des Weibes zukomme, ebenso wie
dem Eigenthtimer des Peldes die Frucht." The same view is expressed
by Kohler in " Krit. Vjsclir," N. F., IV, 17, 18; and in "Vorislamitisches
Recht," "ZVR.," VIII, 242. Cf. Unger, "Die Ehe," 11,77; Lippert,
"Gesehichte der Familie," 95 ff., 99, 158.
* Although the married son possessed a hearth and was a free member
of the gens, "his house did not become fully independent in religious and
property matters till the death of the father and the final division of the
property." — Botsford, "Athenian Constitution," 27, and the sources
there cited. Cf. Zimmer, "Altindisches Leben," 326 ff. ; Leist, "Alt-
arisches Jus Gentium," 124.
^McLennan, "Patriarchal Theory," chaps, xvi, xvii; Leist, op. cit.,
124, 504 ff.
Chap. X.] THE PATRIARCHAL THEORY 211
a means of providing for the sacra of the deceased house-father.
Still the bride possessed her personal belongings — her couch,
clothing, and ornaments ; and from this germ gradually arose,
beginning even in remote antiquity, her existing rights of property
and inheritance.^ In short, the old Aryan household reveals but
the elements of agnation and the potestas as they appear in the
Roman law."
This conclusion is confirmed by the customs of the Aryan peoples
after the separation. Among the Hellenes at the first dawn of
history the family appears as a member of the gens, which is held
together usually by the ties of blood-relationship. The house-
father is lord or monarch of the family. But his authority is
tempered in various ways. Originally, as among the primitive
Aryans, he may have exercised the power of life and death over his
children ; but in no case could he "put a child to death witiiout the
consent of the collective ancestors," or near kindred.^ By the
Aryans the jm5 vitae necisque was never looked upon as an arbitrary
right of destruction, but merely as a means of domestic discipline.^
The Greek father might sell his minor sons and unmarried daugh-
ters ; but " it appears that, even here, merely the labor of the youth,
' Leist, op. cit., 496-508; Kohler, "Indisehes Ehe- und Familienrecht,"
"ZVR.," Ill, 424ff.
-Leist, " Graeeo-italische Reehtsgeschichte," 95, 96. Lack of space
prevents any attempt at a detailed discussion of the old Aryan or Indie
family and matrimonial law ; a general reference must suffice : Leist,
" Alt-arisches Jus Gentium," 59 ff., 496 ff. ; " Graeco-italiselie Reehts-
geschichte," 7 &., 57 ff., pasaim; Schrader, " Sprachvergleichung und Urge-
sehichte," 379-95 ; Zimmer, " Altindisches Leben," 305-36 ; Jolly, " Recht-
liche SteUung," 1 ff. ; idcvi, "Hindu Law of Partition," 70 ff . ; Kohler,
"Indisehes Ehe- und Familienrecht," "ZVR.," 111,342-442 ; andhisvarious
articles, ibid., VI, 344-46 (Indian Archipelago and Caroline Islands) ;
VII, 201-39 (Punjab) ; VIII, 89-147, 262-73 (Indian customarv law) ;
IX, 323-36 (Bengal) ; X, 66-134 (Bombay) ; XI, 163-74 (Indian North-
west Provinces) ; Botsford, "Athenian Constitution," 2-67 (excellent) ;
Wake, "Marriage and Kinship," 159 ff., 355 ff., index; Bernhoj't, "Altin-
disches Familienorganisation," "ZVR.," IX, 1-45; McLeyinan, "Patri-
archal Theory," 50 ff., 96 ff., especially the chapters on "sonship among
the Hindoos," 266-339, combating the view of Maine, "Earlv Law and
Custom," 78-121, 232 ff. ; "Early Hist, of Inst.," 116-18, 310 ff. ; and
Alayne, "Hindu Law and Usage," 50 ff.. 60 ff., passim; Starcke, "Primi-
tive Family," 100 ff. ; Letourneau, "L'evolution du mariage," index ;
Hearn, "Aryan Household"; linger, "Die Ehe," 21-27; Bader," La.
femme dans I'lnde antique," 39 ff . ; Jaeolliof, '''La femme dans I'lnde," 7 ff.
^Botsford, "Athenian Constitution," 50; Leist, "Graeeo-italische
Reehtsgeschichte," 59 ff. Westermarck, "Human Marriage." 230, justly
observes that the power of the father among the Greeks, Germans, and
Celts, "to expose his children when they were very young and to sell his
marriageable daughters, does not imply the possession of a sovereignty
like that which the Roman house-father exercised over his descendants
at all ages."
* Leist, op. cit., 60, and 59 ff., for his discussion of the Aryan custom of
exposing new-born childi-en.
212 PERSONS [Part II.
and not the person itself was disposed of by sale," and the custom
was controlled by the usage of the gens.^ The wife, as among the
Hindus, holds a dignified position in the household. She is her
husband's partner in the domestic economy and the sacred rites.
Equally with him she is "the cause of the son's existence," and in
consequence exercises over him conjointly with the father the
powers of sale and life and death." Thus Hellenic custom pre-
serves the essential element of the Aryan paternal authority, which
signifies a protecting, not an arbitrary or ruthlessly destructive,
power. Among the historic Greeks the agnatic principle finds
expression especially in the right of guardianship, which is trans-
mitted in the paternal line. Such is the judgment of Leist, whose
masterly account of the development of the Aryan agnatic con-
ception proves that here as elsewhere the Roman and the Greek
stood upon common ground.^ The point of divergence is the life-
long continuance of the Roman potestas; whereas in Hellas the
son was emancipated at maturity.^
Examination of the customs of the Celts,^ the Slavonians,^ and
ancient Germans leads to a like result. Accordingly we are
forced to admit the accuracy of Gaius's conclusion. Writing in the
1 Botsford, op. cit., 51 ; Fustel de Coulanges, "Ancient City," 118, 120,
notes; Plutarch, "Solon," 13.
2 Botsford, op. cit., 52; Leist, op. cit., 57, 58, 64, 11 ff.
3 Leist, 57-102.
■* In the post-Homeric age agnation did not exist ; see Botsford, op. cit.,
73. In general on the Greek family see Hruza, "Ehebegriindung naeh
attischem Rechte," 8 ff. ; McLennan, "Studies," I, 121-23, especially
the essay on "Kinship in Ancient Greece," ibid., 195-246 (favoring the
maternal system) ; Botsford, op. cit., chaps, i, ii, iii, supporting the patri-
archal theor3' ; but Dr. Botsford's patriarchal family is not that of Sir
Henrj' Maine ; Lasaulx, "Zxir Geseh. u. Philos. der Ehe bei den Griechen,"
3 ff. ; Dargun, "Mutterrecht und Raubehe," 2, 3, 14; Giravd-Tenlon,
"Les origines," etc., 286-301; Wake, ^'Marriage and Kinship," 24 ff.,
355 ff., 366 ff., who criticises McLennan's view in detail for the Aryan
peoples; ivoraieu'sA-ty, "Tableau," 35, 36; Bernhoft, "Das Gezetz von
Gortyn," "ZVR.," VI, 281-304, 430-40; and his "Ehe- und Erbrecht der
griechischen Heroenzeit," ibid., XI, 326-64, both articles being of great
value ; Kohler, "Die lonsage und Vaterrecht," ibid., V, 407-14, who proves
the existence of "judicial" fatherhood ; Westermarck, "Human Marriage,"
232, 233; linger, "Die Ehe," 52-65; Bader, "La femme grecque," I,
41 ff. ; II, 1 ff. See also Ilearn, "Aryan Household," and Fustel de Cou-
langes, "Ancient Citv," for much valuable matter.
6 McLenna7i, "Patriarchal Theory," 120-31 ; "Studies," I, 68 ff., 118;
Giraxid-Teidon, "Les origines," etc., 329-32; Kovalewsky, "Tableau,"
31, 32; Maine, "Early Hist, of Inst.," 216 ff., passim.
^ The South Slavonian house community is an earlj' institution ; see
Krauss, "Sitte und Brauch der Siidslaven," 2 ff., 64-128; Botsford, op.
cit., 12-21 ; Giraud-Tculon, op. cit., 340, 341 ; McLennan, op. cit., 71-119 ;
Maine, "Ancient Law," 118; "Early Law and Custom," 232-82. But
it is not primitive. Kovalewsky, "Mod. Customs and Anc. Laws of
Russia," chaps, i, ii, finds many sur\avals, as he believes, of an earlier
maternal system of kinship and succession.
Chap. X.] THE PATRIARCHAL THEORY 213
time of the Antonines, he declares his behef that the patria potestas
is peciiHarly a Roman institution. Only among the Asiatic
Galatae had he observed a similar authority exercised by the father
over his children.^ Instead of existing "almost everywhere," often
preserving as in a mold the imprint of the paternal power which it
has outlived and upon which it is thought always to depend, among
Aryan peoples agnation is found together with the potestas only
in one instance, that of the Roman law ; and even in this case it
was virtually the first to expire.^ For, as is well known to the
student of Roman jurisprudence, strict agnation, as determining
right of succession, disappeared under the influence of the edict and
imperial statutes long before the last vestige of the real patria
potestas was swept away by the legislation of Justinian.^
Furthermore, in addition to the historical difficulty, there is
another strong reason for doubting the dependence of agnation
upon patria potestas: the inconsistency of the latter in its effects
upon kinship. If the descendants of married women are excluded
from relationship, solely on the ground that they belong to another
potestas, why, for the same reason, should not the children of men,
say of brothers sui juris, '^ be likewise mutually excluded ? Plainly
some more satisfactory explanation of this remarkable discrimi-
nation between the sexes must exist. Such an explanation
^McLennan finds in exogamy, or the custom which forbids marriage
between persons of the same group of acknowledged kindred.^
It seems probable that in early times the patrician family was
coextensive with the gens. Agnatio and gentilitas were equivalent
expressions.® During the historical period, at any rate, gentilitas
is traced through the male line ; and it is not impossible that orig-
inally intermarriage was forbidden between those bearing the
1 Gains, I, 55, Poste, 61.
2 Such is the view of McLennan, "Patriarchal Theory," 136-40, 181 ff.,
205 ff., 214, 260-62, where Maine's theory of agnation is criticised.
^ "The last vestiges of the two disappeared from the law together.
But, in fact, agnation went first. The paternal powers were susceptible
of abridgment and restriction in various ways short of extinction. The
wife might become free from them ; the children also ; and yet they
might remain for the slaves. And it was thus gradually that ihey per-
ished. But agnation is perfect, or it ceases to be agnation. And the
moment the ties of blood through women received ci\'il effects agnation
was no more." — "Patriarchal Theory," 182. On the decay of agnation
and -patria potestas see Sohm, "Institutes," 357, 358, 389-93, 438-47;
Puchta, "Institutionen," II, 18, 384 ff., 431 ff., 457 ff. ; Muirhead, "Intro-
duction to the Private Law of Rome," 422 ff., 343-49 ; Maine, "Ancient
Law," chap, v; Morey, "Roman Law," 78, 129, 150, 240-43, 248.
^ McLenyian, "Patriarchal Theory," 190. ^ Ibid., 194. 195.
^ Ibid., 204-14. Cf. Muirhead, "Introduction to the Private Law of
Rome," 43.
214 PERSONS [Part II.
same gentile name.^ In that case, agnation appears as the natural
result of the gentile rule of exogamy, retained, after the weakening
of the gens, for the regulation of succession within the family.
Exogamy, however, does not necessarily imply the patria yotestas,
but is found more frequently perhaps with the maternal than with
the paternal system of kinship.^ In fact, for the Romans and
kindred Italic tribes, considerable evidence has been collected by
various writers pointing, as they believe, to an early transition from
the maternal to the cognatic or the agnatic system.^ While this
conclusion may be rejected, it must nevertheless be admitted
that criticism of the patriarchal theory has been very successful
in its general results. It appears to have established bej^ond ques-
tion the complex and highly artificial character of the Roman
family.^ So far from being the type of early social organization,
it is seen to be relatively modern and ill fitted to the condition of
primitive men.
1 Plutarch, "Roman Questions," VI, tells us that "in early times the
prohibition of marriage extended as far as the tie of blood ; and, if this be
received, it involves — since the gentiles considered themselves to be of
the same blood — that there could not be marriage between persons of
the same gens." — McLennan, op. cit., 206, 207.
2 Leist, " Graeco-italische Rechtsgesehichte," 59, 96, also denies (against
Marquardt, "Privatleben," I, 22, 29) that the distinctive feature of the
Roman family is dependent on the patriarchal authority, since the ele-
ments of agnation and paternal power are Aryan. Bcrnhoft, "German-
ische und moderne Rechtsideen im rezipirten rom. Recht," " ZVR.," IV,
234, holds that Roman agnation does not depend upon blood-relation-
ship, but upon power; and this" was an Aryan characteristic; idem,
"Rom. Konigszeit," 69 &., 94, 201. McLennan's hypothesis is plausible,
though not strongly supported by proof. Cf. Starcke, "Primitive Family,"
101; Wake, "Marriage and Kinship," 384, 385.
^ Such are' the isolated facts comprised in the early annals which seem
to imply acknowledged kinship in the female line, even precedence of the
latter ; the fact that the status of slaves, illegitimate children, and the
children of concubines was determined by the condition of the mother;
the effects of marriage by usus; the supposed evidences of former wife-
capture and wife-purchase, marking the transition to the agnatic system ;
the instances of wife-lending, as by the elder Cato ; and especially the
plebeian element ; for cognation, not agnation, prevailed among the ple-
beians, and possibly among them kinship was at first counted only through
the mother; see Dargun, "Mutterrecht und Raubehe," 9-13, 14 ■ "Mut-
terrecht und Vaterrecht," 115; Bernhofl, "Zur Geschiehtedeseuropaischen
Familienrechts," "ZVR.," VIII, 197-201; "Germanische und moderne
Rechtsideen im rezipirten rom. Recht," ibid., IV, 227 ff. ; "Staat und
Recht der rom. Konigszeit," 192, 202-7; Giraxid-Teulon, "Les origines
du mariage," 408-26 ; Sohm, "Institutes," 360, 361, notes ; Karlowa, ^'Die
Formen der rom. Ehe," 1 ff. ; McLennan, '''Patriarchal Theorv," 194 ff.,
205 ff., 259 ff.
^^'Die Ehe des romischen Civilreehts (justum matrimonium) war
eine formgebundene, durch und dureh kiinstliche Institution." — Dargun,
"Mutterrecht und Raubehe," 10. Cf. Bernhoft, "Staat und Recht der
rom. Konigszeit," 196 ff.
Chapter XI
TOTEMISM AND EXOGAMY
Section 1
EXOGAMY AS A SURVIVAL OF GROUP MARRIAGE i
1, As a survival of the system of group-marriage, the principle
remained, that marriage should not take place in the same group,
but in another. This was accomplished as follows :
2. A member of the group A was obliged to marry a member of
the group B ; this is called exogamy ; and a distinction is made
between positive and negative exogamy. In the former, a certain
group is designated, from which the man must choose his wife ;
in the latter he may not marry in his own group, but he may marry
a woman out of any other. Wlien the group system and totemism
decayed, the principle was retained that no one should marry one
of his immediate kin, and a certain remoteness of relationship had
to exist before a marriage was permitted. This system has trans-
planted itself more or less into civilized ages ; in such a manner,
however, that the group of persons between whom marriage was
forbidden has shrunk more and more ; so that the circle of those
who might marry each other has grown ever wider. But, to a
certain extent, the system of exogamy has remained, especially in
this, that marriage between brothers and sisters, between parents
and children, and between certain degrees of relationship in law, is
forbidden. This is not entirely without reasonable foundation.
One reason is of hygienic nature : it is assumed that there is reason
to fear that marriage between immediate relatives leads to degener-
ation or to sterility ; certainly physical and mental family defects
should not be accentuated by such marriages, but should be effaced
by marriage with members of other families. A second reason is
that different families should form some connection with one an-
' [Reprinted, by permission, from Josef Kohler, '' Philosophy of Law,"
(Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
215
216 PERSONS [Part II.
other, so that the structure of the State may be firm and close, and
not shaken by friction between the various ckms or famiUes that
compose it ; and there is no firmer tie than that formed by mar-
riages between different famihes. A third reason is ethical in char-
acter. The development of sexual passions within the immediate
family circle must be prevented, and this can be best accomplished
by making sexual relationships in the family itself detested, so that
sexual life between members of the same family may be inconceiv-
able. In this way, culture has artificially created a horror naturalis
— a phenomenon of frequent appearance ; culture creates a second
nature, of which, however, the philosophy of law in earlier times
had not an inkling.
Section 2
ORIGIN OF EXOGAMY AND TOTEMISM i
Exogamy is manifestly the greatest and most far-reaching
of taboos. By this taboo every one is affected. Something
is forbidden, — a taboo is always prohibitive of something, —
and, if we want to understand why anything is forbidden, we
ask " to whose interest is it to prohibit this or that ; cui j^rodest ? "
Usually the persons who reap advantage by a taboo are the seniors
of the community, the makers of customary law. Were any seniors
ever interested in prohibiting all sexual unions (except their own)
within any given circle ? I think there were such seniors !
As to the origin of Exogamy, I conceive, (following Mr. Atkinson
in his " Primal Law "), that man dwelt originally, as in Darwin's
opinion, in small familj^ groups, the Sires in each case expelling
the young males when they were arriving at puberty. The Sires
are the interested seniors for whom we are looking! "The
younger males, being thus expelled and wandering about, would,
when at last successful in finding a partner, prevent too close in-
terbreeding within the limits of the same family," says Darwin.-
The sire among horses, stags, (and gorillas, according to Darwin),
thus expels the young males through no idea of "incest" in unions
of brother and sister, mother and son, through no aversion to unions
of persons closely akin by blood, but from animal jealousy. Dar-
win supposed that man did not cease to be fiercely jealous as he
1 [By (the late) Andrew Lang. Reprinted, by permission of Mrs.
Andrew Lang and the Folk-Lore Society, from "Folk-Lore" (London),
Vol. XXIV, No. 2 (.July 1st, 191.3). This is a detached chapter from an
unpublished manuscript.]
2 Darwin, "The Descent of Man" (2d ed.), vol. ii., p. 395.
I
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 217
became human. The expulsion of young males was a practical
enforcement of exogamy, of marriage out of the brutal herd, out
of the savage camp.
As progress advanced, I conceive that the sire was moved,
(by the tears, perhaps, of some female mate, in Mr. Atkinson's
theory, and by a softening of his own heart, now becoming hu-
man), to let the son of his old age, his Benjamin, remain in the
camp, so long as he did not interfere with any of the females, but
found a mate outside the group. The custom of brother and
sister avoidance, among tribes known to ]Mr. Atkinson in New
Caledonia and other isles, seemed to him a result of this law.
Mr. J. M. Robertson calls this idea " a violent assumption of a
dramatic reconciliation effected by a mother between father and
son on the basis of exogamy for the latter : we are unable to see
how the happy solution was repeated all through the species." ^
Does not >\Ir. Robertson believe in the blessed words Natural
Selection and Survival of the Fittestf He appears to admit that
"early man, like the gorilla and wild bull" (and many other
animals) of "to-day, forcibly expelled or slew his male young when
they aroused his jealousy." If early man did so, man not so early
left off doing so, certainly ; and for that he must have had some
reason, and some early men must have begun the practice of per-
mitting the young males to remain in the camp or fire-circle, but
not to choose a mate within it. They were of milder mood ; the
mothers, too, were growing more maternal ; had it not been so,
we should all be more brutal than we are at this moment. Then
came in Natural Selection. Groups which contained several fine
young males would be " the fittest," would overcome in all en-
counters groups with only one male, perhaps a tottering old male ;
and the fittest groups would survive. The reform would be imi-
tated by other groups till " the happy solution was repeated all
through the species."
Mr. Atkinson merely gave dramatically, in his remarks on the
mother, son, and sire, an example of the way in which advancing
humanity might modify the old brutal custom.
]My theory is practically that of ^Ir. Atkinson. The expulsion
of the young sons by the sire was his unspoken enforcement of
exogamy. TRe idea is Darwin's, it is not that of an amateur
naturalist : hypnotised by no belief in the promiscuity of the
earliest men. With them, solitary and fierce, my theory of exog-
amy begins.
1 "The Literary Guide," July, 1910, p. 102.
218 PERSONS [Part II.
Mr. Howitt, if I understand his meaning, thought that exogamy
arose in a society which, save for exogamy, was as advanced as
that of an Australian tribe of to-day. After quoting two tribal
legends of the rise of exogamy, (legends of an opposite sort are
ignored), from the .dividing of the tribe into phratries, "with intent
to regulate the relations of the sexes," Mr. Howitt says, "I can see
very clearly how such a social change might be brought about.
. . . Such a man," (a voyant, a medicine-man), "if of great re-
pute in his tribe, might readily bring about a social change, by
announcing to his fellow medicine-men a command received
from some supernatural being such as Kutchi of the Dieri, Bunjil of
the Wurunjerri, or Daramulun of the Coast Murring. If they
received it favourably, the next step might be to announce it to
the assembled headmen at one of the ceremonial gatherings as a
supernatural command, and this would be accepted as true without
question by the tribes-people." ^
But this theory postulates the modern organised tribe, with a
supreme All-Father, a probouleutic council of medicine-men, a
Boule of headmen, with ceremonial gatherings, and tribal consent.
To such a tribe, hitherto promiscuous, the headmen announce
that, by a supernatural command, they must so arrange them-
selves that no man may marry his mother, nor any woman of her
tribal status, nor his sister, nor any woman of her tribal status, nor
any woman in his own division of the tribe. The tribe accept a
proposal so contrary to their previous promiscuity. But ichy
Daramulun issued this edict, if he did, or why the medicine-man
conceived such a curious idea, no theorist who believes in this
legislative action can make even a guess. A theory which postu-
lates that, when exogamy arose, tribes were organized on the pres-
ent model ; a theory which postulates a decree totally bereft of
any plausible motive, and conducing to no perceptible advantage
to any mass or class of men, seems to me futile. It merely re-states
the facts, — there is at present an exogamous division which pre-
vents marriages of some consanguine and of many more non-
consanguine people, — but why there is such a division Daramidun
only knows ! My theory answers the question, ciii honof "AVho
has an interest in enforcing an exogamous decree?" My guess,
adopted from the greatest of naturalists, Mr. Dartvin, is obliged
to contradict the theory of Mr. Howitt at every point. I suppose
the "primal law" of the half-brutal sire to have persisted in local
groups longer, owing to the admission of sons with their alien mates,
1 "The Native Tribes of South-East Australia," pp. 89, 90.
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 219
than the harem of the old sire. There was as yet no organised
tribe : the groups preserved the ancestral jealous hostility. This
can neither be proved nor disproved, but the hostility is the key-
stone of my arch.
As to primal hostility of groups, it is a curio.us fact that, in the
Banksian island of Mota, the two veve, (or intermarrying phratries) ,
" in the old days . . . hated one another, and even now there is
a feeling of hostility between the two. . . . There are a number
of customs of avoidance which receive their most natural explana-
tion as evidence of this old feeling between the two divisions." ^
Given hostility, to obtain wives from each other, men, on my
theory, had recourse to robbery.
1 would add, that if brothers and sisters were allowed to make
love to each other, (and the boys to their mother, which seems
hardly conceivable), the family circle must, on occasion, have been
broken up by murders and revenges, red revenge between sire and
son, brother and brother. No small society could have lived if
such amours were permitted. Man had thus good human reasons
for slaying such amorists ; otherwise capital punishment is all but
unknown to savage law.
I next suppose the local groups to have come to distinguish each
other by names derived usually from animals, more rarely from
plants, for totem kins are so distinguished. For my reasons and my
answers to objections I must refer to my books, " Social Origins,"
and "The Secret of the Totem" (pp. 114-34). Of this later book
I reprint what seems necessary : a few passages need alteration.
The establishment of totemic beliefs and practices cannot have
been sudden. Men cannot have, all in a moment, conceived that
each group possessed a protective and sacred animal or other
object, perhaps of one blood with themselves in explanatory myths.
There must have been dim beginnings of the belief (so surprising
to us) that each human group had some intimate connection with
this, that, or the other natural species, plants, or animals. We
must first seek for a cause of this belief in the connection of human
groups with animals, the idea of which connection must necessarily
be prior to the various customs and rules founded on the idea.
]\Ir. Baldwin Spencer remarks, " What gave rise in the first instance
to the association of particular men with particular animals and
plants it does not seem possible to say." - INIr. Ilowitt asks, " How
• W. H. R. Rivers, "The Father's Sister in Oceania," "Folk-Lore,"
vol. xxi., p. 55. The Haida intermarrying sets, according to ISIr. Swan-
ton, hate each other bitterly.
2 "The Native Tribes of Central Australia," p. 127.
220 PERSONS [Pabt II.
was it that men assumed the names of objects, which in fact must
have been the commencement of totemismf" ^ The answer may be
very simple. It ought to be an answer which takes for granted
no superstition as already active ; magic, for instance, need not
have yet been developed.
Manifestly, if each group woke to the consciousness that it bore
the name of a plant or animal, and did not know how it came to
bear that name, no more was needed to establish, in the savage
mind, the belief in an essential and valuable connection between
the human group Emu, and the Emu species of birds, and so on.
As Mr. Howitt says, totemism begins in the bearing by human
groups of the name of objects.
It is difficult to understand how a fact so obvious as this, —
that the totemic name, if the name existed, and if its origin were
unknown, would come to be taken by the groups as implying a
mystic connection between all who bore it, men or beasts, — can
have escaped the notice of any one who is acquainted with the
nature of savage thinking, and with its survivals into civilised ritual
and magic. Mr. Frazer has devoted forty-two pages of his " Golden
Bough " ^ to the record of examples of this belief about names, in
various forms. He quotes Sir John Rhys to the effect that prob-
ably " the whole Aryan family, believed at one time not only that
his name was a part of the man, but that it was that part of him
which is termed the soul, the breath of life, or whatever you may
choose to define it as being." So says Sir J. Rhys in an essay on
Welsh Fairies.^ This opinion rests on philological analysis of the
Aryan words for " name," and is certainly not understated.^ But
if the name is the soul of its bearer, if his soul be his essence, if he
and his totem are of one essence and name, then the name and
the soul, and the soul and the totem of a man are all one ! There
we have the rapport between man and totemic animal for which
we are seeking.^
1 "The Native Tribes of South-East Australia," p. 153.
2 2d. ed., vol. i., pp. 404-46.
3 "Nineteenth Century," vol. xxx. (1891), p. 567.
* See examples in "Cupid and Psvche," in my "Custom and Myth,"
and Mr. Clodd's "Tom Tit Tot," pp.'91-3.
* In Mr. Frazer's theory the origin of this idea of rapport is the North
and Central Australian belief that the essence of each human being is
the spirit of a primal being of animal or vegetable form, and so totemic,
which enters a woman and is reincarnated. To me it seems that this
belief is a theory constructed by men who were already totemists, and
already animistic, and who asked themselves, "Why have we totems?
Whence have we souls?" If I am wrong, why do but two human sources
of the many totem names exist?
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 221
Whether " name" in any language indicates " soul" or not, the
savage behef in the intimate and wonder-working connection of
names and things is a well-ascertained fact. Now, as things equal
to the same thing are equal to each other, animals and sets of men
having the same name are, in savage opinion, mystically con-
nected with each other. That is now the universal totemic belief,
though it need not have existed when names were first applied to
distinguish things, and men, and sets of men. Examples of the
belief will presently be given.
Thus, given a set of local groups ^ known by the names of Eagle,
Hawk, Crow, Wolf, Raven, or what not, the idea that these groups
were intimately connected with the name-giving animals in each
case was, in the long run, sure to occur to the savage thinker. On
that assumed mystical connection, implied in the common name,
and suggested by the common name, is laid the foundation of all
early totemic practice. For the magical properties of the connec-
tion between the name and its bearer, the reader has only to refer
to ^Ir. Frazer's assortment of examples, already cited. We here
give all that are needed for our purpose.
In Australia, each individual Arunta has a secret name, aritna
cliiiringa, " never uttered except on the most solemn occasions,"
" never to be spoken in the hearing of women, or of men, or of
another group." To speak the secret name in these circumstances
would be as impious " as the most flagrant case of sacrilege amongst
white men." ^
The facts prove, I repeat, that to the early mind names, and
the things known by names, are in a mystic and transcendental
connection of rapport. Other Australian examples of the secrecy
of a man's name, and of the power of magically injuring him by
knowledge of his name, are given by ^Ir. Howitt, Brough Smyth,
Lumholtz, Bulmer, Dawson, and others. It would appear that
this superstition as to names is later than the first giving of animal
names to totem groups, and that totem names were not given to
groups by the groups themselves, (at least, were not given after
' I am sure to be told that I declared local totem groups to be the result
of reekoning in the male line, and not primitive, and that, here, I make
the primitive animal-named group local. My reply is that in this passage
I am not speaking of totcjn groups, but of local groups bearing animal names,
a very different thing. A gi-oup may have borne an animal name long
before it evolved totemic beliefs about the animal, and recognised it as
a totem. No group that was not lofal could get a name to itself at this
earh^ stage of the proceedings. The "local habitation" precedes the
"name."
2 Spencer and Gillen, "The Native Tribes of Central Australia," p. 139.
222 PERSONS [Part II.
the superstition about names came in), for to blazon their own
group names abroad would be to give any enemy the power of in-
juring the group by his knowledge of its name. Groups, had they
possessed the name-belief, would have carefully concealed their
group names, if they could. There are a few American cases in
which kins talk of their totems by periphrases, but every one
knows their real names.
He who knew a group's name might make a magical use of his
knowledge to injure the group. But the group names or kin
names being already know^n to all concerned (having probably
been given from without), when the full totemic belief arose it was
far too late for groups to conceal the totem names, as an individual
can and does keep his own private essential name secret. The
totem animal of every group was known to all groups within a
given radius. "It is a serious offence," writes Mr. Howitt, " for
a man to kill [the totem] of another person," ^ that is, with injurious
intentions towards the person.
An individual, says Mr. Howitt, " has of course his own proper
individual name, which, however, is often in abeyance because of
the disinclination to use it, or even to make it generally known lest
it might come into the knowledge and possession of some enemy,
who thus having it might thereby ' sing ' its owner — in other
words, use it as an * incantation.' " ^
Thus, in Australia, the belief that names imply a mystic rapport
between themselves and the persons who bear them is proved to
be familiar, and it is acted upon by each individual who conceals
his secret name.
This being so, when the members of human groups found them-
selves, as groups, all in possession of animal group names, and had
forgotten how they got the names, (all known groups having long
been named), it was quite inevitable that men, always speculative,
should ask themselves, — " What is the nature of this connection
between us and the animals whose names we bear ? It must be a
connection of the closest and most important kind." This con-
clusion, I repeat, was inevitable, given the savage way of thinking
about names. Will any anthropologist deny this assertion ?
Probably the mere idea of a mystic connection between them-
selves and their name-giving animals set the groups upon certain
superstitious acts and abstentions in regard to these animals.
* "The Journal of the Anthropological Institute," vol. xviii. (1888),
p. 53.
2 Ihid., p. 51 ; ."The Native Tribes of South-East Australia," p. 581.
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 223
But being men, and as such speculative, and expressing the results
of their speculations in myths, they would not rest till they had
evolved myths as to the precise nature of the connection between
themselves and their name-giving animals, the connection indi-
cated by their names. There are scores of such myths.
Now, men who had arrived at this point could not be so incon-
ceivably unobservant as to be unaware of the blood-connection
between mother and children indicated in the obvious facts of birth.
A group may not have understood the facts of reproduction and
procreation (as the Arunta are said not to have understood them),
but the facts of blood-connection, and of the relation of the blood
to the life, could escape no human beings.^ As savages undeniably
do not usually draw the line between beasts and other things on
one side, and men on the other, as we do, it was natural for some
of them to suppose that the animal bearing the human group name,
and therefore solidaire with the group, was united with it, as the
members of the human group themselves were visibly united,
namely, by the blood-bond. The animal is thus explained as men's
ancestor, or brother, or primal ancestral form. (Or the man's
soul is an emanation from a supposed primal being of animal form.)
This belief would promote kindness to and regard for the animal.
Unessential to my system is the question, hoiv the groups got
animal names, so long as they did get them and did not remember
how they got them, and so long as the names, according to their
way of thinking, indicated an essential and mystic rapport between
each group and its name-giving animal. No more than these
things — a group animal-name of unknown origin ; and belief
in a transcendental connection between all bearers, human and
bestial, of the same ; — was needed to give rise to all the totemic
creeds.
Now, we can prove that the origin of the totem names of savage
groups is unknown to the savages, because they have invented
many various myths to account for the origin of the names. If
they knew, they would not have invented such myths. Thus
that, by their way of thinking, the name denotes a transcendental
connection, which may be exploited, between themselves and their
name-gi^'ing animals we have proved.
In " Social Origins " I ventured to guess as to how the group
names first arose, namely, in sobriquets given by group to group.^
I showed that in France, England, the Orkneys, and I may now
• Cf. "The Cxolden Bough" (2d ed.), vol. i., pp. 360-2.
- The passage will bo found in "Social Origins," pp. 166-75.
224 PERSONS [Part II.
add Guernsey, and I believe Crete, villagers are known by animal
names or sobriquets, as in France — Cows, Lizards, Pigeons,
Frogs, Dops ; in Orkney — Starlings, Oysters, Crabs, Seals, Auks,
Cod, and so forth. I also gave the names of ancient Hebrew
villages, recorded in the " Book of Judges," such as Lions, Jackals,
Hornets, Stags, Gazelles, Wild Asses, Foxes, Hysenas, Cows,
Lizards, Scorpions, and so forth. I also proved that in the Ork-
neys, and in the Sioux tribe of Red Lidians, rapidly ceasing to be
totemic, the group sobriquets w^ere often "Eaters of" this or that
animal, or (where totemism survived among the Sioux) "not
Eaters of" this or that.^ I thus established the prevalence in
human nature, among peasants and barbarians, of giving animal
group sobriquets. "In Cornw^all," writes an informant (Miss
Alleyne), "it seems as if the inhabitants do not care to talk about
these things for some reason or another," and "the names are
believed to be very ancient." When once attention is drawn to
this curious subject, probably more examples will be discovered.
I thus demonstrated (and I know no earlier statement of the
fact) the existence in the classes least modified by education of
the tendency to give such animal group sobriquets. The same
principle even now makes personal names derived from animals
most common among individuals in savage countries, the animal
name usually standing, not alone, but qualified, as Wolf the Un-
washed, in the Saga ; Sitting Bull, and so on. As we cannot find
a race just becoming totemic, we cannot, of course, jyrove that their
group animal-names were given thus from without, but the process
is elsewhere undeniably a vera causa, and does operate as we show,
w^hile it certainly operates in conferring names on clans just emerg-
ing from totemism.
As to this suggestion about the sources of the animal names
borne by the groups, Dr. Durkheim remarks that it is "conjectu-
ral." ^ Emphatically it is, like the Doctor's own theories, nor can
any theory on this matter be other than guess-work. But we do
not escape from the difficulty by merely saying that the groups
"adopted" animal names for themselves; for that also is a mere
conjecture. Perhaps they did, but why? Is it not clear that,
given a number of adjacent groups, each one group has far more
need of names for its neighbours than of a name for itself? "We"
are "we," "The Men" ; all the rest of mankind are "wild blacks,"
"barbarians," "outsiders." But there are a score of sets of out-
1 "Social Origins," pp. 295-301.
2 "Folk-Lore," vol. xiv., p. 423.
Chap. XI, § 2.] TOTEMISM AXD EXOGAMY 225
siders, and "we," "The ]Men," need names for each and every one
of them. "We" are "The ]Men," but the nineteen other groups
are also "The Men," — in their own opinion. To us they are
something else ("they" are not "we"), and we are something else
to them ; ive are not they; we all need differentiation, and we and
they, by giving names to outsiders, differentiate each other. The
names arose from a primitive necessity felt in everyday life.
Through taunts bandied between groups, and through women
stolen by group from group, the names would' become generally
known.
That such sobriquets, given from without, may come to be
accepted, and even gloried in, has been doubted, but we see the
fact demonstrated in such modern cases as "the sect called
Christians" (so called from without), and in Les Gueux, Huguenots,
AYhigs, Tories, Cavaliers, Cameronians ("that nick-name," cries
Patrick Walker (1720), "why do they not all call them ' Cargill-
ites'? if they will give them a nickname?").^ I later prove
that two ancient and famous Highland clans have, from time im-
memorial, borne clan names which are derisive nicknames. Sev-
eral examples of party or local nicknames, given, accepted, and re-
joiced m, have been sent to me from North Carolina.
Another example, much to the point, may be offered. The
"nations," that is, aggregates of friendly tribes, in Australia, let
us say the Kamilaroi, are usually known by names derived from
their word for "No," such as Kamil (Kamilaroi), JJ^ira (Wirajuri),
Wonghi (Wonghi tribe), Kahi (Kabi tribe). Can any one suppose
that these names were given from within? Clearly they were
given from without and accepted from within. One of the Wonghi
or of the Wirajuri or Kamilaroi tribe is "proud of the title."
]\Iessrs. Spencer and Gillen write, " It is possible that the names of
the tribes were originally applied to them by outsiders and were
subsequently adopted by the members of the tribes themselves,
but the evidence is scanty and inconclusive." ^ There can hardly
be any evidence but what we know of human nature. Do the
French call themselves .0?^ Ouif No! But the natives of New
Caledonia call them Qui Oui.^
Moreover, to return to totem names, savage groups would have
no reason for resenting, as derisive, animal names given from with-
out. Considering the universal savage belief in the mystic wisdom
1 "Six Saints of the Covenant" (1901), vol. i., p. 241.
2 "The Northern Tribes of Central Australia," p. 11 (note).
'J. J. Atkinson. The natives call us "White Men." We do not call
ourselves "Goddams," but Jeanne d'Are did.
226 PERSONS [Part II.
and icakan, [or mmia], or power, of animals, there was no kind of
objection among savages to being known by animal group names.
The names came to be regarded as rather honour-giving than deri-
sive. This has not been understood by my critics. They have
said that among European A'illages, and among the Sioux of to-day,
group nicknames are recognized, but not gloried in or even accepted
meekly. My answer is obvious. Our people have not the savage
ideas about animals : while the Sioux clans do accept their
sobriquets.
Mr. Howitt, in his turn, does not approve of my idea, thus
stated by him, that "the plant and animal names would be im-
pressed upon each group from without, and some of them would
stick, would be stereotyped, and each group would come to answer
to its nickname." He replies, — "To me, judging of the possible
feelings of the pristine ancestors of the Australians by their de-
scendants of the present time, it seems most improbable that any
such nicknames would have been adopted and have given rise to
totemism, nor do I know of a single instance in which such names
have been adopted." ^
Mr. Howitt, of course, could not possibly find kinships noic
adopting animal and other such names given from without, because
all kinships where totemism exists have got such names already,
and with the names a sacred body of customs. But does he sup-
pose that the many local tribes calling themselves by their word
for "No" (as Kahi, Kamil, Wonghi, and so on), originally gave
these names to themselves, saying, "We are the people who, when
we mean 'No,' say 'WojigJiVf That seems to me hardly cred-
ible ! Much more probably tribes who used a Kamil or Kabi for
"No" gave the name of Wonghi to a tribe who used Wonghi in
place of their Kamil or Kahi. In that case the tribes, as tribes,
have adopted names given from without.
Again, I consider that the feelings of that noble savage, the Red
Indian, are at least as sensitive to insult as those of Mr. Howitt's
blacks. Now it so happens that the Blackfoot Indians of North
America, who apparently have passed out of totemism, have
"gentes, a gens being a body of consanguineal kinsmen in the male
line," writes Mr. G. B. Grinnell.^ These clans, now no longer
totemic, needed names, and some of their [new] names, at least, are
most insulting nicknames. Thus we have Naked Dogs, Skunks,
They Don't Laugh, Buffalo Dung, All Crazy Dogs, Fat Roasters,
1 "The Native Tribes of Soutli-East Australia," p. 154.
2 !'Blackfoot Lodge Tales," p. 208.
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 227
and — Liars ! Xo men ever gave such names to their own com-
munity. In a diagram of the arrangement of these clans in camp,
made about 1850, we find the gentes of the Pi-kun'-I under such
pretty titles as we have given. ^ (Other instances are given at the
close of the chapter.)
If we want to discover clans of fiery Celts adopting and glorying
in names which are certainly, in origin, derisive nicknames, we find
Clan Diarmaid, whose name, Campbell, means "Wry Mouth,"' and
Clan Cameron, whose name means " Crooked Nose. " ^
Moreover, South African tribes believe that tribal sacred animals,
siboko, as Baboon and Alligator, may, and did, arise out of nick-
names; for their myths assert that nicknames are the origin of
such tribal and now honourable names. I cannot prove, of course,
that the process of adopting a name given from without occurred
among primitive men, but I have demonstrated that, among all
sort and conditions of men in our experience, the process is a vera
causa.
Dismissing my theory, Mr. Howitt, in place of it, "could more
easily imagine that these early savages might, through dreams,
ha^•e developed the idea of relationship with animals, or even with
plants." 3
That animal nicknames, given from without, can be and are ac-
cepted in Australia Mr. Howitt seems to think possible in his own
book, in the ver\- page in which he says that the fact " seems to him
most improbable." He writes, "The hypothesis suggested by
Professor Haddon is that groups of people, at a very early period,
by reason of their local environment, would have special varieties
of food. This receives support from the fact that analogous names
obtain now in certain tribes, e.g. the Yuin." If this be the case,
my theory is so far accepted ; groups may and do receive names
from their articles of food. How the steps respecting the animals
or other objects, denoted by the names of the human groups,
would be taken, I have shown. But I cannot find that ]Mr. Howitt
gives any examples of such group-sobriquets among the Yuin and
other tribes. Some Yuin personal names are Thunder, Stone-
tomahawk, and so forth; the "family" names are place-names."*
The elderly Kurnai receive personal nicknames from the animals
which they are skilled in catching, as Bunjil-tamhun, "Good man
perch." 5 I repeat that nobody could find "groups" accepting
' O-p. cit., pp. 208, 225.
2 Macbain, "An Etymological Dictionary of the Gaelic Language,"
p. 357.
3 Op. cit., p. 154. * Op. cit., p. 739. » ji^id., p. 738.
228 PERSONS [Part II.
new animal nicknames now, as the totem "groups" are, of course,
already named Cat or Dingo or Iguana and so forth.
iMeanwhile Mr. Haddon's suggestion, made in the same year
(1902) as my own, is really a form of my own, differing in so far
as he derives the group sobriquets entirely from articles of food
in the area of the group ; and supposes the group-folk to have lived
mainly on the object, and bartered what was superfluous with
other groups in exchange for [supplies of the objects on which the
latter mainly lived]. His chief example was drawn from a myth
of two totem kins in a tribe to the effect that their totem names, a
small fish and a very small opossum, had once been their staple
as food. But the known five other totem kins in the tribe, accord-
ing to their myth, were descended from their totems, and one myth
is as worthless as another.^
Against Mr. Haddon's theory Mr. Baldwin Spencer urged ob-
vious criticisms. Every group eats everything that is edible in its
area.2
INIoreover, I add, nobody eats Morning Star or Rainbow ; the
Red Ochre kin of the Dieri live very far from the red-ochre pits,
and Mr. Haddon can hardly think that any kin lives mainly on
carpet snakes, or black bees, or sandal wood, or bats, or wolves
and ravens — dura ilia!
]\Ir. Haddon's theory, however, agrees with my own in the es-
sential point that group assumed names were given from without.
I may best deal here with Mr. Frazer's other objections of 1910
to Mr. Haddon's theory, as in essence INIr. Haddon's idea and mine
are much akin. Obviously unacquainted with my views, Mr. Frazer
confines his criticism to those of Mr. Haddon, and is clearly unaware
that in " The Secret of the Totem " (1905) I replied to his ob-
jections as formulated by other writers. Concerning Mr. Haddon's
view INIr. Frazer writes,^ — "The view that the names of the totem
clans were originally nicknames applied to them by their neigh-
bours, which the persons so nicknamed adopted as honourable
distinctions, appears to be very unlikely. Strong evidence would
be needed to convince us that any group of men had complacently
accepted a nickname bestowed on them, perhaps in derision, by
their often hostile neighbours. ..." I had answered all this and
supplied the strongest possible evidence, in " The Secret of the
Totem " (pp. 129-34), giving modern examples, examples of High-
1 See Mr. Haddon's views in "Report of the British Association,"
Belfast, 1902.
- "Totemism and Exogamy," vol. iv., pp. 50-1 and Notes.
3 Ibid., vol. iv., p. 51.
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 229
land clans (who are touchy on points of honour), examples from
the Blackfoot Indians, and (pp. 25-6) the instance of Bakuena
tribes who account for their tribal sacred animals (siboko) as the
result of accepted nicknames.
Mr. Frazer continues his criticism : this strong evidence
"would be needed to convince us that anj^ group of men had compla-
cently accepted a nickname bestowed on them, perhaps in derision, by
their often hostile neighbours, nay, that they had not only adopted the
nickname as their distinctive title and badge of honour, but had actually
developed a religion, or something like a religion, out of it, contracting
such a passionate love and admiration for the animals or plants after
which they were nicknamed that they henceforth refused, at the risk of
dying of hunger, to kill and eat them." i
This is somewhat exaggerated. Mr. Frazer has declared that
totemism is not a religion.^ Again, I know no evidence to prove
that any totemist would rather die of hunger than eat his totem :
several Australian tribes eat their totems freely. For the extraor-
dinary influence of the name as implying the closest rapport
between all who bear it, I merely refer to ^Nlr. Frazer 's " Golden
Bough," vol. i., pp. 404-46. On my theory, as totemists certainly
do not know how they got their totem names, they would seldom
suspect, like the Baliurutsi, that they were nicknames, perhaps
derisive. I have proved on unimpeachable evidence, Mr. Price's,
that the Northern Bakuena think that a process occurred which
only "strong evidence" would make Mr. Frazer believe in. How-
ever, I am able to prove that savages can accept, and have ac-
cepted, "clan" nicknames from without.
Take this "strong evidence" : j\Ir. Frazer writes of the Wendal
or Wyandot, the Hurons' name for themselves. "According to
L. H. Morgan the original form of the name Wyandot is wane-dot,
'calf of the leg,' a name given to these Indians by the Iroquois
and adopted by themselves." ^ Again, the Black Feet Indians
have, or had, exogamous clans with male descent. The names
of these clans are no longer totemic. Among them now are Liars,
Biters, Patched Moccasins, "They Don't Laugh," Worms, Buffalo
Dung, Crazy Dogs.^
I cite these as obvious and derisive sobriquets, but the clans
have now no other names. Other clan names occur among the
1 Ihid., vol. iv., p. 51.
2 Ibid., vol. iv., p. 5. 5 Ibid., vol. iii., p. 30, n. 1.
* Grinnell, "Blackfoot Lodge Tales," pp. .208-10, cited in "Totemism
and Exogamy," vol. iii., p. 84, n. 3; "The Secret of the Totem," p. 132.
230 PERSONS [Part II.
Dacotas, who, as INIr. Frazer points out, appear, in the seventeenth
century, to have had badges, as that of the Eagle, Panther, Tiger,
Buffalo, etc., from which each band "is denominated." ^ Now
their clans are styled "Not encumbered with much baggage,"
"Bad Nation," "Breakers (of the law)," the law broken being that
of exogamy!" No community ever called itself "Incestuous,"
or "Bad Nation" ; these clan names are sobriquets.
Once more, the Crows have exogamous clans; out of twelve,
four are totemic in name, Antelope, Raven, Prairie Dog, Skunk.
I presume that these totem names were, in origin, sobriquets, just
as some of the other clan names of the Crows, Bad Leggings,
Treacherous Lodges, Bad Honours, are undeniably hostile yet
accepted sobriquets.^
In Europe the sobriquets, animal or vegetable, of the villages
are now resented, and one village is angry, in Cornwall, when
another village hangs up its jMouse, or whatever its animal may be,
dead, by way of a taunt. INIr. Frazer's readers cannot be aware
(nor is he, I daresay) that in 1905 I defended my theory that
savages can and do accept even injurious clan sobriquets from
without by actual examples, and that I have shown how, the ani-
mal name once accepted, "a religion, or something Uke a religion"
of it, was "actually developed." Mr. Frazer writes
"No single instance of such an adoption of nicknames from neigh-
bours was known to Dr. Howitt, the most experienced of Australian an-
thropologists, in the whole of Australia." *
I have quoted, above, my reply, given in " The Secret of the
Totem," to Mr. Howitt.
Here may close my chapter of answers to objections against
the possibility of complacent acceptance of sobriquets. It occurs
in savage as it does in civilised societies : many of the facts are
recorded by Mr. Frazer himself, others he has overlooked ; and
certainly my array of the facts in 1905 has escaped his vigilant
industry in stud}', otherwise he would not have ignored what is
essential.
jNIy theory of the origin of the phratry system, as given in 1905,
has now to be modified in consequence of the general acceptance
of certain evidence.
1 J. Carver, "Travels through the Interior Parts of North America,"
(3d ed., 1781), p. 256.
- "Totemism and Exogamj^" vol. iii., pp. 86-7, n. 4.
' Ibid., vol. iii., pp. 153-4.
* Ibid., vol. iv., p. 52, n. 2 ; Howitt, ^'The Native Tribes of South-East
Australia," p. 154.
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 231
I next suppose that a local exogamous group of, say, Ducks, and
another neighbouring group named Dogs, weary of fighting for
wives against the kin of their own wives and own children, made
peace with connubium. Here we have the evidence of the Ura-
bunna, Karamundi, and Itchumundi arrangement by which people
of one totem must marry only people of one other totem, as Dingo,
among the Urabunna, marries only into Water Hen.^
The Itchumundi nation contains four tribes. A man of the
Mukwara (Eagle Hawk) totem and phratry "married a Kilpara"
(Crow phratry) of the Bone-fish totem ; a ^Nlukwara of the Kan-
garoo totem married a Kilpara of the Emu totem, a ^lukwara of
the Dog totem married a Kilpara of the Padi-melon totem, and so
on. "The tribes of the Karamundi nation have a similar rule
[like that of the Itchumundi nation] by which a member of either
class" [phratry] "may marry only in one totem of the other class." ^
Messrs. Spencer and Gillen and I\Ir. Howitt assign the same rule
to the Urabunna nation. All these tribes are in the most primitive
state of social organization, with female descent and no sub-
classes ; the Urabunna have, the others have not, yirrauni. ]\Ir.
Frazer, ]\Ir. Spencer, and INIr. Howitt make no attempt to explain
their unique rule of one totem to one totem marriage. It must
make the two intermarrying totem kins in a high degree consan-
guineous, and can scarcely have been adopted to prevent marriages
of near kin, if cousins were reckoned near kin.
These marriages are mainly marriages of first cousins, which
Urabunna law permits, if the bride be a daughter of the man's
mother's younger brother, or of his father's younger sister. When
one small community may select wives only from one other small
community, — Water Hen group from Dingo group with restric-
tions on that, — if the people may not marry some of their first
cousins, whom may they marry ?
The Dieri, on the other hand, may marr^" any person of the right
tribal status, {all first cousins are excluded), in any of the many
totems in the phratry which is not their own ; whereas among the
Urabunna, Karamundi, and Itchumundi the members of each
totem kin may only marry into one totem kin in the opposite
phratry.
1 would suggest that, among the Urabunna and the other " na-
tions," first Dingo and Water Hen, say, made a covenant to marry
^ "Totemism and Exogamy," vol. i., pp. 176-, 387-8, quoting Howitt
and Spencer and Gillen.
2 Howitt, op. cit., pp. 194, 189.
232 PERSONS [Part II.
peacefully with each other alone, (some two kins must have begun
the practice), and that then other pairs imitated the example;
and, finally, all pairs coalesced into one federated phratry or the
other. What they gained by this was peace.
The arrangement, I conjecture, would be worked out thus :
first we have x animal-named exogamous local groups raiding
each other for wives. Two such groups. Water Hen and Dingo,
tire of this, and make a marriage treaty for peaceful betrothals :
other groups, however, may still raid them, and they may raid other
groups, as they probably would, in revenge for raids on themselves,
and because, in two small communities, marriageable women were
not very plentiful. But other groups follow their example, two by
two. This, however, does not prevent any adventurous braves
in any of the groups from raiding every group which is not the
one linked by marriage treaty with his own. This dangerous
license would cease when half of the groups federated, and the other
half also federated into what are now the phratries, each phratry
as a whole making a covenant of peace with the other. But, by
an amazing conservatism, the pairs of totem-kins still only marry
into each other among the Urabunna, Itchumundi, and Kara-
mundi. How otherwise than by my conjecture can we account
for this strange limit to choice in marriage ?
The rule of one totem-kin wedding into only one other totem-
kin in the opposite phratry must be earlier than marriage into any
kin of the opposite phratry. When men, as among the Dieri, or
any other tribe with female descent and two phratries, had once
been permitted to seek wives in all of the totem-kins of the phratry
not their own, they never could submit to a restriction limiting
them, for no conceivable reason, to brides from a single totem-kin.
The only reason for restrictions being, by the ordinary theory,
closeness of consanguinity, there could be no objection to Water
Hen, in phratry A, wedding into any totem-kin of phratry B. ]\Ir.
Howitt, however, writes that "the Urabunna restriction" (or
"marriage to one or more totems") "is certainl}' later in origin
than the Dieri rule." ^
This seems impossible. Men who had once enjoyed the wide
freedom and ample latitude of choice of the Dieri would never
limit themselves to brides from a single totem-ldn, and do that
for no conceivable reason, except that which I have suggested.
Dingo, who may only marry Water Hen, is not consanguineous
with any of the other totem-kins into which he may not marry :
' Howitt, op. cit., p. 189.
Chap. XI, § 2.] TOTEMISM AXD EXOGAMY 233
he is not barred from union with them for that cause. Reason,
if there were a dislike of consanguine marriages, would urge a
larger latitude of choice than a single kinship offers, for, when two
small kinships marry exclusively with each other, they both be-
come extremely consanguine. Therefore the Urabunna are forced
to allow first cousins to marry, as far as the age-grades rules permit ;
they ha^■e no choice if they are to marry at all. On the other
hand, the Dieri, among whom members of any totem-kin of B
phratry may marry into any totem-kins of A phratry, are able to
indulge their consciences by forbidding all marriages between what
we call "first cousins." ^Ir. Howitt himself sees that this rule,
"the Dieri rule is evidently a development of that of the Ura-
bunna, and is therefore the later one." ^ ^Ir. Frazer agrees."
The Dieri rule about cousins is the later of the two,^ and it is
rendered possible by the Dieri emancipation from the Urabunna
and Karamundi rule that each totem may marry only into one other
totem.
It follows that the Urabunna, Karamundi, and Itchumimdi
rule, — one totem marries into one totem only, — is not later, as
Mr. Howitt writes, but earlier than the Dieri rule, — any totem
in phratry A may marry into any totem in phratry B. Emanci-
pation from the Urabunna, Itchumundi, and Karamundi ^aw, —
one totem to one totem only, — enabled the Dieri to bar the
marriages of all first cousins. Consequently the one totem to one
totem rule is the earliest of all ; and how can we explain it except
by the alliance, with connuhium, of two groups with totemic
names ? The example thus set was followed by pair after pair of
linked totem-kins, and for this reason there is necessarily a dual
union and division of intermarrying kins throughout the Aus-
tralian system. This is an automatic result of one totem to one
totem marriage, followed by federations of the intermarrying
pairs of totem-kins.
^^^ly only two groups, in the first place, made alliance with
connuhium, I have not to explain. It is enough that they certainly
did it, (in several nations they still adhere to connuhium, between
two totems only), unless any other reason for the one totem to one
totem law can be discovered. Dislike to consanguineous mar-
riages could not produce this drastic rule, I repeat, for each totem-
kin must have recognised no consanguinity with any other.
' Howitt, op. cit., p. 189.
2 "Totemism and Exogamy," vol. i., p. 346. ^ Ibid., vol. i., p. 346.
234 PERSONS [Part II.
Mr. Frazer makes no reference to myself, or to M. van Gennep,
on this matter, but (vol. i., pp. 284-5), argues against the theory
of amalgamation, without noticing our replies to certain objections
that had already been urged on us by others. "Why," he asks,
"were these federal communities so regularly either two in num-
ber or multiples of two?" M. van Gennep had briefly said that
our theory of convergence (amalgamation) "seule explique entre
autres lefait dudualismedes elements dechaque groupe [p.xxxiv]."
He added that the Australians generally "n'ont de noms de nom-
bres que jusqu'a deux," and, for an element of symbolism in this,
refers to Mr. McGee, "Primitive Numbers," in " The Nineteenth
Annual Report of the Bureau of American Ethnology," vol. ii., pp.
821-51. These are not my own ideas, but those of M. van Gennep.
I would say that, if amalgamation began in the Urabunna " one
totem to one totem" marriage, w^hile such pairs finally federated
into each phratry, Mr. Frazer's question is answered. I regard
the later bisections of two classes into four, and of four into eight,
as deliberate and intelligent imitations of the original model, —
the sets of pairs, the "two class system." The natives, like Mr.
Frazer, would think that it had been the result of bisection, not of
amalgamation, and would imitate what they supposed to have
been the wise method of their ancestors.
Mr. Frazer's argument ought to be given in his own words
(vol. i., p. 285) : —
"While we may without much difficulty conceive that communities,"
(in this case totem-kins) "which in their independent state had been
exogamous, should remain exogamous after they had united to form a
confederacy ; it is far more difficult to understand why in uniting they
should have adopted the complicated rule of descent which characterises
the four-class and eight-class organisations of the Australian tribes."
Nobody has ever suggested (as far as I know) that "in uniting"
the totem-kins instantly "adopted" the four or eight class sys-
tem. The tribes of one totem to one totem marriage : the Dieri,
without that rule : the To-tathi, Barkinji, and many other tribes,
have not the four class or eight class system, but all agree that
tribes began with the two class or phratry model. Many tribes
adhere to it ; others have gone on to the four ; others (all with male
descent) to the eight class system. Their motive and method, I
think, are obvious. They do not know liow the phratr\', or two
class system, arose, but they see that it excludes from marriage
some close consanguines, mother and son, brother and sister.
They suppose that the system was made for this very purpose, and
when they wanted to exclude other consanguines, whom the sys-
Chap. XI, § 2.] TOTEMISM AND EXOGAMY 235
tern did not exclude, the\' did so in the honoured ancestral model,
by repeated bisections, making first two, then four "subclasses"
in each phratry.
jNIr. Frazer goes on : — " We can imagine that each community
in the confederacy should continue as before to take its wives from
another community," ("community" apparently now means
phratry), "but why should the two intermarrying communities
now cede their child to a third?" The third ("community"
clearly means "subclass"). Mr. Frazer knows, and has very well
explained, why the children are "ceded to a third community,"
that is, enter the subclass in the brother or mother's [sister's?]
phratry, which is not that of father or mother (vol. i., p. 163). It
"is to prevent the marriage of parents with children." The child
is not driven into an alien "community"; it is still in the totem-
kin and phratry of its father and mother, but the rule "maks
siccar " there can be no union of child with father or mother without
violating an express law.
The same obvious reply answers this objection : " On the theory
of amalgamation what motive can be assigned for the rigid exclu-
sion of all children from the communities of both parents ? " There
was no such exclusion, no subclasses existed, when the amalgama-
tion w^as made; there w^as none till, long afterwards, a subclass
arrangement was devised to stereotype and express publicly the
already existing bye-lav\- against the union of father and daughter,
mother and son. The poor children, "rigidly excluded from the
communities of both parents," are still in the parental or maternal
"communities" of the totem-kin and the phratry and in the
family fire-circle. They have lost nothing. That exclusion is
perfectly intelligible on the hypothesis that it was devised to pre-
vent the marriage of parents with children, but it is difficult to see
how it can be explained on any other : who is dreaming of explain-
ing it on any other? People entered into the phratriac exogamy
by the amalgamation which I and ]M. van Gennep suggest, and
then, for conscientious reasons, " kept compounding it as they went
on," as Byron says about people who " began with simple adultery."
On my theory the inimal prohibition was not based consciously
on consanguinity, but on locality and ownershij). The semi-
brutal Sire says, — "Xo amours except my own in my camp."
When the groups got names, — Fmu, Lizard, Grub, Iguana,
Kangaroo, —the prohibition was "no amours within the name."
236 PERSONS [Part II.
^Yhen two groups first coalesced into commhium, the first rule was
"no marriage with peace save into one other totem group," The
final rule was " marriage into any totem-kin not in your own phra-
try." As the rise of the phratries instantly and automatically
produced classificatory relationships or "classes," people were con-
fined in marriage to one set of such relations in the opposite phratry,
the Nupa or Noa set. ]Men, reflecting on the system, saw that it
barred the marriage of persons of close consanguinity, and thought
that other persons, also consanguine but not so closely consan-
guine, should be excluded ; hence the four and eight class systems.
In the same way the Catholic Church excluded first cousins,
and relations in "gossipred," — godfathers and godmothers,
godsons and goddaughters, — from intermarriage, and introduced
other restrictions hitherto unknown. In Scotland, among the
noblesse, it became very difficult for any marriage to occur without
a dispensation, and many pairs were divorced because of some
scarcely traceable relationship. The Australian blacks, in pre-
cisely the same way, conceived new scruples, and passed more
stringent regulations, till human nature revolted, and the exoga-
mous s,ystem w^as abandoned among the Kurnai and the Narran-ga.
They had run the w^hole round of the labyrinth and come out into
daylight.
Chapter XII
WOMEN IN PRIMITIVE SOCIETY ^
1. It will help us to begin by distinguishing the principal ques-
tions to be asked about the marriage customs of any society. Thus
we may classify marriage :
(1) According to the number of parties to the union (monog-
amy, polygamy, etc.).
(2) According to the restrictions on marriage (exogamy and
endogamy).
(3) According to its stability (law of divorce).
(4) By the methods of obtaining a husband or wife {e.g. capture,
purchase, contract).
(5) By the relations between husband and wife (in the family) .
The two last questions are closely related, and both have an
important bearing on the general position of women. Under each
head we shall see what are the principal forms of marriage customs
that exist, and which are the prevalent types in the savage
and barbaric world. We shall then briefly trace the history of
marriage and of the position of women among civilized peoples.^
2. I. We have to ask first in any community, who, or rather
how many, are the possible parties to a marriage. Is it (o) a
union of one man with one woman, or (6) of one man with two or
more women, or (c) of two or more men with one woman, or {d)
of a group of men with a group of women, or {e) is it wholly irregular,
the negation of union, promiscuity ? All these are t^'pes of marriage
which exist or have existed, or at least have been alleged to exist.
Further they split up into sub-types. Polygyny, for example,
the union of one man with two or more women, is found in the
MBy L. T. HoBHousE. Reprinted from "Morals in Evolution," by
permission of Henry Holt and Company, New York. Abbreviated and
omitted book-titles with the detail of editions are supplied by the author's
reference list on p. xiii seg., Vol. I of the original work.]
- [Chapter XV of this volume.]
237
23S PERSONS [Part II.
two fairly distinguishable types of polygamy proper, in which
several women are alike wives, and concubinage, in which there
is one chief and fully legitimate wife, and one or more in a subordi-
nate and perhaps servile position.^ The one type, moreover, shades
off into the other by gradations according as the chief wife's
position is more or less fully defined," and as that of the secondary
wives is more or less servile. Polyandry, again, though far less
common than polygamy, has many varieties. The several
husbands may, and in the commonest case do, form a definite
group. Generally, as in the well-known case of Thibetan marriage,
they are all brothers.^ But this is not always so. Poh-andry may
merely take the form of permitting a woman to have many hus-
bands without specifying any particular relationship between them
except such as may follow indirectly from the other marriage regu-
lations of the community. This is the case among the Nairs of
the Malabar coast. The same people illustrate a still further
variety, the combination of polyandry and polygamy. For as
the Nair woman may have many husbands, so the Nair husband
may have many wives."* Again, in the relations between the hus-
-^ 1 In China there is only one chief wife. The others are secondary, but
legitimate wives. The old Babylonian law recognizes one wife (allowing
r I a second in case of her being invalided), with concubines who were to
' ' recognize the wife as mistress. The case of Leah and Rachel illustrates a
family in which there were two legitimate wives as well as concubines.
Mussulman law allows four legitimate waves and an indefinite number of
concubines. The old Japanese law recognizes polvgamy with a head-
wife. (Post, i. 62; Kohler, "Z. f. V. R.," vi. p. 369.) For instances
among uncivilized peoples, see Howard, i. pp. 143-4, and Westermarck,
p. 442, etc., and "Cambridge Anthropological Expedition to the Torres
Straits," p. 230.
^ In some cases a second wife may only be taken if the first is childless,
e.g. among peoples of the Punjab, and the Dekkan, the Santals in Bengal,
some Bombay tribes. {Post, I.e.) Post also refers to Bulgarian and
Montenegrin customs.
Among the Malays, imder the Semando form of marriage, the taking
of a second wife is a ground of divorce, and at Mokomoko the husband
must pay her a fine, 40 gulden. {Waitz, v. 145, 146.) Among the Khonds
the wife's consent is required. {Rechis, "Primitive Folk," p. 281.)
Post gives similar instances among the Khyengs, the Tamils of Ceylon,
and Punjab peoples {Post, i. 63, from Kohler, "Z. f. V. R.," vi. p. 192),
and Howard (i. p. 144) quotes a case among the North American Indians.
Among the Touaregs the taking of a second wife is a ground of divorce.
{Letourneau, "La Femme," p. 308.)
' Among the Todas the wife belongs to the elder brother, but the younger
brothers also have rights over her as they grow up, and an extra lover is
permitted as well. {Reclus, p. 196.) Polyandry is, how^ever, disappear-
ing except among the indigent. According to Westermarck (p. 453)
there are only three cases in Asia in which polyandry is not limited to
brothers — \iz. the Nairs, Khasias, and certain Cossacks, but Letourneau
("La Femme," p. 216) denies that it is strictly limited to brothers in
Thibet.
■* Compare Casar^s account of the ancient Britons: "Uxores habent
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 239
bands there are differences c^uite parallel to those which distinguish
polygamy from concubinage. All the husbands . . . may have
ecjual rights, or there may be one chief husband and others inferior
and secondary to him. Of such a character is the secondary hus-
band who assumes both the rights and the duties of the proper
husband in his absence among the Aleuts.^ Some peoples have the
punishment — to our eyes the very paradoxical punishment — for
adultery that the paramour on detection is compelled to become a
secondary husband and contribute to the maintenance of the
family.^
3. Of group marriage, again, more than one variety is ab-
stractly possible. Though as here the evidence becomes scantier
it is not so easy to say which types, if any, have been actually
represented in history. Indeed, it cannot be regarded as certain
that any such institution as the actual marriage of two groups, as
distinct from a combination of polygamy and polyandry with
certain marriage taboos, has ever existed. As the whole subject
is involved in controversy, it will be well to summarize what is
deni duodenique inter se communes, et maxirae fratres cum fratribus
l^arentesque cum liberis ; sed, si qui sunt ex his nati, eorum liabentur
liberi, a quibus primum virgines quaeque deduetae sunt." ("B. G.,"
V. 14.) That is, there was a chief husband and the rest were secondar.y.
Among the polyandrous tribes of primitive Arabia the wife, according to
Strabo, passed the night with the elder brother, but the others had access
to her. {Starcke, p. 137.) For the Nairs, see Rechts, 162.
1 Reclus, pp. 66-67. Among the Thlinkeets and Koloshes a younger
brother is preferred for this purpose. Secondary husbands occur among
the Papuas. {Kohler, "Z. f. V. R.," 1900, p. 334.)
2 Among the Konyagas, if the paramour is a member of the husband's
family the latter may compel him to obey his orders and those of the wife,
with whom henceforth the association is legitimate. (Rechis, p. 67.)
Altogether Westermarck enumerates some thirty-six instances of tribes
practising polyandry (p. 450). To these must be added the people of
Langerote and Portaventura in the Canary Islands in the sixteenth cen-
tury {Letourneau, p. 303), and in antiquity the Arabs and British (Wester-
viarck, p. 454). The case of the primitive Aryans in India is doubtful.
The two Aswins in the Rig Veda win one damsel as the prize of a chariot
race, and she acknowledges their "husbandship." In the Mahabharata
Draupadi is won by the eldest of five Pandava princes and becomes the
wife of them all, but her father describes this as "an unlawful act, con-
trary to usage and the Vedas." The princes plead as precedent the case
of a "most excellent moral woman," who dwelt with seven saints, and of
Varski, who cohabited with ten brothers "whose souls had been purified
with penance." Maijne ("Hindu Law and Usage," p. 64) points out
that these were bad precedents, being cases of saints who were above ordi-
nary laws. He adds that in the Ramayana polyandry is mentioned ^^^th
al)horrence, and sums up in favour of the view that sexual looseness rather
than recognized polyandry is indicated. {Mayne, p. 65, 4th ed.)
In Sparta a secondary husband was sometimes tolerated for the sake
of increasing the family. . . . {Xeiiophon, "Rep. Lac," i. 9, quoted in
Grote, Part II., chap. vi. p. 520.)
240 PEKSONS [Part II.
actually found in a leading case. Among the Central Australian
tribes two types of marriage custom have been distinguished by
Messrs. Spencer and Gillen. The first which specially concerns
us is that practised among the Urabunna. The tribe is divided
into two classes, and these classes are exogamous — that is to say,
a man must not marry within his class, but must choose his wife
from the other. Secondly, there are distinct totems within the
tribe, and these are similarly exogamous. Thirdly, each of
the two classes is divided into four groups, and in choosing a wife
a man is restricted to one of these groups. How the group di-
vision is arrived at need not concern us for the present. The
point is merely that there exists for any given group of men a
definite group of women with whom they may marry, and who are
called their Nupas. So far, then, our result is that there are in
the tribe a group of men and of w^omen who are Nupa to each
other — that is, potential husbands and wives. To come now to
the actual marriage, a man will have one or more of his Nupas
assigned to him as his wives. He will also have others to whom he
is Piriaungaru — that is, he has access to them under certain
conditions. Similarly a woman may be Piriaungaru to several
men, and lastly a man may lend his wife to any of her Nupas, and
on the occasion of a visit, for example, is expected as a matter of
courtesy and good feeling to do so. Thus the husband has only,
so to say, a preferential right in his wife, and the wife in the hus-
band. The husband will have a secondary right to other women
as his Piriaungaru, while his wives are in turn Piriaungaru to
other men.^
1 In the Dieri tribe there is both individual and group marriage. In
the latter ease the headman allots certain men and women (subject to the
elan or totem restriction) to one another as Pirauru, but their rights, as the
different husbands and wives are often members of different local groups,
are exercised mainly when the groups meet. When they separate the right
of the Noa or principal husband predominates. {A. W. Howitt, "The
Organization of Australian Tribes," Transactions of Royal Society of
Victoria, vol. i., pt. ii., pp. 124-7.)
The custom of the Arunta and other Central Australian tribes is still
further removed from a true group marriage, as here there are no Piria-
ungaru. A woman is restricted to one man unless he lends her. What
suggests group marriage, apart from the nomenclature of relationships,
is (1) that the name for "wife is the group name Unawa, the term (corre-
sponding to Nupa) applied to all women of the class with whom the man
may lawfully marry ; (2) that -wives are freely lent within the group and
enjoyed promiscuously at festivals. How much stress is to be laid on
this is not easy to determine. It is certain that the class restrictions on
marriage are held much more vital by most savages (whatever their
marriage customs) than the marriage tie itself. Among the Australians
Messrs. Spencer and Gillen remark that jealousy is little developed,
adultery is at most an infringement of rights of property (so also among
Chap. XII.] WOMEX IX PRIMITIVE SOCIETY 241
Now as it stands this scheme of marriage may be classified as
a form of polyandry combined with polygamy, such as we have
already met with among the Xairs, only complicated by the taboos
which limit the intercourse of the sexes to the two groups which
are Xupa to each other. It is possible to explain the system as
the relic of earlier customs where the two Xupa groups were
actually married to each other, so that intercourse between them
would be promiscuous. This, however, is an inference as to the
North American Indians, see Waitz, iii. p. 131), wife lending is habitual,
and divorce is easy. Under these circumstances the verj^ use of the term
marriage can only be justified by the difficulty of finding any other. It
is not marriage as we understand the relation, and the tie, whatever we
call it, is exceedingly loose. On the other hand, the taboos which mark
out special classes for each other are among the most sacred laws of the
tribe. Generally speaking, these restrictions are of a negative character
— a man must not marry within his totem, or his clan, but sometimes,
owing to the multiplication of restrictions, particularlj' in the form of
classificatory relationships (of which the Australian class divisions are
really a case), the result is to confine the intending spouse to a specific
group. This group vvill then consist of his Nupa or Unawa, and so it is
easy for him to change his wife within the group and impossible for him
to take one outside it ; and as this applies to all the men and all the women
we may say that the two groups are more strictly bound together than
any individuals within it, and this we may, if we please, term group
marriage. But the expression is undesirable unless deliberately intended
to suggest the theory of an earlier form in which men and women were
actually united by groups.
The real importance of these isolated and partial illustrations of group
marriage lies in their association with the classificatory system of counting
kinship. In name, an Australian has not one father, but a gi'oup of
fathers, i.e. all the potential husbands of his mother; not one brother,
but a group of brothers, i.e. all the sons of his potential fathers, and so
on. This system of naming is wdeh' spread in parts of the world where
there is little or no trace of group marriage. Those who uphold group
marriage argue (1) that this method of reckoning Idnship is the only pos-
sible method where group marriage exists, (2) that no other satisfactory
explanation of its origin and meaning has ever been put forward, (.3) that
we can understand its existence where individual marriage now prevails
if we suppose gi'oup marriage to have existed pre\aously. If this is granted
it is tempting to argue further to a general theory of the origin of marriage,
according to which its history would begin (1) with the temporary mating
of a man and woman. This would be restricted (2) by a tal)oo on all
women recognized as of the same blood or of the same totem — the con-
ception of unity being in any case magical — as the man. This would
yield group marriage ■with such imperfect individual appropriation as we
find among the Urabunna, and then would develop (3) into a more per-
manent appropriation of certain women to a man or men. But these
considerations lead into a region of hypothesis which lies outside the plan
of the present work, the object of wliich is to analyze and compare insti-
tutions which we find, not to postulate institutions which we do not find.
Cases in which a man marries his wife's sisters or possibly certain other
relatives along with her are partial developments of polygamy rather than
group marriages, and the institution of the Omaha, quoted by Kohler
("Z. f. V. R.," 1897, p. 320) as a case of group marriage, where a man
marries the aunt and sister or niece of his wife, while on his death the
widows pass to his brothers, is a combination of this form of polygamy
with the levirate.
242 PERSONS [Part II.
probability of vrhlch others must determine. What we actually
find is not this marriage of two groups, but exceedingly loose re-
lations, polygamous and polyandrous, within the groups combined
with strict taboo outside them.
Where the marital relation becomes very loose we approach
promiscuity, or the sheer negation of marriage, as between all
who are not separated from each other by any taboo. If such
taboos also fail, we get complete promiscuity. Does this exist?
Dr. Westermarck^ enumerates some thirty-one cases in which it
has been alleged. But in the majority of these it is also denied
by other authorities, and in several the allegation is known to be
false. There remain a number of cases in which the marital rela-
tion is so loose that the husband sinks into the position of a lover,
temporarily visiting the woman's house and readily dismissed at
will. Sheer promiscuity is probably to be regarded rather as
the extreme of looseness in the sexual relation than as a positive
institution supported by social sanctions.^
4. The looser types of marriage are almost, if not entirely, con-
fined to savage and barbarous races. It is here if anywhere that
we find promiscuity and group marriage. It is here, certainly,
that we find the marital relationship so loose as to approach
promiscuity and group marriage. It is here also that we find
polyandry — a custom practised by no people with any pretension
to civilization except the Thibetans and the ancient Spartans.
Polygamy, on the other hand, while also very common among un-
civilized peoples, may be said to dominate the middle civilizations,
and monogamy the higher. But here we must guard against too
sweeping statements. INIonogamy, and a strict monogamy too,
is found in several quite savage peoples, including among them
' Westermarck, pp. 52-55.
- The statement of Herodotus about the Massagetae (Bk. i. chap. 216)
and of Cosmas of Prague (eleventh century a.d.) about the ancient Bohe-
mians are reducible to this. Cosmas writes, "Connubia erant communia.
Nam more peeudum singulas ad noetes novos probant hymenaeos, et
surgente aurora . . . ferrea amoris rumpunt vincula." (Kovalewsky,
"Modern Customs and Ancient Laws of Russia," p. 10.) Post gives as
instances of peoples among whom "marriage relations are almost unrec-
ognizable." tribes of California and the coast of Venezuela, aborigines of
Brazil and some Peruvian tribes, six instances in Oceania, three in India,
and foiu- in Africa. ("Ethn. Jm-isprudenz," i. 52.) He adds fm-ther
instances, making seven in all for Africa. ("Afrik. Jurisp.," p. 301.)
Among the Wintuns of California, according to Powers, a man generally
pays nothing for his wife, but merely "takes up with her." If (not
being a headman) he takes a second wife, the two wives fight till one is
driven out, while the husband looks on and abides in the lodge of the
conqueror or follows the vanquished as he chooses. ("Tribes of Califor-
nia," p. 238.) Can this relation be called marriage?
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 243
some of the very lowest. The Veddahs and Andamanese have
been mentioned. Elsewhere it occurs sporadically, it is impossible
to see for what specific reason, among races which are generally
polygamous. Thus polygamy and easy divorce are both general *
throughout Oceania, but among the Dorians of Xew Guinea
there is neither polygamy nor concubinage. Among the Indian
hill tribes there are several instances. Some of the Naga tribes
are monogamous, some polygamous. The Karens have only one
wife; the Santals take a second only if necessary to obtain an
heir; but in all these cases divorce is allowed. The Kukis are
polygamous, but the people called the Old Kukis keep to one wife.
^Monogamy occurs among some of the ruder Malayan tribes. Of
the Central Asian peoples the Kara Tangut nomads are mentioned
by Ratzel as monogamous. Monogamy is rare among the North
American Indians,- but it occurs in a few tribes of South America.^
Polygamy is the general rule among the Negro and Bantu races,
but instances of monogamy are found among peoples of Northern
Africa as the Touaregs and the Beni Mzab.
We shall understand the occurrence of such exceptions better
if w^e bear in mind what precisely is meant both by monogamy
and by polygamy when these institutions are attributed to a rude
tribe. Whether monogamous or polygamous, savage tribes usually
tolerate divorce on very easy terms, especially for the husband.
But the division between a form of monogamy which easily admits
a change of wives and sheer polygamy is no ^'ery deep one. On the
other side, it is to be observed that though polygamy in one form
or another is ordinarily permitted in uncivilized races, it must not
be supposed to be the rule among many peoples. Generally speak-
ing, the numbers of the sexes are approximately equal. There are
exceptions to this in certain races which partly account for the ab-
normal development of polygamy among them, but where the
relative numbers are normal it follows as a matter of arithmetic
that either monogamy must be the prevalent practice, or a great
number of men must go without wives. In point of fact, poverty,
as well as law or custom, fights on behalf of monogamy. It is in
1 Kohler states, however, that among Papuan tribes polygamy is some-
times permitted only with the consent of the first wife. {Kohler, "Z. f. V.
Rwt.," 1900, p. 349.)
2 Instances are the Yuroks of California, and the Karoks — among
whom bigamy is not tolerated even in a chief, and, what is still rarer, a
man may own as many women for slaves as he can purchase, but cohabi-
tation \\-ith more than one brings obloquy (Powers, p. 22) — and the
Klamaths (ib., p. 405). For other eases see Westermarck, p. 435.
^Schmidt, "Z. f. V. R.," 1S98, p. 304, enumerates five instances.
244 . PERSONS [Part II.
most cases only the comparatively rich and powerful who have a
large harem, and this is one reason among others why polygamy
is less developed in the lowest races, and the possession of many
wives comes about when wealth and population are alike growing.
When we speak of polygamy being the normal custom of uncivilized
races, therefore, we mean the permission of polygamy, and it is
this permission that exists almost everywhere throughout the
savage and barbaric world and among the lower civilizations. We
should, then, distinguish between an ethical monogamy, based
on the belief that it is wrong to have more than one wife, and an
habitual monogamy, based on the practical difficulty of obtaining
and maintaining more than one wife. Where, owing to general
poverty and the equality of conditions — which would bar the
making of exceptions in favour of rich men or chiefs — the practice
of monogamy has become universal, and as such is of long standing,
it would harden into a custom (sustained by whatever sanctions
are recognized) without implying any very great advance in
the ethical conception of marriage. And this may account for
some of the cases mentioned, and in particular for the point often
noted, that it is the ruder tribe which is monogamous, while the
growth of wealth in neighbouring peoples enables richer individuals
to indulge in a harem. ^ We shall not, then, be far wrong in con-
cluding that polygamy, limited, often very narrowly, by poverty
and the relative numbers of the sexes, is the prevalent type of
marriage in uncivilized society.^ Of the development in the
civilized world we shall speak more in detail later on.^ Polyandry,
on the other hand, is by comparison an exceptional practice, the
1 Travellers and ethnologists sometimes describe people as monogamous
who in fact are so only by prevailing habit. The Iroquois, for instance,
always figure among monogamous peoples, and no doubt that form of
marriage prevailed ^vith them and became the strict rule. Thus Morgan
("League of the Iroquois," p. 324) states that polygamy was forbidden
and never became a practice, but from Coldan's account given in School-
crafty work, i. 221, it appears that it existed, though rarely practised, in
his time. Repeatedly we hear that the mass of the people are monog-
amous, but that the chiefs or the wealthier tribesmen have several
wives or concubines. This was the case with the ancient Germans.
Polygamy was rare in practice, but was legal.
^ Dr. Westermarck (p. 435) enumerates in all between forty and fiftj'
cases of sayage and barbarian tribes which are monogamous. Many of
these are single tribes, which are exceptions to the general rule among
their kindred and compatriots. It seems to be only among the Hill
Tribes of India and the Malay region, which are rich in varieties of mar-
riage customs, that any number of monogamous tribes are found. Post
("Eth. Jiu-is.," i. 58, 59), after pointing out that innumerable peoples live
in practical monogamy, adds, "Eine wirkliche Zwangsmonogamie ist
eine verhaltnissmiissig seltene Erscheinung."
^ [In Chapter XV of this volume.]
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 245
principal causes of which are most probably poverty and a de-
ficiency in the number of women. On the evidence before us it is
hardly to be described as an institution belonging to one of the
great types of social organization.
5. II. Impediments to Marriage.
A quite distinct classification of marriage s\i;ems could be made
on the basis of the prohibitions which almost everywhere restrict,
in greater or less degree, the choice of a husband or wife. These
prohibitions exhibit a rich variety of differences, and their meaning
and origin are extremely obscure. We have already noted that
they fall into two great divisions. On the one hand, there are
restrictions forbidding marriage within a certain group — laws
of exogamy ; on the other, and quite possibly among the same
people, there are rules forbidding it outside a certain group — laws
of endogamy. Both kinds of restriction appear in a great variety
of forms. Thus endogamy may take the form of prohibition to
marry outside the clan, as in old days among the gypsies,^ or the
caste as in India, or even the family. In the ancient world for-
eigners could rarely intermarry unless their respective states had
the jus connubii, and there were generally barriers on tiie inter-
marriage of slave or serf with free men or women, and a social, if
not a legal, bar on the marriage of noble and commoner. In the
modern world legal barriers have for the most part disappeared,
and, socially speaking, equality in education alone is exacted.-
Far more various and difficult to understand are the rules of
exogamy. iMarriage may be forbidden within the totem, as
among many North American Indians and some Australian
tribes ; within the clan, as among the Xagas ^ and Somali,^ etc. ;
within the village, as among the Battas ^ ; or the tribe, as in Ro-
tuma.^ It may also be prohibited within the kindred, and here
again great differences appear. All the kindred, so far as rela-
1 Post, "Grundriss," i. 33. See ib. for several instances in which it is
the duty of relations to marry. I am not clear that it is distinctly for-
bidden to marry another than a relation.
2 There are exceptions, such as the prohibition of marriage with negroes
in twenty-two of the United States, with Indians in four states, with
Mongohans foiu- states. ("Parly. Papers, Miseell.," No. 2, 1894, p. 155.)
Otherwise the intermarrjang of royal families is the principal exception.
In the German code the marriage of a high noble with a commoner involves
certain disabilities. {Westermarck, 373.)
3 Codden, "J. A. I.," xxvi. 173.
* Post, "A. J.," i. 383. 5 Waitz, v. i. 186.
« Gardiner, "J. A. I.," xxvii. 478. There appear to be sporadic cases
of prohibition within the same caste, or the same religious division. See
Post, "Grundriss," i. 41.
246 PEESONS [Part II,
tionship is traceable, may be prohibited, as among the Andamanese
and the Yoruba.^ Or the prohibition may be applied to all the
kin on that side to which the greater importance is attached, as
in the Brahmanic and Chinese prohibitions.^ Where relation-
ships are of the " classificatory " type, e.g. where the mother and
all her sisters are addressed by the same name, while the daughters
of all that group of women again have one form of address in com-
mon, the prohibition of marriage may extend to all members of
the group, and society will divide itself into classes within which a
man may marry, and classes within which the women are strictly
taboo to him. This class division of society runs through the Aus-
tralian peoples.^ Again, kinship may be reckoned by degrees, as
among ourselves, and exogamy may be enjoined for certain degrees
only, while beyond them marriage is permitted. In point of fact,
under one rule or another, prohibition of marriage within the first
and second degrees (parent and child, or brother and sister) is
almost universal, if we take account only of the basis of relation-
ship recognized by any given people. Thus, if the totem is exog-
amous, and passes by mother-right, all kindred through the
mother will be excluded from marriage, but brother and sister
by the same father will be no relations, and may intermarry.
Indeed, if the principle is carried to its logical conclusion, the same
will be true of father and daughter. On the other hand, the
totemic prohibition may be eked out by a custom forbidding or
discouraging the marriage of near relations as such. Thus, in
New Britain we are told that though legally a man may marry
his brother's daughter, since she is not of his totem, yet in point
of fact such unions excite great repugnance.^ Apart from cases
in which kinship is only reckoned on one side, so that intermarriage
is allowed within the half-blood, the permission of incest within
the nearest degree appears very rare. Indeed, with this reser-
vation we may say that the nearer the relationship (counting that
of the son to his mother as closer than that of daughter to father),
1 Man, "J. A. I.," xii. 126. Ellis, " Yoruba-spealdng Peoples," p. 176.
The Andamanese recognize adoption and affinity as bars, but, through
want of records, fail to trace kinship beyond the third generation. {Man,
"J. A. I.," xii. 127.)
2 If the clan is based on father-right, it will be seen that the prohibition
to marry an agnate is, at least in theory, equivalent to prohibition of
marriage within the clan. Identity of name, again, is taken as equiv-
alent to common membership of a putative clan.
3 Among 53 peoples examined by Tylor, who count relationship on the
classificatory system, 33 are at present exogamous. ("J. A. I.," xviii.
264.)
* Banks, "J. A. I.," xviii. 283.
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 247
the rarer is the failure to prohibit.^ Such faikire probably occurs
most often in consequence of a strongly endogamous tendency,
in the form of a desire to maintain purity of blood. Hence we
find cases of in-and-in breeding among royal families, e.g. in
ancient Persia and Egypt, and among high castes as the L litaos
of Tylicronesia.- But the prohibitions may be carried far beyond
the first and second degrees. The Roman Church still forbids
marriage to third cousins, and the attempt was made to carry it
much further. Again, relationship may or may not be consti-
tuted by marriage. In many cases a son inherits his father's
wives, with the exception of his own mother, along with the
rest of the family property. We find the Jewish legislators, and,
later, INIohammed, setting themselves against this practice. On
the other side, rules of affinity may be construed as severely as
those of blood relationship. On this method an immense extension
of the forbidden degrees was effected by the mediaeval church,^
which was still further widened by the creation of a spiritual affinity
between god-parents of the same child. The efi^ect of this complex
mass of prohibitions was such that hardly any marriage was clearly
valid, while dispensations were and still are attainable allowing
unions even between uncle and niece. Protestantism swept
away this mass of prohibitions, and for the most part allowed
marriage of first cousins, and confined the restrictions of affinity
to the direct line.^
Of these very various rules it seems possible to say three things
generally. The first is that they tend to bar marriage between
people who are bound together by some other important relation.
Thus the totem or the clan, which is exogamous, is also as a rule
1 The marriage of father and daughter, as well as that of brother and
sister, is said to be allowed among the Aleuts. {Reclus, 65.) According
to Post, "A. J.," i. 382, there is no case in which incest with a mother is
allowed in Africa, but among the Wanyoro, sister and even daughter mar-
riage occur. Incest between parents and children is also found in some
South American tribes. (Starcke, "The Primitive Familv," 224. Cf.
Schmidt, "Z. f. V. R.," 1898, p. 304.) Among some of the Veddahs the
younger sister is the regular wife. (Sarasin, "Ergebnisse naturwissen-
schaftlicher Forsehungen auf Ceylon," iii. 465, quoting Bailey.)
- Sister marriage was common in ancient Egypt. (TT. Max Muller,
" Liebespoesie der alten ^gypten," pp. 7-8, and Waitz, v. ii. 111.) For
other instances see Westermarck, 290.
3 See Huth, "Marriage of Near Kin," 117. Huth (op. cit., 120) instances
the repudiation of Ingeburga of Denmark by Philip Augustus, on the
ground that she belonged to a family which had pre\'iously intermarried
with the family of Philip's first wife. It is fair to say that in this in-
stance the Pope procured Ingeburga's restoration.
* The English prohibition of marriage with the wife's sister is the most
conspicuous exception.
248 PERSONS [Part II.
bound in a kind of brotherhood to mutual assistance. Secondly,
the particular relation which is the commonest bar is that based on
blood kinship. Thirdly, the violation of the rules of exogamy,
whatever they are, is generally regarded with peculiar horror. It is
often an object of public vengeance when no other crimes, except
perhaps that of witchcraft, have been raised to that dignity, and
in the civilized world the intensity of feeling which it excites in no
way diminishes.
6. Notwithstanding the great variation in the forms which it
takes, the exogamic impulse seems to perform certain functions
which are fairly constant. Thus (1) it checks in-and-in breeding,
both intermarriage with near kin, and often in the lower races
marriage within the narrow limits of the clan or village, which in
their isolation would otherwise become entirely filled with people
related to one another by a network of cousinship. What pre-
cisely are the physical disadvantages of in-and-in breeding or the
advantages of crossing are, however, harder to say than is popu-
larly supposed, and it is probable that this biological side of the
matter is the least important of the functions served by exogamy.^
But (2), as indicated above (Chap. 11.),^ it has the important so-
ciological function of binding distinct groups together. (3) A
third function of more importance in the civilized world is of a
distinctly ethical character. For us the prohibition of incest is the
only form of exogamy which persists, and incest is a crime which
affects us with a horror, of the kind we call instinctive, and which is
certainly not weaker in civilized than in barbarous humanity.
What is the meaning of this horror? It is too real and deeply
rooted to be explained as a survival. It is not based on tradition
and convention, for it is not felt in relation to many crimes which
the laws forbid. Thus, among peoples who accept the law of the
Roman Church the marriage of cousins is forbidden, but fre-
quently occurs. In our own country men may approve or condemn
marriage with a deceased wife's sister, but any one who should put
it on a par with incest with a blood-sister would be a very abnor-
mally constituted person. Is the horror, then, of incest instinc-
tive ? T1t« usual objections to this view are based on a misunder-
standing of instinct. It is said that the horror is not universal,
and that the objects to which it is directed differ widely in different
' See the evidence, especially that of Mr. G. H. Darwin, collected in
Huth's "Marrias:e of Near Kin," chap. viii.
2 [Of the original work.]
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 249
peoples. But many instincts in the animal kingdom fail in uni-
versality and are modifiable in their application. And, as we have
seen, what is instinctive or hereditary in human nature becomes
more and more a feature of character, a tendency or disposition
to feel or act which obtains its actual direction from experience,
and especially from education and social tradition. Hence, to
say that the horror of incest is instinctive is merely to say that
there is in it something rooted in the character which the average
man inherits, but it still remains to determine what that something
is and to understand how it can be developed in such a variety
of ways. Analysis of the feeling itself seems to justify the ^'iew of
Lotze that it is the mind's protest against the blending of two
distinct attitudes towards the same person. Sexual love and
parental love have an element in common, or we should not use
the term love of them both, but in other respects they are as in-
compatible as oil and vinegar. Even love and hate have something
in common, an intense magnetized interest in the personality of
another. But love and hate cannot fuse. The one is the enemy
of the other, and so is it also with the two fundamentally opposed
forms of attachment. That this is so is a truth about human re-
lationships based on human nature, and in that sense the outcome
of an instinct. But like other truths of the same kind it is not
to be explained by calling it an instinct, but by analyzing its
nature and explaining its function. That function has been, in
earlier stages, to draw families together into society, and at all
stages to keep distinct, and therefore in healthy development,
the deepest affections of mankind. The earlier function being
now superfluous, laws of exogamy tend to confine themselves to
restraint on the marriage of that near kindred between whom
strong relations and affections — incompatible with sex feeling —
arise. This account enables us to understand in a general way
the fluctuations in the rules of exogamy and their gradual reduc-
tion in the civilized world to the familiar prohibitions. In the
first place, the feeling against the marriage of kindred will only
extend to the kindred recognized. Hence, where mother-right
holds we shall find inadequate provisions against marriage with
the paternal kin. The relation of the child to its mother is the
first strongly realized, and remains the most sacred of all himian
relations, and cases where the breach of that relation is tolerated
are the rarest of all. We may take this relation as the starting
point of the prohibitions, and then bear in mind that it is all in
accordance with the ways of primitive thought to extend them
250 PERSONS [Part II.
to everything indirectly or remotely associated with the tabooed
relation — e.g. to the mother's children, her relatives, all of her
totem or her name. The father may come into the account
independently through the recognition of paternity or through
contact with the mother, and starting from the paternal relation
the taboo may be extended in the same way. The eccentricities
of exogamy, then, are explained as arising (1) from an unduly
extended taboo, (2) from an insufficiently felt recognition of nat-
ural relations. These are the ordinary faults of excess and de-
fect which characterize rude morality, and are on the whole re-
moved as civilization advances.
Thus, in earlier customs we find rules of endogamy restricting
marriage by clan or caste exclusiveness, and of exogamy restrict-,
ing it by rules bearing an indirect or irregular relation to the
natural feeling which we are led to conceive as their starting point.
In more civilized ethics we find the first set of restrictions nearly
annihilated, and the latter reduced to a simple expression of the
permanent feelings from which we supposed them to emanate.
In both directions the more civilized ethics tends to discard
rules which hamper the free exercise of choice in accordance with
normal human feeling.
7. III. The Stability nf the Marriage Relation.
Not less important than the number of parties to the union is
the permanence of the marriage tie, and on this basis it would be
easy to make a classification cutting right across all others. In
many of the lower races, as we have already seen, the dissolution
of marriage is so easy and frequent that it becomes a question
whether the term marriage is at all applicable. In other cases the
marriage bond is as strictly regarded as in the Roman Church.
Here, again, we cannot find a continuous and unbroken develop-
ment in any single direction, but once more we can with tolerable
accuracy lay down that certain tendencies predominate at given
stages of culture. This will be clear if once again we begin by
distinguishing the different possibilities, and then briefly indicate
the stage of culture at which each is or has been most frequently
realized.
Divorce may (1) be perfectly free to either party ; (2) it may be
free to both by mutual consent ; (3) it may be absolutely at the
will of the husband or (4) of the wife. Next, (5) it may be free to
one party or both on obtaining the consent of the family, the clan,
or a court ; (6) it may be open to either party on certain condi-
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 251
tions. These conditions are infinitely various, but we ought to
distinguish as cases differing in principle (a) those in which the
only condition is of the nature of a fine, usually taking the form
of forfeiture of dowry or the restoration of the bride price, and
(b) those in which the essential condition is some fault or defect
in the other party to the marriage. Further, (c) it may be open
on the same conditions to man and wife, or (d) on different condi-
tions. Very often, in fact, it is free to the husband and allowed
under conditions to the wife. (7) It may be wholly forbidden,
marriage being indissoluble. In this latter case a separation
a mensa et thoro is usually allowed, but sometimes this too is
forbidden.
INIarriage is indissoluble among the Andamans, some Papuans
of New Guinea, at Watubela, at Lampong in Sumatra, among
the Igorrotes and Italones of the Philippines, the Veddahs of
Ceylon,^ and in the Romish Church.
Ordinarily, however, both in the civilized and uncivilized world
marriage may be dissolved either at pleasure or under certain
conditions. Among uncivilized peoples divorce is not infrequently
free to either party. The man dismisses his wife without cere-
mony, or the discontented or injured woman leaves her husband's
house without more ado and runs back to her own relations,- or
they part by mutual agreement.^ In the higher stages of bar-
barism and in primitive civilization the consolidation of the family
under the growing power of the husband tends to make divorce
rarer and more difficult. Sometimes it drops almost entirely out of
use. Thus it was a Roman boast that though divorce was not
legally impossible before the case of Sp. Carvilius Ruga in B.C. 231,
no instance had been known since the foundation of the city.
Sometimes, with less justice, the power of divorce is left to the hus-
band and withheld from the wife. It may even remain entirely
at the husband's pleasure to send back the chattel which he has
bought. Thus the Hebrew who found anything unseemly in. his
wife merely gave her a writing of divorcement and had done with
her. In other cases there was at least a pecuniary deterrent.
The divorcing husband forfeited the dowry, or, if the fault was his,
could not regain the bride price. He had to leave his wife all
' I take the foregoing from Dr. Westermarck's list, p. 517. He quotes
Wilken's opinion that the same held good of the Xiasians and Bataks.
2 Sometimes it is a condition that she returns the price paid for her,
e.g. in Soulimana and frequently in Africa. {Howard, i. 226.)
' Tliis Post considers to be the rule under the elan organization of
society. {Post, "Grundriss," ii. 117.)
252 PERSONS [Part II.
the gifts he had made to her, or, finally, if she had no such property
of her own, he had to pay a definite sum. Again, if there were
children, provision might be made for their maintenance, or the
right of divorce itself might in this case be withdrawn.^ Similarly,
where the wife has the right of divorce, she may incur pecuniary
forfeits, losing her dowry, or having to repay the bride price and
return the presents made at or during marriage.
Such pecuniary penalties render marriage relatively stable;
but a further step is taken when it is dissoluble only under assigned
conditions. These again show extraordinary variations. The
husband is generally able to divorce the wife for unfaithfulness,
very often for sterility, and sometimes ^ because she bears no sons ;
often, too, for disobedience, bodily defects, or what are considered
moral failings. The wife, again, often has the right of leaving the
husband in case of neglect, desertion, impotence, or cruelty —
more rarely in case of unfaithfulness. As a rule, the divorced
husband may marry again, but it is not always that the divorced
wife has this right, especially under the system of marriage by
purchase. Sometimes she is wholly prohibited from marrying ;
sometimes she must refrain till she has the leave of her former
lord and master.
The customs of savage and uncivilized peoples as to divorce
vary in such wild profusion that it is very difficult to make any
general statement with regard to them. It may, however, be
said that, with the few exceptions mentioned, divorce is allowed ;
that it is generally free to the husband on easy terms, and very
often also to the wife, or to the two parties by mutual agreement,^
but is sometimes restricted to special cases, and that the develop-
ment of the patriarchate, and particularly of marriage by purchase,^
tended to increase the privileges of the husband as compared with
those of the wife in this relation.^ In the Oriental civilizations,
^ E.g. according to Post, "A. J.," i. 434, among the Moorish tribes
of the Sahara and the Hottentots.
^ E.g. in Burmah. {Post, "Grundriss," ii. 114.)
3 In comparing the position of husband and wife, it must be borne in
mind that divorce almost universally sets the husband free to marry again,
while the mfe, in a large number of cases, especially under marriage by
purchase, is more or less narrowly restricted in this respect, so that for
her, divorce rather corresponds to what we call separation. (Howard,
"A History of Matrimonial Institutions," i. 244, 245.)
* Howard, i. 231, notes the influence of wife-purchase in this direction.
^ Divorce among Savages. — Divorce is apparently either quite free or
open on very easy terms to either party among many North American
Indians (Columbians, Howard, i. 238 ; Iroquois, Schoolcraft — Drake,
i. p. 221; Upper Californians and Innuit, Kohler, "Z. f. V.'R.," 1897,
p. 368). Among the Yuroks divorce is very easily accomplished at the
•will of the husband. {Powers, p. 56.) In this last case the husband
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 253
with one or two exceptions, the inequality has been pushed still
further, as we shall presently see in detail. In the West the
regains the bride price. It is free to both parties among the Eskimo of
Point Barrow and of Behring Straits and Pawnees. {Howard, i. pp. 227,
228.) Among other tribes it is at the pleasure of the husband ; [so stated
of the North American Indian generally {Schoolcraft, i. 171) ; of the
Oregons {ib., v. 654) ; of the Hupa {Powers, p. 85) ; here the displeased
husband gets back the bride price ; of the Dakota {Howard, i. 232) ; and
the Abipones {ib.}. In the last case, however, it may lead to a feud].
Among other peoples the man must lose the bride price if he divorces
without good cause. (Thlinkeets, Kohler, I. c.) In some the wife can
leave at pleasure. The Navajo women are said by Colonel Eaton {School-
craft, iv. 217) to leave their husbands on the slightest pretext. Among
the Digger Indians the wife leaves the husband at pleasure. {Ib., 223.)
Among the Cegiha the wife's relations take her away if ill-treated {How-
ard, 228), and the Sioux and Dakota women leave their husbands for
unfaithfulness or other causes. Among the Upper Californians the de-
serted husband demands the return of the bride price. In the later form
of marriage among the Creeks the bond holds for a year only.
Among the tribes of tropical South America the power of the husband
is more developed, and he can lend, give, prostitute, sell, or exchange his
wife at pleasure. {Schmidt, I. c, 1898, p. 297.) In Brazil, according to
Anchieta (quoted in Howard, p. 228), the wife may leave at pleasure. So
among the Moxos {ib., 239). The Bonak, Guanan, and Guatamalan
women have similar freedom (authorities cited by Howard, p. 239).
In Oceania divorce is generally easy, though there are one or two cases
in which it appears to be unknown. In Polynesia divorce by mutual
consent is la^vful. {Howard, p. 230.) A Tongan husband divorces his
wife by simply telling her to go. {Ib., p. 231.) In Micronesia divorce is
at the man's pleasure, and the same is true of the Papuan peoples, among
whom the woman, if she fhes, must return the bride price, while the hus-
band, if in earnest about it, can generally reclaim her from her relatives
by the terrors of witchcraft. {Kohler, "Z. f. V. R.," 1900, p. 347.) In
the Torres Straits divorce appears to have been rare. Infidelity and
sterility were the chief causes, but incompatibility of temper appears to
have been recognized as sufficient. ("Cambridge Expedition," p. 246.)
Among the Australians the husband can dismiss his wafe at pleasure.
If she runs away she belongs to any one who may re-capture her. {Lctonr-
neau, pp. 13 and 18.) In Western Victoria couples may separate by
mutual consent, but the husband wishing to divorce his wfe must obtain
the consent of the chief men of his own and his wife's tribe. She may
also complain of his unfaithfulness and get him sent away for two or three
moons. {Dawson, "Australian Aborigines," quoted by Howard, pp. 229,
230.)
In Africa divorce at the will of the husband is general {Post, "A. J.,"
i. 433). The corresponding right of the wife is rarer, but not infrequent.
Some 16 cases are enumerated by Post (" Afrik. Jurisp.," p. 436), but some
of them are doubtful, or depend on special conditions. Among the Fantis,
P^oulahs, and Kaffirs {Post, "A. J.," p. 438), and in Kordofan and Baka
{Post, "A. J.," p. 439) the neglect or ill-treatment of the wife are good
grounds of divorce. Among the Bogos her third fUght is taken as
final. {Post, "A. J.," p. 437.) In many tribes the '^nfe can be divorced
for sterility {Post, "A. J.," p. 439) and among the Kimbundas the hus-
band can be divorced for impotence. {Post, "A. J.," p. 441.) In many
cases compensation must be given by the party which dissolves the
marriage, e.g. among the Foulahs and the Kaffirs for groundless re])udia-
tion. In Bornu the wife retains her dowTy. {Post, "A. J.," pp. 442-3.)
Am^ong the Banyars she receives a small sum and retains all the presents
she has received. {Post, "A. J.," p. 442.) Among the Basutos, unless
guilty of an offence, she is entitled to support. {Post, "A. J.," p. 442.)
In Egypt she can also claim a certain provision, and in Abyssinia she can
254 PERSONS [Part II.
changes of law and opinion as to divorce have been numerous and
sweeping, as will appear fully when we deal with marriage among
claim her dowry as well. {Post, "A. J.," p. 442.) Among the Bogos she
takes the household utensils with her, among the Barea and Kunama she
has half the joint property, and in Morocco a sum awarded hx the judge.
{Post, "A. J.," pp. 442, 443.) If the woman leaves the man her family
must retm-n the bride price, and perhaps more. But the question of com-
pensation is very natm'ally affected by the circumstances of the divorce.
If the divorcing party has good grounds he or she pays less, or perhaps
pays nothing. Thus among the Kaffirs, Poulahs, Fantis, and in Kordofan
the ^vife does not restore the bride price if she has good grounds for leav-
ing her husband. {Post, "A. J.," p. 445.) Among the Beni Amer, if
it is the man who divorces, the woman's property is divided, the hus-
band taking his weapons, and the wife the house and contents. If the
woman divorces the man for ill-treatment or infidelity, she gets only
one-third of the common stock ; if impotence is the cause she gets half.
{Post, "A. J.," p. 446.)
Among the Yoruba (where father-right holds) the husband can divorce
the wife and reclaim the bride price if she is unfaithful ; other-wise he
loses the price. If he neglects the wife, she summons a palaver of her
relatives, and if he persists, she may leave him. If he is of inferior rank
he is liable to be flogged by her relations. {Ellis, "Yoruba Peoples,"
p. 187.) Under mother-right, where the woman is not bought out of her
family, the children often follow the mother in case of divorce. But this
is not always the case, and sometimes the circumstances of the divorce
determine the children's future. {Post, "A. J.," p. 447.)
No obstacle is offered to the re-marriage of the man, but under mar-
riage by purchase the husband generally retains some control over the
divorced wife. Among the Hottentots and Ashantis she cannot re-
marry ; among the Banguns, not in the same village ; among the Kaffirs,
only if she had good grounds for lea\'ing her husband ; among the Marea
and the Habub, not till her husband declares her free. But in many
cases {Post, "A. J.," p. 450, enumerates 8) apparently after a certain
interval she is free to re-marry.
On the whole, throughout Africa, marriage by purchase prevails, and
the position of the wife is accordingly less favourable.
Among the Indian Hill tribes the variations are great. The Nair wife
may not only dismiss any of her twelve husbands at pleasure, but may
even let him be sold into slavery for debt. {Rectus, "Primitive Folk,"
p. 158.) Often divorce is free to either party. Instances are the Todas,
Bodo and Dhimals (but here an adulteress must refund the bride price),
and the Karens. Among the Badagas the wife may leave if she pleases,
but the husband retains the children. He is also free to divorce her.
{Rectus, op. cit., p. 195.) Among the Nagas there is a fine according to
the cause of the divorce. {Godden, "J. A. I.," xxvi. p. 177.) Among the
Santals divorce is rare, but is permitted to either party on obtaining the
consent of the husband's elan. Among the Khonds the wife may leave the
husband on repaying the bi'ide price. (In some tribes this pri\'ilege is
restricted to the childless.) On the other hand, she can be divorced only
for adultery or prolonged misconduct, and her consent is required if the
husband wishes to take a concubine {Rectus, p. 280) ; and, a rare note in
the savage world, infidelity on the part of the man is held dishonourable.
Among the peoples of Central Asia divorce appears to be open to the
man at pleasm'e and to the woman for persistent ill-treatment. {Ralzel,
vol. iii. p. 342; Letourneau, "La Femme," p. 210.)
Among the Malays, divorce is greatly influenced by the form of mar-
riage. In the Ambil Anak marriage the wife may divorce the husband.
In the Djudjur marriage all the advantage is on his side, but she can
generally escape from him if ill-treated. In the Semando form of rnar-
riage (see Waitz, v. p. 145) the taking of a second wife or concubine is a
ground of divorce, and in one place (Mokomoko) this is the only form
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 255
civilized peoples. For the present, we content ourselves with
noting the prevalence of a loose and easily dissolved marriage tie
in the lower stages of culture, which gives way to a binding form
of marriage with decided privileges for the husband at the next
grade. We shall find this to be in line with a more general
movement.
8. IV, To understand this movement, we deal first with ^Methods
of INIarriage. The principal methods by which a wife is obtained
in the uncivilized world come under four heads : —
a. Capture.
b. Purchase.
c. Service.
d. Consent.
A few words may be said here of the general character of these
four methods, while their bearing upon the marriage relation will
be further discussed in the following Section.
a. Marriage by capture is a somewhat ambiguous term. The
practice of taking women captives in war or in petty raids is
widely diffused over the savage world. In the genuine and un-
adulterated form of carrying off a bride from a strange tribe
against her will and that of her relations, it occurs, according to
Professor Tylor, in some forty cases. ^ From this genuine capture
Professor Tylor distinguishes connubial and formal capture.
Connubial capture is not a mere form, but is a recognized method
of obtaining a bridge between families living at peace with one
another, and is not regarded as a sufficient ground of quarrel.
Of this Professor Tylor finds forty-six cases. Finally, he enu-
merates forty-four cases in which the form of capture is retained
without the reality as part of the wedding ceremony. One illus-
tration will suffice: — "Among the Bedouins of Sinai the bride-
groom seizes the woman whom he has legally purchased, drags
her into his father's tent, lifts her, violently struggling, upon his
camel, holds her fast while he bears her away, and finally pulls her
recognized. {Waitz, v. 145, etc.) Among the Battaks of East Sumatra
there is no one-sided divorce, except for attempt to murder, and mutual
agreement is required. (Howard, p. 229.)
' As an incident of savage warfare it is probably more frequent. A long
list of instances of the practice is given in Howard, vol. i. p. 158. From
Cape Horn to Hudson's Baj^ women are regarded as legitimate boot}\
The practice of capture prevails throughout Melanesia, has existed
throughout Tasmania, New Zealand, Samoa, New Guinea, among the
Fiji Islanders, the Indian Archipelago, and to a limited extent in Australia ■•
it is found occasionally in Africa, and in various ancient nations.
256 PERSONS [Part II.
forcibly into his house, though her powerful resistance may be the
occasion of serious wounds." ^ In other cases the resistance is
less determined, and the form of capture is reduced to a mere sym-
bolical act. The wide prevalence of these forms led IMcLennan
and others to the belief that capture was originally universal ;
but this opinion is now abandoned. Capture, as we shall see
further, is incompatible in principle with the wddely-diifused
primitive system of mother-right, and its existence as a form may
be explained in many instances by the necessity of a symbolic act
to express approi)riation. The symbol, in fact, is not necessarily
a survival of something more real, but may be rather a legal
expression of the character of the act performed.
b. Purchase. A far commoner method of obtaining a wife is
that of purchase. Where this method is fully developed the un-
married girl is not her own mistress. She is one of the family;
more, she is the property of the family or of tlje family's repre-
sentative — the governing male, her father, brother, guardian,
whoever he may be. She is an asset of a certain value to the
family, the amount depending partly on her attractiveness, partly
on her labour, partly on the scarcity of the article. This article
can be sold for so much, and the purchaser naturally becomes
wholly possessed of what he buys.
We shall see, accordingly, that this form of marriage is inti-
mately associated with the extension of marital power, but the
extent of this power and the subjection alike of the unmarried
woman and the wife vary very greatly in different cases. The
nature of the purchase also varies. Very frequently there is a
return gift from the bride's parents, and in some cases the return
gifts equal, or even surpass, the price originally paid.^ It is
generally assumed that this exchange is a modification of purchase,
and that it is through the increase of the return gift that the oppo-
site practice of the dowry arises. It is also possible that the
exchange of presents arises independently in connection w4th
marriage by free consent of the parties as a method of cementing
the union of the two families. However, w^hen gifts of serious
1 Howard, i. 165, 166.
2 E.g. in Columbia {Howard, vol. i. 192). In the Torres Straits, appar-
ently the gifts are ultimately balanced by return presents, yet the trans-
action seems to retain a commercial character. The chief Maino told
Dr. Haddon that he paid for his mfe a camphor-wood chest with 7 bolts
of calico, one dozen shirts, one dozen singlets, one dozen trousers, one
dozen handkerchiefs, two dozen tomahawks, one dozen hooks, two fish-
lines, one long fish spear, one pound of tobacco, two pearl shells, and
"by golly, he too dear!" ("Cambridge Expedition," p. 231.)
Chap. XII.] WOMEN IX PRIMITIVE SOCIETY 257
value are exchanged, we must admit that the whole proceeding
bears the character of a commercial transaction in which the girl,
so to say, is an item on one side of the account.^
c. Service. Where the husband is not able to pay for the wife
he sometimes receives her on credit, and in default of the possi-
bility of payment may work out his debt in the form of service.
This practice is familiar to us from the case of Jacob, and is found
to this day in many parts of the world. ^ In this case the husband
enters the wife's family for the period of his service, which being
concluded he returns to his own people and sets up a house on his
own account. But while residing with his wife's relations the
husband is rather a tolerated visitor than the lord and master
of his own family. Indeed, he is but partially tolerated, for this
residence in the wife's home is frequently associated with the
taboo separating the husband from the wife's relations. They are
bound to mutual avoidance because, as being generally members
of separate totems or clans, they are in theory enemies. On the
other hand, when the service is completed and Jacob has led Leah
and Rachel to his own home, his authority is vindicated and he has
whatever rights the custom of the tribe allows. The sustaining
cause of this form of marriage appears to be principally economic.
The man serves because he has not the property to buy a wife,
and so we find marriage by service existing side by side with mar-
riage by purchase.
d. Consent. In all grades of culture the human factor has its
say in the arrangement of marriage, and probably in the lowest
grades of all the agreement of the parties is often sufficient to
determine a union. Even where capture or purchase is de-
veloped, this factor cannot be wholly eliminated. A pair who are
determined on having each other will settle all questions of right,
in the savage as in the civilized world, by elopement. The actual
influence of the woman's wishes is, of course, often a question of
fact rather than of right. If, confining ourselves to the latter
' Very often the girl purchased is balanced by another girl upon the
other side of the account ; in other words, A, wishing to marry B's daugh-
ter, gives B's son his own sister in e.xchange. (For instances, see Howard,
i. 18.5; Wcstermarck, 390.) We might, indeed, make a separate type
of this practice and call it marriage by exchange.
2 In Africa, among the Quoja, Fantis, Banyai, Edeyahs, and in Futa^
toro, also among the Zulus and Basuto. It is found in N. America among
the Aleuts and other Indian tribes ; in S. America among the Brazilians ;
and in the backward tribes of Asia among the Nagas of Assam, the Kookis,
and among other hill tribes, also among the Tunguses, the Ainu, the
Kamchadeles, and the alwrigines of China ; among the Dyaks and some of
the Philippinos, and here and there in Oceania. {Wcstermarck, "Human
Marriage," 390; and Post, "A. J.," i. 378.)
258 PERSONS [Part II.
point, we put together the numerous cases of child betrothal,
the instances in which women are acquired by purchase or ex-
change, or by hostile capture, and finally, cases in which, though
the consent of the woman is asked, that of her guardian is also
necessar}', we shall arrive at the conclusion that the explicit
recognition of a woman's free power to dispose of herself is upon
the whole the exception in the uncivilized world. ^ In practice
her liberty is greatest where the family organization is lowest, and
the authority of the father least developed.
1 Westermarck (p. 215) makes a fairly long list of eases in which the
bride's consent is of greater or less importance. But from the nature of
the case it is difficult to classify the customs of different peoples on this
head. It does not need arguing that a woman may find means of mak-
ing her own views felt whatever the customs of the tribe. Of the J"'ue-
gians, who are referred to by Dr. Westermarck, Messrs. Hyades and
Deniker say distinctly that the parents give the girl in marriage -ndthout
asking her consent. We can accept this statement and still believe that if
she is resolute enough to leave her husband and persist in her aversion she
will get her parents to give her to some one whom she likes. {Wester-
marck, I. c.) Among the Hottentots and Kaffirs distinct compulsion is
exercised according to Post, "Afrik. Jurisp.," i. p. 363. But, no doubt,
the woman's choice also has influence among these peoples. Often the
most opposite customs occur in the same tribe, e.g. capture, purchase
and choice by the woman among the Digger Indians {Schoolcraft, iv. p. 223),
and this is merely what the facts of human nature would lead us to antici-
pate. Elopement and a peculiar form of child betrothal co-exist among
the Central Australians, and by way of exception they also have mar-
riage by capture. {Spencer and Gillen, p. 104.) In the Marquesas
Islands Letourneau remarks that the parents' objections are often over-
come by the pair decamping together. ("La Femme," p. 106.) This is
a remedy known to the ci\'ilized world as well, but it proves nothing as
to law or custom. Matters are more strictly defined among the Oregon
Indians, where marriage is by purchase, or If, as will happen, a runaway
match occurs, the woman is looked down on as a prostitute. {Schoolcraft,
V. p. 655.)
In many cases child betrothal co-exists with the right of choice by the
grown up woman. Thus, among the Yoruba, according to Captain
A. B. Ellis ("The Yoruba-speaking Peoples," pp. 183-185), there is child
betrothal, but a woman cannot be forced into marriage though she may
be prevented from it. Among the Ainu, Batchelor (p. 141) notes child
betrothal as an occasional practice now extinct, marriage going now in
the main by the consent of the parties.
Post ("Afrik. Jm-isp.," i. pp. 364 and 371), who notes eight cases in
Africa where the bride's consent is required, remarks that practically the
consent of the guardians is also necessary, but information is scanty.
The Yoruba, quoted above, Avould be a case in point.
The means of securing consent are often sufficiently savage. E.g.
according to Post {I. c, p. 363) the reluctant Hottentot maiden must pass
a night with the lover and become Ms wife if he succeeds in ravishing
her. Among the Mandingos the girl has the option of remaining un-
married, and if ever given to another, her first lover may make her his
slave.
A variant to the ordinary case of the disposal of a girl by her parents
occurs when a man acquires a right to a woman by his position. This
appears under the Le-vdrate and also in cases like that of the Oregon
Indians, where marrying an eldest daughter entitles a man to all her sisters,
even if one of them be already the wife of another. {Schoolcraft, v. p. 654.)
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 259
9. V. The Relation of Husband and Wife.
To understand the ethical import of this bewildering variety
of customs we must look to the conception of the family and of
the relations of its members to one another. The specific ex-
planation of the rise of particular forms at particular times and
places may be unattainable, but by taking the conception of the
family as our starting point we shall, I think, be able to understand
how it is that abnormal forms like polyandry and partial promis-
cuity are possible in primitive society, why they disappear at a
later stage, why polygamy existing in the lowest culture is extended
and reaches an abnormal development in the middle civilization,
and why in the West it has given place to monogamy. Here, if
anywhere, again we may hope to gain some insight into the causes
affecting the permanence of marriage, and to trace out the devious
and tangled laws by which this varies in different stages of culture,
to understand finally the conditions under which the methods of
marriage just enumerated arise in early society, and how the first
three forms gradually yield to marriage by consent. In tracing
this evolution we have to deal not with any single cause or with
any single and continuous development, but with a blending of
ethical conceptions, themselves various, confused and even
conflicting, with religious principles, and economic and social
forces.
The result which emerges from all this confusion may, how-
ever, as I think, be briefly stated, and it will conduce to clearness if
it is set out beforehand. Broadly, the family may be said to have
gone through three stages of development. In its first form the
natural family, by which I mean husband, wife and children, is not
yet complete ; husband and wife are not as yet united in the sense
in which they become legally and morally one flesh in the higher
forms of marriage. This form of marriage, of course, corresponds
to the maternal clan system. In the second form of marriage
the natural family is complete, and the husband is the head ; but it
is completed at the cost of the greater subjection of the wife, who,
in passing into the husband's family, merges her personality in
his, often almost like a slave. In the third form of marriage the
union of the family is maintained by the closest moral bond, but
the full legal and moral personality of the wife, as well as of the
husband, is preserved. This third form of marriage must be re-
garded as a type or as an ideal rather than as an actuality.^ To
1 I do not add the religious conception of marriage (as a sacrament) as
a fourth type, because the religious (or magical) conception is present at
260 PEKSONS [Part II.
achieve it is a problem which civiHzation has yet to solve, since
the solution involves a certain reconciliation of contradictories ;
and if we wish to recognize any types of marriage as belonging to
this class we must exercise a little liberality and admit all such as
make a bona fide effort towards the solution. These efforts belong,
in the main, to the story of civilized marriage. We have first
to consider the two lower forms, which together dominate the
uncivilized world. In the early stages of historical investigation
into the beginnings of civilization it was thought that society
arose out of the patriarchal family, and that in Abraham, Isaac
and Jacob, or again in the Roman paterfamilias, as we reconstruct
him from the laws of the Twelve Tables and what we know of
earlier Roman law, we have a type of primitive human govern-
ment. The researches of Bachofen, McLennan, Morgan, and
others opened up an entirely new field of speculation. It was
shown that the lower we go in the scale of civilization the more
prevalent we find a type of organization which is in many ways
the opposite of patriarchal, putting the mother for many purposes
into the father's position. Amongst civilized nations which have
passed out of this stage we find indubitable traces of their having
gone through it at an earlier period. These observations led to
the setting up a matriarchal, as opposed to the patriarchal, theory,
and to the belief that in the dim red dawn of man there was a golden
age of woman, which later on passed into the iron age of male des-
potism. The facts were sound, but the inference drawn from them
was precarious, for it was not sufficiently recognized that there was
a distinction between matriarchy, the rule of the mother, and what
I have spoken of already as mother-right, rule going through the
mother and dependent on the mother. What is really common
among the lower savages, and may even have been universal at a
certain stage, is not matriarchy, but mother-right, and along with
mother-right, and where it most flourishes, it is perfecth^ possible
for the position of women to be as low as the greatest misogynist
could desire. The actual number of cases in which the woman has
a controlling or even an equal position are very few. I will
mention one or two of them later on. As a general rule, where the
father is not head of the household that place is taken by the wife's
brother, and the maternally organized clan consists of units corn-
each stage as a basis or framework for law or custom rather than as an
independent form of the marriage relation. At the same time these
religious conceptions, particularly under Christianity, have deeply affected
the actual contents of the law, and in relation to the permanence of the
union may be said to have constituted a special type.
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 261
posed each of a woman, her brothers, and her children. The
woman is not necessarily any better off because she is ruled by a
brother in place of a husband.
Let us set the two types of family in contrast. Under mother-
right the wife, under father-right the husband, is the pivot on which
the family relationships turn. Under mother-right the wife
remains a member of her own family. Under father-right she
passes out of her family altogether, she is even separated from the
family cult and family gods, her husband's people are her people
and his gods her gods. Under mother-right the children take the
mother's name and belong to her kindred. In cases of divorce
they follow the mother. It is the mother's family who protects
them. Her brother is their natural guardian, and exercises all
the rights and duties which may belong to that position. The
maternal kinsfolk stand together in the blood feud, they and not
the husband protect or avenge the wife and her children. They
may even protect her and them from the husband himself. In
extreme cases the children are not held to be related to their father
or to their father's family at all, whence in some peoples, half-
brother and half-sister may intermarry as in the well-known case
of Abraham and Sarah.^ Under father-right, on the contrary, it
is relationship through the male which counts. The father is
the natural guardian and protector of the children and in case of
divorce retains them. It is to him and his kin that wife and
children look for protection. In extreme cases it is only such
relationship that is regarded. The wife and her children cease
to have claims on her family, while relationship to the male
ancestors and descendants is traced to the remotest degrees.
These consequences of the strict principle of father-right, however,
are seldom pushed to the full length. Relationship through the
mother is generally a bar to marriage, though the degrees are not
carried so far as upon the masculine side ; ^ nor is the wife often so
1 Similarly among the Spartans children of the same mother might
marry, but not those of the same father. The Samoyedes had a similar
rule. {Post, ii. p. 60.) But these logical consequences are by no means
always pressed. The actual facts of kinship have their weight. Thus,
to take a single instance, in New Britain a man may legally marry his
brother's daughter, but in practice is restrained by the general feeling of
repugnance to such unions. {Danks, "J. A. I.," xviii. p. 2S3.)
- Thus a Hindu must not marry within the seventh degree on the
father's or the fifth on the mother's side. {Mayne, "Hindu Law," p. 87,
4th ed.) Manu makes a deeper distinction: "a damsel who is neither
Sapinda on the mother's side nor belongs to the same family on the father's
side is recommended to twice-born men." {Manu, iii. 5.) Sapindas are
relations whose common ancestor, if a male is not more than six, if a
female not more than four degrees, removed from either of them. Manu
262 PEKSONS [Part II.
cut off from her relations as the strict consequences of the paternal
theory might lead us to expect. Her family as a rule retains a
right of protecting her if she is ill-treated ; she will fly to them for
succour, and their right to guard her is recognized.^ Lastly,
under mother-right the property passes through the woman, if
not to the woman. Under father-right it goes from father to son.
10. How father-right arose in history we do not know, we
cannot even say with certainty that the alternative form of mother-
right in all cases preceded it. We do know, however, that mother-
right extends over a great part of the savage world of to-day, in
some cases in a pure and typical form, in other cases blended with
foreign institutions belonging in logic to the opposite principle.
Pure or mixed, it prevails over a great part of the Indian popula-
tion of North and South America, among the Oceanic peoples,
and among many Negro peoples. It is so common as almost to
deserve the name of the dominant form of family life among many
of the lowest races of the world. This is not all. Among almost
all races are to be found traces of the same institution, so that, if not
certain, it is still probable, that mother-right was once universal,
and represents the primitive form of the family. On the other
hand, father-right is the prevailing system in all Indo-Germanic
peoples, among the Semites and Mongolians. It appears in some
cases among the Red Indians, and more often among the South
American tribes. In Oceania it is rare ; throughout Africa it is in-
termingled with the opposite system.
If we do not know how or when it arose, we can with some
certainty specify certain conditions under which it arises. The
first of these is the recognition of paternity, the second is the rise
of certain forms of marriage involving the appropriation of a
woman by her husband.^ As to the first point, paradoxical and
almost incredible as it may appear to us, there are cases in which
primitive men find a difficulty in understanding that a man is
thus insists on complete exogamy to the male line, while forbidding the
female kin only to certain degrees.
In Roman law the praetors early began to recognize the full right of
blood (cognatio) as against the strict agnatio of the patriarchate.
(Maine, "Ancient Law," p. 151.)
1 Cf. Vinogradoff, "Growth of the Manor," pp. 11, 12 (the Celts) ; 136
(the Germans).
" Both of these I take to be essential to the full development of the
paternal system, but either by itself may engender some of the conse-
quences of father-right. E.g. in some Central Australian tribes the son
follows the father's totem, though paternity is not understood. It suffices
that the husband is master of the mother. {Spencer and Gillen, ii. 145,
175.)
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 263
responsible for the birth of a child, and attribute it to the action
of a spirit or an inanimate object.^ It is clear that the recognition
or non-recognition of fatherhood must make all the difference
to the position of the husband in the family, and in fact we find
the transition to father-right frequently associated with the
curious custom of the couvade, which, however it is to be under-
stood, is clearly a recognition of the relation of the father to the
new-born son. The essence of the couvade is that the father has to
take certain precautions at the time of birth, ^^^lateve^ the pre-
cise meaning of these precautions — whether they are to protect
the father, a portion of whose soul is passing into the child, or the
child in whom the soul is finding a new lodgment — they represent
a recognition of paternity, and apparently recognition in a crude
and early form in which it is conceived as a passage of the father's
soul into the child's body. Hence it is very natural that the custom
should flourish at the stage at which father-right begins to assert
itself, and this is what we find. Among the Melanesians, for
example, there are islands where mother-right prevails, but the
husband has begun to assert himself, taking the wife to his father's
house or to his own, if he has one ready, where he remains un-
doubted master. Here there is a mild couvade, the father re-
fraining from exertion, and from certain foods. But in the South-
Eastern Solomon group, where father-right is more developed,
the couvade is also more conspicuous.^ So again in quite another
part of the world, among the South Americans, we find it just at
the turning point where mother-right passes into father-right.
AMiere the position of the father has long been recognized and is
thoroughly established, the custom disappears. Its flourishing
time is at the period when the one system is beginning to give way
to the other .^
If the first condition of the paternal system is the recognition
of the man's relation to his children, the second condition is
that he should appropriate the wife as his own. This he clearly
does not do as long as she remains in her own family, retaining
her property as a member of that family and having her children
' This is the theory of the Central Australians. {Spencer and Gillen,
i. 265 and ii. 330.) Some Melanesians hold that paternity is due to a
cocoa-nut, bread-fruit, or something similar. (Codringlon, "J. A. I.,"
xviii. 310.)
^Codrington, ".J. A. I.," xviii. 309-11. Cf. Kohler, "Z. f. V. R.,"
1900, p. 3.5.5, on the couvade in Papuan custom.
^Schmidt, "Z. f. V. R.," 1898, 297. "Sie {i.e. the customs connected
with the couvade) werden sich also am ausgepragtesten g-erade wahrend
jene Uebergangszeit zeigen wo das eine Prineip (i.e. Vater-recht) das
Andere abzulosen beginnt."
264 PERSONS [Part II.
in turn reckoned as members of it. But there are two processes
known to primitive man by which a man can make a woman his
own property and transfer her to his own family, viz. the methods
of marriage described as capture or purchase. Professor Tylor
justly points out that the practice of capture must tend to break up
the whole system of mother-right. \Mien the woman is carried
off from her own clan to her husband's house the physical facts
conflict with any custom or law regarding her and her children
as still belonging to her family rather than to his. Hence out of
forty cases of genuine or "hostile" capture Prof. Tylor finds that
six only occur in the maternal stage. Of "connubial" capture he
places twenty-one instances in the stage of transition from the
maternal to the paternal system, and twenty-five in the paternal
system proper. There are no instances under pure mother-right.
Finally he enumerates forty-four cases in which the form of capture
is retained without the reality as part of the wedding ceremony.
Of these he finds no instances under mother-right, but twenty-one
in the transitional stage and twenty-three under the paternal
system.^
Now though, as we have seen, there is no reason to think that
capture was ever universal or that it was the original form of
marriage, it is beyond doubt one very primitive way of compassing
that type of marriage which involves ownership of the woman,
and it is quite intelligible that in a tribe where mother-right pre-
vailed those men who by their own bow and spear could obtain
w^omen from a neighbouring clan should treat those women as their
own property, and so establish a workingmodel of the patriarchate.
It is also readily credible that the new type should be more popular
than the old — at any rate among the men — and that they should
seek to extend it to cases in which the wife belonged to their own
clan, and so establish universal father-right. But to lay down
that this was the actual process by which father-right came to
prevail would be to go far beyond our evidence. There is no proof
that all patriarchal societies have gone through the stage of mar-
riage by capture, and its frequent appearance as a form is not
conclusive. The explanation may be that some form was necessary
to assert definite ownership, and that the natural form of asserting
definite ownership was the form of capture.
The alternative and in reality commoner method of appropriat-
ing a wife is that of purchase, and the fact of purchase is closely
associated with the whole position of women in cases where the
1 Tylor, "J. A. I.," xviii. 259.
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 265
patriarchate is strongly developed. ^Ye are moving here in a
region permeated with ideas of slavery, the ownership of one
human being by another, permeated also by the idea of a family
as a unit to which each member belongs as a limb. The bride
purchased from her own family passes out of it and into that of her
husband.^ ^Miere the consequences are pressed to their furthest
extent her family lose the power of protecting her, and, since in
barbaric society there is no law except the protection of one's
family, the wife is at the mercy of her husband as to life and limb.
He may dispose of her at pleasure, he may sell her, give her away,
or lend her ; and she has no right of redress against him.^ At best
she may escape from him if her family return her price and buy
her back. Also, there is nothing in this order of ideas to p^e^■ent
the husband buying as many women as he wishes. This extreme
form must not be taken as the normal case. Natural feeling after
all has its way everywhere in the world, affection and the sense of
kinship survive the technical exclusion from the family, and so we
more often find that by a kind of compromise the wife's relations
retain certain powers of protecting her. Her murder would in
many cases excite the blood feud, and if she runs away from her
husband, and can satisfy her relations that she had good cause
in his ill-treatment, they will in many instances stand by her and
give her protection.^ Still, her position, even in such cases, is
1 It must not be assumed that marriage by purchase always implies
father-right. Under mother-right a man may pay a bride price for the
usufruct of a Avoman (e.g. among the Papuas, Kohler, "Z. f. V. R.,"
1900, pp. .347, 348). But it is easy to see that out and out purchase goes
naturally with, and may be said logically to necessitate a thorough-going
paternal system.
2 Post (i. p. 171) in.stances former customs among Parthians and
Armenians, the Gypsies, Tscherkessen, Maravis of South Africa, and
ancient Germans, and quotes Caesar on the Gauls: "Viri in uxores sicuti
in liberos vitae necisque habent potestatem." Among South American
Indians the father can lend, sell, or exchange the wife. (Schmidt, I. c,
p. 298.) The right of the husband to kill the wife taken in adultery is
general — Post, i. p. 172, says "ganzlich universell."
' See above, No. 9. Among the Somali and in the Gaboon the hus-
band who kills his wafe must pay a fine to her family. (Post, "Afrik.
Jurisp.," p. 62.) This, I suppose, is a composition for blood vengeance.
So too among the Kafhrs. (lb., p. 401.) Among the Ainu, Batchelor
("The Ainu of .Japan," p. 1.38) notes a change. Formerly the head of a
family had absolute powers to divorce, disinherit or punish. Now little
can l)e done without consulting neighl)ours. Among the Australians, the
clan will protect the wife from excessive cruelty. (Lctourncau, "La
Femme," p. 13; Post, I. c, p. 173.) Among the Mandingos the wife is
protected by the judge. (Post, "Afrik. .Jurisp.," p. 402.) Among the
Yoruba by her family. (Ellis, op. cit., 187.) Among the Malays in the
"djudjur" marriage the wife passes by purchase into the husband's family,
yet the v\'ife's parents can interfere to protect her in case of cruel treatment.
(Waitz, V. p. 144.) According to Dr. Westermarck ("Position of Women
266 PERSONS [Part II.
rather that of a protected dependent than of a free woman.
Slavery is still slavery though the position of the slave may be miti-
gated by law, and such mitigation is in reality no rare occurrence
even for the actual slave at the level of civilization which we are
considering.^
The appropriation of the wife consolidates the " natural "
family, but at the cost of a more or less complete subordination of
the wife. Hence the position of the woman seems, if anything,
to change for the worse as society takes its first step in advance.
This deterioration, however, is perhaps less severe than appears
at first sight.
11. The Position of Woman in Early Society.
Favourable as the position of woman under mother-right
appears on the surface, the truth is that it is no bar whatever to
complete legal subjection. Among the Caribs, where descent
goes through the female only, the women were nevertheless in an
inferior position. The husband alone had the right of divorce
and he could exercise it at will, the only effect of mother-right
being that in case of divorce the wife would retain the children.
Among the North American Indians generally, notwithstanding
the tendency to mother-right, the position of women is on the whole
admitted to be low.^ In Melanesia, where there is strict mother-
right, the mother is in no way head of the family. The family
house is the father's, the garden is his, the rule and government
are his.^ In Oceania generally, where mother-right is common,
in Early Civilization," "Sociological Papers," p. 15.5), "there are peoples
among whom the husband's authority is almost nil, although he has had
to pay for his wife." But no instances are given, and I imagine them to
be rare. An interesting trace of the feeling that it is the duty of a wife's
relations to avenge her, is found in the "Alcestis," vv. 731-3, where
Admetus' father threatens him with the vengeance of Alcestis' brother,
though Alcestis has chosen voluntarily to die on Admetus' behalf. Nat-
urally, however, the right of protection by her relations is more effective
when the wife is still regarded as a member of their family. {Post, i.
p. 173.)
1 For instances see Post, i. 171-177.
2 See Waitz, iii. 101, 382; Cailin, "N. A. Indians," i. 23 and 226.
Ratzel puts it that the position of the women is not in all cases one of
oppression (ii. 128).
^ Codrington, "J. A. I.," xviii. 309. Dr. W ester tiiorck, who on the
whole takes a favourable view of the position of women among savages,
declines to attribute any influence in this direction to mother-right.
("Sociological Papers," p. 157; "Moral Ideas," 655-7.) Herein he is
opposed to Steinmetz, and to Ratzel. (See e.g. Ratzel, "The History of
Mankind," ii. 334.) The argument that {e.g. among the Australians)
the position of women is not sensibly affected by the system of descent,
is not very forcible, since the importance of the family is so small as com-
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 267
the two sexes are in large measure separated in their Hves through
the complex mass of taboos which prohibit their intercourse.^ The
head of the maternal family may have the same despotic power as
the patriarch — thus among the Barea and Kunama he has the
power of hfe and death; among the Bangala, the Kimbunda,
and on the Loango coast the right of selling any member of the
family ; and in general under the maternal as under the paternal
system the head is a male.^
Apart from the general tendency to overlook the masculine
headship of the maternal family, and so confuse mother-right and
matriarchy, mistaken views have arisen from the identification
of marriage by service with the subordination of the husband to
the wife. The man who cannot buy a wife becomes a servant
to her family, but not to her. Jacob did not serve Rachel, but
Laban, and when the term of service was completed both Leah
and Rachel remark that they have now passed out of their father's
family. They identify themselves with Jacob, and Rachel steals
Laban's household gods on his behalf. At the same time marriage
by service does fairly illustrate some of the conditions which
modify the relation of husband and wiie, and may even affect
the question whether mother- or father-right is to prevail. The
man serves because he has not the property wherewith to buy him
a wife, and so we not infrequently find that the two kinds of
marriage subsist side by side. Thus among some Californian
tribes purchase is the rule, but if a man can only pay half the bride
price he enters the wife's house in a servile position.^ Similarly
among the ^Nlicronesians of Mariana the husband must serve if
he has not wealth enough to support the wife. The best instance
may be drawn from the Malay Archipelago, where the two
opposed types of marriage are found fully developed with special
names. In one, Ambil anak, the husband is purchased by the wife's
family ; he enters it as a rule in a dependent position, the chil-
dren all belong to the mother's family, and the wife has the
right of divorce. In the other form, Djudjur, the husband or the
husband's family has to purchase the wife ; she becomes his prop-
erty, the children are his, and he has the right of divorce. Her
parents only retain a certain right of intervention in case of cruel
pared with that of the local ^oup and its divisions, that the mode of reck-
oning; descent naturalh' counts for little.
1 In some instances, however, the position of women is, or has been,
favourable in Oceania, e.g. in Micronesia, and in Xew Zealand. {Ratzel,
i. 273-274. and Wnitz, iii. 101.)
'^ Post. "Grundriss," i. 134-6. Post notes that there are e.xeeptions.
3 Kohlcr, "Z. f. V. R.," 1897, p. 383.
268 PERSONS [Part II.
treatment.^ In such cases at least it is clear that the relations of
husband and wife are determined not bj^ any prevalent custom or
opinion prescribing what such relations ought to be, but by the
actual success or failure of the man in finding means whereby
to appropriate a woman to himself.- Thus the differences between
the maternal and paternal systems do not turn on divergencies of •
principle as to the rights of women, nor does the superior position
of the wife's family necessarily imply any similar superiority in
the wife herself. No doubt under mother-right the woman derives
some advantages from her position, such as the retention of her
children in case of divorce, but the cases in which it has given her
real equality or superiority prove on examination to be very rare.
Among the Nairs, who are sometimes quoted in this connection,
and who, as has been mentioned, combine polygamy and polyandry,
the woman chooses her husband and brings him to her home.
Possessions pass from mother to daughter. The woman may divorce
her husband, or rather any of her husbands, at pleasure. Among
some of the tribes, e.g. the Pani KotcJie, the husband goes to live
with his mother-in-law, who is head of the house, and may incur
no expense without her authority or else he is personally respon-
sible. It sometimes happens that for this reason he is sold as a
slave.^ Often a brother and sister set up house together, the tie
between them being held closer than that between husband and
wife, and if in such a case the wife goes to live with a husband
she will be subject to the sister. It follows also that the child
1 Waitz, V. i. 144 ff. Cf. Marsden, "History of Sumatra," p. 220, etc.,
cited in Spencer's "Descriptive Sociology."
2 We may note in this connection that among civihzed peoples which
have completely developed the patriarchal system, and perhaps even
passed beyond its extreme phases, there is a tendency to the subjugation of
the husband, in cases where women are allowed control of their own
property, if the wife is the wealthy one. I am not speaking from the
point of \iew of the humorist or the novelist, but of the lawyer. Thus,
few peoples have pushed the right of the father to a more extreme point
than the Japanese in the Far East, or the ancient Romans in the West.
Yet ainong the Romans, when women acquired by the Lex Julia com-
plete control over their dowry, the result was that the husband frequently
passed into practical subjugation to a rich wife. In Japan it is aston-
ishing to find the recrudescence of the primitive custom of the husband
coming to live with the -wife, and taking her name in the case where the
eldest daughter inherits an estate, or where the bride's father supplies
the house. From instances like these, drawn from cases where the
patriarchate had its most extreme development, we can understand the
full strength of the economic factor in determining marital relations, and
we may draw the inference that where in the unci\alized world we find the
husband passing into the Avife's family, even in an inferior position, it
'does not folloAv that any favouralile inference is to be drawn as to the
prevalence of an ethical conception of women's rights.
''See Reclus, "Primitive Folk," pp. 156-8.
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 269
is attached to the uncle rather than the father. In such an organi-
zation the family, as we understand it> is of course completely
broken up, and there is no doubt that the position of the woman
makes her in a way the centre of the whole organization. There
is equally no doubt that in this case she acquires from this position
a considerable authority. But we are also told that, although she
inherits the property, her brother or maternal uncle administers
it, and, again, it is administered rather on behalf of the whole
group of kinsfolk — that is to say, as collective property • — than
as belonging to any individual owner, so that after all we are not
very far removed from the normal state of things under mother-
right, where the woman is subject to her brothers instead of to her
husband.
Somewhat similar cases may be cited from among the North
American Indians. Here the women had occasionally a certain
measure of political importance ; for example, they might be rep-
resented by a spokesman, either male or female, at the men's
covmcil, and they sometimes originated warlike expeditions with
the object of replacing, by a raid and the capture of a prisoner,
the loss of a warrior of the clan. To them, also, as we shall see
later on, was referred in many cases the fate of the prisoners
taken. They decided whether prisoners should be tortured or
adopted, and, moreover, took a special part, with a peculiar zest,
in the execution of the tortures when a decision was taken in that
direction.
Among the Iroquois, where we have some of the most detailed
accounts, we are told that the women occupied a dominant posi-
tion in the Long House where the joint family lived. "Usually
the female portion ruled the house, and were doubtless clannish
enough about it. Stores were in common, and woe to the luckless
husband or lover who was too shiftless to do his share of the pro-
viding. No matter how many children or whatever goods he
might have in the house, he might at any time be ordered to take
up his blanket and budge. . . . The house would be too hot for
him, and imless saved by the intercession of some aunt or grand-
mother, he must retreat to his own clan, or, as was often done, go
and start a matrimonial alliance in some other." ^ The women,
says jNIorgan, were the great power in the clans. They could
"knock off the horns" of a chief, and of certain chiefs the}' had
1 FrojQ a letter by the Rev. A. Wright, a missionary among the Seneeas,
written in 1873, and given in Morgan's "Houses and Houselife of the Amer-
ican Aborigines," p. G5. It is worth noting that Mr. Wright apjjcars to
be describing a past state rather than that which he actually saw.
270 PERSONS [Part II.
the nomination. Yet even among the Iroquois we do not find that
the position of women was altogether good. On the contrary,
they did all the drudgery of house and field. They were socially
separate from the man, and the conquered Delaware were named
women as a term of reproach, and compelled to forego arms as a
mark of contempt.^ Of the North American Indians generally,
Waitz ^ makes a remark which goes to the root of the matter, that
though property passed by the women they seem to have had
little or none of their own. There remain a few scattered cases
in which the wife — not merely the wife's family — is said to
enjoy superiority or even authority. Among the Koochs of
Bengal it is stated by Dalton that the husband goes to live in the
wife's clan, and that his property passes to her daughters only,
and not only this, but he has to obey his wife, and what is, per-
haps, more extreme, her mother as well.^ According to Herrera,
men in Nicaragua in his day become slaves to their wives,^ and
among the tribes of Esquimaux at Nootka Sound and at Cross
Sound, women are somewhat vaguely said to have a superior
position to men.^ Other cases ® in which a higher position is
attributed to the wife either depend on her superior social or
economic position, or on the failure of the husband to pay her price.^
They do not indicate that the position of the woman is as such
equal or superior to that of the man.^
A handful of exceptions such as these, however interesting as
disproving sweeping generalizations, do not alter the fact that
1 Schoolcraft — Drake, i. 277, 388. Morgan, "League of the Iroquois,"
323.
2 Waits, iii. 129. ^ Letourneau, "La Femme," p. 384. * 76., 175.
5 Waitz, iii. 327-333.
^ The well-known statement of Diodorus as to the supremacy of Egyp-
tian wives will be dealt with below [chap. xv].
' In one or two other rare cases the law of divorce favours the wife.
For instance, among the Khonds of Orissa she may leave her husband on
repaying her price, but may only be divorced for adultery or misconduct.
(Dr. Westermarck states that constancy is not required from the wife, and
that the husband may be punished for adultery. "Sociol. Papers,"
p. 152.) The husband may not strike the wife taken in adultery — a
very exceptional rule. {Reclus, p. 281.) These liberties appear to be
connected ^vith a scarcity of wives, and with the relies of polyandry.
(Reclus, ib.)
8 In addition to the above list, Post, "A. J.," 400, considers that the
position of the Avife among the Sarae is equal to that of the husband, and
even superior among the Beni Amer and the Galla. But among the
last-named he adds that if the husband has once brought home the trophies
of a departed enemy, he becomes absolute master. According to Hahn
(quoted by Westermarck, op. cit., p. 154), the Khoikhoi (Hottentot) wife
is mistress within the house, but according to Kohler, "Z. f. V. R*," 1902,
pt. iii. 344, 355 (speaking of the Hottentots generally), though the v,afe
has a fairly independent position, the husband has the right to chastise
her in moderation.
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 271
in the great majority of uncivilized peoples the position of women
is in greater or less degree inferior to that of man in point of personal
rights/ Apart from a sufficiently frequent inferiority in her right
to property or to the mere protection of life and limb, apart from
the fact that the drudgery of life so often falls on her while the
men hunt or fight," the prevalence of the capture, purchase and
exchange of wives testifies strongly in this direction. The common
facility of divorce, even where the conditions are equal to the two
parties, tells against the woman, who is the more interested of
the two in the permanance of the tie. And very often the condi-
1 Dr. Westermarck, who objects to the term "subjection" as a general
description of the position of women in the lower races, WTites : "Among
many of them the married woman, although in the power of the husband,
is known to enjoy a remarkable degree of independence, to be treated by
him ■ftith great consideration, and to exercise no small influence upon
him. In several cases she is even stated to be his equal, and in a few his
superior." ("Soe. Papers," p. 151.) Admitting this to be the case, we
shall clearly be right in persisting that in the great majority of cases
women's legal position is inferior. It may be added that considerate
treatment is a totally different thing from equality of rights. In his new
Avork on "The Origin and Development of the Moral Ideas," Dr. Wester-
7narck gives a long list of cases in which the wife's position is more or less
favoured. But in comparatively few of them is equality of rights as-
serted, and in still fewer superiority. Even where equal rights are men-
tioned, the statements with two or three exceptions lack precision. Dr.
Westermarck himself says : "All these statements certainly do not imply
that the husband has no recognized power over his wife, but they prove
that his power is by no means unlimited. It is true that many of our
authorities speak rather of liberties that the woman takes herself than of
privileges granted her by custom; but, as we have seen before, customarj-
rights are always more or less influenced by habitual practice." (P. 646,
the italics are mine.) The distinction here admitted cuts deeper than
Dr. Westermarck seems to admit. In a relationship so personal and
subtle as that between men and women, de facto influence and power may
develop to the highest pitch, without in the least affecting the recognized
rights or status of the sex. A favourite of the harem may sway an empire
and yet remain a slave. The frequent statement of travellers that the
wife rules the household, or that the husband does nothing A\ithout
consulting her, might have been made of tliis country in the days when
the legal position of the wife was most abject. The power to influence
and recognized ethical equality are not only different, but have no neces-
sary tendency to pass into one another.
^ The extent to which women fill the place of slaves in the rudest
societies has perhaps been exaggerated by some \vriters. Dr. Weste?--
viarck ("Sociol. Papers," p. 150) points out that for the men to fight
while the women toil, is a natm'al division of labom* in a world where
fighting is a frequent necessity. But this, though it explains, hardly
alters the fact that an occupation recognized as inferior falls to the women.
(Cf. Westermarck, "Moral Ideas," pp. 633-637.) There are many varia-
tions, and it would be easy to multiply quotations on either side, but on
the whole it seems clear that the more toilsome and least esteemed work
tends to fall on the women. See the general statements in Ratzel, as to
Oceania, vol. i. p. 273; the Malay Region, ib. p. 441; North America,
ii. p. 129 ; the Arctic races, p. 225 ; the Negroes, p. 334 ; Kaffirs, pp. 432,
433; and the Mongols, iii. p. 341. The position in the two first-named
regions is the most favourable, particularly among the more developed
peoples.
272 PEKSONS . [Part II.
tions are not equal, but favourable to the man. The general
permission of polygamy points in the same direction. Lastly,
the woman's person is not, strictly speaking, her own property,
but that of her husband or guardian, and it is in this sense in the
great preponderance of cases that chastity and respect for women
are understood in the savage and barbaric world. This pecu-
liarity makes itself felt in many directions. In the first place
wife lending is an extremely common custom among savages.
The husband who would kill or mutilate the wife whom he dis-
covered in clandestine intercourse with a lover will also lend
her as a matter of courtesy to a guest.^ In the one case she in-
fringes his right of property, in the other case it is as his property
that she is acting.^ She is not in our modern phrase a person with
the full rights of self-respect and respect from others attaching to
personality. Secondly, where the obligations of marriage are
binding the rules for the unmarried are often very lax. Further,
the principal exception to this laxity is constituted by the system
of child betrothal, whereby the unwedded girl is already the
husband's property.^ Generally speaking, the requirement of
chastity depends on the developed power of the guardian."* Thirdly,
' Numerous instances are given by Starcke (p. 122) and Westermarck
(pp. 73, 74). The custom is pretty general among the North American
Indians. {Waitz, iii. p. 111. He excepts onlv the Sioux and the Chippe-
way.) Cf. Schoolcraft, v. p. 684. Post, "Afrik. Jurisp.," i. pp. 471, 472,
gives numerous instances in Africa. Waitz, v. ii. p. 105, attributes the
practice to the Micronesians generally.
2 In the Torres Straits any irregular intercourse was called "stealing a
woman," and there seems to have been no word for fornication or adul-
tery apart from theft (puru). ("Cambridge Expedition," 275.)
^ Where the young girls are guarded, precautions are sometimes pushed
to disagreeable lengths, as in New Britain, where, between eight and ten,
they are put into cages and kept there till they are married.
* Post, i. pp. 21-23. The first step towards insistence on the chastity
of unmarried and unbetrothed girls, is taken when the husband expects
virginity at the time of marriage. Unchastity may then become a breach
of the proprietary rights of the guardian. Hence it is often punishable,
especially' if it results in pregnancy. Thus among the Takue, the Marea
and the Beni Amer, the seducer who makes an unmarried girl pregnant
excites the blood feud, and among the Bogos the full blood price is de-
manded in such a case. {Post, "Afrik. Jurisp.," i. pp. 61 and 70.) Among
the Wanyamwesi the lover must marry the pregnant girl under a penalty
of a fine {Post, "A. J.," i. p. 458), and in Unyoro she is taken to liis house,
and, b3' a characteristic piece of primitive reasoning, he must pay for her
if she dies, while if she lives she returns to her father unless the lover
paj's the bride price. (For other instances in Africa, see Post, ib., p. 459,
ii. p. 70, and cf. Le/ow7-/i<?rtu, "La Femme," p. 48.)
Westermarck (pp. 61-64) enumerates OA-er thirty eases among uncivil-
ized races where unchastity out of wedlock is condemned — but to some
of these there are qualifications, e.g. among the Gypsies and Kalmucks
unchastity is tolerated and it is only the birth of a child that is a disgrace.
In some instances, the unchastity of an unmarried woman is regarded
as bringing a curse or some misfortune on the family or the tribe. Thus
Chap. XII.] WOMEN IN PRIMITIVE SOCIETY 273
the claim to fidelity is usually one-sided, ^^^^ile any offence
on the wife's part exposes her to punishment, and while an out-
raged husband may lawfully avenge himself on the man who has
trespassed on his property, the unfaithfulness of the husband to
the wife is but seldom regarded as an offence.^ Finally, it is often
the Aleuts fear that the whale would punish them if their -nives were un-
faithful in their absence, or if their sisters were unchaste before marriage.
(Reclus, p. 52.) Similarly in Loango, the unchastitj' of a girl is held to
bring a curse on the country {Westermarck, p. 61), and a similar idea
seems to underlie the punishment of a pregnant maiden on the Gold Coast,
where she is chased by the women to the sea, covered with dirt and
ducked, after which she receives charms from the fetishman. {Post,
" A. .J.," i. p. 460.) Apparently this is not so much by way of punishment
as to avert e%*il.
With a few exceptions such as these, we may say that among uncivil-
ized races unchastity is regarded universally as an infringement of rights
of property', and that generally only the rights of the husband present
or future are considered, but that in some cases the value of a woman is
depreciated by the loss of \-irginit3% and this is accordingly regarded as
the infringement of the rights of her guardian. The man is of course
punished, often "s\ith death, for the infringement of these rights. We
may find the germ of a different conception in the belief that the unchas-
tity of a man under certain conditions will cause misfortune. Thus the
Aleuts above quoted believe that the whale will pimish them, not only
if their wives are unfaithful, but if they are unfaitliful, while on a fishing
expedition, to their wives. It is a ^idelj'-diffused belief among the
North American Indians that unchastity on the war path would bring
defeat, and hence captive women are generally spared. For the rare
eases in which a husband incm's penalties to his wife for unfaithfulness
see next note.
1 Authorities give one instance to the contrary among African peoples,
■viz. in Great Bassam. Here the husband pays a fine to the wife if un-
faithful to her while she is with the prince. (Post, " Afrik. .Jurisp.," ii. p. 72.)
Among the Hottentots the husband as well as the wife may be flogged
for adultery, and except for ill-treatment there is no divorce without the
consent of the council. But these observations refer to Christianized
tribes. (Kohler, "Das Recht der Hottentotten," "Z. f. V. R.," 1902,
pp. 344 and 354.)
Among the Mariana the husband could kill an adulteress, but if he on
his side were unfaithful, he would be set upon and would be glad to escape
with a whole skin. {Waitz, v. ii. p. 106.)
The Sioux and Santal (Dakota) women are said to beat their husbands
for unfaithfulness. (Howard, i. p. 239.)
According to Dr. Westermarck. among the Shans of Burmah the wife
maj- divorce the husband for drinking or other misconduct, retaining the
common property. (Wester tnarck, "Sociol. Papers," p. 1.54.) But Col.
Woodthorpe ("J. A. I.," xxAi. p. 21) states that the Shans of the Upper
Mekong follow the law of Manu as to divorce, i.e. the wife has no powers
of divorce at all. In W. Victoria, as mentioned above (Howard, i. p. 229),
a wife may get a slight punishment inflicted on an unfaithful husband,
and in some Queensland trilies the women take advantage of the initia-
tion ceremonies to punish men who have ill-treated them. (Westerjnarck,
"Sociol. Papers," p. 148.) The case of the Khonds has been mentioned
above.
As mentioned above. Powers states that among the Karoks of Cali-
fornia cohabitation even with a female slave is considered disgraceful.
Tw o or three more similar instances are found among the North American
Indians.
We could prolong the above list if we were to add cases in which bring-
274 PERSONS [Part II.
open to fathers to devote their daughters to prostitution. This
is not infrequently a rehgious duty, and in many cases there are
recurring rehgious festivals of which promiscuous intercourse is a
feature.^
12. All the world over, certain forces, ethical, political, economic,
and perhaps religious, act from either side upon the relations of
men and women. On the whole, apart from a sufficiently strong
development of the ethical factors, those which fight for the man,
as physically the stronger, have the upper hand. But when there
are always forces tending the other way, favourable circumstances
will occur here and there to give them peculiar strength. For
example the circumstances attending marriage by service, espe-
cially when we compare it with marriage by purchase or capture,
have shown us how much the relations of husband and wife are
determined by what in the modern world we should call the eco-
nomic factor. The savage woman's price — if by price we mean the
difficulty of appropriating her — may be high or low. Where it is
always possible to organize a raid and carry her off it is decidedly
low, and she becomes the captor's property. Where this is not
countenanced, it is possible to buy her from her guardian, and
then presumably her price, like that of other things, is a matter
of supply and demand. The actual number of girls born and the
practice as to infanticide must affect their value, and we can under-
stand that better treatment of a wife becomes necessary to the
husband who wishes to retain her.^ In other cases the economic
value of the woman may be high — for example, where agriculture
is becoming important and is still regarded as women's work. In
yet other cases women are the repositories of magical lore, and men
fear them.^ These and doubtless other disturbing causes consider-
ably modify the status, nominal or real, of women in the uncivilized
world, but the fluctuations which they cause are fluctuations
about a centre of gravity which is sufficiently low.
ing a second \vife or a concubine into the house is a ground of divorce.
Broadly spealdng, however, in the savage world, under mother-right or
father-right, the husband is master of the wife's person.
1 For instance in Africa, see Post, "Afrik. Juris.," p. 465. In several
Australian tribes the women are common at the corroboree, except to their
fathers, brothers or sons by blood. (Spencei- and Gillen, p. 97.)
2 Hence probably the favourable position often enjoyed bj' women in
polyandrous communities. To us polyandry seems necessarily degrading
to a woman. To the women of the polyandrous tribe it means that they
are sought after, and therefore prized.
^This important suggestion is due to Dr. Westermarck ("Soc. Papers,"
p. 159), who is also inclined to lay stress on the economic factor. (On
this point cf. Ratzel, ii. 130.)
Chap. XII.] WOMEN IX PRIMITIVE SOCIETY 2iO
To sum up our account of marriage in the uncivilized world.
We have found two distinct forms of the family, the one based
on mother-right, the other on father-right. Under mother-right
the woman is undoubtedly the legal centre of the family. From
this she sometimes derives certain advantages, such as the power to
leave or dismiss a bad husband, or the right to retain her children.
But, as a rule, when looked into, her position is found to be in-
ferior. She is held in little respect, and is seldom the owner of
the property which passes in her name. The cases in which she en-
joys a real equality \\'ith men prove on examination to be ex-
ceedingly rare. The characteristic of the lower savage life is
rather that the family is as yet incompletely organized. Hence
the facility of divorce, which is often so great that marriage can
scarcely be said to exist, hence also the sporadic appearance of
polyandry and partial promiscuity. The advent of father-right
implies on the whole a firmer organization. The wife now passes
out of the hands of her own kindred, and is appropriated by her
husband, whether as the result of capture, purchase, or service.
Her legal position often becomes semi-servile or worse, and though
socially, as among the ancient Germans and the early Romans,
she is often held in high respect, her incorporation in her husband's
family is often pushed to such an extreme that her subordination
does not end with his death. In some instances she follows him
to the grave. In others, where she belongs to the family rather
than to the individual, she becomes the property of his brother,
or of the male head of the clan.
Under both forms of marriage the permission of polygamy is the
rule, and divorce is easy for the husband. Under the second
form it is generally less easy for the wife. Under both, moreover,
it is not easy for the wife but the woman that is under tutelage.
The civilized conception of the sanctity of woman exists only in
germ ; her destinies, her freedom and often her life are in manj'
cases at the disposal of her legal guardians. . . .
Chapter XIII
MARRIAGE
Section 1
FORMS OF MARRIAGE!
The institution the purpose of which is to serve propagation
and all the psychic impulses and ideals that surround it, is mar-
riage. Its development and the form it took among the different
nations is one of the most fascinating studies of scientific research ;
but we cannot follow it here. Nor can we deal at length with its
original form, group-marriage, in which reproduction took place
in groups, the members of which were married to a group of hus-
bands and wives, both men and women being common husbands
and wives. This has been elsewhere authenticated, and we need
only add, that when people seek to refute the fact by pointing out
the sexual relations that exist among the anthropoid apes, etc.,
that live in small companies, w^e may reply that it is a characteristic
of mankind to strive and work together in larger numbers, and in
earlier times the form of marriage that corresponded to this mode
of life was not monogamy but group-marriage.
Group-marriage may lead to polyandry, a form that is still
found among a large number of peoples, a common custom being
for several brothers to have but one wife. This has certain psychic
advantages, but also the weighty disadvantage that it decreases
the population — especially when it is combined with the slaughter
of the female children, the only means of explaining the consistent
carrying out of such a system.
Much more frequent, in later periods, is polygyny (or polyg-
amy) which follows naturally in the wake of capture and pur-
chase marriage ; for, whatever a man takes possession of, or
acquires in this way, he regards as his own. The great expense
^ [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Alhrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
276
Chap. XIII, § 2.] MARRIAGE 277
of such a custom, however, often interferes vrith its practice;
and it must, therefore, be regarded, even among the peoples that
permit it, as an exception, not as the rule.
The civilized peoples of to-day are sharply divided into nations
of Christian and nations of INIohammedan culture. While Mo-
hammedan culture has retained polygamy, all Christian peoples
have adopted monogamy, and regard this institution as such an
essential principle of their cultural order that they have declared
bigamy to be a grave, major crime. The cultural idea that under-
lies this, is that a mutual psychic intermingling of lives is made
possible only by the self-restraint of two individuals, and that a
plurality of wives must lead of itself to the basest passions, to an
egoistic self-assertion that poisons marriage, and to constant petty
jealousies, suspicions, and prejudices, unless the wives are in com-
plete subjection, and consequently are mentally inferior and with-
out self-assertion — a condition that is equally detrimental to all
development. . . .
Section 2
TRIBAL MARRIAGE LAW i
A tribe cannot be developed through the expansion of a clan.
The clan is not the antecedent of the tribe, nor is the tribe the
antecedent of the clan. A clan is an integral part of a tribe, and
there is no tribe without the clans of which it is composed, and
no clan without the tribe of which it is a part. The communal
family seems to be the antecedent of the tribe ; but a single com-
munal family could not develop into a tribe. A tribe seems to
have primitively^ been a federation of communal families. WTiat-
ever its primitive origin, the special organization of any particular
tribe must have been accomplished by combining bodies-politic
that were previously distinct, and the basis of federation must
have been one of intermarriage. In the simplest form two such
distinct bodies could unite by making an agreement that the
women of each should become the wives of the other. If three
bodies-politic combine, the women of A might become the wives
of the men of B, the women of B wives of the men of C, and the
women of C wives of the men of A. In the thirty-fourth chapter
of Genesis we read :
' [By J. W. Powell. Reprinted, by permission, from the 3d Annual Re-
port of the American Bureau of Ethnology (The Smithsonian Institution).]
278 PERSONS [Part II.
"And Hamor the father of Shechem went out unto Jacob to
commune with him.
"And Hamor communed with them, saying, The soul of my
son Shechem longeth for your daughter : I pray you give her him
to wife.
"And make ye marriages with us, and give your daughters unto
us, and take our daughters unto you.
"And ye shall dwell with us : and the land shall be before you ;
dwell and trade ye therein, and get you possessions therein."
The essence of tribal organization is this : The institution of a
tribe is an institution for the regulation of marriage ; and hence
marriage is primitively by prescription. But the selection of
wives by legal appointment ultimately develops into selection by
personal choice, and tribal organization is greatly modified thereby.
Excursus — Laio
A definition of the term "law," that will hold good under all
circumstances, must be divested of the many theories of its origin,
the source of its authority, and its ethical characteristics, which
are expressed or implied in customary definitions, and laws must
be considered as objective facts. The following definition will
perhaps do under all circumstances : A law is a rule of conduct
which organized society endeavors to enforce.
In civilization, law is theoretically founded on justice ; but in
savagery, principles of justice have little consideration. There
are two fundamental principles at the basis of primitive law : viz.
first, controversy should be prevented ; second, controversy should
be terminated. A third is derivative from them ; namely, in-
fraction of law should be punished. These principles enter into
primitive law in many curious ways.
It was customary among the tribes of North America for in-
dividuals to mark their arrows, in order that the stricken game
might fall to the man by whose arrow it had been despatched.
A war-party of Sioux surprised a squad of sleeping soldiers,
who were all killed at the first volley from the Indians. Their
arms, blankets, and other property were untouched, because, the
attacking party being large, it could not be decided by whose
bullets the soldiers were killed.
It has been widely believed that the practice of placing the
Chap. XIII, § 2.] MARRIAGE 279
property of deceased persons in their graves when they are buried
has its origin in religion, and testifies to the universal belief that
the dead live again, and will need such articles in their new life.
But many tribes of North America who have not yet been long
in contact with white men avow that, there being no owner for
the property, its disposition might lead to controversy, and
hence it is destroyed. Many examples of this fact have been
collected. Ownership to the greater part of property in savagery
is communal, some classes of property being owned by the clan,
others by the tribe ; and for such there is no proper inheritance,
as the clan and tribe do not die ; but purely personal property is
inherited by the grave. It seems probable that such is the origin
of the custom of burying various articles with the dead. Subse-
quently it has religious sanctions thrown about it, as have many
social customs.
There is a law, among the tribes of North America, that su-
perior age gives authority. This law is widely spread, and per-
haps universal, and exercises a profound influence in tribal society,
as the occasions for its applications are multifarious. No man
knows his own age ; but every man, woman, and child in the
tribe knows his relative age to every other person in the tribe —
who are older and who are younger than himself — for, in ad-
dressing any other person in the tribe, he must necessarily use a
term which implies that the person addressed is older or younger.
The law that authority inheres in the elder is a simple and in-
genious method of preventing controversy.
The above is the explanation of another custom observed among
savage tribes ; namely, that it is illegal to address a person by his
proper name. Kinship terms are used in direct address, proper
names in speaking of a third person. It is hardly necessary to
state that by this device controversy is prevented.
An interesting form of outlawry exists among some tribes.
When a man has frequently involved his clan in controversy with
other clans by reason of quarrels or other outrageous conduct, his
own may decide no longer to defend him, and will formally an-
nounce in tribal council that such person is no longer under their
protection. If the person thereafter by his conduct maltreats anj^
member of the tribe, the injured party may do as he will with the
offender, and not be held accountable by the kindred of the outlaw.
Three especial methods of terminating controversy are widely
spread among the tribes of North America.
When controversy arises in relation to ownership, the property
280 PERSONS [Part II.
is usually destroyed by the clan or tribal authorities. Thus, if
two men dispute in bartering their horses, a third steps in and
kills both animals. It seems probable that the destruction of
property the ownership of which is in dispute is common to all
tribes.
A second method of ending controversy is by the arbitrament
of personal conflict. For example : if two persons disagree and
come to blows (unless the conflict end in the maiming or killing
of one of the parties), it is considered a final settlement, and they
cannot thereafter appeal to their clans for justice. By conflict a
controversy is barred. This law seems to be universal.
The third method of terminating controversy is by the establish-
ment of some day of festival — sometimes once a month, but
usually once a year — beyond which crimes do not pass. The
day of jubilee is a day of forgiveness. The working of this prin-
ciple might be illustrated in many ways.
Law begins in savagery through the endeavor to secure peace,
and develops in the highest civilization into the endeavor to estab-
lish justice.
Society is organized for the regulation of conduct, and con-
duct is regulated by law in the several stages of human progress
in relation to those particulars about wdiich serious disagreement
arises. In the early history of mankind it appears, from all that
we may now know of the matter, that the most serious and fre-
quent disagreements arose out of the relations of the sexes. Men
disagreed about women, and women about men. Early law,
therefore, deals to a large extent with the relations of the sexes.
The savage legislator sought to avoid controversy by regulating
marital relations; and this he did by denying to the individual
the right of choice, and providing that certain groups of men
should take their wives from certain groups of women, and,
further, that the selection of the woman should not be given to
the man, nor the selection of the man to the woman, but that
certain officers or elder persons should make the marriage contract.
This method of selection is here called legal appointment.
Now, selection by legal appointment exists among all North
American tribes, and elsewhere among savages in Australia and
other portions of the globe ; it exists in diverse forms, which may
not here be recounted for want of space. But the essential prin-
ciple is this : in order that controversy may be avoided, marriage
selection is by legal appointment, and not by personal choice.
Chap. XIII, § 2.] MARRIAGE 281
But the second fundamental principle of primitive law greatly
modifies selection by legal appointment, and gives rise to three
forms of marriage, which will be denominated as follows : first,
marriage by elopement; second; marriage by capture; third,
marriage by duel.
It very often happens in the history of tribes that certain of
the kinship groups diminish in number, while others increase. A
group of men may greatly increase in number, while the group of
women from whom they are obliged to accept their wives diminishes.
At the same time another group of women may be large in pro-
portion to the group of men to whom they are destined. Under
these circumstances, certain men have a right to many wives,
while others have a right to but few. It is verj^ natural that
young men and young women should sometimes rebel against the
law, and elope with each other. Now, a fundamental principle
of early law is that controversy must end ; and such termination
is secured by a curious provision found among many, perhaps all,
tribes. A day is established, sometimes once a moon, but usually
once a year, at which certain classes of offenses are forgiven. If,
then, a runaway couple can escape to the forest, and live by
themselves till the day of forgiveness, they may return to the
tribe and live in peace. Marriage by this form exists in many of
the tribes of North America.
Again, the group of men whose marriage rights are curtailed
by diminution of the stock into which they may marry, sometimes
united to capture a wife for one of their number from some other
group. It must be distinctly understood that this capture is not
from an alien tribe, but always from a group within the same
tribe. The attempt at capture is resisted, and a conflict ensues.
If the capture is successful, the marriage is thereafter considered
legal ; if unsuccessful, a second resort to capture in the particular
case is not permitted, for controversy must end. ^\lien women
are taken in war from alien tribes they must be adopted into some
clan within the capturing tribe, in order that they may become
wives of the men of the tribe. When this is done, the captured
women become by legal appointment the wives of men in the group
having marital rights in the clan which has adopted them.
The third form is marriage by duel. ^\Tien a young woman
comes to marriageable age, it may happen that by legal appoint-
ment she is assigned to a man who already has a wife, while
there may be some other young man in the tribe who is without
a wife, because there is none for him in the group within which
282 PERSONS [Part II.
he may marry. It is then the right of the latter to challenge to
combat the man who is entitled to more than one, and, if success-
ful, he wins the woman ; and by savage law controversy must then
end.
All three of these forms are observed among the tribes of North
America ; and they are methods by w hich selection by legal ap-
pointment is developed into selection by personal choice. Some-
times these latter forms largely prevail ; and they come to be regu-
lated more and more, until at last they become mere forms, and
personal choice prevails.
When personal choice thus prevails, the old regulation that a
man may not marry within his own group still exists ; and selec-
tion within that group is incest, which is always punished with
great severity. The group of persons within which marriage is
incest is always a highly artificial group ; hence, in early society,
incest laws do not recognize physiologic conditions, but only social
conditions.
The above outline will make clear the following statement,
that endogamy and exogamy, as originally defined by McLennan,
do not exist. Every savage man is exogamous with relation to
the class or clan to which he may belong, and he is to a certain
extent endogamous in relation to the tribe to which he belongs,
that is, he marries within that tribe ; but in all cases, if his mar-
riage is the result of legal appointment, he is greatly restricted in
his marriage rights, and the selection must be made within some
limited group. Exogamy and endogamy, as thus defined, are
integral parts of the same law, and the tribes of mankind cannot
be classed in two great groups, one practicing endogamy, and the
other exogamy.
The law of exogamy is universal. Among all peoples there is
a group, larger or smaller, and natural or artificial, within which
marriage is prohibited. Exogamy is a derivative institution ; its
antecedent is marriage by legal appointment within a prescribed
group. Marriage by prescription falls, but marriage within the
enatic or agnatic group is still considered incest. Until, therefore,
the right of marriage extends to all clans but that of the individual
himself, exogamy is not fully established.
This may be restated : The primitive institution is marriage
by prescription ; this develops into marriage by personal choice.
But there remains as a survival from the primitive institution a
prohibition which may be called exogamy, the violation of which
is a crime called incest.
Chap. XIII, § 3.] MARRIAGE 283
Tribal society is of great antiquity ; and in the vicissitudes of
tribal life kinship society has undergone many changes, though
these changes are restricted to narrow limits. Yet, within these
limits the changes are very many, and the subject is thereby
greatly complicated, and cannot be understood without long and
careful research. Passing travelers can no more set forth the
institutions of tribal society than they can give a proper descrip-
tion of the flora of a country, the fauna of a region, or the geologic
structure of a continent.
Section 3
RELIGIOUS BASIS OF THE FAMILY »
If we transport ourselves in thought to those ancient generations
of men, we find in each house an altar, and around this altar the
family assembled. The family meets every morning to address its
first prayers to the sacred fire, and in the evening to invoke it for a
last time. In the course of the day the members are once more
assembled near the fire for the meal, of which they partake piously
after prayer and libation. In all these religious acts, hymns, which
their fathers have handed down, are sung in common by the famih-.
Outside the house, near at hand, in a neighboring field, there is
a tomb — the second home of this family. There several genera-
tions of ancestors repose together; death has not separated them.
They remain grouped in this second existence, and continue to
form an indissoluble family.^
'[By FusTEL DE CouLANGEs, "The Ancient City"; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
' The use of family tombs by the ancients is incontestable ; it disap-
peared only when the beliefs relative to the worship of the dead became
obscured. The words T6.<t>os Trarcpifios, Td(pos tQv irpoy6vcov, appear contin-
ually in Greek writers, as "tumulus patrius " or avitus, " sepulerum
gentis," are found in Roman writers. See Demosthenes, "in Eubul.," 28;
"in Macart.," 79. Lycurgus, "in Leocr.," 25. Cicero, "De Offic,"
I. 17. " De Legib.," II. 22 — " Mortuum extra gentem inferri fas negant "
Ovid, "Trist.," IV. 3, 4.5. Velleius, II. 119. Suetonius, "Nero," 50;
"Tiberius," 1. "Digest," XI. 5; XVIII. 1, 6. There is an old anec-
dote that shows how necessary it was thought to be that every one should
be buried in the tomb of his family. It is related that the Lacedaemo-
nians, when about to join battle with the Messenians, attached to their
right arms their name, and those of their fathers, in order that, in case
of death, each body might be recognized on the field of 1>attle, and trans-
ported to the paternal tomb. Justin, III. 5. See Mschylus, "Sept.,"
889 (914), rdipwv iraTpi(^v \dxai- The Greek orators frequently refer
to this custom : Isi3eus, Lysias, or Demosthenes, when he wishes to
prove that such a man belongs to a certain family, and has the right to
inherit its property, rarely fails to say that this man's father is buried
in the tomb of this family.
284 PERSONS [Part II.
Between the living part and the dead part of the family there is
only this distance of a few steps which separates the house from the
tomb. On certain days, which are determined for each one by his
domestic religion, the living assemble near their ancestors ; they
offer them the funeral meal, pour out milk and wine to them, layout
cakes and fruits, or burn the flesh of a victim to them. In exchange
for these offerings they ask protection ; they call these ancestors
their gods, and ask them to render the fields fertile, the house
prosperous, and their hearts virtuous.
Generation alone was not the foundation of the ancient family.
What proves this is, that the sister did not bear the same relation
to the family as the brother; that the emancipated son and the
married daughter ceased completely to form a part of the family ;
and, in fine, several other important provisions of the Greek and
Roman laws, that we shall have occasion to examine farther along. ,
Nor is the family principle natural affection. For Greek and
Roman law makes no account of this sentiment. The sentiment
may exist in the heart, but it is not in the law. The father may
have affection for his daughter, but he cannot will her his property.
The laws of succession — that is to say, those laws which most
faithfully reflect the ideas that men had of the family — are in
open contradiction both with the order of birth and with natural
affection.^
The historians of Roman laws, having very justly remarked that
neither birth nor affection was the foundation of the Roman family,
have concluded that this foundation must be found in the power
of the father or husband. They make a sort of primordial insti-
tution of this power ; but they do not explain how this power was
established, unless it was by the superiority of strength of the
husband over the wife, and of the father over the children. Now,
we deceive ourselves sadly when we thus place force as the origin
of law. We shall see farther on that the authority of the father
or husband, far from having been a first cause, was itself an effect ;
it was derived from religion, and was established by religion. Su-
perior strength, therefore, was not the principle that established the
family.
The members of the ancient family were united by something
more powerful than birth, affection, or physical strength ; this was
the religion of the sacred fire, and of dead ancestors. This caused
the family to form a single body, both in this life and in the next.
^ It must be understood that we here speak of the most ancient law.
We shall soon see that, at a later date, these early laws were modified.
Chap. XIII, § 4.] MARRIAGE 285
The ancient family was a religious rather than a natural associa-
tion ; and we shall see presently that the wife was counted in the
family only after the sacred ceremony of marriage had initiated
her into the worship ; that the son was no longer counted in it when
he had renounced the worship, or had been emancipated ; that,
on the otlier hand, an adopted son was counted a real son, because,
though he had not the ties of blood, he had something better —
a community of worship ; that the heir who refused to adopt the
worship of this family had no right to the succession ; and, finally,
that relationship and the right of inheritance were governed not
by birth, but by the rights of participation in the worship, such as
Religion had established them. Religion, it is true, did not create
the family ; but certainly it gave the family its rules ; and hence
it comes that the constitution of the ancient family was so different
from what it would have been if it had owed its foundation to
natural affection.
The ancient Greek language has a very significant word to desig-
nate a family. It is eiria-rLov, a word which signifies, literally, that
which is near a hearth. A family was a group of persons whom
religion permitted to invoke the same sacred fire, and to offer the
funeral repast to the same ancestors.
Section 4
MARRIAGE IN GREECE AND ROME ^
The first institution that the domestic religion established, prob-
ably, was marriage.
We must remark that this worship of the sacred fire and of
ancestors, which was transmitted from male to male, did not be-
long, after all, exclusively to man ; woman had a part in it. As a
daughter, she took part in the religious acts of her father; as a
wife, in those of her husband.
From this alone we see the essential character of the conjugal
union among the ancients. Two families live side by side ; but
they have different gods. In one, a young daughter takes a part,
from her infancy, in the religion of her father ; she invokes his
sacred fire; every day she offers it libations. She surrounds it
with flowers and garlands on festal days. She asks it protection,
and returns thanks for its favors. This paternal fire is her god.
' [By FusTEL DE CouLANGES, " The Ancient City " ; translated bj-
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
286 PERSONS [Part II.
Let a young man of the neighboring family ask her In marriage,
and something more is at stake than to pass from one house to the
other. She must abandon the paternal fire, and henceforth invoke
that of the husband. She must abandon her religion, practise
other rites, and pronounce other prayers. She must give up the
god of her infancy, and put herself under the protection of a god
whom she knows not. Let her not hope to remain faithful to the
one while honoring the other ; for in this religion it is an immutable
principle that the same person cannot invoke two sacred fires or
two series of ancestors. "From the hour of marriage," says one
of the ancients, "the wife has no longer anything in common with
the domestic religion of her fathers ; she sacrifices at the hearth of
her husband." ^
Marriage is, therefore, a grave step for the young girl, and not
less grave for the husband ; for this religion requires that one shall
have been born near the sacred fire, in order to have the right to
sacrifice to it. And yet he is now about to bring a stranger to this
hearth ; with her he will perform the mysterious ceremonies of his
worship ; he will reveal the rites and formulas which are the patri-
mony of his family. There is nothing more precious than this
heritage ; these gods, these rites, these hymns which he has re-
ceived from his fathers, are what protect him in this life, and
promise him riches, happiness, and virtue. And yet, instead of
keeping to himself his tutelary power, as the savage keeps his idol
or his amulet, he is going to admit a woman to share it with him.
Thus, when we penetrate the thoughts of these ancient men,
we see of how great importance to them was the conjugal union,
and how necessary to it was the intervention of religion. Was it
not quite necessary that the young girl should be initiated into the
religion that she was henceforth to follow by some sacred cere-
mony ? Was not a sort of ordination or adoption necessary for her
to become a priestess of this sacred fire, to which she was not at-
tached by birth ?
Marriage was this sacred ceremony, which was to produce these
important effects. The Greek and Roman writers habitually
designatemarriageby a word indicative of a religious act.^ Pollux,
who lived in the time of the Antonines, but who was well instructed
in the ancient usages of his language, says, that in ancient times,
instead of designating marriage by its particular name, <yd/j,o<;, they
designated it simply by the word reXo?, which signifies sacred cere-
^ Stephen of Byzantium, Trdrpa.
2 Qijeiv ydfiov, sacrum nuptiale.
Chap. XIII. § 4.] MARRIAGE 287
mony/ as if marriage had been, in those ancient times, the cere-
mony sacred above all others.
Now, the religion that created marriage was not that of Jupiter,
of Juno, or of the other gods of Olympus. The ceremony did not
take place in a temple ; it was performed in a house, and the domes-
tic god presided. When the religion of the gods of the sky became
preponderant, men could not help invoking them also in the prayers
of marriage, it is true ; it even became habitual to go to the temple
before the marriage, and offer sacrifices to these gods. These
sacrifices were called the preludes of marriage ; - but the principal
and essential part of the ceremony always took place before the
domestic hearth.
Among the Greeks the marriage ceremony consisted, so to speak,
of three acts. The first took place before the hearth of the father,
ij'yv7](n^ ; the third before the hearth of the husband, re\o<i ; the
second was the passage from the one to the other, Trofj-ir^.^
1. In the paternal dwelling, in the presence of the future bride-
groom, the father, surrounded ordinarily by his family, offers a
sacrifice. The sacrifice concluded, he declares — pronouncing a
sacramental formula — that he gives his daughter to the young
man. This declaration is absolutely indispensable to the mar-
riage ; for the young girl would not be able to go at once to wor-
ship at the hearth of her husband, if her father had not already
separated her from the paternal hearth. To enable her to adopt
her new religion, she must be freed from every bond that attaches
her to her first religion.
2. The young girl is carried to the house of the husband. Some-
times the husband himself conducts her. In certain cities the duty
of bringing her belongs to one of those men who, among the
Greeks, were clothed with a sacerdotal character, and who were
called heralds. The bride was usually placed upon a car ; her
face was covered with a veil, and on her head was a crown. The
crown, as we shall often have occasion to see, was used in all the
ceremonies of this worship. She was dressed in white. White
was the color of the vestments in all the religious acts. She was
preceded by a torch — the nuptial torch. For the whole distance
1 Pollux, III. 3, 38.
- UpoT^Xeia, Trpoydfxia, Pollux, III. 38.
^Horner, "II.," XVIII. 391. Hesiod, ^'Scutum," v. 275. Herodotus,
VI. 129, 130. Plutarch, "Theseus," 10; "Lycurg.," passim; "Solon,"
20; '''Aristides," 20; "Gr. Quest.," 27. Demosthenes, "in Stephanum,"
II. Isaus, III. 39. Euripides, "Helena," 722-725; "Phen.," 345.
Harpocration, v. Tafxriyia. Pollux, III, e. 3. The same usage among
the Macedonians. Quintus Curtius, VIII. 16.
288 PERSONS [Part II.
they sang around her religious hymns, whose refrain was <w ^J^^,
<b vfievaie. This hymn they called the hymeneal, and the impor-
tance of this sacred chant was so great that they gave its name to
the whole ceremony.
The bride dares not go of her own accord into her new dwelling.
Her husband must take her, and simulate a seizure by force. She
must cry out, and the women that accompany her must pretend to
defend her. Why this rite? Is it a symbol of the modesty of
the bride ? This is hardly probable : the moment for shame has
not yet come ; for what is now to take place is a religious ceremony.
Was it not to mark more strongly that the wife, who was now to
sacrifice to this fire, had herself no right there, that she did not
approach it of her own free will, and that the master of the place
and of the god introduced her by an act of his power ? However
this ma}' be, after a feigned struggle, the husband raises her in his
arms, and carries her through the doorway, taking great care,
however, that her feet do not touch the sill.
What precedes is only a preparation, a prelude to the ceremony.
The sacred act now commences in the house.
3. They approach the hearth ; the wife is brought into the pres-
ence of the domestic divinity. She is sprinkled with the lustra!
water. She touches the sacred fire. Prayers are repeated. Fi-
nally, the husband and wife share between themselves a cake or a
loaf.
This sort of light meal, which commences and ends with a liba-
tion and a prayer, this sharing of nourishment in presence of the
fire, puts the husband and wife in religious communion with each
other, and in communion with the domestic gods.
The Roman marriage closely resembled that of Greece, and, like
it, comprised three acts — traditio, deductio in domnm, confarreatio}
1. The young girl quits the paternal hearth. As she is not at-
tached to this hearth by her own right, but through the father of
the family, the authority of the father only can detach her from it.
The tradition is, therefore, an indispensable ceremony.
2. The young girl is conducted to the house of the husband.
1 Varro, "L. L.," 61. Dionysius of Haliearnassus, II. 25, 26. Ovid,
"Fast.," II. 558. Plutarch, "Rom. Quest.," I. 29; "Romul.," 15.
Plin., ''N. H.," XVIII. 3. Tacit. "Ann.," IV. 16; XI. 27. Juvenal,
"Sat." X. 329-336. Gains, "Inst.," I. 112. Ulpian, IX. "Digest,"
XXIII. 2, 1. Fes^^/s, " V. Rapi." Macrobius, " Sat.," 1. 15. Servius, ''ad
^n.," IV. 168. The same custom among the Etruscans, Varro, "De Re
Rust.," II. 4. The same custom among the ancient Hindus, "Laws of
Manu," III. 27-30, 172; V. 152; VIII. 227; IX. 194. "Mitakchara,"
Orianne's trans., pp. 166, 167, 236.
Chap. XIII, § 4.] MARRIAGE 2S9
As in Greece, she is veiled. She \years a crown, and a nuptial
torch precedes the cortege. Those about her sing an ancient re-
ligious hymn. The words of this hymn changed doubtless with
time, accommodating themselves to the variations of belief, or to
those of the language ; but the sacramental refrain continued from
age to age without change. It was the word Talassie, a word whose
sense the Romans of Horace's time no more understood than the
Greeks understood the word vfievaie, and which was, probably,
the sacred and inviolable remains of an ancient formula.
The cortege stops before the house of the husband. There the
bride is presented with fire and water. The fire is the emblem of
the domestic divinity ; the water is the lustral water, that serves
the family for all religious acts. To introduce the bride into the
house, violence must be pretended, as in Greece. The husband
must take her in his arms, and carry her over the sill, without al-
lowing her feet to touch it.
3. The bride is then led before the hearth, where the Penates,
and all the domestic gods, and the images of ancestors, are grouped
around the sacred fire. As in Greece, the husband and wife offer
a sacrifice, pouring out a libation, pronouncing prayers, and eating
a cake of wheaten flour (panis farreus) .^
This cake, eaten during the recitation of prayers, in the presence
and under the very eyes of the domestic divinities, makes the
union of the husband and wife sacred. Henceforth they are as-
sociated in the same worship. The wife has the same gods, the
same rites, the same prayers, the same festivals as her husband.
Hence this old definition of marriage, which the jurists have pre-
served to us: NiiiMce sunt divini juris et humani commimicatio;
and this other: Uxor socio humance rei atque divinicp? This is
because the wife participates in the worship of the husband ; this
"W'ife whom, according to the expression of Plato, the gods them-
selves have introduced into the house.
The wife, thus married, also worships the dead ; but it is not to
her own ancestors that she carries the funeral repast. She no
longer has this right. ^Marriage has completely detached her from
the family, and has interrupted all the religious relations that she
had with it. Her offerings she carries to the ancestors of her hus-
' We shall speak presently of other forms of marriage in use among the
Romans, in which religion liad no part. Let it suffice to say here, that
the sacred marriage appears to us to be the oldest ; for it corresponds to
the most ancient beliefs, and disappeared only as those beliefs died out.
2 "Digest," XXIII. title 2. "Code," IX. 32,4. Diomjsius oiHaW-
carnassus, II. 25 : Koivuvos x/"?MCtT-owc nal lepQv. Stephen of Byzantium,
irdrpa.
290 PERSONS [Part II.
band ; she is of their family ; they have become her ancestors.
]\Iarriage has been for her a second birth ; she is henceforth the
danghter of her husband; fdioe loco, say the jurists. One could
not belong to two families, or to two domestic religions ; the wife
belongs entirely to her husband's family, and to his religion. We
shall see the consequences of this rule in the right of succession.
The institution pf-Sacred marriage must be as old in the Indo-
European race as the domestic religion ; for the one could not exist
without the other. This religion taught man that the conjugal
union was something more than a relation of the sexes, and a fleet-
ing affection, and united man and wife by the powerful bond of
the same worship and the same belief. The marriage ceremony,
too, was so solemn, and produced effects so grave, that it is not
surprising that these men did not think it permitted or possible to
have more than one wife in each house. Such a religion could not
admit of polygamy.
We can understand, too, that such a marriage was indissoluble,
and that divorce was almost impossible. The Roman law did
indeed permit the dissolution of the marriage by coemptio, or by
usus. But the dissolution of the religious marriage was very diffi-
cult. For that, a new sacred ceremony was necessary, as religion
alone could separate what religion had united. The effect of the
confarreatio could be destroyed only by the diffarreatio. The hus-
band and wife who wished to separate appeared for the last time
before the common hearth ; a priest and witnesses were present.
As on the day of marriage, a cake of wheaten flour was presented
to the husband and wife.^ But, instead of sharing it between them,
they rejected it. Then, instead of prayers, they pronounced for-
mulas of a strange, severe, spiteful, frightful character,- a sort of
malediction, by which the wife renounced the worship and gods of
the husband. From that moment the religious bond was broken.
The community of worship having ceased, every other ccmmon
interest ceased to exist, and the marriage was dissolved.
^ Festus, V. "Diffarreatio." Pollux, III. c. 3: d7ro7ro/x7r^. We read,
in an inscription, Sacerdos confarreationum et diffarreationum. Orelliy
No. 2648.
2 <i>pi/cw577, aW6K0Ta, ffKv6p(Inra, Plutarch, .'''Rom. Quest." 50.
Chapter XIV
PATRIA POTESTAS^
Ox a few systems of law the family organisation of the earliest
society has left a plain and broad mark in the life-long authority
of the Father or other ancestor over the person and property of
his descendants, an authority which we may conveniently call by
its later Roman name of Patria Potestas. Xo feature of the rudi-
mentary associations of mankind is deposed to by a greater amount
of evidence than this, and yet none seems to have disappeared so
generally and so rapidly from the usages of advancing communi-
ties. Gains, writing under the Antonines, describes the institu-
tion as distinctively Roman. It is true that, had he glanced across
the Rhine or the Danube to those tribes of barbarians which were
exciting the curiosity of some among his contemporaries, he
would have seen examples of patriarchal power in its crudest form ;
and in the far East a branch of the same ethnical stock from which
the Romans sprang was repeating their Patria Potestas in some of
its most technical incidents. But among the races understood
to be comprised within the Roman Empire, Gains could find none
which exhibited an institution resembling the Roman "Power of
the Father," except only the Asiatic Galatse. There are reasons,
indeed, as it seems to me, why the direct authority of the ancestor
should, in the greater number of progressive societies, very shortly
assume humbler proportions than belonged to it in their earliest
state. The implicit obedience of rude men to their parent is doubt-
less a primary fact, which it would be absurd to explain away
altogether by attributing to them any calculation of its advantages ;
but, at the same time, if it is natural in the sons to obey the father,
it is equally natural that they should look to him for superior
strength or superior wisdom. Hence, when societies are placed
under circumstances which cause an especial value to be attached
* [By Sir Henry S. Maine. Reprinted from "Ancient Law," by per-
mission of Henry Holt and Company, New York.]
291
292 PERSONS [Part II.
to bodily and mental vigour, there is an influence at work which
tends to confine the Patria Potestas to the cases where its posses-
sor is actually skilful and strong. When we obtain our first glimpse
of organised Hellenic society, it seems as if supereminent wisdom
would keep alive the father's power in persons whose bodily
strength had decayed ; but the relations of Ulysses and Laertes
in the " Odyssey " appear to show that, where extraordinary valour
and sagacity were united in the son, the father in the decrepitude
of age was deposed from the headship of the family. In the
mature Greek jurisprudence, the rule advances a few steps on the
practice hinted at in the Homeric literature ; and though very
many traces of stringent family obligation remain, the direct
authority of the parent is limited, as in European codes, to the
nonage or minority of the children, or, in other words, to the period
during which their mental and physical inferiority may always be
presumed. The Roman law, however, with its remarkable ten-
dency to innovate on ancient usage onl}- just so far as the exigency
of the commonwealth may require, preserves both the primeval
institution and the natural limitation to which I conceive it to have
been subject. In every relation of life in which the collective com-
munity might have occasion to avail itself of his wisdom and
strength, for all purposes of counsel or of war, the Filius Familias,
or Son under Power, was as free as his father. It was a maxim of
Roman jurisprudence that the Patria Potestas did not extend to the
Jus Publicum. Father and son voted together in the city, and
fought side by side in the field ; indeed, the son, as general, might
happen to command the father, or, as magistrate, decide on his
contracts and punish his delinquencies. But in all the relations
created by Private Law, the son lived under a domestic des-
potism which, considering the severity it retained to the last, and
the number of centuries through which it endured, constitutes one
of the strangest problems in legal history.
The Patria Potestas of the Romans, which is necessarily our
type of the primeval paternal authority, is equally difficult to
understand as an institution of civilised life, whether we consider
its incidence on the person or its effects on property. It is to be
regretted that a chasm which exists in its history cannot be more
completely filled. So far as regards the person, the parent, wheii
our information commences, has over his children the jus vitce
necisque, the power of life and death, and a fortiori of uncontrolled
corporal chastisement ; he can modify their personal condition at
pleasure ; he can give a wife to his son ; he can give his daughter
Chap. XIV.] PATRIA POTESTAS 293
in marriage ; he can divorce his children of either sex ; he can
transfer them to another family by adoption ; and he can sell
them. Late in the Imperial period we find vestiges of all these
powers, but they are reduced within very narrow limits. The
unqualified right of domestic chastisement has become a right of
bringing domestic offences under the cognisance of the civil magis-
trate ; the privilege of dictating marriage has declined into a con-
ditional veto ; the liberty of selling has been virtually abolished,
and adoption itself, destined to lose almost all its ancient im-
portance in the reformed system of Justinian, can no longer be
effected without the assent of the child transferred to the adoptive
parentage. In short, we are brought very close to the verge of
the ideas which have at length prevailed in the modern world.
But between these widely distant epochs there is an interval of
obscurity, and we can only guess at the causes which permitted the
Patria Potestas to last as long as it did by rendering it more toler-
able than it appears. The active discharge of the most important
among the duties which the son owed to the state must have tem-
pered the authority of his parent, if they did not annul it. We can
readily persuade ourselves that the paternal despotism could not
be brought into play, without great scandal, against a man of full
age occupying a high civil office. During the earlier history, how-
ever, such cases of practical emancipation would be rare compared
with those which must have been created by the constant wars of
the Uoman republic. The military tribune and the private
soldier, who were in the field three-quarters of a year during the
earlier contests, at a later period the proconsul in charge of a
province, and the legionaries who occupied it, cannot have had
practical reason to regard themselves as the slaves of a despotic
master ; and all these avenues of escape tended constantly to
multiply themselves. Victories led to conquests, concjuests to
occupations ; the mode of occupation by colonies was exchanged
for the system of occupying provinces by standing armies. Each
step in advance was a call for the expatriation of more Roman
citizens, and a fresh draft on the blood of the failing Latin race.
We may infer, I think, that a strong sentiment in favour of the
relaxation of the Patria Potestas had become fixed by the time that
{he pacification of the world commenced on the establishment of
the Empire. The first serious blows at the ancient institution are
attributed to the earlier Ca?sars, and some isolated interferences of
Trajan and Hadrian seem to have prepared the ground for a series
of express enactments which, though we cannot always determine
294 PEKSONS [Part II.
their dates, we know to have Hmited the father's powers on the
one hand, and on the other to have multipHed facihties for their
vohnitary surrender. The older mode of getting rid of the Potes-
tas, by effecting a triple sale of the son's person, is evidence, I may
remark, of a very early feeling against the unnecessary prolonga-
tion of the powers. The rule which declared that the son should
be free after having been three times sold by his father seems to
have been originally meant to entail penal consequences on a
practice which revolted even the imperfect morality of the primi-
tive Roman. But even before the publication of the Twelve
Tables, it had been turned, by the ingenuity of the jurisconsults,
into an expedient for destroying the parental authority wherever
the father desired that it should cease.
Many of the causes which helped to mitigate the stringency of
the father's power over the persons of his children are doubtless
among those which do not lie upon the face of history. We cannot
tell how far public opinion may have paralysed an authority which
the law conferred ; or how^ far natural affection may have rendered
it endurable. But though the powers over the yerson may have
been latterly nominal, the whole tenour of the extant Roman
jurisprudence suggests that the father's rights over the son's
•property were always exercised without scruple to the full extent
to which they were sanctioned by law. There is nothing to
astonish us in the latitude of these rights when they first show
themselves. The ancient law of Rome forbade the Children
under Power to hold property apart from their parent, or (we
should rather say) never contemplated the possibility of their
claiming a separate ownership. The father was entitled to take
the whole of the son's acquisitions, and to enjoy the benefit of his
contracts, without being entangled in any compensating liability.
So much as this we should expect from the constitution of the
earliest Roman society; for we can hardly form a notion of the
primitive family group unless we suppose that its members brought
their earnings of all kinds into the common stock, while they
were unable to bind it by improvident individual engagements.
The true enigma of the Patria Potestas does not reside here,
but in the slowness with which these proprietary privileges of the
parent were curtailed, and in the circumstance that, before they
were seriously diminished, the whole civilised world was brought
within their sphere. No innovation of any kind was attempted till
the first years of the Empire, when the acquisitions of soldiers on
service were withdrawn from the operation of the Patria Potes-
Chap. XIV.] PATRIA POTESTAS 295
tas, doubtless as part of the reward of the armies which had over-
thrown the free commonwealth. Three centuries afterwards the
same immunity was extended to the earnings of persons who were
in the civil employment of the state. Both changes were ob\iously
limited in their application, and they were so contri\'ed in technical
form as to interfere as little as possible with the principle of Patria
Potestas. A certain qualified and dependent ownership had
always been recognised by the Roman law in the perquisites and
savings which slaves and sons under power were not compelled
to include in the household accounts, and the special name of this
permissive property, Peculium, was applied to the acquisitions
newly relieved from Patria Potestas, which were called in the case
of soldiers Castrense Peculium, and Quasi-castrense Peculium in
the case of civil servants. Other modifications of the parental
privileges followed, which showed a less studious outward respect
for the ancient principle. Shortly after the introduction of the
Quasi-castrense Peculium, Constantine the Great took away the
father's absolute control over property which his children had
inherited from their mother, and reduced it to a usufruct, or life-
interest. A few more changes of slight importance followed in
the Western Empire, but the furthest point reached was in the
East, under Justinian, who enacted that unless the acquisitions
of the child were derived from the parent's own property, the par-
ent's right over them should not extend beyond enjoying their
produce for the period of his life. Even this, the utmost relaxation
of the Roman Patria Potestas, left it far ampler and severer than
any analogous institution of the modern world. The earliest
modern writers on jurisprudence remarked that it was only the
fiercer and ruder of the conquerors of the Empire, and notably the
nations of Sclavonic origin, which exhibited a Patria Potestas at
all resembling that which was described in the Pandects and the
Code. All the Germanic immigrants seem to have recognised a
corporate 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, and fell far short of those enjoyed by
the Roman father. The Franks are particularly mentioned as not
having the Roman Institution, and accordingly the old French
lawyers, even when most busily engaged in filling the interstices
of barbarous customs with rules of Roman law, were obliged to
protect themselves against the intrusion of the Potestas by the
express maxim, Puyssance dc pere en France n'a lieu. The tenac-
ity of the Romans in maintaining this relic of their most ancient
296 PERSONS [Part II.
condition is in itself remarkable, but it is less remarkable than the
diffusion of the Potestas over the whole of a civilisation from which
it had once disappeared. While the Castrense Peculium con-
stituted as yet the sole exception to the father's power over prop-
erty, and while his power over his children's persons was still
extensive, the Roman citizenship, and with it the Patria Potestas,
were spreading into every corner of the Empire. Every African or
Spaniard, every Gaul, Briton, or Jew, who received this honour
by gift, purchase, or inheritance, placed himself under the Roman
Law of Persons, and, though our authorities intimate that children
born before the acquisition of citizenship could not be brought
under Power against their will, children born after it and all ulterior
descendants were on the ordinary footing of a Roman filiusfamilias.
It does not fall within the province of this treatise to examine the
mechanism of the later Roman society, but I may be permitted to
remark that there is little foundation for the opinion which repre-
sents the constitution of Antoninus Caracalla conferring Roman
citizenship on the whole of his subjects as a measure of small
importance. However we may interpret it, it must have enor-
mously enlarged the sphere of the Patria Potestas, and it seems to
me that the tightening of family relations which it effected is an
agency which ought to be kept in view more than it has been, in
accounting for the great moral revolution which was transforming
the world.
Before this branch of our subject is dismissed, it should be ob-
served that the Paterfamilias was answerable for the delicts
(or torts) of his Sons under Power. He was similarly- liable for the
torts of his slaves ; but in both cases he originally possessed the
singular privilege of tendering the delinquent's person in full satis-
faction of the damage. The responsibility thus incurred on behalf
of sons, coupled with the mutual incapacity of Parent and Child
under Power to sue one another, has seemed to some jurists to be
best explained by the assumption of a " unity of person" between
the Paterfamilias and the Filiusfamilias. ... I can only say at
present that these responsibilities of the Paterfamilias, and other
legal phenomena which will be discussed hereafter, appear to me to
point at certain duties of the primitive Patriarchal chieftain which
balanced his rights. I conceive that, if he disposed absolutely
of the persons and fortunes of his clansmen, this representative
ownership was coextensive with a liability to provide for all
members of the brotherhood out of the common fund. The
difficulty is to throw ourselves out of our habitual associations
Chap. XIV.] PATRIA POTESTAS 297
sufficiently for conceiving the nature of his obligation. It was not
a legal duty, for law had not yet penetrated into the precinct of the
Family. To call it moral is perhaps to anticipate the ideas be-
longing to a later stage of mental development ; but the expres-
sion "moral obligation" is significant enough for our purpose, if
we understand by it a duty semi-consciously followed and enforced
rather by instinct and habit than by definite sanctions.
The Patria Potestas, in its normal shape, has not been, and, as
it seems to me, could not have been, a generally durable institu-
tion. The proof of its former universality is therefore incomplete
so long as we consider it by itself ; but the demonstration may
be carried much further by examining other departments of
ancient law which depend on it ultimately, but not by a
thread of connection visible in all its parts or to all eyes. Let us
turn for example to Kinship, or in other words, to the scale on
which the proximity of relatives to each other is calculated in
archaic jurisprudence. Here again it will be convenient to employ
the Roman terms. Agnatic and Cognatic relationship. Cognatic
relationship is simply the conception of kinship familiar to modern
ideas : it is the relationship arising through common descent from
the same pair of married persons, whether the descent be traced
through males or females. Agnatic relationship is something very
different: it excludes a number of persons whom we in our day
should certainly consider of kin to ourselves, and it includes many
more whom we should never reckon among our kindred. It is in
truth the connection existing between the members of the Family,
conceived as it was in the most ancient times. The limits of this
connection are far from conterminous with those of modern rela-
tionship.
Cognates then are all those persons who can trace their blood to a
single ancestor and ancestress ; or if we take the strict technical
meaning of the word in Roman law, they are all who trace their
blood to the legitimate marriage of a common pair. " Cognation "
is therefore a relative term, and the degree of connection in blood
which it indicates depends on the particular marriage which is
selected as the commencement of the calculation. If we begin
with the marriage of father and mother. Cognation will only
express the relationship of brothers and sisters ; if we take that of
the grandfather and grandmother, then uncles, aunts, and their
descendants will also be included in the notion of Cognation, and
following the same process a larger number of Cognates may be
continually obtained by choosing the starting point higher and
298 PEKSONS [Part II.
higher up in the Hne of ascent. All this is easily understood by a
modern ; but who are the Agnates ? In the first place, they are all
the Cognates who trace their connection exclusively through males.
A table of Cognates is, of course, formed by taking each lineal
ancestor in turn and including all his descendants of both sexes in
the tabular view ; if then, in tracing the various branches of such a
genealogical table or tree, we stop whenever we come to the name
of a female and pursue that particular branch or ramification no
further, all who remain after the descendants of women have been
excluded are Agnates, and their connection together is Agnatic
Relationship. I dwell a little on the process which is practically
followed in separating them from the Cognates, because it explains
a memorable legal maxim, " INIulier est finis familise" — a woman
is the terminus of the family. A female name closes. the branch
or twig of the genealogy in which it occurs. None of the descend-
ants of a female are included in the primitive notion of family
relationship.
If the system of archaic law at which we are looking be one
which admits Adoption, we must add to the Agnates thus obtained
all persons, male or female, who have been brought into the family
by the artificial extension of its boundaries. But the descendants
of such persons will only be Agnates, if they satisfy the conditions
which have just been described.
What then is the reason of this arbitrary inclusion and exclusion ?
Why should a conception of Kinship so elastic as to include stran-
gers brought into the family by adoption, be nevertheless so narrow
as to shut out the descendants of a female member ? To solve these
questions we must recur to the Patria Potestas. The foundation
of Agnation is not the marriage of Father and Mother, but the
authority of the Father. All persons are Agnatically connected
together who are under the same Paternal Power, or who have been
under it, or who might have been under it if their lineal ancestor
had lived long enough to exercise his empire. In truth, in the
primitive view. Relationship is exactly limited by Patria Potestas.
Where the Potestas begins, Kinship begins ; and therefore adoptive
relatives are among the kindred. WTiere the Potestas ends.
Kinship ends ; so that a son emancipated by his father loses all
rights of Agnation. And here we have the reason why the de-
scendants of females are outside the limits of archaic kinship. If a
woman died unmarried, she could have no legitimate descendants.
If she married, her children fell under the Patria Potestas, not of
her Father, but of her Husband, and thus were lost to her own
Chap. XIV.] PATRIA POTESTAS 299
family. It is obvious that the organisation of primitive societies
would have been confounded, if men had called themselves rela-
tives of their mother's relatives. The inference would have been
that a person might be subject to two distinct Patrise Potestates ;
but distinct Patrise Potestates implied distinct jurisdictions, so
that anybody' amenable to two of them at the same tune would
have lived under two different dispensations. As long as the
Family was an imperium in imperio, a community within the com-
monwealth governed by its own institutions of which the parent
was the source, the limitation of relationship to the Agnates was
a necessary security against a conflict of laws in the domestic
forum.
The Paternal Powers proper are extinguished by the death of
the Parent, but Agnation is as it were a mould which retains their
imprint after the}' ha\'e ceased to exist. Hence comes the interest
of Agnation for the inquirer into the history of jurisprudence.
The powers themselves are discernible in comparatively few monu-
ments of ancient law, but Agnatic Relationship, which implies
their former existence, is discoverable almost everywhere. There
are few indigenous bodies of law belonging to communities of the
Indo-European stock, which do not exhibit peculiarities in the most
ancient part of their structure which are clearly referable to Agna-
tion. In Hindoo law, for example, which is saturated with the
primitive notions of family dependency, kinship is entirely Ag-
natic, and I am informed that in Hindoo genealogies the names of
women are generally omitted altogether. The same view of rela-
tionship pervades so much of the laws of the races who overran
the Roman Empire as appears to have really formed part of their
primitive usage, and we may suspect that it would have perpetu-
ated itself even more than it has in modern European jurisprudence,
if it had not been for the vast influence of the later Roman law on
modern thought. The Prsetors early laid hold on Cognation as the
natural form of kinship, and spared no pains in purifying their
system from the older conception. Their ideas have descended
to us, but still traces of Agnation are to be seen in many of the
modern rules of succession after death. The exclusion of females
and their children from governmental functions, commonly attrib-
uted to the usage of the Salian Franks, has certainly an agnatic
origin, being descended from the ancient German rule of succes-
sion to allodial property. In Agnation too is to be sought the
explanation of that extraordinary rule of English Law, only re-
cently repealed, which prohibited brothers of the half-blood from
300 PERSONS [Part II.
succeeding to one another's lands In the Customs of Normandy,
the rule applies to uterine brothers only, that is, to brothers by the
same mother but not by the same father ; and, limited in this way,
it is a strict deduction from the system of Agnation, under which
uterine brothers are no relations at all to one another. When it
was transplanted to England, the English judges, who had no clue
to its principle, interpreted it as a general prohibition against the
succession of the half-blood, and extended it to consanguineous
brothers, that is, to sons of the same father by different wives. In
all the literature which enshrines the pretended philosophy of law,
there is nothing more curious than the pages of elaborate sophistry
in which Blackstone attempts to explain and justify the exclusion
of the half-blood.
Chapter XV
WOMEN AND MARRIAGE UNDER CIVILIZATION i
1. It is with the Patriarchal type of Family organization, it
would seem, that most of the civilized races have started their
career in history. The stage of Mother-right is clearly left behind
when their history begins. Traces of it remain, like the right
of the ^Mother's Brother in the German Law, but they are mere
traces which would be unintelligible if we had not a mass of cus-
toms among other peoples by which to interpret them. ^Yhether
we look at the ancient laws and customs of India, Persia, Greece
or Rome, of the early Celtic and German tribes or the ancient
Slavs, or turn to the Semitic and Mongolian civilizations and trace
back the Family through Islam to the Arabia of Mohammed's
time, through the Old Testament to the days of the Patriarchs,
through Babylonian civilization to the Code of Hammurabi,
through Chinese literature to the ancient classical books, we find
that where civilization is beginning the Family is in some form or
other already organized under the rule of the Father.^ The type
of marriage law, of family structure, and for the most part the atti-
tude to woman appropriate to the Patriarchal stage underlie the
social history of civilization and are deeply imbedded in its struc-
ture. The strongly knit family life, the close personal relations of
father, mother and child have formed the nucleus of the stronger
and greater social growths. Over a large part of the civilized
world the extension of these relations by the family cult and the
worship of ancestors, has proved to be a social bond of marvellous
strength and endurance. Yet this unity may be purchased dearly
by the loss of independence on the part of the individual members
of the family, and we have seen how far this is often carried in the
barbaric world. We have now to see how civilization starting in
1 [B.y L. T. HoBHousE. Reprinted from "Morals in Evolution," by
permission of Henrj' Holt and Company, New York. Abbreviated and
omitted book-titles with the detail of editions are supplied by the author's
reference list on p. xiii, seq.. Vol. I of the original work.]
- The Egyptian family is perhaps an exception.
301
302 PERSONS [Past II.
the great majority of cases with this type of family has dealt with
the social and ethical problems involved.
In the early civilization of Asia, the position of women, and
particularly of married women, w^as not worse, but on the whole
better than one would expect on the analogy of later times and
of contemporary, civilizations. In ancient Babylon in the time
of Hammurabi, i.e. probably between B.C. 2250 and 1950, mar-
riage was arranged with the parents without reference to the
wishes of the bride ^ by a form of purchase. It was, however, a
modified form approaching more nearly to the exchange of gifts
which we find in many primitive races. A sum was given, it
appears from the code, to the wife's father as w^ell as to the bride
herself, but this payment^ was not universal, and on the other
side of the account the father made over to his daughter on her
marriage a dowTy which remained her own property in the sense
that it was returned to her in the case of divorce or on the death
of her husband, that it passed to her children, and failing them
to her father.^ Thus the method of marriage appears as a quasi-
commercial transaction, and the decision thereon belongs to the
parents of the parties."* Similar commercial considerations dom-
inate the law of divorce, the leading points of which may be
given in the words of Hammurabi's code.
"137. If a man has set his face to put away his concubine who has
borne him children or his wife who has granted him children, to that
woman he shall return her her marriage portion and shall give her the
usufruct of field, garden, and goods, and she shall bring up her children.
From the time that her children are grown up, from whatever is given
to her children they shall give her a share like that of one son, and she
shall marry the husband of her choice.
" 138. If a man has put away his bride who has not borne him children,
he shall give her money as much as her bride price, and shall pay her the
marriage portion which she brought from her father's house, and shaU
put her away.
"139. If there was no bride price, he shall give her one mina of silver
for a divorce.
"140. If he is a poor man, he shall give her one-third of a mina of
silver." ^
^ Meissner, "Beitrage zum altbabylonischen Privatrecht," 13.
^ The case of marriage without a bride price is contemplated in Ham-
mm-abi, section 139 (Kohler, 118), that is to say, if bride price is the right
translation, and if it is not rather the sum which, in the regular contract
forms, the husband agrees to give the wife in ease of divorce.
3 The dowry might exceed the bride price (section 164). On the other
hand, it remained in a sense in the wife's familj% as, if children failed, her
father regained it on re-paying the bride price (section 163).
« See sections 163-6, 159-161.
^ I quote Mr. Johns' translation, but following Kohler, have twice sub-
stituted bride price for "dowry." It is clearly intended that the unof-
fending wife shall have not only her dowry, which is really her own prop-
erty or that of her family (section 162), but either the bride price, which
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 303
On the other hand, the woman who " has set her face to go
out and has acted the fool, has wasted her house, has belittled her
husband," may either be divorced without compensation, or
retained in the house as slave of a new wife. The wife may also
claim a divorce (or separation) ^ " if she has been economical and
has no vice, and her husband has gone out and greatly belittled
her," but she acts at some risk, for if on investigation it turns out
that she had been uneconomical or a goer about, " that woman
one shall throw her into the waters." ^ Thus the wife has certain
pecuniary guarantees against arbitrary divorce, while if ill-treated
she may leave her husband, but her position as his subject is marked
by the manner in which infidelity is treated. The law provides
that both parties should be put to death unless the king pardons
his servant or the " owner " his wife.^ The lordship of the husband
is seen also in his power to dispose of his wife as well as her children
for debt.^
Polygamy appears, not in the rich luxuriance of later Asiatic
civilization, but in a restricted form. A man might marry a
second wife if a " sickness has seized " his first wife, but the first
is not to be put away.^ Apparently this is the only case in which
two fully equal wives are contemplated by the code, but it was
also possible for a man to take a secondary wife or concubine,
who was to be subordinate to the chief wife. This was a common
practice when the wife was childless, but was apparently legal
even when she had children.^
represents, so to say, the worth of her own person, or, what I cannot help
suspecting to be the meaning, the amount which at the time of the marriage
the husband contracted to give her in the event of a divorce. In the con-
tracts of the period, the sum is specified. In one case it is a mina, in
another ten shekels. The wife also states explicitly that if she repudiates
her husband she shall be drowned, strangled or sold, as the case may be.
' Nothing is said of her being allowed to marry again. She is to go
to her father's house. Observe above that when a divorced woman has
children it seems to be implied that she will at any rate remain immarried
till they are grown up.
^ The translations differ here. I follow Mr. Johns. Hammurabi, sec-
tions 141, 142, 143.
^ Hammurabi, section 129. On the other hand, she is allowed to purge
herself by oath, from an unproved accusation; if it is made by her hus-
band, "she shall swear by God and return to her house" ; if it is made
by some one else, she shall plunge into the holy river. (131, 132.)
•^ The period of debt slavery was, however, limited to three j^ears.
Hammurabi, 117.
^ Hammurabi, 148.
* The provisions of the code are not perfectly clear. The relevant
sections run as follows : — 144. "If a man has espoused a woman, and
that woman has given a maid to her husband and has brought up children,
that man has set his face to take a concubine, one shall not countenance
that man, he shall not take a concubine. 145. If a man has espoused a
304 PERSONS [Part II.
To sum up, the early Babylonian marriage law contemplates
marriage by purchase or exchange of gifts with a restricted polyg-
amy and considerable authority and privileges for the husband,
moderated by certain provisions for the protection and mainte-
nance of the wife. But in relation to other persons the wife is a
much more free agent than in many civilized countries at the
present, or at any rate in recent times. She could already conduct
business and in certain cases dispose of property, and, at any rate
in later Babylonian times, she appears as possessed of full legal
personality, carrying on processes of law and appearing as a quali-
fied witness.^ In this later period moreover — that of the last
woman and she has not granted him children and he has set his face to
take a concubine, that man shall take a concubine, he shall cause her to
enter into his house. That concubine he shall not put on an equality
with his wife." (I have followed Mr. Johns' translation, but substituted
"woman" for "votary" in accordance with the views of other trans-
lators.) It is not clear from this, as it stands, whether a man could
compel his wife to give him a concubine, in case the wife had children,
but elsewhere the case of a man having children by both wife and concu-
bine is clearly contemplated, and in the contracts there are cases of a man
marrying two wives, of whom one is to be subject to the other. Thus
Arad Samas takes Iltani, the sister of Taramka, as his wife. He prom-
ises to care for her well-being, and to carry her chair to the temple of
Marduk ; he is already married to Taramka, but Taramka is placed by
the contract in an inferior position to Iltani. "All cliildren," the con-
tract reads, "as many as there are, and as many as shall be born, are
Iltani's." If Taramka says to Iltani, "You are not my sister," some-
thing terrible happens, as to the natiu-e of which a hiatus in the inscription
leaves us in ignorance. If either wife says to Arad Samas, "You are not
my husband," she is to be branded and sold for money ; if they both do
it (presumably if they conspire to do so), they are to be thrown into the
river. If Arad Samas repudiates either of them, he is to pay a mina of
silver. (Meissner, ib., p. 71.) In this contract, essentially the same law
as that of Hammm-abi is seen in active operation, and it is clear that a
certain form of polygamy or concubinage is contemplated, although there
are children in existence by the first wife. Apparently the object of the
code is to maintain the supremacy of the chief wife, w^hile imposing on
her, if childless, the duty of granting cliildren to her husband. The con-
cubine should be pro\ided by her. If she failed to give him one, the man
might take one, but must still treat his wife as mistress of the home.
There is no prohibition of concubinage merely on the ground that the
legitimate wife has children of her own. Further it is only the regular
concubinage with a fixed status, determined by contract, which is thus
limited. There is nothing said to limit intercourse ^vith a female slave,
whose children might be adopted at will by the father, and thus share in
the inheritance with the legitimate children. {Hamviurabi, 170, 171.)
On the whole we gather (1) that, in case of sickness, there might be two
regular wiA'es ; (2) there might be in case of childlessness, and perhaps in
other cases also, a regular concubine, subordinate to the wife ; (3) a slave
concubine unprotected by contract, whose children might or might not
be recognized and inherit.
^ Kohler and Peiser, "Aus dem Babylonischen Reehtsleben," iii. p. 8,
etc. The marriage law had also improved in the wife's favom*. Con-
tracts of marriage by purchase are very rare, though one exists of the thir-
teenth year of Nebuchadnezzar, in which the wife is bought for a slave for
1| gold minas. {Ib., vol. i. p. 8.)
4
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 305
centuries of the independent Babylonian civilization — it appears
from the contracts that a woman could protect herself against the
advent of a second wife by pecuniary penalties in the marriage
contract.^ On the other hand, her marriage still appears to be
at the disposal of her male relations, her brothers, for instance,
when the father was dead. Indeed, even the son required the
father's consent to his marriage. To this extent the patriarchal
power had endured.^
2. In ancient Egj^Dt a good deal of obscurity surrounds the posi-
tion of women. We have to re-construct it partly from marriage
contracts which perhaps do not show us all the conditions of the
bargain, partly from incidents in stories, partly from passages in
the moralists, partly from the descriptions of Greek travellers.
We have no precise and certain information as to the structure of
the family, on which everything turns ; and we are dealing with a
period of four thousand years or more, in the course of which there
is time even in the slow-moving East for many things to change.
In fact, our fullest information relates to the very latest period
of independent Egyptian history, and to the time of the subjection
to Persians, Greeks, and Romans. This information is derived
from numerous marriage contracts, a few of which are as early as
the time of King Bocchoris (circa B.C. 730), while the greater
number are of Persian and Ptolemaic times. In this period there
was no sale by the parents,^ but the bride gift went to the bride
herself, and the husband in the contract further stipulated how
much he will give for her support, and promises that the children
shall be his heirs. The woman's own property remains generally
at her disposal, and she retains the right in the contracts of leaving
her husband and keeping her property together with the bride gift.
She also can secure herself against divorce by a fictitious dowry
1 The husband promises if he takes another Tvife to give her a mina
and send her home. This seems to have been a common protection against
poh'gamy. The wife still engages to be put to death, if unfaithful.
{Kohlcr and Reiser, i. 7, 8. Cf. Victor Marx, "Die Stellung der Frauen
in Babylonien ; Beitrage zur AssjTiologie," bd. 4, hft. i. p. 5, seq.)
2 Kohler and Reiser, i. p. 9, and ii. p. 7. The right of the father is
limited in Hammural^. He might only disinherit a son for a serious
crime, and then only for a second offence, and wth the approval of a judge.
(168, 169.) In other words, the property was the family's, and the father
had only limited rights over it.
3 Nor do they appear in the contract. Yet probably their authority
was or had been at le-jst in theory absolute, even over the son. [Revil-
lout, "Precis du droit Egyptien," p. 1102.) In the story of the enchanted
princess, the daughter only gets her own way by threatening suicide.
(TF. Max Miiller, p. 3.)
306 PERSONS [Part II.
which the husband is to pay back ^ to her in case he sends her
away.
Such contracts appear to be wholly in favour of the woman,
and in the light of them we can understand the statement of
Diodorus that among the Egyptians the wife ruled the husband,
though he clearly exaggerates when he says that in the marriage
contract there was a specific agreement that the husband should in
all things obey the w^ife.^ This, however, gives us one side of the
shield only. The very fact that the wife protected herself from
divorce or from the marriage of a second wife by special clauses in
the marriage contract goes to prove that she was not so pro-
tected by the general law, and in point of fact there is evidence
in the monuments and in the popular stories both for polygamy
and for looser unions admitting arbitrary divorce. Thus in the
story of the Squinting Woman we read that " she was twenty
years in the house of her husband. When he found another woman
he said to her, ' I divorce you, you squint.' " ^ Presumably the
poor lady had not taken the precaution to protect herself by a
marriage contract, or perhaps she had not the means to do so, for
naturally conjugal rights resting upon considerations of property
could only be enforced among the propertied classes, and probably
only there in cases where the wife's dower was a substantial con-
sideration. And if, as good authorities^ hold, this pecuniary
security against the possibility that the husband "should be averse
to her and seek another wife" formed the chief difference between
the wife and the mistress, we can easily understand how it was that
much looser relations remained the rule both in the highest classes
and among the mass of the people. The privileged position which
the wife occupies in the contracts would seem, then, to arise
largely from considerations of property and inheritance, though
1 W. Max Mailer, " Liebespoesie der alten Aeg:ypter," p. 4 ff.
^ Diodorus, i. 27. Trapa to?s Idiibrais Kvpieveiv tt]v yvvaiKa Tavdpos, iv ttj
Tijs wpoiK&i (Tvyypacpri irpocro/JioXoyovvTiov rCov ya/jLoiJvTdjv diravra weidapxV'^^'-v ttj ya-
fwvfj.4vri. Some instances are, however, quoted of post-nuptial gifts in
which the husband makes over all his possessions to his "wife, on condition
that she is responsible for his maintenance throughout life and for his
tomb. {Revillout, 1092.) Cf. also the contract of Panofre, in which,
seemingly, full power is given to the wife and none to the husband. {Ih.,
1005.) M. Revillout regards this as a compensation for seduction.
3 W. Max Muller, I. c, p. 5.
* How completely the terms of the contract were determined by the
position of the parties and the conditions of the bargain is shown by the
fact that from the very same period we get contracts in which the wife
hands herself over as a slave, with all her belongings down to the clothes
on her back. The man merely promises not to take a concubine. {Re-
villout, p. 996.) In some contracts, again, the wfe pledges herself, if she
leaves the husband, to restore all his gifts tenfold. {lb., 1002.)
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 307
based also on the freedom of the Egyptian woman to carry on
commerce and mdustry and to make contracts for her own benefit.
With this freedom, which is very possibly associated with a general
breakdown of an older joint family- system about the epoch of
Bocchoris, she — or her father on her behalf — is enabled to bar-
gain either for the fidelity of her husband or for freedom for herself
to leave him — in some cases even for both together ^ — her
property being secured to her and the children of the marriage.
Apart from such a bargain, if this view is accurate, her position
would be a very different one.^
1 See Revillout, "Precis du droit Egyptien," p. 1029, and cf. Micller,
p. 4.
2 In the interpretation of the contracts everything really turns on the
dowTy. If this is real the whole position is readily intelligible. The
husband receives (as the contracts recite) so much from the wife. But he
holds it in trust for her, to pay her a fixed income from it while she is
his wife, or, if she leaves him, to refund it. She keeps the property in
case of divorce because it was originally hers, and has throughout been
held for her. Moreover, the property is settled on the children of the
maiTiage, and it appears to be in their interest as much as the wife's that
the contract is made. So far the only important right of the ^vife is
that of free separation. If, however, as seems to be held by Revillout,
p. 1079, and Muller, the dowry was often fictitious, the bargain was cer-
tainly favourable to the woman in a remarkable degree. In that case we
must suppose that as a conditionof marriage, she exacted the settlement of
a man's whole property on herself and children, retaining full Uberty of leav-
ing him at will, and taking the property with her. Is this credible ? Such
a settlement occin-s in the Setne story. Ta-bubue makes her would-be
seducer first execute a deed in her favour : she then calls in his children
to mtness it, and finally makes him kill them. This, however, belongs to
the region of fairy tale. It seems far more probable that in the normal
case, the free position of the -nife was (as later in Rome) simply- purchased
by the dowry. In the Theban contracts there is no dowTy, and nothing
is said of divorce by the woman. On the other hand, the man makes
a nuptial gift and agrees to increase it five, ten or twenty fold if he takes
another wife. The propertv is settled on the children in the name of the
eldest son. {Revillout, pp. 1034, 1039, ff.) Re\iUout recognizes (p. 1096)
that the interests of the children were the prime object of the settlement,
and if so the contract merely enforces by agreement what would have
occurred automatically under a joint family sj'stem with maternal kin-
ship. The daughter inheriting property from her parent marries. The
husband becomes its administrator, but not its owner. It passes auto-
maticallj' to their children with the eldest as administrator. If the wife
dismissed the husband (as under this system she often may) she would of
course retain the family property. Now if this system was breaking down
in the age of Bocchoris in favour of individual ow-nership, it would be
necessary to secirre the passage of the propertj' to the w^oman's children
by a compact. This was done by making it over to the nominal owner-
ship (and perhaps real administration) of the husband, w-ho agreed that
it should return to the wife in case of divorce, and in any case pass to their
children. Thus the old system of inheritance w^ould be maintained by the
new method of contract. It is, of course, possible that where the woman
had the man in her powder, like the witch-wife in the story of Setne, she
would use this form for getting hold of all liis w^orldly goods. The Theban
form of contract is less archaic. Here there is a ]\Iorgen-gabe to the
bride, but only an earnest of it is actually paid over. The remainder is
to be given if the husband is unfaithful, and so acts as a guarantee for her.
308 PERSONS [Part II.
Polygamy appears to have been allowed from the first, though as
in almost all polygamous countries it was for the most part con-
fined to the rich. The king has a large harem in which there is
one chief wife, the "great spouse," who accompanies the king in
his public acts and particularly in his religious worship, who is
alwaj's a princess of the royal blood, and probably a sister of the
king, who has her own household and her own servants, and
might on the king's death obtain practical royal authority as
regent.^ Under her there are secondary wives taking rank accord-
ing to their birth, and being probably more or less secluded, and
beneath them again are a troop of concubines and foreign slaves.
The court of Pharaoh was imitated by the feudal chief of every
nome, who also had his harem, " where the legitimate wife — often
a princess of solar rank — played the role of Queen surrounded by
concubines, dancers, and slaves." ^ Thus a frank development
of polygamy, though apparently in that form in which the position
of the chief wife is clearly distinguished, was practised by the
highest classes of Egypt, and it is seldom, if ever, that polygamy
on a large scale goes much further. It would seem, however, that
the position of women gradually improved throughout Egyptian
history, and that in practice polygamy died out. In the Middle
Kingdom it appears frequent among the middle classes, but by
B.C. 1100 it had become rare, and later on it died away except
among the higher officials.^ While it was still clearly legal in the
New Kingdom and in the Classical Period the contracts enable
us to understand how through the opposition of the women it
would gradually disappear. But meanwhile the whole attitude
to women must have improved. In the early dynasties the king
boasts of having carried off the wives of other men, and these
outrages are alleged in proof of his truly royal nature.'' Now
though in theory Pharaoh may have remained the absolute
master of all his subjects and their wives, yet rape and adultery
did not continue to be a matter for boasting. For the ordinary
man, at any rate, they were recognized as sins from which he had
to clear himself in the next world.^
1 Maspero, "Dawn of Civilization," 270, 271 ff. ^ Qp. cit., 298.
^ Thus as late as b.c. 40 a high priest, recounting the advantages which
he had enjoyed in this Hfe, saj's : "I had beautiful concubines." {W.
Max Muller, p. 5, note 11.)
* Maspero, "Recueil de Travaux," vol. iv. ; "Pyramide du roi Ounas,"
p. 76.
^ Thus, in the Negative Confession in the "Book of the Dead" of the
18th Dynasty, violations of the marriage law figure as mortal sins. The
Negative Confession {Flinders Petrie, "Religion and Conscience in
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION ' 309
On the relations of husband and wife the moralists of the ^Middle
and New Kingdom throw some light. They very properly enjoin
kind treatment of the wife upon the husband. To this effect
run the precepts of Ptah Hotep : "If thou art successful and hast
furnished thy house and lovest the wife of thy bosom, then fill
her stomach, and clothe her back. The medicine for her body is
oil. ]\Iake glad her heart during the time that thou hast. She
is a field profitable to its owner." ^ These are most proper senti-
ments, blended, as they are, with that simple worldy wisdom and
gentle appeal to self-interest which characterize the utterances of
the excellent Ptah Hotep, first of all the race of platitudinarians ;
but excellent as the sentiment is, it does not imply the subjection
of the husband to the wife, but rather the contrary.^ The maxims
of Ani, some six dynasties later, are a little more detailed : " Do
not treat rudely a woman in her house when you know her per-
fectly ; do not say to her, ' Where is that ? bring it to us,' when
she has set it perfectly in its place which your eye sees, and when
you are silent you know her qualities. It is a joy that your hand
should be with her. The man who is firm of heart is quickly master
in his house." ^ All this is in the approved Oriental style, and so
Ancient Egj'pt," pp. 134, 135) consists of a long series of offences which
the dead man repudiates. The 19th reads: "I have not committed
adultery with, another man's wife." The next is by some translated:
"I have not been impure," which would look like a general repudiation
of unchastity rare in early ethics. But Miiller (p. 17) renders it: "I
have not stimulated sensuality," i.e. by drugs. In the earlier lists of
repudiations (there are two in the "Book of the Dead") is one translated
by Mr. Budge ("Book of the Dead," ii. p. 361) : "I have not committed
fornication," but other renderings seem to limit the offence to cases where
it was committed in a sacred place. {Griffith, p. 5321.) As to women
Miiller (p. 7) thinks that pre-nuptial chastity was little regarded, and this
would certainly fall in with the abnormal permission of brother and sister
marriage. He adds that in the marriage contract no stress was laid on
virginity, and that, at least in Roman times, there was no prejudice against
bastards. The unspeakable corruption of the Egyptian Pantheon to
which he refers would reflect the manners of the earliest period.
1 Flinders Petrie, p. 132. F. L. Griffith, "The World's Literature,"
p. 5335.
2 There is a little more point in a fiu-ther maxim of Ptah Hotep, "If
thou makest a woman ashamed, wanton of heart, whom her fellow-towns-
people know to be under two laws (explained by Mr. Griffith as meaning
in an ambiguous position), be kind to her a season; send her not away,
let her have food to eat. The wantonness of her heart appreciateth
guidance." {Griffith, "World's Literature," p. .5337.) Apparently this
is a recommendation, couched, it must be admitted, in mild terms, to a
man who has seduced a woman to treat her with consideration. There
is clearly no question of any obligation.
^TheBoulak PapjTus, in Amelineau, " La Morale Egyptienne," p. 188.
Brugsch translates the first words: "Do not strike your ^\^fe." With
the above compare the Ptolemaic precept, "May it not happen to
thee to maltreat thy wife whose strength is less than thine, but may she
find in thee a protector." {Flinders Petrie, p. 133.) We have also the
310 PERSONS [Part II.
also is Ani's recommendation to the wife : " ^Miat does one speak
of day by day ? Let the professions speak of their duties, the wife
of her husband, and every man about his business." ^
In what sense, then, was the wife called " mistress of the house" ?
Possibly this was merely the title of the legitimate wife as opposed
to the concubines. Possibly the true explanation is that advanced
by ]\Iaspero," that, as in some contemporary tribes of Northern
Africa, the practice of polygamy took the form that each wife had
her own house in which she was mistess, and " where she performed
all a woman's duties, feeding the fire, grinding the corn, occupying
herself in cooking and weaving, making cloth and perfumes, nursing
and teaching her children. \Mien her husband visited her, he was
a guest whom she received on an equal footing. It appears that
at the outset these various wives were placed under the authority
of an older woman, whom the}' looked on as their mother, and who
defended their rights and interests against their master, but this
custom gradually disappeared, and in historic times we read of it as
existing only in the families of the gods." ^
With this system probably survivals of primitive mother-right
were conjoined. Descent was reckoned through the mother down
to late times, and guardianship was exercised by the mother's
brother.'^ That being so, it is intelligible that the family property
should pass through the female and be retained by her in case
of divorce. Honour to the mother is strongly insisted on.
"Thou shalt never forget thy mother, and what she has done for thee,
that she bore thee, and nurtured thee in all ways. Wert thou to forget
lament of a widower who is persecuted by his wife's ghost, and who points
out that he never left her when he obtained promotion, but shared every-
thing "^^'ith her, and never acted the master. {Revillout, p. 984.) Tins
implies that he might have done so. On the other hand, it points to an-
other possible source of respect for women, the fear of the ghost or of their
magic power. Tliis last was strongly felt. {Maspero, "Dawn of Civi-
lization," p. 271.)
1 "Maxims of Ani," § 30. Amelineau, "La Morale Egyptienne," 113.
It should be added that the husband could apparently put the unfaitMul
wife to death. In the story of the "Two Brothers " it is narrated without
comment, and rather as a matter of course, that the husband slew his wafe
and cast her to the dogs. {Griffith, "World's Literatiu-e," 5257.) Accord-
ing to Diodorus, in cases of adultery, the paramour was punished -with
lOOO blows, the Avife by haA-ing her nose cut off. (I. 78. 4.)
-Maspero, "Dawn of Civilization," p. 51 ff.
^ The same practice is found among Columbian tribes where the hus-
band goes to live in the wife's tribe. She takes charge of the house and
the pro\-isions, and there may be several A\ives, each wath her separate
fire. (Starcke, "The Primitive Family," p. 34.) The contracts of the
classical period appear to contemplate the separate life of the parties,
pursuing their several avocations, and the husband agreeing to allow so
much for his wife's maintenance.
* W. Max Miiller, " Liebespoesie," p. G.
Chap. XV.] AVOMEN AND MARRIAGE UNDER CIVILIZATION 311
her then she might blame thee, hfting up her arms unto God, and He
would hearken unto her complaint. For she carried thee long beneath
her heart as a heavy burden, and after thy months were accomplished she
bore thee. Three long years she carried thee upon her shoulder and gave
thee her breast to thy mouth. She nurtured thee nor knew offence for
thy uncleanness. And when thou didst enter school and wast instructed
in the "^vTitings, daily she stood by the master with bread and beer from
the house." ^
Thus it is very possible that the preservation of relics of mother-
right was among the forces tending to the better condition of
women in Egypt. These were augmented towards the close of
the independent history of Egypt by the rise of free contract and
the important part taken by women in industrial and commercial
life. In these relations and in social intercourse generally it is al-
lowed on all hands that their position was remarkably free. Little
restraint was placed on their intercourse with men, they appear
on the monuments eating and drinking freely — sometimes too
freely — in masculine company, and they surprised the Greek
travellers by going out without restraint to work at their trade or
manual labour while the men often worked at home.- Of this
position women in the commercial and propertied classes availed
themselves to improve their condition as wives. But apart from
marriage contracts which were perhaps restricted to a limited class
for a limited period, the position of the Egyptian woman was
probably, save for the remainders of mother-right, much what it
has been elsewhere in the East — subject to her guardian's choice
1 From the Boulak PapjTUs, translated by Griffith, op. cit., p. 5340,
from the German of Professor Erman.
^ W. Max Mailer, loc. cit., points out that this freedom would not
apply to the bondwomen of the peasantry, who were under the arbitrary'
power of royal or priestly officials, and wove for them shut up in a work-
house. Here, however, we touch the general question of slavery rather
than the special position of women. It is more to the point, that to have
refrained from pressing a widow remained a matter for boasting, and that
education in reading and writing was not often extended to girls. It is
perhaps going a little too far to saj' with this WTiter that no ancient or
foreign people, except those of New Zealand, have given women so high
a legal position. The attitude to women in Egyptian literature is not
particularly respectful. Often she is represented as the temptress, for
instance in the Boulak Pap\TUs.
"Keep thyself from the strange woman who is not known in her city.
Look not upon her when she cometh and know her not. She is like a
whirlpool in deep w^aters, the whirling vortex of w^hich is not knowm.
The woman whose husband is afar writeth unto thee daily. When none
is there to see she standeth up and spreadeth her snare. Sin unto death
is it to hearken thereto." {Griffith's tr. following Erman, "World's Lit-
erature," p. 5340.)
The general tendency of the passage, which recalls the well-known
chapter in Proverbs, is plain enough, but whether the w^arning is prin-
cipally directed against the harlot or the adulteress is not wholly
312 • PERSONS [Part II.
of a husband/ liable to be slain for unfaithfulness, subject to di-
vorce at pleasure, and to have other wives or concubines associated
with her. Out of this condition the women of Egypt at the
close of its independent civilization were raising themselves by
the marriage contract, and one class had so far succeeded as to
achieve a position equal to that of the Roman matron at a later
day.
3. Both in Egypt and Babylonia the position of women was in
some respects better than our traditional conception of the Oriental
woman would lead us to expect. In other cases that conception
accords only too closely with the facts. Each civilization has had
its own peculiarities, but they have been variations upon one
type. In India tradition starts with the heroic age of the Vedas,
in which the paternal power is already full}^ developed. The
father is master and indeed owner of the family; wife, sons,
daughters and slaves have no property of their own, but are
rather his property. On his death, his place is taken by the
eldest son, into whose tutelage the widow passes. The daughter
might be sold to an intending husband,^ and it is not probable
that her consent was a material condition.^ The widow passed
to her husband's brother until a son was born : she did not in this
age follow her husband to the grave, though the funeral cere-
mony strongly suggests the previous existence of such a custom.^
Finally the Vedas contain distinct traces of polygamy, though it
was doubtless an exception.^ Thus Indian family life begins with
a typical Patriarchate. To this system a religious turn was given
1 In the 12th dynasty women were definitely part of the family prop-
erty, a man's widow being counted among the possessions inherited by
the son. {Revillout, "Precis du Droit figyptien," p. 990.) Here there
was apparently a decided change by the time of Bocchoris, a change
which naturally accompanies the break-up of the joint family.
* The purchase of brides is mentioned in the Epic Poems. Thus
Bhishma purchased the daughter of the Prince of Madras for Pandu,
with gold and precious stones. {Duncker, "History of Antiquity,"
vol. iv. pp. 255-266.) Capture was probably an alternative to pur-
chase. I.e.
^ Muir, "Sanscrit Texts," v. 459, quotes a passage from the Vedas,
which suggests that some freedom of choice was exercised by women under
favourable conditions. "Happy is the female that is handsome. She
herself loves (or chooses) her friend among the people." In the Maha-
bharata the King's daughters appear to choose their husbands, but this is
a prerogative of Royalty.
* When the widow has led her husband to the place of burial, she is
exhorted to "elevate herself to the world of life," for her marriage is at an
end. {Duncker, op. cit., iv. 511.)
* In one hymn the poet prays that Pushan will protect him and provide
him with a supply of damsels. {Muir, v. 457, 461.)
I
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 313
by the Brahman law. In some respects the Brahmans endeavour
to purify the marriage relationship and to provide for the protection
of the wife. This appears especially in the attempt to prohibit
marriage by purchase. This form of marriage is recognized, but
figures along with marriage by capture as one of the four blamable
kinds, and "no father who knows the law must take even the
smallest gratuity for his daughter." He that does so is " a seller of
his offspring," ^ Purchase is reduced to the form of a fee given to
the Brahman for the fulfilment of the sacred law, and this fee is
not to be appropriated by the relatives themselves. Yet notwith-
standing Manu's discouragement of the practice, marriage by
purchase persisted in a modified form, the final compromise being
that the present given by the suitor was assigned to the benefit of
the bride and became her dowry, passing back to her own family
on her death. The barbaric form of marriage by capture or abduc-
tion, which is morally condemned by IManu but legally sanctioned
for the Kshatriya caste, became obsolete, being forbidden in
Narada's code, and the two forms of marriage which persist in
1 Manu's eight forms of marriage and his comments on them are full of
instruction for the transition from barbaric to ci\dhzed marriage laws.
The gift of a daughter, after decldng her, to a man learned in the Veda and
of good conduct ... is called the Brahma rite. The gift of a daughter
who has been decked -wTth ornaments to a priest . . . they call the
Daiva rite. When (the father) gives away his daughter according to the
rule after recei\'ing from the bridegi'oom, for (the fulfilment of) the sacred
law, a cow and a bull or two pairs, that is named the Arsha rite. The
gift of a daughter (by her father) after he has addressed (the couple)
with the text, "May fioth of you perform together your duties," ... is
called . . . the Prdgapatya rite. When (the bridegroom) receives a
maiden after ha-ving given as much wealth as he can afford, to the kins-
men and to the bride herself, according to his own -will, that is called the
Asura rite. The voluntary union of a maiden and her lover one must
know (to be) the Gandharva rite, which springs from desire, and has
sexual intercourse for its purpose. The forcible abduction of a maiden
from her home, while she cries out and weeps, after (her kinsmen) have
been slain or wounded and (their houses) broken open, is called the
Rakshasa rite. When (a man) by stealth seduces a girl who is sleeping,
intoxicated, or disordered in intellect, that is the eighth, the most base and
sinful rite of the Pisakas. {Manu, iii. 27-34.) Of these, the first four are
allowed to Bra^hmans. They are all in effect religious marriages, the gift
in the third or Arsha form being of a ceremonial character, as it is to be "for
the fulfilment of the sacred law," not a price for the daughter. A variant
appears in the code of Apastamba (11., vi. 12, 13, Maytie, p. 82), wherein
a gift of value was made to the bride's parents, but returned by them.
The four blamable rites are purchase, captm-e, voluntary' union, and
treacherous seduction. Of these, the two first, as we have seen, are al-
lowed to the warrior caste. The fifth and eighth, the law book of Baud-
dhayana allows to Vaisyas and Sudras, since they "are not particular
aboiit their ^vives." {Baud., I., ii. 13, 14.) These are in the main relics
of barbarism, yet a higher conception appears when Bauddhayana re-
marks that "some recommend the Gandharva rite (i.e. voluntary union)
for all castes, because it is based on mutual affection." (lb.) But this
germ of a true marriage by mutual consent was not allowed to fructify.
314 PERSONS [Part II.
India to this day are the Brahma, the gift of a daughter decked
and honoured with jewels to a man learned in the Veda whom the
father himself invites, and the Asura, or purchase in the modified
form described.^
Only in one case, moreover, does Manu recognize the free-will
of the maiden in the matter of her own marriage. If her father
fails to provide her with a husband within three years of her
attaining maturity she may marry whom she will.- In all other
cases her guardian disposes of her hand. The woman who is
thus passed from the absolute control of her father into the absolute
control of her husband must honour, obey and merge herself in
him. " Though destitute of virtue, or seeking pleasure (elsewhere),
or devoid of good qualities, (yet) a husband must be constantly
worshipped as a god by a faithful wife." ^ "She must always
be cheerful, clever in (the management of her) household affairs,
careful in cleaning her utensils, and economical in expenditure." ■*
On his side the husband is commanded to show her respect.
"Women must be honoured and adorned by their fathers,
brothers, husbands, and brothers-in-law, who desire (their own)
welfare." ^ He is to be faithful to her, "being constantly satisfied
with her alone." Her son is even to respect her more than his
father. "The teacher is ten times more venerable than a sub-
teacher, the father a hundred times more than the teacher, but
the mother a thousand times more than the father." ^ And so
Vasishtha says, "A father who has committed a crime causing
loss of caste must be cut off. But a mother does not become an
outcast for her son." "^ But though respected if virtuous, she is
to be chastised if the husband thinks her otherwise. The chastise-
ment, however, is strictly limited. "A wife, a son, a slave, a pupil,
and a younger brother of the full blood, who have committed
faults, may be beaten with a rope or split bamboo, but on the back
part of the body (only) , never on a noble part ; he who strikes
them otherwise will incur the same guilt as a thief." ^ Here, as
elsewhere, fluctuations of opinion show through Manu's text. In
one place we read, "Day and night women must be kept in de-
pendence by the males of their families," ^ yet a few sections on the
appeal is to women themselves: "Women confined in the house
under trustworthy and obedient servants are not (well) guarded ;
but those who of their own accord keep guard over themselves
1 /. D. Mayne, "Hindu Law and Usage," pp. 79-85.
2 Manu, ix. 90 ff. ' Ibid., v. 154. * Ibid., v. 150.
s Ibid., iii. 55. « Ibid., ii. 145.
^ Vasishtha, xiii. 47, 48. » Mann, viii. 299, 300. » Ibid., ix. 2.
1
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 315
are well guarded." ^ But this higher note is seldom struck. The
Brahmans are far too much impressed with the evil disposition of
women,- and the husband is recommended to keep his wife well
emplo}'ed about the house keeping things clean and preparing
his food, as an expedient for guarding her.
On the strict theory of INIanu a wife could have no property.
In this respect she is placed on one footing with a son and a slave.^
The wife could not leave her husband under any circumstances,
but he might take other wives and might "supersede" rather than
divorce her if she "drink spirituous liquor, is of bad conduct, re-
bellious, diseased, mischievous or wasteful." Further: "A
barren wife may be superseded in the eighth year, she whose
children all die in the tenth, she who bears only daughters in
the eleventh, but she who is quarrelsome without delay." "But
a sick wife who is kind to her husband and virtuous in her con-
duct, may be superseded only with her own consent and must never
be disgraced." ^ There are indeed traces in the text of INIanu,
on the one hand, of a custom allowing deserted wives as well as
widows to marry again, and, on the other, of an idealistic attempt
to establish indissoluble monogamous marriage. But these remain
as traces only. AYhat the Brahmans actually succeeded in doing
was to prevent the re-marriage of women even after the death
of their husbands, while men obtained the right to take as many
wives as they pleased, though they might not dismiss any existing
wives save for one of the faults enumerated.^ Such having been
1 Manu, ix. 12.
2 When creating them, Manu allotted to women (a love of their) bed,
(of their) seat and (of) ornament, impm-e desires, wrath, dishonesty,
malice, and bad conduct. (Manu, ix. 17, and see the whole passage,
13-18.)
3 This, however, is not carried out consistently. {Manu, ix. 194.)
* Manu, ix. 80-82.
^ Manu, always liberal in inconsistencies, is more than usually so on
this point. The cause, as shown by J. D. Mayne, is clearly mutilation of
the text in the interest of conflicting views. Thus in ix. 46, 47, we read :
"Neither by sale nor by repudiation is a ^\^fe released from her husband.
. . . Once is the partition (of the inheritance) made, (once is) a maiden
given in marriage, etc." From this it is clear that the repudiated wife
could not re-marry. Further it seems that the attempt was ]3eing made to
impose monogamy and conjugal fidelity on the husband as well. "Let
mutual fidelity continue unto death, this may be considered as the sum-
mary of the highest law for husband and wife." (ix. 101.) Connect this
with V. 168. "Ha\ing thus, at the funeral, given the sacred fires to his
wife who dies before him, he may marry again, and again kindle the
(fires)." This seems to imply monogamy with mutual fidelity as the
ideal, but in other parts a plurality of wives is freely contemplated, and
in ix. 77-82, the dismissal of a -wife is permitted on several conditions as
shown in the text. Further Mayne, "Hindu Law and Usage," p. 93,
shows conclusively that a passage has been omitted before ix. 76, justify'-
316 PERSONS [Part II.
the position of the wife during the husband's Hfetime, after his
death she must remain faithful to him, " she must not even mention
the name of another man after her husband has died." ^ She is
now under the tutelage of her son, for a woman is never a free
agent. "By a girl, by a young woman, or even by an aged one,
nothing must be done independently, even in her own house. In
childhood a female must be subject to her father, in youth to her
husband, when her lord is dead to her sons ; a woman must never
be independent." ^
The chastity of women was to be preserved by their seclusion,
and their unfaithfulness punished by their husbands. We have
seen that in the barbaric world the infringement of chastity is re-
garded mainly as an offence against the woman's owner. The
influence of this conception is still apparent in the Brahmanical
codes, which, in assigning punishments for seduction and adultery,
observe a marked distinction between the cases where the
woman is properly guarded and those in which she is free from
proper surveillance.^ The same conception had another conse-
ing a wife in marrying again after desertion for a period of years. Thus
we trace (1) a period when widows and deserted wives may marry again,
(2) an attempt to establish monogamy. But the net result of this sacra-
mental conception of marriage, impinging on actual law and usage, was,
in the Brahmanic codes, the greatest liberty for the man, and the most
complete bondage for the wife.
1 Manu, V. 157. On the other hand, not only is suttee not mentioned
by Manu, but the original text appears, as we have seen, to contemplate
re-marriage. (See especially ix. 175, 176.) Among the Jats of the
Punjab, re-marriage is allowed to the deserted wife and to the widow ; in
Western India, it is allowed to the lower castes if the husband is impo-
tent, if the parties are continually quarrelling, or if, by mutual consent,
the husband breaks the wife's neck ornament, or if he deserts her for
twelve years. {J. D. Mayne, op. cit., 94, 95.) Polygamy, on the other
hand, as to which the earlier text of Manu seems to have wavered, remains
to this day an undoubted right. On the whole, we may say that nowhere
has the subjection of women been more complete than in India, and Mo-
hammedan influence, far from improving matters, has only furthered the
practice of seclusion.
2 Manu, V. 147, 148.
3 For a scale of penalties modifiable according as the woman is guarded
or not, see Manu, viii. 374 ff.
On the subject of legal punishments and religious penances for different
forms of immorality, Manu is quite bewildering in his divergencies of
statement, and the case is made worse if the other Brahmanist law books
are consulted. Two instances may suffice to illustrate the difficulty of ex-
tracting a consistent view. In viii. 371, the king is to cause the adulter-
ess to be devoured by dogs. But in xi. 177, "an exceedingly corrupt
wife" is merely to be confined to one apartment and to perform the
penance prescribed for males in the case of adultery. Probably the
explanation is that the first passage which speaks of a wife "proud of the
greatness of her relatives" lays down the penalty for high caste women
who love men of lower caste. This is explicitly stated in the correspond-
ing passage of Gautama's code (xxiii. 14, 15). But there is nothing in
Manu himself to clear up the point. Again, in xi. 59, intercourse with
Chap. XV.] WOMEN AND MARKIAGE UNDER CIVILIZATION 317
quence, paradoxical enough in our eyes. As the husband was the
proprietor of the wife, he was also the owner of her children,
whether they were his children after the flesh or not. And as
children were a desirable acquisition for the purposes both of this
world and the next, it was not unusual for a childless husband to
compel his wife to bear him a child by another man. In the IMaha-
bharata we read that wives who refuse such a duty are guilty of sin.
It was through a similar order of ideas that if the husband died
childless his brother^ was appointed to raise up seed to him. This,
of course, was for religious purposes only. The son of the ap-
pointed lover, on the other hand, was the son for this world as well
as the next. But with the progress of civilization the Niyoga, as
this custom was called, gradually fell into discredit and made way
for a purer conception of the relations of husband and wife. It
deserves mentioning here as one of the most remarkable paradoxes
in the field of Comparative Ethics that the same teaching which
insists so strongly on the guarding of women as though the pres-
ervation of their persons for the benefit of their owners were the
sole object of their existence, should also say of adultery that "men
who have no marital property in women, but sow their seed in
the soil of others, benefit the owner of the woman." ^ But the
paradox resolves itself into this, that proprietary right rather than
personal self-respect and love is deemed the basis of conjugal
obligation. Property is more than personality, and it is precisely
unmarried maidens is somewhat strangely classed with the deadliest of
all sins — violation of the Guru's (teacher's) bed — but in § 62 it is
classed among minor offences causing loss of caste.
I shall not attempt to thread my way through the maze, but will note
a few salient points :
(1) Considering the low position of women, the punishments of im-
morality, where no caste complication is involved, seem moderate. It
would seem as though but little responsibilitj'^ were attached to the
woman. Thus the maiden who makes advances to a man of high caste
is not to be fined ; only if he is of lower caste is she to be confined to her
house (\-iii. 365).
(2) A low caste seducer suffered corporal punishment. One of equal
caste had to pay the nuptial fee if demanded by the woman's father.
(3) Adultery and fornication appear as religious offences (xi. 59 seq.).
(4) The husband's right to kill an unfaithful wife is substantially
recognized — the penance required being only to gi^'e a leathern bag, a
bow, a goat, or a sheep, according to her caste. {Manu, xi. 139.)
1 The Le\irate is usuallj^ connected -sWth the principle that the widow
belongs to her husband's family, and probably this was its historical origin
in India. But inAIanu it rests on religious considerations and is reduced
to the dimensions necessary for religious purposes. The brother must
only cohabit with the widow so far as is necessary for the purpose of
raising up seed to his brother {Matiu, ix. 60), and the whole practice is
forbidden in the passage 64-68, which contradicts the clauses permitting
the Niyoga.
^ Manu, ix. 51.
318 PERSONS [Part II.
this that is characteristic of Oriental as on the whole of primitive
marriage.
4. Turning from India to China, we do not find much change
in the position of the woman. The arrangement of marriage
is in the hands of the parents, and the son is as much at their
disposal as the daughter.^
"Young people," says the Editor of the She-King,"^ *'and
especially young ladies, have nothing to do with the business of
getting married. Their parents will see to it. They have to
merely wait for their orders. If they do not do so, but rush to
marriage on the impulse of their own desires and preferences,
they transgress the rules of heaven and violate the law of their
lot." The marriage is, in fact, arranged by go-betweens who form
a kind of profession, and as it is now, so was it perhaps three
thousand years ago in the days of the She-King?
The full ceremony of marriage is, as a rule, gone through with
only one woman ; bigamy or the raising of a concubine to the
rank of wife is punished by ninety blows ^ (unless in certain ex-
ceptional cases), but there are secondary wives or concubines
who owe obedience to the first wife, and it is a point much insisted
on in the classical books that the head wife should show no jealousy
of her inferiors.^
1 Chinese travellers note relies of marriage by capture in the ceremonial
and point out that the ideograph for slave is compounded of "woman"
and "hand," implying that the woman is the type of that which, in the
phrase of the Koran, "yoiu* right hand possesses." Further, to marry
a wife is written "to take a woman," while to marry a man has a different
symbol. {Douglas, "Society in China," 202.) In this connection note
that the imperial editors, writing on the "She-King," Part I., Bk. i. Ode 2,
speak of a strict taboo on the relation of husband and wife in antiquity.
"Anciently the rules to be observed between husband and wife required
the greatest circumspection. They did not speak directly to each other,
but employed internuncios, thus showing how strictly reserved should
be intercourse between men and women, and preventing all disrespectful
familiarity." (Legge, "The She-King," Part I., Bk. i. Ode 2, p. 7, note.)
2 Bk. iv. Ode 7, Stanza 3, note.
3 "How do we proceed in taking a wife?
Announcement must first be made to our parents.
Since such announcement was made,
Why do you still indulge her desires? . . .
How do we proceed in taking a wife?
Without a go-between it cannot be done."
"She-King," Bk. viii. Ode 6, Sts. 3, 4.
* Fornication is punished with eighty blows, and the pander is liable
to seventy. {Alabaster, "Notes and Commentaries on Chinese Criminal
Law," p. 367.)
5 Writing of the "She-King," Dr. Legge says : "The institution of the
harem is very prominent, and there the wife appears lovely on her enter-
ing into it, reigning in it with entire devotion to her husband's happiness.
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 319
The Chinese husband Is master in his own household, the
yatria potestas is strongly developed, and the State interferes
inside the family only in extreme cases. ^ The husband may
kill his wife if taken in adultery ; - he may strike her without
wounding her,^ whereas she receives a hundred blows for striking
him ; ^ while if, for abuse of his parents, he so punishes her as to
cause her death, he receives a hundred blows. He may sell his
wife,^ and sometimes does so in times of famine, he may divorce
her for barrenness, lasciviousness, disregard of his parents, talka-
tiveness, thievish propensities, envious and suspicious temper,
and inveterate infirmity. She, on the other hand, has no power
of divorcing him,^ but at best may arrange to part by mutual
consent.^
The power of the husband does not end with the dissolution of
marriage; if he makes formal complaint of the commission of
bigamy by his wife, she is strangled. After the husband's death
the widow still owes him a duty. There is no definite institution
of suttee, but contemporary authorities tell us that the suicide of
widows is frequent, and in the south often public, and turning
free from all jealousy of the inferior inmates, in the most friendly spirit
promoting their comfort and setting them an example of frugality and
industry. It is apparently to these inferior inmates that the concluding
verse of an Ode expressing the affectionate devotion of a wife, alludes :
"When your arrows and line have found them,
I ^^^ll dress them fitly for you ...
When I know those whose acquaintance you wish,
I wiU give them of the ornaments of my girdle.
When I know those with whom you are cordial,
I will send to them of the ornaments of my girdle.
When I know those whom you love,
I will repay their friendship from the ornaments of my girdle."
"She-King," Part I., Bk. vii. Ode 8.
1 Douglas, 78. A father who kills his son without cause is subject to a
light penalty. If he kills him for striking or abusing his parents, he goes
free. {Alabaster, 156.) The father may require the courts to order the
transportation of an unruly son {ib., 154), and a child may be sold for
good cause. {Ib., 157.)
2 But it must be done on the spot. Otherwise he is liable to a miti-
gated penalty. {Alabaster, 187, 188.)
^ But he must exercise judgment in correcting her. "If he knocks her
brains out when told by his mother-in-law to give her a w^hipping, he will
be responsible for the murder." {Ib., 189.)
* Douglas, 81. If the husband kills her for strilcing him or his parents,
extenuating circumstances are allowed. For killing the wife without
cause, the penalty is strangulation subject to re\ision. {Alabaster, ISO.)
For killing the husband it is decapitation, a severer punishment because
it affects the after-hfe. {Ib., 192.)
^ By practice, not, unless in exceptional circumstances, by strict law.
If she commits suicide in consequence, he is liable to three years' transpor-
tation. {Alabaster, 189.)
8 Unless it is for impotence. {Ib., 182.) ^ Douglas, 71.
320 PERSONS [Part II.
back to the classical books, we find the widow professing life-long
chastity and devotion to the memory of the departed.^ Hence
it is intelligible that women freciuently prefer a nunnery or suicide
to marriage. And yet the love of home and yearning for absent
wife and child is, we are told, no infrequent theme of Chinese
poetry. Such is the power of human feeling to survive all laws
and institutions.
The position of Chinese women has not undergone any funda-
mental change Avithin the historical period. Perhaps in some
respects it has deteriorated.^ In particular the binding of feet
1 "It floats about, that boat of cypress wood,
There in the middle of the Ho,
With his two tufts of hair falling over his forehead,
He was my mate,
And I swear that till death I wall have no other.
O mother, O Heaven,
Why will you not understand me?
It floats about, that boat of cypress wood,
There by the side of the Ho,
With his two tufts of hair falling over his forehead,
He was my only one,
And I swear that till death I will not do the evil thing.
O mother, O Heaven,
Why Avill you not understand me?"
"She-King," Part I., Bk. iv. Ode 1.
Cf. Douglas, 216, etc. The sacrifice of wives at the death of the em-
peror was abolished by Kanghksi 1661-1721. {Douglas, 227.) Human
sacrifice at funerals (cliiefly of women) appears intermittently from the
first recorded case (that of Wu, ruler of Tsin, b.c. 677, when sixty-si.x
people were sacrificed) to the present time. It was opposed bj- the Con-
fucians. In the eighteenth century suttee was on the increase, and to
check it the honours conferred on the suttee women revoked, a.d. 1729.
{De Groat, "Religious Systems of China," ii. 721-807.) De Groot con-
siders it incredible that the case of Wu should really have been the first.
Possibly he was the first of his house to be so "honoured."
2 The "She-Iving" describes the difference of attitude to the infant
son and daughter in terms which are exactly reproduced to-day :
"Sons shall be born to him ;
They wiU be put to sleep on couches ;
They will be clothed in robes ;
They will have sceptres to play with ;
Their cry will be loud.
They wail be (hereafter) resplendent with red knee covers,
The (future) king, the princes of the land.
Daughters shall be born to him ;
They will be put to sleep on the ground ;
They Tvall be clothed "with "WTappers ;
They wiU have tiles to play -nith.
It will be theirs neither to do wTong nor to do good.
Only about the spirits and the food will they have to think,
And to cause no sorrow to their parents."
"She-King," Part II., Bk. iv. Ode 5, Sts. 8, 9.
In point of fact the lot of the infant daughter was often much worse.
The extent of infanticide in China has undoubtedly been exaggerated.
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 321
has grown up within the last thousand years, a mushroom growth
in the antiquity of China. ^ The great teachers, though personally
married to one wife, and having no concubines, did nothing for
the amelioration of the position of women. Mencius, indeed,
proposed to divorce his wife because he found her in a squatting
position on the floor of her room, and was only restrained by his
mother's advice from doing so. This same mother expressed the
whole duty of Chinese women when she refused to be consulted
as to where they should live. She said, "It does not belong to
a woman to determine anything of herself, but she is subject to
the rule of the three obediences ; when young she has to obey her
parents, when married her husband, and when a widow her son."
It only remains to add that where men keep women in so much
subjection they generally impute to them a double dose of original
sin, and the She-King, chiming in with the literature of the Hebrews
and Hindoos, says, ''Disorder does not come down from heaven,
it is produced by the woman. Those from whom come no lessons,
no instritction, are women and eunuchs." -
5. The Hebrew marriage law begins when we first come across it
in the fully-developed patriarchal stage. The analogy of primitive
Arabian tribes suggests an earlier state of mother-right, but of
this there are in the Old Testament only the merest traces.^
A man acquires a wife by purchase or by service, from her father
or her nearest male relative.'* In either case she passes completely
out of her father's family, and belongs to him who has paid for her.
"Is there yet any portion or inheritance for us in our father's
house?" say Leah and Rachel. "Are we not counted of him
strangers? for he hath sold us and hath also quite devoured the
price paid for us." ^
This very next summary of the theory of marriage by service
has already been referred to. But the marriage affairs of Jacob
The killing even of illegitimate cliildren after, though not at birth, is an
offence, though but lightly punished. {Alabaster, 170.) The practice,
however, is frequent in many districts, and it is the daughter who is ordi-
narily the sufferer.
1 Yet there is an objection to the bamboo as a penalty for women, and
if subjected to it, thej- are not stripped as they were in England to the
beginning of the nineteenth century. {Alabaster, op. cit., 107.)
2 "She-King," Part III., Bk. iii.'Ode 10, St. 3.
3 It is clear that Sara was really Abraham's half-sister, and his mar-
riage to his father's daughter would be in accordance ^\ith primitive cus-
tom under mother-right.
* Laban apparently gives away Rebecca, his sister, and both he and her
mother receive precious things for her. At the same time Rebecca's
own wishes clearlj^ are considered.
^ Gen. xxxi. 14.
322 PERSONS [Part II.
illustrate some further points which we can understand well
from the Babylonian code. Part of the agreement between him
and Laban is that he shall not "afflict" Laban's daughters, and
that he shall not "take wives beside my daughters." ^ This
is quite in the spirit of a Babylonish marriage contract. But
there is a further point of similarity. Though Jacob took no
more wives, each of his two wives gave him a handmaid precisely
as is contemplated in the Code of Hammurabi, and the hand-
maid's children were in each case reckoned to the wife. In Ham-
murabi's language, "the wife had granted him the children."
Polygamy is contemplated in the Law, the only limitation being
that in the Priestly Code two sisters are not to be married at the
same time. Concubinage is also contemplated, and so is the sale
of a daughter for that purpose. The daughter that is sold is
especially protected in the Book of the Covenant. She is not to be
set free in the Sabbatical year, but if she "please not her master
who hath espoused her to himself, then shall he let her be redeemed ;
to sell her unto a strange people he shall have no power." If a
girl were espoused to his son she should be dealt with " after the
manner of daughters," or if married to her master she was pro-
tected in case he took another wife. "Her food, her raiment and
her duty in marriage shall he not diminish." In the humane code
of Deuteronomy protection is even extended to the captive bond-
woman. She is to be allowed a full month for mourning before
being married, and once married, "if thou have no delight in
her then thou shalt let her go whither she will, but thou shalt not
sell her at all for money, thou shalt not deal with her as a chattel
because thou hast humbled her."
While there is no prohibition of polygamy in the Law — Deuter-
onomy merely states that the children of the better-loved wife
are not to be preferred to the first-born — in practice, as among
the Eg;yptians, the custom seems to have died out little by little,^
and in the Proverbs monogamy seems to be assumed throughout.
The right of divorce rested entirely wath the man, and the grounds
of it in Deuteronomy are very vaguely expressed. "If she find
no favour in his eyes because he hath found some unseemly thing
in her, he shall write her a bill of divorcement." But none of the
codes are at pains to define the grounds of divorce clearly. They
assume it as a right of the husband, and their careless expressions
1 Gen. xxxi. 50.
2 Apparently it was not formally forbidden till the tenth century,
A.D. {Bryce, "Studies," ii. p. 384.)
J
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 323
have given grounds for much difference of interpretation which
has affected Christian as well as Jewish Law.^
There is no mention in the Law of divorce by the wife, but among
the later Jews she could claim a divorce if her husband were a
leper or afflicted by a polypus or engaged in a repulsive trade."
The position of the woman in the family gives her guardian
certain definite rights and duties as to the disposal of her person.
Thus Judah, as the head of the family, proposes to burn Tamar,
his daughter-in-law, for imchastity, but acknowledges in time
that he was bound to give her as a widow of his son Onan to his
other son Shelah. The husband's brother, in fact, had the duty
of marrying the widow, and, failing the brother, the obligation
fell on the kindred. Boaz, as Ruth's kinsman, first offers her to a
nearer relative, and on his refusal weds her himself. The daughter
does not inherit landed property if there are sons, but failing sons,
she becomes the heir, and in that case she must marry within the
tribe, a recognition of the eminent ownership of the tribe over the
whole land.
Such being the position of women, it is not to be expected
that the attitude expressed to them in literature should be one of
great respect or admiration. At best their virtues as house-
wives were admitted, but in the famous description of the virtuous
housewife in the Proverbs there is not a word of a union of mind
' Of the Jewish Legalists the school of Shammai (first century, b.c),
pressing the word "nakedness" which is the most literal rendering of the
term translated "imseemly," understood it of unchastity; the school of
Hillel, pressing (in Rabbinical fashion) the word "thing," and the clause,
"if she find no favour in his eyes" (though this, as a matter of fact, is
qualified by the following words, "because he hath found some unseemly
thing in her"), supposed the most tri\'ial causes to be included, declaring,
for instance, that a wife might be divorced, even if she burnt her husband's
food, or if he saw a woman who pleased him better. It may be doubted,
however, how far the latter opinion was literally acted upon. The grounds
mentioned in the Alishnah as justifying divorce are, ^^olation of the law of
Moses, or of the Jewish customs, the former being said to consist in a
woman's causing her husband to eat food on which tithe has not been paid ;
in causing him to offend against the law of Lev. xviii. 19; in not setting
apart the first of the dough. Num. xv. 20 ft"., and in failing to perform any
vow which she has made ; and the latter in appearing in pubhc with
dishevelled hair, spinning (and exposing her arms) in the streets, and con-
versing indiscriminately with men, to which others added, speaking
disrespectfullj' of her husliand's parents in his presence, or brawling in
his house. The Karaite Jews limited the grounds of divorce more exclu-
sively to offences against modesty or good taste, a change of religion,
serious bodily defects, and repulsive complaints. That the Hebrew
word denotes something short of actual unchastity, may be inferred from
the fact that for this a different penalty is enacted. \'iz. death, also the same
expression is used, not of what is immoral, but only of what is unbecoming.
It is most natural to understand it of immodest or indecent beha\iour.
(Summarized from Driver, "Deuteronomy^" p. 270, note.)
^ Driver, p. 271.
324 PERSONS [Part II.
or soul, and there is little indeed to differentiate the wife from the
cheerful, active, intelligent, and let us add, charitable housekeeper.
We read that "she spreadeth out her hands to the poor," and
again, " she openeth her mouth with wisdom and the law of kind-
ness is on her tongue," but there is no word of the romance of love
or of the higher side of the conjugal relation.^
On the other side of the account woman is regarded as the
source of evil. "Give me any wickedness save the wickedness
of a woman " is the burden of Ecclesiasticus. A bad woman is
the temptress and the destroyer throughout the Wisdom literature,
and it was through woman that sin came into the world, and for
this reason, that she was to be subject to her husband.^
6. We have seen that among the primitive Arabs mother-right
and polyandrous unions prevailed, but in Mohammed's time the
women were mere chattels, forming a part of the estate of their
husband or father and descending to the son. They were held in
low account, and female infants were frequently put to death.
"Women are the whips oJ_Satan " is an amiable saying of the
mascuTmeTTrab of tEisTperiod, having said which it is not surprising
that he should add : " A man can bear anything but the mention
of his wives." Mohammed set himself to ameliorate the position
of women. "Ye men," he said, "ye have rights over your wives,
and your wives have rights over you." But he was not able to
carry his reforms very far according to our ideas. He limited the
number of legitimate wives to four, but allowed an unlimited num-
ber of slave concubines ; he insisted that the woman's consent to
her marriage should be obtained, but the consent of her guardian
also remained essential. Whether the temporary marriage in
practice in Mohammed's time is still allowed is debated between
the sects.^
But free divorce Mohammed was compelled to tolerate : " The
thing which is lawful but is disliked by God is divorce." There
are, indeed, certain cases in which divorce is compulsory,*^ but
even apart from them the husband may divorce his wife without
assigning any cause. The wife, however, is protected by the
dower, or more strictly, the bride price, of which a portion is de-
ferred, and which may be claimed by the wife if she is divorced
1 It is probably another writer in the Book of Proverbs who says that
"a virtuous woman is a crown to her husband." (Prov. xii. 4.)
^ Mr. Monte fiore points out that the appreciation of a good woman is
higher in the "Wisdom of the Son of Siraeh" than in the Proverbs, in
correspondence with the general advance in her position. ("Hibbert
Lectui-es." 1892, p. 491.)
3 Hughes, "Dictionary of Islam," p. 314. * Ibid., pp. 87, 88.
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 325
without cause.^ Her position is therefore somewhat similar
to that which the provident Babylonian or Egyptian woman
secured for herself by the marriage contract. On her side, the
wife is bound to live with her husband, but if she can prove ill-
treatment, can obtain a separation from the Kadi. Bad conduct
or gross neglect is a good defence to a suit brought by the husband
for the restitution of conjugal rights." The husband has, however,
the right of chastisement, and the admonition of the prophet,
"Not one of you must whip his wife hke whipping a slave." does
not, to European ears, appear to err on the side of chivalry.^
Yet Mohammed made the kind and equitable treatment of
wives a moral if not a legal duty : " The best of you is he who be-
haves best to his wives." The lord of many women must be
impartial. " \Mien a man has two wives and does not treat them
equally he will come on the day of resurrection with half of his
body fallen off." But if there is to be kindness, it is to be such as
is due to the weaker vessel : " Admonish your wives with kindness,
because women were created from the crooked bone of the side." ^
The position of the wife under the Sunni law is thus summed
up by ]Mr. Hughes : —
"Her consent to marriage is necessary. She cannot legally object
to be one of four wives. Nor can she object to an unlimited number
of handmaids. She is entitled to a marriage settlement or dower, which
must be paid to her in case of divorce or separation. She may, however,
remit either whole or part of the dower. She may refuse to join her hus-
band until the dower is paid. She may be at any time, with or without
cause, divorced by her husband. She may seek or claim divorce (khul')
from her husband wath her husband's consent. She may be chastised
by her husband. She cannot give evidence in a court of law against her
husband. According to the Sunnis, her evidence in favour of her hus-
band is not admissible, but the Shi'ahs maintain the opposite view. Her
husband can demand her seclusion from public. If she becomes a widow
she must observe hidad or mom-ning for the space of four months a,nd
ten days. In the event of her husband's death she is entitled to a portion
of her husband's estate in addition to her claim of dower, the claim of
dower taking precedence of all other claims on the estate." ^
» Hughes, 91. 2 75^-^,^ 573
3 The traditions record that the prophet forbade the Moslems to beat
their wives. Brute force being thus ruled out, natural superiority asserts
itself, and the faithful come to complain that the women have got the
upper hand. The prophet consequently revokes the order, and then the
women complain in their turn. Mohammed is then reduced to moral
suasion: "Those men who beat their vvives do not behave well. He is
not of my way, who teaches a woman to go astray and entices a slave
from his master." {Hughes, 671.)
* A wife taken in adultery might be stoned, but four witnesses with a
fivefold repetition of the oath were required to prove the offence.
("Koran," Part I., Chap. iv. 15.) Xor is the death-penalty recom-
mended, but rather seclusion in the house. {Loc. cit. and Hughes, p. 11.)
Fornication is strictly forbidden to men.
^ Hughes, p. 671.
326 PERSONS [Part II.
Nor has a woman full legal privileges outside marriage. Her
evidence is not accepted in cases involving retaliation. Her
fine is one-half that of a man, and the value of her testimony one-
half that of a male witness. Yet she may hold public positions,
she may act as a judge except where retaliation is involved, and
in some Mohammedan states princesses have ruled. She can hold
property, retains the usufruct of her property during marriage,
and takes the property with her in case of divorce. She has also
a claim to inherit along w^th her male relations, confirmed by the
express words of the prophet.^ She is not to be slain in war, and
for apostasy she is not put to death, but imprisoned until she re-
cants. The general attitude of the Mohammedan world towards
her is too well known to need illustration, but two traditional say-
ings of jMohammed may be quoted as illuminating the intellectual
chaos to which a well-meaning man is reduced when he con-
templates that helpmate over whom he so complacently assumes
superiority and dominion. The first is this, "I have not left
any calamity more detrimental to mankind than women," and the
second is the complementary expression of the master in his other
mood, " The world and all things in it are valuable, but more valu-
able than all is a virtuous woman."
With this final contradiction mirrored in the double motive for
secluding women, (a) as a compliment, implying that they are
elevated above the ordinary affairs of life; (b) as a precaution,
implying that they are not to be trusted with liberty — with this
contradiction in theory and in practice, rooted as it is in a radically
false view of womanhood, we may leave the Oriental world and
its efforts to deal with the relations of the sexes.
7. But the first nation of the West to which we turn was in
this respect largely orientalized. The Greeks founded Western
civilization, but their rapid advance in general culture was by no
means accompanied by a corresponding improvement in the
position of women. On the contrary, it is in the earliest period
and among some of the most backw^ard states that the woman
has most freedom.
The Homeric woman moves freely among men. Nausicaa
welcomes Odysseus and brings him to her father's house. She
bids him kneel to her mother if he would gain a welcome and
succour from her father.^ The relation of husband and wife is'
1 "Koran," i. p. 72; cf. Dareste, pp. 61-63.
2 At the same time Arete's position seems to have been somewhat
exceptional, for Aleinous honoured her as no other woman in the world is
Chap. XV.] WOMEX AND MARRIAGE UNDER CIVILIZATION 327
close and tender ; Andromache relates how her father's house has
been destroyed with all that were in it, " but now, Hector, thou art
my father and gracious mother, thou art my brother, nay, thou
art my valiant husband." ^
We never hear of more than one legitimate wife. On the other
hand, the carrying off of women as bond-slaves was habitual.
Briseis was a recognized portion of the spoil, and such capture im-
plies concubinage along with legitimate marriage.- If the bride-
groom could* not take the bride in a raid, he bought her for a
goodly number of cattle, and over his concubines, at any rate, he
exercised powers of life and death. Odysseus compels the faithless
handmaidens to carry forth the bodies of the suitors and bids Telem-
achus put them to the sword ; but Telemachus thinks this too
good a death, and strings them up to a ships cable in the hall,
where they hang struggling like thrushes in a net.^
The patria potestas persisted in a mild form in the historical
period.^ The father was the religious and legal head of the family ;
he performed the family sacra, and represented wife, children and
slaves in the courts.^ Xor were limitations on personal liberty
and responsibility peculiar to the wife, for here again woman was
subject to the three obediences to father, husband, or son,
and failing them, to her nearest blood relation.
The sons in most cases divided the inheritance, the daughters
having only a right to maintenance and dowry. But what
property women had remained theirs during marriage, and, in
some states they even had the right of management.^ In early
times the father might sell his daughters, or brothers their sisters,
when under their guardianship. This right was abolished by
Solon except in the case of unchastity,^ but a father retained the
honoured of all that now-a-days keep house under the hand of their lords.
("Od.," \ii., Butcher and Lang Tr., p. 105.)
1 " lUad," \i. 429, 430.
2 Yet the wife might resent this. Laertes bought Eurycleiain her j'outh
for twenty oxen and honoured her equally %\'ith his wife, "but he never
lay ■ftith her, for he shunned the WTath of his lady." (" Od.," i., Tr. Butcher
and Lang, p. 15.)
3"0d.," xxii. 468.
* The right of exposing a cliild was limited in Sparta by the meeting of
the tribesmen. {Plutarch, "Lyeurgus," 16, cited by Leist.) Leist, p. .59.
thinks the d7Xio-Ters must be meant. At Athens the right disappeared
at an early date, and the recognition of the child could be compelled
by legal process. (Leist, ib.) The adult son was emancipated.
5 The Athenian woman could follow no suit of a value e.xceeding a
medimnos, except through a guardian. The wife had verj' limited powers
of alienation A\ithout the husband's consent.
" Busolt, "Handbuch der Klassischen Altertumswissenschaft," 19, 20.
' Plut. "Solon," 13, 23, cited by Busolt, I. c.
328 PEKSONS [Part II.
right of controlling his daughter and even of disposing of her by
will/ or of giving his son, while a minor, in adoption to another
family.- There could be no legitimate marriage without an assign-
ment of the bride by her guardian.^ The wife passed into the
husband's family, and was separated from her own Idn and their
sacra. At Athens she might be divorced on payment of the bride
price, while on her side she could only obtain a divorce by the sanc-
tion of the archon.^ At Sparta, where, in some respects, e.g. in
regard to property, she had a higher position,^ it seems that looser
relations prevailed. Brothers might share a wife in common,
and wife-lending was recognized, whereas at Athens the punish-
ment of adultery was enforced.^ Monogamy prevailed in the
main,^ but concubinage was legally recognized, provided that the
handmaiden did not reside in the same house with the legal wife.
The concubine's children might be legitimated by adoption, and
might then enter the phratry, whereby they acquired all the
privileges of citizenship.^
But the woman, though under ward, was certainly not regarded
as a chattel. Probably Aristotle expressed the ordinary Greek
view accurately enough when he said that a man should rule his
slaves as a despot, his children as a king, and his wife as a magis-
trate in a free state. Yet it was a Greek thinker who first frankly
argued the case for the free admission of women to all the duties
1 Letourneau, "La Femme," 416.
^ Busolt, p. 19. According to Leist, p. 62, he had practical, but not
legal control over the son's marriage.
^ At any rate at Athens. {Busolt, 201.) The dyxi-a-TeTs (relations to
the fourth degree on both sides) had to see that the orphan heiress was
married, and her nearest male relation (after her brothers) had the right
of marrying her, and correspondingly the duty of so doing or of finding
a husband for her. {Busolt, 20 ; Leist, 40, 47.)
^ Letourneau, "La Femme," 423. At Sparta divorce for sterility seems
to have been e.xpeeted at any rate of a king. {Herodt., v. 40.)
5 According to Aristotle two-fifths of the land of Sparta had come into
the hands of women bj^ inheritance and bequest in his time, and the
Spartiate women, ha\ang successfully resisted the attempt of Lycurgus to
impose on them the same discipline as the men accepted, enjoyed a state of
liberty which in Aristotle's A-iew amounted to licence, and was disastrous
to Sparta. ("Pohtics," ii. 1269 B, 1270 A.)
^ By the Solonian legislation the husband who concealed his wife's
adultery was punished wth drt/u^a. Yet the punishment of the adulterer
was left in the husband's hands. If caught flagrante delicto he was abso-
lutely at the husband's mercy. In any case he could be imprisoned at
the husband's pleasure, and was released on payment of a fine. {Letour-
neau, p. 422.) The wife was not killed, but divorced. {Leist, p. 300.)
For an instance of wife-lending at Athens, Letourneau cites the case of
Kimon. {Letourneau, p. 415.)
^ Anaxandrides, king of Sparta, declined to divorce his barren wife,
but consented to take a second. This was regarded as qmte un-Spartan.
(Herodt., v. 40.)
^ Busolt, op. cit., p. 201.
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 329
and rights of man. Plato's position differs from that of his modern
successors in that he insists rather on women's duties than on their
rights, more on what the state loses by their restriction to the
family circle than on the loss to their own personality. Further,
though he had the experience of Sparta to go upon, his own teach-
ing was too much associated with polemics against the family
and with a fanciful ideal of communism to be taken quite seriously.
On the other hand, Aristotle summed up the whole philosophy of
the ancient world, of the East, and perhaps the prevailing senti-
ment in modern Europe, when, discussing those who are fit to
bear rule and order the affairs of men, he says that a slave does
not possess that power of deliberation which is the basis alike of
self-government and of the government of others. A child
possesses it but imperfectly. A woman possesses it, but in her it
is without authority. After all, the Greeks did little to develop it.
There appear to have been no regular schools for girls at Athens,^
and it was only the courtesan of the higher class who was a fit
helpmeet mentally for Pericles or capable of sustaining a conver-
sation with Socrates. Xenophon's ideal wife is a good housekeeper,
like her of the Proverbs.
8. The modern European marriage law has three roots — Roman
Law, Primitive Teutonic custom, and the Christian doctrine of
marriage; but it has been largely re-modelled in the modern
period under rationalizing influences. It cannot be studied
statically, but has a long, varied and interesting history, of which
an attempt will be made here to give the briefest possible out-
line. This history starts with the early Roman family, organized
as it was under the highly-developed potesfas of the father. All
the children are the father's, and in law he can dispose of them at
pleasure.- He can chastise them, sell them into slavery, and even
put them to death (jus viiw necisque).^ Before exercising this
supreme power he has, it is true, to consult the council of relations,
but he is not bound by their judgment. In short, the paternal
power is nowhere more strongly developed, nor does the position
of wife and children anywhere approach in law more nearly to
that of slaves, owned by the paterfamilias, and except as a matter
of grace, incapable of owning anything themselves.
1 Here the Spartans were more liberal, as they admitted women to the
gymnasia. (Busolt, ii. 158.)
^ Exposure, however, if the law attributed by Dionysius (ii. 15, Bruns,
p. 7) to Romulus is correct, was limited to female infants and required the
consent of the neighbours. No child was to be killed under three years.
3 Bruns (p. 7), quoting Dion. ii. 23.
330 PERSONS [Part II.
Into the family thus constituted a wife passed on her marriage.
The marriage might be accompHshed by either of two forms, and
it might also be made valid apparently without any form at all.
The first form was confarreatio, in which the essential feature was
the eating by both bride and bridegroom of a cake — an act of
the kind which we call symbolic, but w^hich to primitive man
is rather magical, actually efficacious in establishing a unity of the
man and woman. The second form was called coemytio, and was
of the nature of a formal sale, almost certainly, in the light of what
we know of other peoples, preserving the memory of a real purchase
of the wife by the husband, which as anything but a form had
already fallen into disuse when history begins. Both these forms
transferred the wife from the power (potestas) or hand {manus) of
her father into that of her husband, to whom she became as a
daughter. For all purposes, sacred and profane, she passed from
the one family to the other.^ But just as inanimate property,
which normally passed from hand to hand by a special ceremony
of transfer, might also acquire a new owner by long unchallenged
possession and use, so was it also with human property. The
woman who without either of the two ceremonies mentioned was
given by her father to a man and lived with him as his wife for a
whole year without interruption became in law his wife by use
(usus) and passed as completely in manum mariti as if she had
eaten with him the sacred cake.
All these three modes of marriage were in existence at the time
of the drawing up of the Twelve Tables, and whichever of them
she chose, the woman passed into the family and into the power
of her husband. Yet her position differed in two essential respects
from that of the Oriental wife. She was her husband's only
wife. At no period of Roman history are there any traces of
polygamy or concubinage." And not only was she the sole wife,
but the tie which bound her to her husband was difficult to break
and rarely broken. It is true that each form of union could be
undone by a certain prescribed ceremony — confarreatio by
diffarreatio, coemptio by remancipatio. But these were resorted
to rarely, and it would appear only for grave offences, the council
of relations being first called in to give judgment.^ It does not
1 Cf. on the religious marriage Dion. (Bruns, p. 6).
^ The concubinate of which we hear in Roman law is a form of union,
bereft of some of the civil rights of marriage, not the relation of a married
man to a secondary ■^ife or slave-girl.
3 Bryce, "Studies in Jurisprudence," vol. ii. p. 403. The offences for
which, according to Dionysius, ii. 25 {Bruns, p. 7), she was brought to
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 331
appear that the wife had any means of repudiating the husband,
or of emancipating herself from his manus. In practice marriage
was so nearly indissoluble that the divorce of his wife by Spurius
Carvilius Ruga in B.C. 231 was declared to be the first instance ^
known since the foundation of the city. On the other hand, it
must be remembered that the unfaithful wife might be put to
death without trial, and that the husband who had other good
causes of complaint would be supported b}' the family council
in executing or in repudiating her."
9. Such was the primitive Roman marriage with the manus.
But even in the days of the Twelve Tables a wholly different
union had made its appearance. If the enjoyment of property
was broken for awhile before the year was out, no title to it
arose out of the usufruct. This idea was applied to marriage
by usus, and already in the time of the Twelve Tables we
find that if the cohabitation was broken for three nights in
every year, the wife did not become the property of the hus-
band. When or how it became a custom to convert this
breach of cohabitation into a system, and so establish a form
of marriage in which the wife did not pass into the manus of
the husband, we do not know. What is certain is that this
new form of free marriage rapidly ousted its older rivals.
The bride now remained in her father's power, she was still
a member of her own family, and by consequence had no posi-
tion in that of her husband. Subject to the nominal control
of her father or her guardian, she thus acquired complete control
of her own property, and became, in fact, her own mistress. She
was not in theory a free woman unless emancipated. She was
only free from her husband. But it need hardly be pointed out
that the practical control of relations with whom as a married
trial before a council of relatives were, however, punishable with death.
They were adultery and \vine-drinking. The grounds for divorce stated
by Plutarch are poisoning the children, the use of false keys, and adultery.
Divorce for any other reason was punished with confiscation of property.
The wife could not leave her husband in any case. {Bruus, p. 6. Cf.
Girnrd, p. 154.) Divorce by the husband was recognized in the Twelve
Tables. The husband takes the wife's keys away and turns her out of
the house, "lllani suam suas res sibi habere jussit, ex XII tabulis, elaves
ademit, e.xegit." (Cic. "Phil." ii. 28. Bruns, p. 22.)
1 Ruga's wife was divorced for sterility, and Mr. Bryce takes the sweep-
ing statement of the authorities to mean that it was the first instance of a
divorce in w^hich no crime was alleged (ii. 403).
- At the same time, if Plutarch ("Rom." 22) is to be trusted, it was a
religious offence to sell her as a slave. {Bruns, 7.) In this point she en-
joyed a material advantage over the children.
332 PERSONS [Part II.
woman she no longer lived was not likely to be a very serious
matter, and in point of fact, where it was felt to be irksome, it
was from time to time limited by law. Thus the father had
naturally as a part of his potestas the right to break the marriage
at will. But this logical application of the paternal power was
abolished under the Antonines, or restricted to cases where there
was grave cause for its exercise.^
On the other hand, the tutela was a reality for unmarried women,
and the Roman law never seems to have fully acknowledged that
the consent of the adult woman, and her consent alone, was the
one necessary condition to her marriage. Originally, indeed, the
consent of the parties does not seem to have been required at all.
This would be all in accordance with primitive ideas. But here
again the law was modified as time went on, and the consent of
the woman, as well as the man, became a normal, and, in some
cases, a legally necessary condition. ^ Further, with the general
emancipation of women the necessity for a guardian appears to
have gradually died away.^ Hence the Roman matron of the
Empire was more fully her own mistress than the married woman
of any earlier civilization, with the possible exception of a certain
period of Egyptian history, and it must be added, than the wife
of any later civilization down to our own generation. Practically
independent of her father, she was legally independent of her
husband. She could bring an action against others and with some
1 The separation of a wife from her husband by her father was forbid-
den by Antoninus Pius, but was permitted "magna et justa causa inter-
veniente" by his successor. {Sir F. Jeune, "End. Brit.," art." Divorce,"
p. 471 ; Girard, p. 155.) The son also acquired the right to emancipation
in case of ill-treatment. {Girard, 183.)
2 The consent of the parties was of course required if they were sui
juris. On the other hand, by the strict logic of the law, if either was in
tutela, and this would be the normal case with a girl (and even with a
grown-up woman), the affair would have been one for the guardians alone.
Thus Ulpian, v. 2, says, "Consentiant si sui juris sunt, aut etiam parentes
eorum si in potestate sunt." (Cited by Girard, p. 147, note.) The
"Lex Jiilia," A.U.C. 736, gave an appeal from the guardians, if they
refused consent, to a court. Further, the best jurists, including Ulpian
hirnself, held the consent of the parties to be necessary as well as that of
their guardians. "Nuptiae consistere non possunt nisi consentiant
ornnes ; id est qui coeunt, quorumque in potestate sunt." (Digest,
xxiii. ii. 2.) With this, however, we must read — "Sed quae patris
voluntati non repugnat consentire intelligitur. Tunc autem solum dis-
sentiendi a patre licentia filiae conceditur si indignum moribus vel tm-pem
sponsum ei pater eligat." {Just. Digest, xxiii. i. 12. Cited in Viollet,
"Droit Civil Frangais," p. 404.)
^ Originally all women were in tutelage. "Veteres voluerunt feminas,
etiamsi perfectae aetatis sint — in tutela esse — exeeptis -virginibus ves-
talibus, quas . . . liberas esse voluerunt ; itaque etiam lege XII Tabu-
larum cautum est." {Gains, i. 144, 145, in ^runs, 21.) On the extinction
of the tutela, see Girard, pp. 196 and 213.
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 333
limitations against him.^ She could hold property and dispose of
it freely.^ On the other hand, being separated from his family,
she does not succeed to his property if he dies intestate, nor do
her children succeed to her, nor she to them. So much followed
from the strict theory of marriage without the mamis, though
here, as elsewhere, natural feeling had its way, and practical
rules were introduced by the Praetorian legislation to prevent
consequences which would seem harsh to the temper of the time.
These changes naturally affected the stability of marriage. We
have seen that under the old law divorce was rare and difficult,
but the revolution effected in marriage by the disappearance of
the manns was nowhere more conspicuous than in its effect upon
the permanence of the marriage tie. By the newer form of mar-
riage neither did the wife pass into the husband's family nor the
husband into the wife's family. They remained distinct persons,
distinct individualities, and as they freely entered into the mar-
riage relation, so could they freely leave it. Divorce, in short,
as in so many primitive tribes, stood freely at the choice of either
party. In the best time of the Republic divorce without ade-
quate cause incurred penalties, a pecuniary fine, or, still more
serious, the nota censoria. But with the growth of the new form
of marriage opinion rapidly changed, and, as Mr. Bryce points
out, we find at the close of the Republic not only Pompey, but
"such austere moralists as Cato the Younger and the philosophic
Cicero" putting away their wives. The reader of Cicero's letters
who is unacquainted with the Roman law of divorce will perhaps
remember the shock of surprise with which, after becoming well
acquainted with Terentia from many allusions he suddenly finds
Cicero calmly referring to his divorce and re-marriage. At this
j)eriod divorce had, in fact, become as commonplace an incident
of life as marriage itself.
How far the freedom of women had the demoralizing results
which have been generally attributed to it by those whose busi-
ness it has been to paint the Roman Empire in the darkest colours,
1 In ease of adultery the husband could originally kill the wife. The
"Lex Julia" compelled him to prosecute, the punishment being relegatio.
The same law punished fornication ^\'ith women of rank. {Girard, "Man-
uel elementaire du Droit Romain," 160, 176.)
^ Girnrd, p. 1.59. The dos or dowrj' brought by the wife from her
own fainily's resources to the maintenance of the joint life passed originally
to the husband ; but while he continued to administer it, his right over it
became more and more restricted in favour of the wife, so that the jurists
{e.g. Ulpian) speak of it as being her property, and this is recognized by
Justinian, who gives her a right to reclaim it on the dissolution of the
marriage from whatever cause. {Girard, pp. 922-926.)
334 PERSONS [Part II.
is a matter on which the best authorities do not speak with confi-
dence. It must be remembered that our accounts of Roman social
life are drawn in part from satirists like Juvenal, or satirical his-
torians like Tacitus, and that we should be as far astray in taking
their description as an impartial account of the society in which
they lived as we should be if we accepted the picture of our own
social life as it could be painted for us by some preacher of reform,
or some contemporary censor of morals. The satirist has a great
function in the world, but it is not that of supplying the historian
of manners with material ready for use without analysis. Other
sources are the writings of Christian fathers, who from a different
point of view were even more prone to denounce the wickedness
of the world as they found it.
The very fact that the Romans took so serious a view of feminine
profligacy militates against the belief that the corruption had
gone quite so deep as is generally supposed. Lucius Piso declared
that modesty had vanished since the censorship of Messalla and
Cassius in B.C. 154.^ Yet we have the testimony of Velleius that
in the proscriptions of the Second Triumvirate, while the sons were
never faithful and freed-men only sometimes so, the wives could
be trusted always. The freedom of divorce was abused, as it is
in the present day in America. According to Seneca there were
women who reckoned the years not by the consuls, but by their
husbands, but this again is obviously satire. On the other hand,
there are instances of three, four, or five wives, and, again, of three
to five husbands. A marriage of forty-one years is recorded as
unusually long, and in this case the wife had urged divorce and
re-marriage upon her husband after the death of their daughter,
for the sake of getting children. This, however, is remote in sen-
timent from anything like profligacy, and connects itself rather
with the primitive idea of the necessity of children. The litera-
ture of the time has stories of faithful wives as well as of profli-
gate women to record — stories of wives accompanying their
husbands in suicide, dying with them in proscriptions, or going
with them into exile. Every one knows of Arria, who thrust the
dagger first into her own bosom, and then offered it to her hus-
band, wdth the words, "Paete, non dolet." But we do not all
know that she became a kind of heroine of the time, and upon a
^ Friedldnder, " Sittengesehiehte Roms," i. 475. Friedlander's whole
discussion, pp. 475-507, is instructive, if somewhat indecisive. The
judgment of Professor Dill, whose work has appeared since the above was
written, is more clearly favourable. ("Roman Society," pp. 77, 79, 145,
etc.)
Chap. XV.] WOMEN AND MARRIAGE UNDER CIVILIZATION 335
gravestone in Anagnia is addressed along with Laodamia by a
woman who asks her to receive her soul.^
The evidence of the tombstones, which in all ages bear a singu-
lar family resemblance, shows that the domestic ideal held sway
under the free manners of imperial Rome, as under the masculine
despotism of the East or the sentimentality of the West. A
panegyric on Murdia in the second half of the first century says
all gravestones of women must be alike, "because their virtues
admit of no heterogeneity, and it is enough that all have shown
themselves worthy of the same good report." "All the greater
renown has my dearest mother won, who has equalled and in no
way fallen behind other women in modesty, rectitude, chastity,
obedience, household work, carefulness and loyalty." Another
inscription says, "She was of pleasant address and noble gait,
took care of her house and span." In another, the husband has
sworn not to take another wife. Another, " I await my husband " ;
another, "Never have I experienced a pain from thee, except
through thy death."
Upon the whole the Roman Matron would have seemed to have
retained the position of her husband's companion, counsellor and
friend, which she had held in those more austere times when
marriage brought her legally under his dominion.
1 Friedldnder, i. 514.
Chapter XVI
CHILDREN AND THE FAMILY ^
1. The family is bound up with the institution of marriage :
the relation of children to their parents is one of the most im-
portant problems of humanity; in the first place, because the
children require long continued training and education ; and then,
because the preservation of the family tie, even after the children's
education is completed, is of the highest importance.
2. The continuance of family feeling after the children are
grown is of the greatest value to humanity; indeed, it stands
above all other bonds. On the one side, there is the natural
blood-tie, on the other, the close association that has been estab-
lished during the years of education ; both together produce a
natural understanding, a harmony of conduct, which should not
be lost, but should be cultivated in later life as a lasting common
tie and as a pledge of self-sacrificing effort for humanity.
3. The nature of family feeling will differ, according to whether
it is the relation to the mother, or to the father, that is determina-
tive. We, from our point of view, combine both relations, and
can scarcely conceive of the time when such a combination was
considered impossible ; and yet this was the case. As the mother
and father belonged to different families, the combination of
matriarchy and patriarchy was necessary to bring the child within
the membership of both families. But that was impossible in
times when each family lived to itself, and each family circle
formed a separate social and political unit which maintained its
interests one-sidedly, and expressed them, as far as the other
families were concerned, in every way, even in disputes and war.
The struggles of those ages are for the most, family wars, family
fighting against family, f nder such conditions it was, if not in-
conceivable, at least not feasible for one person to belong to more
^ [Reprinted, by permission, from Josef Kohler, "Philosophy of Law "
(Albrecht's trans.), Boston Book Compan3% 1914 (Philosophy of Law
Series, Vol. XII).]
336
Chap. XVI.] CHILDREN AND THE FAMILY 337
than one family, and hence be committed to both sides in case
of war. An individual who belonged to more than one family
was in a position similar to the sujet mixte of today who belongs
to two countries ; a state of things which does indeed exist, which
is everywhere regarded as deplorable, and to be avoided if
possible.
4. The oldest tie was that of the child to the mother and to
the maternal family,^ which is easily comprehensible ; for the child
is borne by the mother, is often nourished by her for years, and in
its early youth is entirely in her care. At the same time, the
women are the keepers of the home ; , whereas the men wander
about, and are often absent, especially in times of war. Under
such conditions, matriarchy is the only rational arrangement,
and it was therefore formerly quite general. Xot until later,
especially under the influence of wife-purchase and rape, but also
for other reasons which will be discussed elsewhere, did matriarchy
give way to patriarchy and the child belong to the father and the
father's family. This was the plane reached by the cultural legal
systems of the ancients, in Indian, Greek, Roman, and Germanic
law, and the law of the Eastern Asiatics ; and this was the con-
dition that prevailed during the time that the greatest formations
of culture among the nations were accomplished.
5. Patriarchy has great advantages over matriarchy. Under
the latter system, the child belongs to the mother, but it also
belongs to the mother's relatives ; that is, to those who have the
same mother as the child's mother ; hence, especially, to her
brothers, so that the relation between maternal uncle and nephew
is the closest that exists between two men. This relation is a
natural one only if the mother lives with her brothers, so that
brother, sister and sister's child form one household. But such a
state of affairs cannot be maintained ; as soon as the peoples
become nomadic and consequently scatter, it becomes unendurable
for the husband to stand apart. Then, of course, if the repro-
duction of children is to continue, the husband must live with his
wife and child ; the uncle on the other hand lives perhaps in a
quite distant district, follows other aims, and has no intimate
relations with them. Under such conditions, the closer the mar-
riage and immediate family relation becomes, the more the child,
as soon as it needs the guidance of a man's hand, will attach itself
to the father, and the more contrary to nature it must appear if
^ Only the complete misunderstanding of ethnology and comparative
legal science can lead to a contrary assertion ; refutation is superfluous.
338 PEESONS [Part II.
the man to whom the child turns is not its father. If the father
belongs to family A, the child to family B, the seeds of discord
already exist in the heart of the household : in case of war between
the two families father and son stand on opposite sides. Such
conflicts in a circle in which the greatest loyalty and undivided
confidence should rule, poison the whole relationship from the
beginning.
Another solution would only be possible, if the wife were the
head of the house, and she and her political side determined the
whole relation. This system has, indeed, existed; it is called
gynarchy, but it has always been rare, and was soon recognized
as contrary to nature. Women have other tasks than that of
ruling, and other qualities than the persevering consistency that
the life of a ruler demands. Hence, it will be the rule for the
husband to be the head of the house, and the unnatural condition
that arises if the children are removed from his circle of govern-
ment will alw^ays be felt as a tremendous hindrance to the develop-
ment of family life. Therefore, only those nations in which the
father's right was paramount have been capable of fulfilling the
higher duties of national life ; they alone have had the inherent
strength powerfully to resist storms from within and without.
6. The bringing up or training of children took place in the
family from the beginning. During the period that group-mar-
riage was general, it took the form of exchanging children to a
greater or less extent, so that one or another member of the group
was made responsible for one or more children. When monog-
amy became customary, the child remained with its parents, and
such an intimate relation between them and the children was thus
developed that the strongest tie was formed. The unity of
blood corresponded to the unity of all vital relations.
7. It is therefore comprehensible that history long preserved
this tie, and even surrounded it with the glamor of poetry. Even
today, the relation between children and parents is one of the
most intimate and sacred ; it is the source not only of ethical
dignity, but also of deep moral strength.
8. This institution, however, is not adequate, because the lofty
ideals that underlie the whole often fail, and the seeds of anti
culture, even the sources of vice and social anarchy, are some
times found in the heart of the family itself. Wlien this is the
case it is high time to take the children away from their parents,
and to put their training into the hands of the State.
9. A number of nations, even in earlier times, departed from
I
Chap. XVI.] CHILDREN AND THE FAMILY 339
the custom of famil}' training, and introduced another kind
which may be divided into two separate systems :
(a) The system of foster-paternity (Pfiegvaterschaft) : an altered
system of family training, under which another than the real
family of the children was made responsible for them. This is
justifiable in cases where there is serious immorahty in the family,
or when exigencies of another nature prevent the family from
bringing up the children. But, also, in other circumstances, this
system may be advisable ; for instance, if the children of nobles,
etc., are to be brought up by ordinary citizens, so that they may
learn to be simple and thorough.
(6) Under another system, the children, especially the boys,
were brought up by the State and the temple, so that from their
earliest youth their patriotism and civic responsibility might be
developed, and that b}' strict discipline and simple living they
might be taught to serve their country and society.
10. The modern custom of giving children into the care of the
State, or placing them in other families, therefore, easily finds a
precedent in history; and in this connection, too, the principle
applies, that no one system can be regarded as universally bene-
ficial. On the contrary, sometimes one method, sometimes an-
other will best fulfil the cultural conditions of a nation.
11. As long as matriarchy rules there will be no difference
between legitimate and illegitimate children. And even under
the laws of patriarchy the principle was originally upheld that a
woman's child belonged to her husband irrespective of by whom
it was begotten. Not until later was a distinction made ; and the
child of whom the woman's husband was not the father was dis-
owned. But, if a child was born before marriage (out of wed-
lock), among many peoples it was killed (often the birth was
prevented by abortion), or the child belonged to the mother's
family until the mother married, when it was taken into the new
family. Of any special disregard of these children born before
marriage there is originally no trace whatever, and a position
equal to that of legitimate children was not refused them, until,
in times of patriarchy, the idea gained ground that not every
child that happened to come into the marriage was to be con-
sidered legitimate, but only those begotten by the husband.
The consequence was, that the child born before marriage, like
the child that was the result of adultery, remained .outside the
husband's family, and belonged to the mother ; the rights on the
maternal side, at that period, however, were not very profitable,
340 PERSONS [Part II.
as the mother did not inherit much and was restricted to the
barest necessaries.
12. In later times, the legitimate child occupied another posi-
tion, when, instead of patriarchy, the combined right of the
father and mother was established (the cognate system). The
right of the mother then became more important, and this con-
siderabh' improved the position of the illegitimate child; only
the relation to the father and the paternal family was set aside :
otherwise the child attained the complete right of the mother,
and this at a time when matriarchy was again a ruling power.
^
I
Chapter XVII
ADOPTION AND ARTIFICIAL RELATIONSHIP
Section 1
SURVEY OF ARTIFICIAL RELATIONSHIPS!
(a) General Remarks.
1. Among nearly all nations, beside the actual blood relation-
ship, an artificial relationship has been recognized involving legal
relations equivalent to the ties of blood. A more detailed presen-
tation of the subject belongs to the history of law : it is one of
the most interesting pages in the evolution of humanity.
2. We need only emphasize the following points here :
(a) The artificial relationship has often given the family new
vitality' and courage, and even saved whole tribes from decline.
(6) As in all important legal institutions, religion played a large
part in establishing the artificial relationship.
(c) Of the many different kinds of artificial relationship, foster
paternity has already been mentioned. ^Nlany kinds have died
out, or have attained importance only in a single case in history
(e.g., milk relationship in Islam). Two forms have attained uni-
versal historical importance, adoption and blood-fraternity (Bluts-
briiderschaft) , of which, however, the latter has disappeared from
modern civilization.
(6) Adoption.
1. Adoption is an institution of high morality; for the love
between parent and child is of the highest ethical and educative
value, a source of pure feelings, the starting point of devoted effort,
an incentive to high moral endeavor, and thus in itself produces
and furthers culture. It is just in the soil of such feelings that
the most important ideas germinate, spring up, and bear the richest
fruit. Moreover, the foster child that thus receives a better edu-
! [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
{AlbrechVs trans.), Boston Book Company, 191-4 (Philosophy of Law
Series, Vol. XII).]
341
342 PERSONS [Part II.
cation and training, usually is more efficient than if it were left
in disadvantageous circumstances where it might come to an evil
end.
2. It is true that adoption would be possible without the law ;
it is possible for anyone to take a foster child without any legal
relation and devote himself to it ; but the legal activity of such a
relation has a far-reaching and very considerable psychic influence.
What, otherwise, only occurs occasionally and uncertainly, thus
becomes a regular institution ; the child that thus acquires rights,
has a much better position than if it were dependent on whim.
Particularly, it is spared the unhappy fate, after the death of its
benefactor, of being turned out and deprived of maintenance,
property, and inheritance.
3. Adoption may be so carried out that the child is taken away
from its own family, and becomes a member of the family that
adopts it. This is desirable as long as there is strong family
cohesion ; for a double family membership in such cases is dis-
advantageous, and places the child in a situation in which it
cannot thrive.
It is different where family cohesion is loose so that a number
of educational advantages are required outside of the family, in
society and in the State, from the fact that family relationship
involves its members only in certain directions.
When this is the case, the retention of certain rights in the
child's own family is not only possible, but desirable : there is no
reason for depriving anyone of more than is necessary to accom-
plish certain ends. Hence modern law has led to the introduction
of a system of incomplete adoption, under which the adopted child
retains as many rights as possible in its own family, and receives
in addition its adoptive rights.
4. A further question concerns whether the child enters into a
relation only with the father that adopts it, or also with the father's
family. Modern legal systems have denied the latter, in con-
sideration of the fact that the child retains rights in its own family.
It would, however, be perfectly conceivable, and not without
value, if, by a joint family resolution or something of the sort,
the adopted child should also be granted rights as regards the
other members of the family. The adopted child would thus be
received into the whole family connection ; as was the case, for
instance, in the " Aetleidung'^ of the old Norse law.
5. With the growth of the system of incomplete adoption, an-
other principle has also been developed : that the effects of adop-
Chap. XVII, § 1.] ADOPTION AND ARTIFICIAL RELATIONSHIP 343
tion are one-sided, inasmuch as the child is indeed subject to
parental authority in the family that adopts him ; but, in other
respects, he alone acquires rights, while the father b}' adoption
and his family have no further claim on the child. Here, too, it
might be asked, whether it would not be desirable to extend this
arrangement ; for without doubt the connection becomes closer
when claims exist on both sides. It is true that this would also
have its disadvantages, since adoption might thus become a matter
for speculation, so that motives of avarice might find a footing,
and corrupt this beneficial institution. This danger, however,
might be a^•erted by careful examination into each case, and pos-
sible prohibition on the part of the authorities.
(c) Blood-Fraternity.
1. As an artificial relationship, blood-fraternity has played an
important part in the life of nations. The original idea was that
the "blood-brothers" were closer to each other than real brothers,
and the institution has been a source of the finest self-sacrifice, of
ennoblement, of mutual devotion, of the purest unselfishness.^
2. Unfortunately, the legal institution has died out ; it was
much used, and also much abused ; it became the spring that set
kin-revenge in motion, a means of furthering rebellious acts, and
the connecting element in wild and destructive societies.
Nevertheless, its disappearance is greatly to be regretted, for
such an incentive to unselfishness, such an aid in all the conditions
of life, must always be recognized as promoting culture ; just as
any ideal in itself strengthens the cultural power of a people, in
so far as it is not too closely mixed with destructive elements.
3. Here, too, we must repeat, that such a psychic relation can
exist without legal protection or legal form. But what was said
1 [Captain Guy Burroios ("The Land of the Pigmies," Crowell &
Co., N. Y., 1898 (?) ) gives the following account of the ceremony of
blood-brotherhood :" In the open air, and in the presence of all the as-
sembled chiefs and people, I was seated opposite my prospective brother.
A small incision was made in each of our forearms, from which a little blood
oozed. The proper performance would have been for each of us to lick the
blood of the other, but on this occasion we decided to dispense with that
part of the rite, merely rubbing the cuts one against the other, and thus
commingling our blood. When this was done the representative of my
' brother ' began to beat two pieces of metal together keeping up a mo-
notonous tink, tink, tink. He recited a sort of commination service : ' If you
ever make war on me, if you ever steal from me, if you ever wound me, etc.,
etc., may you die! ' This is a good opportunity for him in case he may
want to get anything from you, so his incantation often contains such
threats as, ' If you do not give me plenty of guns, may you die ! ' After
this, a similar performance was gone through by my representative, whose
business it was to nullify my new brother's subtle demands. Finally the
compact was sealed by an exchange of small presents."]
344 PERSONS [Part II.
of adoption also applies in this case. It is of far-reaching impor-
tance, when the law takes hold of, and shapes such institutions ;
they thereby become normal, and lose their exceptional character,
and their significance is greatly enhanced, if what one man expects
from another is also required by law. The rigid legal manner of
creating and dissolving the relation gives it support and strength,
and especially a series of important legal consequences may thus
follow, as, for instance, if a blood-brother is privileged to refuse
his testimony, or if the shielding of a blood-brother is as unpunish-
able as that of a real relation, or if the duty of mutual support,
and perhaps also a right of inheritance exist. In all such cases,
the law may be appealed to, and the uncertainty and vagueness
of relations that exist merely in fact are removed by legal regulation.
4. Will this institution perhaps be revived? Unless there is
something in life tliat supports them, such customs cannot be
created ; the ardor and enthusiasm that lead to such an ideal
cannot be artificially produced; they must proceed from within
the nation.
Section 2
RELIGIOUS BASIS OF ADOPTION!
The duty of perpetuating the domestic worship was the founda-
tion of the law of adoption among the ancients. The same re-
ligion which obliged a man to marry, which pronounced a divorce
in case of sterility, which, in case of impotence or of premature
death, substituted a relative in place of the husband, still offered
to a family one final resource to escape the so much dreaded mis-
fortune of extinction ; this resource was the right of adoption.
"He to whom nature has denied a son can adopt one, so that the
funeral ceremonies may not cease." Thus speaks the old legis-
lator of the Hindus.^ We have a curious plea of an Athenian ora-
tor in a case where the legitimacy of a son's adoption was contested.
The defendant shows us first the motive for which one adopted a
son. "Menecles," he says, "did not wish to die without children ;
he was desirous of leaving behind him some one to bury him, and
in after time to perform the ceremonies of the funeral worship."
He then goes on to show what will happen if the tribunal annuls
his adoption ; what will happen, not only to himself, but to the
MBy PusTEL DE CoTJLANGEs, "The Ancient City"; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
2 "Laws of Manu," IX. 10.
Chap. XVII, § 2.] ADOPTION AND ARTIFICIAL RELATIONSHIP 345
one who has adopted him. Menecles is dead, and still it is the
interest of Menecles that is at stake. " If you annul my adoption,
you will leave IMenecles, who is dead, without a son ; and conse-
quently no one will perform the sacrifices in his honor, no one
will offer him the funeral repast, and thus he will be without
worship." ^
To adopt a son, was then, to watch over the perpetuity of the
domestic religion, the safety of the sacred fire, the continuation of
the funeral offerings, and the repose of the manes of the ancestors.
There being no reason for adoption, except the necessity of pre-
venting the extinction of a worship, it was permitted only to one
who had no son. The law of the Hindus is formal on this point.^
That of the Athenians is not less so ; all the orations of Demos-
thenes against Leochares are proof of this.^ No particular passage
proves that this was the case in the old Roman law, and we know
that in the time of Gaius a man might have at the same time sons
by nature and sons by adoption. It appears, however, that this
point was not admitted as legal in Cicero's time ; for in one of his
orations the orator expresses himself thus : " What is the law con-
cerning adoption? Why, that he may adopt children who is no
longer able to have children himself, and who failed of having them
when he was of an age to expect it. To adopt is to seek, by regular
and sacerdotal law, that which by the ordinary process of nature
he is no longer able to obtain." "^ Cicero attacks the adoption of
Clodius, taking the ground that the man who has adopted him
already has a son, and he declares that this adoption is contrary to
sacerdotal law.
When a son was adopted, it was necessary, first of all, that he
should be initiated into a form of worship, "introduced into a
domestic religion, brought into the presence of new Penates." ^
Adoption, therefore, was accompanied by a ceremony very like
that which took place at the birth of a son. In this way the new
comer was admitted to the hearth, and associated in the new
religion. Gods, sacred objects, rites, prayers, all became common
between him and his adopted father. They said of him. In sacra
transiit — He has passed to the worship of the new family.^
1 Is(vus, II. 10-46.
- "Lawsof Manu," X. 168, 174. ^'Dattaca-Sandrica," Onan?ie's trans.,
p. 260.
•' See also Jsceua, II. 11-14.
* Cicero, "Pro Domo," 13, 14. Aulus Gellius, V. 19.
5 'Eiri TO. iepa dyeiv, Is(Bus, VII. "Venire in Sacra," Cicero, "Pro
Domo," 13; "in Penates adsciscere," Tacitus, "Hist.," I. 15.
8 Valerius Maximus, VII. 7.
346 PERSONS [Part II.
By this very ceremony he renounced the worship of the old one.^
We have seen, indeed, that according to this ancient behef, the
same man could not sacrifice at two hearths, or honor two series of
ancestors. Admitted to a new house, the old became foreign to
him. He no longer had anything in common with the hearth near
which he was born, and could no longer offer the funeral repast
to his own ancestors. The ties of birth were broken ; the new tie
of a common worship took the ascendency. The man became so
completely a stranger to his own family, that, if he happened to
die, his natural father had no right to take charge of the funeral,
or to conduct the procession. The adopted son could not return
again to the old family ; or, at most, the law permitted this only
when, having a son, he left that son to take his place in the adoptive
family. They considered that, the perpetuity of this family being
thus assured, he might leave it; but, in this case, he severed all
the ties that bound him to his own son.-
Emancipation corresponded, as a correlative, to adoption. In
order that a son might enter a new family, it was necessary that he
should be able to leave the old ; that is to say, that he should be
emancipated from its religion.^ The principal effect of emanci-
pation was the renunciation of the worship of the family in which
one was born. The Romans designated this act by the very sig-
nificant name of sacroruvi detestatio.^
1 " Amissis sacris paternis," Cicero, ibid.
^ Ismis, VI. 44; X. 11. Demosthenes, "against Leoehares." Anti-
phon., "Frag.," 15. Comp. "Laws of Manu," IX. 142.
3 " Consuetude apud antiquos fuit ut qui in familiam transiret prius se
abdicaret ab ea in qua natus fuerat." Servius, "ad J^ln.," II. 156.
4 Aulus Gellius, XV. 27.
b
ClL^PTER XVIII
SLAVERY
Section 1
HISTORICAL IMPORTANCE OF SLAVERY i
1. Slavery is not, as might be supposed, evidence that culture
is lacking, but exhibits considerable economic progress; for in
periods in which economic life is but slightly developed, no need
of slaves is felt. The household is limited in accordance with the
needs of the family and the addition of servants would mean only
the increase of family cares and would make it necessary to divide
the meager proceeds of industry among a greater number of con-
sumers than formerly. It is not until there is a more developed
and growing agricultural or industrial life that the need is felt of
slaves as workers in agricultural or industrial pursuits. But when
once this point is reached, the need of slavery is so strong that the
people would risk everything in order to add to their working
force in this way. Wars are carried on for the sake of taking
slaves, raids are made, or people belonging to some particular
class are oppressed, tormented, and driven by various economic
abuses into becoming slaves and rendering a slave's obedience and
service.
2. However, slavery has still another, a religious significance :
the human sacrifice is generally a sacrifice of slaves. Slaves have
been kept for the special purpose of being slaughtered as a sacrifice
to gods or spirits, walled up when a house was being built, or
offered to the gods of the harvest before a new field was planted.
3. Before the rise of technical, especially of industrial arts,
slavery was the only means of obtaining a division of labor on a
large scale in a uniform undertaking, for works of that kind
require distinct subordination, monotonous and steady exertion,
^ [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
M7
348 PERSONS [Past II.
tasks which the workman dislikes, and absolute discipline and
order, such as were impossible among free persons in those times.
Even the oarsman in the rowing bank could scarcely be a free
person; for everywhere that enterprises requiring mass labor
were set on foot, slaves could not be dispensed with, since machines
were wholly lacking.
4. Hence, no one who looks at the matter entirely from the
standpoint of our day, or of human rights, will be able to appre-
ciate slavery in its historical development. Human rights are
not advantageous to every development : technical arts must
advance, humanity must make progress in industrial life and for
centuries this goes on with the sacrifice of human life. The sacri-
fice to culture is the highest sacrifice that the individual can make,
but it is also one that he must make.
5. Slavery may develop into semi-slavery or bondage :
(a) One kind of bondage is pledge service {Pfandlingschaft) in
which the debtor works off his debt ; as he is only temporarily a
slave, his lot is lightened. He is bound to service but is not with-
out rights.
(b) Also in other case, however, experience has taught that a
slave will do more if his interest is aroused and he is given a " pe-
culium" which he may use, or own, or partly own. Thus it is in
agriculture where the slave is allowed to possess a small tract of
land ; thus, too, it is in trade and commerce : he has then to pay
his lord a certain annual fee.
(c) Certain circumstances lighten the slave's condition :
(aa) The possibility of buying his freedom develops. As soon
as the slave appears as so much capital, the interest on which is
represented by his annual service, the thought immediately
follows that he can substitute, for himself to his master, capital in
money : the sum with which he purchases his freedom.
(bb) The female slave is often the concubine of her master ; she
and her offspring therefore attain a better position. The sexual
relation here, as everywhere, is connected with strong psychic
influence : the lord does not want his concubine to become another's
slave after his death. Therefore she becomes free when he dies,
and her children are, if not entirely free, at least half-free.
(cc) The slave is allowed to have his wife and family. Thus
family life develops : the family is not to be separated, its circle
shall not be interfered with.
(dd) The house slaves become a part of the household, and the
intimacy and confidence that thus grows up between them and
Chap. XVIII, § 1.] SLAVERY 349
the family make them indispensable ; often the family is at the
mercy of their loyalty and discretion.
{ee) Slaves even play a political part. They conduct the most
important and responsible affairs and thus attain a firm and un-
shakable position.
(Jf) Note should be taken, also, of the Bondo-Recht, that is the
competency of the slave to change his master if he wishes.
6. With the coming of semi-slavery the following changes occur :
the slaves become free in principle, and the services that they are
required to perform take on another aspect. Such services are
then no longer borne in the consciousness of bondage, but are
regarded as imposed tasks which encumber the slave class and
against which class feeling gradually comes to rebel. The place
of the agricultural slaves is filled by free peasants, that of the
artisan slaves by technical workmen — with the cessation of their
special duties and liabilities they join the middle class. Work
now becomes ennobled.
7. To this appreciation of work the ancients attained only in
exceptional cases ; this is shown especially in Aristotle's " Politics,"
who, by the way, had a deep historical comprehension of the whole
question of slavery.
He fully recognized that in the industrial life of the ancients
slavery was a necessity; and his famous assertion, that if the
weaver's shuttle worked of itself, no more slaves would be neces-
sary, is the best explanation of the whole institution. Yet, we
must reply to this ancient thinker that physical labor, especially
if it is carried out with care, attention, and skill, and if the work-
man has a psj'chic interest in the result, so that he works with
body and mind, by no means lacks nobility and dignity. Conse-
quently, from our point of view^ it is wrong to say that persons
who perform physical labor must be without rights, so that they
may be regarded only as the organs and tools of their master.
Moreover, Aristotle too admits that a distinction must be made
between slavedom {Skiaventum) as a natural institution, and actual
slavery, and that it by no means follows that all those persons
who were slaves according to the law were also destined by nature
to be slaves.
350 PERSONS [Part II.
Section 2
THEORIES OF SLAVERY i
The Law of Persons contains but one other chapter which can be
usefully cited for our present purpose. The legal rules by which
systems of mature jurisprudence regulate the connection of Master
and Slave, present no very distinct traces of the original condition
common to ancient societies. But there are reasons for this
exception. There seems to be something in the institution of
Slavery which has at all times either shocked or perplexed mankind,
however little habituated to reflection, and however slightly ad-
vanced in the cultivation of its moral instincts. The compunc-
tion which ancient communities almost unconsciously experienced
appears to have always resulted in the adoption of some imaginary
principle upon which a defence, or at least a rationale, of slavery
could be plausibly founded. Very early in their history the Greeks
explained the institution as grounded on the intellectual inferiority
of certain races, and their consequent natural aptitude for the ser-
vile condition. The Romans, in a spirit equally characteristic,
derived it from a supposed agreement between the victor and the
vanquished, in which the first stipulated for the perpetual ser-
vices of his foe, and the other gained in consideration the life
which he had legitimately forfeited. Such theories were not only
unsound but plainly unequal to the case for which they affected to
account. Still they exercised powerful influence in many ways.
They satisfied the conscience of the INIaster. They perpetuated
and probably increased the debasement of the Slave. And they
naturally tended to put out of sight the relation in which servitude
had originally stood to the rest of the domestic system. This
relation, though not clearly exhibited, is casually indicated in many
parts of primitive law, and more particularly in the typical system
— that of ancient Rome.
Much industry and some learning have been bestowed in the
United States of America on the question whether the Slave was
in the early stages of society a recognised member of the Famih'.
There is a sense in which an affirmative answer must certainly be
given. It is clear, from the testimony both of ancient law and of
many primeval histories, that the Slave might under certain
conditions be made the Heir, or Universal Successor, of the ]\Iaster,
1 [By Sir Henry S.Maine. Reprinted from ^'Ancient Law," by per-
mission of Henry Holt and Company, New York.]
Chap. XVIII, § 2.] SL^WERY 351
and this significant faculty, as I shall explain in the Chapter on
Succession, implies that the Government and representation of the
Family might, in a particular state of circumstances, devolve on the
bondman. It seems, however, to be assumed in the American
arguments on the subject that, if we allow Slavery to have been a
primitive Family institution, the acknowledgment is pregnant with
an admission of the moral defensibility of Xegro-servitude at the
present moment. \Miat then is meant by saying that the Slave
was originally included in the Family? Not that his situation
may not have been the fruit of the coarsest motives which can
actuate man. The simple wish to use the bodily powers of an-
other person as a means of ministering to one's own ease or pleas-
ure is doubtless the foundation of Slavery, and as old as human
nature. ^Vhen we speak of the Slave as anciently included in the
Family, we intend to assert nothing as to the motives of those who
brought him into it or kept him there ; we merely imply that the
tie which bound him to his master was regarded as one of the same
general character with that which united every other member of
the group to its chieftain. This consequence is, in fact, carried
in the general assertion already made, that the primitive ideas of
mankind were unequal to comprehending any basis of the connec-
tion inter se of individuals, apart from the relations of family.
The Family consisted primarily of those who belonged to it by
consanguinity, and next of those who had been engrafted on it by
adoption ; but there was still a third class of persons who were
only joined to it by common subjection to its head, and these were
the Slaves. The born and the adopted subjects of the chief were
raised above the Slave by the certainty that in the ordinary course
of events they would be relieved from bondage and entitled to
exercise powers of their own ; but that the inferiority of the Slave
was not such as to place him outside the pale of the Family, or
such as to degrade him to the footing of inanimate property, is
clearly proved, I think, by the many traces which remain of his
ancient capacity for inheritance in the last resort. It would, of
course, be unsafe in the highest degree to hazard conjectures how
far the lot of the Slave was mitigated, in the beginnings of society,
by having a definite place reserved to him in the empire of the
Father. It is, perhaps, more probable that the son was practically
assimilated to the Slave, than that the Slave shared any of the
tenderness which in later times was shown to the son. But
it may be asserted with some confidence of advanced and matured
codes that, wherever servitude is sanctioned, the Slave has uni-
352 PERSONS [Part II.
formly greater advantages under systems which preserve some
memento of his earlier condition than under those which have
adopted some other theory of his civil degradation. The point of
view from which jurisprudence regards the Slave is always of great
importance to him. The Roman law was arrested in its growing
tendency to look upon him more and more as an article of property
by the theory of the Law of Nature ; and hence it is that, wherever
servitude is sanctioned by institutions which have been deeply
affected by Roman jurisprudence, the servile condition is never
intolerably wretched. There is a great deal of evidence that in
those American States which have taken the highly Romanised
code of Louisiana as the basis of their jurisprudence, the lot and
prospects of the Negro-population were better in many material
respects, until the letter of the fundamental law was overlaid by
recent statutory enactments passed under the influence of panic,
than under institutions founded on the English Common Law,
which, as recently interpreted, has no true place for the Slave,
and can only therefore regard him as a chattel.
»
Chapter XIX
CAPITIS DEMINUTIQJ
Capitis deminiitio is the destruction of the 'caput' or legal
personality. Capitis deminutio, so to speak, wipes out the former
individual and puts a new one in his place, and between the old and
the new individual there is, legally speaking, nothing in common.
A juristic personality may be thus destroyed in one of three ways :
(1) by loss of the status libertatis. This is the capitis deminutio
maxima ;
(2) by loss of the status civitatis. This is the capitis deminutio
media (magna) ;
(3) by severance from the agnatic family. This entails capitis
deminutio minima.
Capitis deminutio maxima means the loss of a man's entire
juristic personality. Capitis deminutio media and minima merely
mean the loss of the particular juristic personality which a man has
hitherto possessed.
To undergo capitis deminutio maxima is to forfeit one's liberty.
A Roman civis may, like others, become a slave, e.g. if he is con-
demned for a crime, or taken a prisoner of war. If, however, a
Roman citizen returns from captivity, he becomes, at the moment
of his return, a Roman citizen again and recovers all those rights
which he had forfeited by his capitis deminutio in just the same
manner as though he had never lost them. He becomes once more
the paterfamilias of his children, the owner of his property, the
creditor of his debtors, and so on. In a word, he becomes the
subject of all the legal relations which his captivity had extin-
guished for him, to the same extent as though he had never been a
prisoner of war at all. This is the nature of the so-called 'jus
postliminii.' Let us suppose, however, that the Roman civis in
question does not return, but dies in captivity. At the time of his
death he is clearly not a civis Romanus, but a slave. Is then the
' [By Rudolph Sohm. Reprinted by permission from ''The Institutes
of Roman Law " (Ledlic's trans.), Oxford University Press, 1892.]
353
354 PERSONS [Part II.
will which he executed at home, before he was taken prisoner, void
or not ? And, to go a step further, since a slave cannot have any
heirs, can he (the prisoner) have heirs or not? All these diffi-
culties were solved by the so-called 'fictio legis Corneliae,' by which
a Roman civis, dying in captivity, is assumed by a fiction to have
died a Roman citizen ; consequently (argued the jurists), he shall
be deemed to have died at the very moment of being taken prisoner.
Capitis deminutio media (or magna) is loss of citizenship un-
accompanied by loss of liberty ; it occurs e.g. when a Roman
citizen emigrates to a Latin colony. But in Justinian's time, since
every member of the Roman empire who was free was, at the same
time, a Roman citizen, media capitis deminutio is only possible in
the case of banishment, i.e. expulsion from membership of the
empire.
Severance from one's agnatic family also operates as a capitis
deminutio {viz. minima), a destruction of one's personality. For
it is in the family that the essence and force of a legal personality
lie. To change one's family, therefore, is to change one's per-
sonality ; it means the destruction of the old personality and the
birth of a new one.
The word 'family,' however, in the legal signification of the
term, means, according to the civil law of Rome, something very
different from what we are accustomed to associate with the term.
By family we mean the aggregate of all persons who are connected
by ties of blood-relationship, the aggregate of all members of one
and the same stock. But a Roman family, within the meaning of
the jus civile, means the aggregate of all those who belong to one
and the same household, who are subject to one and the same
'domestic power' (patria potestas), or, at any rate, would be thus
subject, if the common ancestor were still living. This is what is
meant by the term 'agnatio.' And the civil law recognizes no
other kind of relationship but agnatio ; it knows nothing of cogna-
tio or blood-relationship. Thus the family of the Roman civil law
means the agnatic family. A peculiar characteristic of this agnatic
family is that it can be changed. Blood-relationship cannot be
destroyed, and a cognatic family, or family in the modern sense,
does not admit of change. But a person can separate himself from
an agnatic family, because he can separate himself from the house-
hold, i.e. from the community of those who stand under the same
patria potestas. And this is what happens to a daughter who
contracts a marriage and thereby enters the marital (i.e. domestic)
power (manus) of her husband ('in manum conventio'), or of the
Chap. XIX.] CAPITIS DEMINUTIO 355
person under whose patria potestas her husband stands. Having
passed from one patria potestas to another, she has thereby changed
her family (her agnatic family, namely) ; she has changed her entire
circle of relations (agnatic relations, namely) ; in a word, she has
undergone a complete change of personality. The same thing
happens to a filiusfamilias, when his father sells him into bondage
(mancipium) , or gives him in adoption (datio in adoptionem) ;
and again to a person sui juris, when he suffers himself to be
adopted by another (arrogatio) ; or lastly, to a filiusfamilias, when
his father emancipates him from the paternal power (emancipatio).
And it is to be noted that in spite of the fact that the emancipatus
actually improves his outward position by becoming a pater-
familias instead of a filiusfamilias, he nevertheless undergoes
capitis deminutio, because the rupture of his agnatic ties involves
the destruction of his previous legal personality and the creation
of a new one.
Capitis deminutio minima, then, means the severance from one's
agnatic relationship, and it occurs in five cases, viz. in the case of
' mancipio dare,' of ' in manum coiiventio,' of ' datio in adoptionem,'
of 'arrogatio,' and of 'emancipatio.'
There were two further incidents of capitis deminutio minima
which fiowed as consequences from the destructive eft'ect which
capitis deminutio minima had in common with the other forms of
capitis deminutio. Firstly, it was a rule of civil law that capitis
deminutio minima extinguished the contractual debts of the capite
minutus. The praetor, however, subsequently restored to the
creditors their rights of action by means of in integrum restitutio.
Secondly, it extinguished all personal servitudes to which the
capite minutus had been entitled, i.e. all such jura in re aliena as
had belonged to him for life. This latter rule was only abolished
by Justinian. According to the law as laid down in the Corpus
juris personal servitudes are only extinguished by capitis deminutio
maxima and media.
Chapter XX
EXISTIMATIONIS MINUTIQi
The term 'honour' refers, in the first instance, only to social
relations. To be 'honoured' is to be allowed one's full worth in
society. Society treats those as entitled to honour who act in
adherence to its views. The award or denial of honour, in other
words, of social worth, is the sanction by means of which society
enforces on individuals not merely the commands of law and
morality, but more specifically the decrees of mere usage which
may conceivably run counter to law and morality. The particular
kind of conduct which society requires from the individual assumes
different forms in reference to the dift'erent sections into which
society is divided, and it is in this sense that we speak of the honour
of a particular class, of military honour, professional honour, and
so on.
The effect which social relations and social views produce upon
the law, finds expression in the legal rules concerning 'existimatio'
or ' civic honour. ' The law yields, to some extent, to the judgment
pronounced by society and, in certain circumstances, imposes legal
disabilities on persons whom society has declared to fall short of the
standard it requires. Civic honour (in the legal sense) means full
qualification in the eye of the law. Loss of honour (in the legal
sense) means partial disqualification in the eye of the law.
The civic honour of a civis Romanus may be destroyed (con-
sumtio existimationis), viz. by capitis deminutio maxima or media ;
or it may be merely impaired (minutio existimationis). And it is in
this last and narrower sense that the expression 'loss of civic
honour' is technically applied. Minutio existimationis may be de-
fined as the impairment of a man's civic honour which, without
producing capitis deminutio (in other words, without destroying his
previous personality), merely operates to diminish his personal
qualifications in the eye of the law.
1 [By Rudolph Sohm. Reprinted by permission from "The Institutes
of Roman Law " {Ledlie's trans.), Oxford University Press, 1892.]
356
Chap. XX.] EXISTIMATIONIS MIXUTIO 357
In the Roman civil law, existimationis minutio only occurs : (1)
in the cases determined by popular enactments ^ ; (2) in conse-
quence of a reprimand from the censor. But here again the jus
honorarium outstripped the civil law. Towards the close of the
republic the censor ceased to excercise his old functions and the
vacancy thus created was supplied by the praetor. For the
praetorian edict was concerned with persons whose civic dignity
was impaired in so far as their disabilities in regard to judicial
proceedings came into question. Thus the praetor in his edict
enumerated those to whom, as persons of tarnished reputation, he
would refuse the full jus postulandi, i.e. to whom he would deny
the right to make motions in court (postulare) otherwise than on
behalf of themselves or certain close relations. In another part
of the edict he specified those to whom, as persons of tarnished
reputation, he declined to grant the right of being represented by
an agent in an action before him. But in thus denying to certain
parties full legal capacity in judicial proceedings (including,
inter alia, the unrestricted jus postulandi) the praetor did not
directly pronounce them 'infames.' He had neither occasion nor
power formally to curtail the civic honour which a person enjoyed.
But, says Gajus, 'those whom the praetor places under such dis-
abilities ice call infamous.^ It was, then, in those lists contained in
the praetorian edict that the views which society took of the cases
of existimationis minutio found legal expression and were, so to
speak, codified ; imperfectly, it is true, but nevertheless in such a
way as to be decisive of the future attitude of the law towards
civic honour. And it was from these sections of the praetorian
edict that Justinian's compilers took their catalogue of cases of
existimationis minutio.
There were, more particularly, two groups of cases which were
contrasted with one another, the cases of 'infamia immediata' and
of 'infamia mediata.' Infamy was said to be 'immediate,' if it
attached to a person at once, ipso jure, on the commission of some
act which deserved to be visited with social disgrace. Thus it
attached to persons engaged in a disreputable trade, to soldiers
ignominiously discharged from military service, to persons in the
relation of a double marriage or double betrothal. On the other
hand, infamy was said to be 'mediate,' if it did not attach directly,
but only after a court of law had passed judgment on the delinciuent
on the ground of some act which deserved to be visited with social
1 Thus e.g. the Twelve Tables (viii. 22) declared : qui se sierit testarier
libripensve fuerit, ni testimonium fatiatur, improbus intestabilisque esto.
358 PERSONS [Part II.
disgrace. Such was the effect above all things of every criminal
sentence touching life, limb or liberty. A similar result however
followed condemnation in certain civil cases, more especially if
judgment were given against a person in a civil action on account of
a dishonourable breach of duty (e.g. as guardian, partner, deposi-
tary, agent). Those civil actions in which condemnation entails
infamy are called 'actiones famosae.'
No codification of the law of honour can, in the nature of things,
be complete. It was necessary, therefore, to allow the Roman
judges a discretionary power to take account of such cases of infamy
as had not been specified in any statute or the praetorian edict.
Looked at from this point of view, there were two kinds of existima-
tionis minutio, 'infamia' and 'turpitudo.' In the case of 'infamy'
the conditions under which it should attach were fixed by the law,
viz. by statutes and the praetorian edict. In the case of so-called
' turpitude,' the conditions under which it should attach were fixed,
not by the law, but by the free discretion of the judge acting, in each
individual case, on the verdict of public opinion, in other words, on
the verdict of society.
Both these forms of minutio existimationis (viz. infamia and
turpitude) produce this result that the judge, acting on his own
discretion, may take them into account, wherever the character of
the person affected is concerned. He may hesitate, for example,
before admitting such a person as a witness or allowing him to act
as a guardian. Or again, if an infamis or turpis is instituted in a
will, the judge may admit the brothers and sisters of the deceased to
the querela inofficiosi testamenti. The following effects, moreover,
are peculiar to infamy : it extinguishes the jus suffragii and the
jus honorum; it restricts the jus connubii (by disqualifying the
infamis from marrying any free-born person) ; and it also restricts
the right to make motions in court on behalf of others. But these
special disqualifications incident to infamy have ceased to exist in
Justinian's time. As far as a man's personality, as such, is con-
cerned, the only effect, under Justinian's law, both of 'infamy' and
'turpitude' is that the persons affected are liable to be subjected to
certain disabilities by the judge in the exercise of his judicial dis-
cretion.
I
PART III
THINGS
Chapter XXI
THE LAW OF PROPERTY
Section 1. Religious Basis of Property
By Fustel de Coulanges
Section 2. Development of the Idea of Property
By L. T. Hobhouse
Section 3. Early History of Property and the Village Community
By Henry S. Maine
Section 4. The Village Community as a Primitive Institution
By George Laurence Gomme
ClL\PTER XXII
ORIGIN OF COMMERCIAL INSTITUTIONS
By L. Goldschmidt
Chapter XXIII
PRIMITIVE COMMERCIAL LAW
By Carl Koehne
Chapter XXIV
BARTER AND TRANSFER
Section 1. Barter
By Josef Koiiler
Section 2. Primitive Transfer of Goods
By Felix Somlo
Chapter XXV
PLEDGE
Section 1. Forms of Pledge Rights
By Josef Kohler
Section 2. The Pledge Idea
By John H. Wigmore
Chapter XXVI
SURETYSHIP
By Josef Kohler
Chapter XXVII
EVOLUTION OF THE LAW OF CONTRACT
Section 1. The Fides Commandment
By B. W. Leist
Section 2. Early Law of Contract
By Henry S. Maine
Section 3. Sponsio and Primitive Contract
By Pol Collinet
Chapter XXVIII
SALES AND LOANS AT ROME
By Rudolph Sohm
Chapter XXIX
INTEREST
By Josef Kohleb
Chapter XXX
SUCCESSION
Section 1. Survey of the Law of Succession
By Josef Kohler
Section 2. Religious Basis of Inheritance
By Fustel de Coulanges
Section 3. Early History of Testamentary Succession
By Henry S. Maine
Chapter XXI
THE LAW OF PROPERTY
Section 1
RELIGIOUS BASIS OF PROPERTY i
Here is an institution of the ancients of which we must not form
an idea from anj-thing that we see around us. The ancients
founded the right of property on principles different from those of
the present generation ; as a result, the laws by which they guar-
anteed it are sensibly different from ours.
We know that there are races who have never succeeded in es-
tablishing among themselves the right of private property, while
others have reached this stage only after long and painful experi-
ence. It is not, indeed, an easy problem, in the origin of society,
to decide whether the individual may appropriate the soil, and
establish such a bond between his being and a portion of the earth,
that he can say. This land is mine, this is the same as a part of me.
The Tartars have an idea of the right of property in a case of flocks
or herds, but they cannot understand it when it is a question of
land. Among the ancient Germans the earth belonged to no one ;
every year the tribe assigned to each one of its members a lot to
cultivate, and the lot was changed the following year. The Ger-
man was proprietor of the harvest, but not of the land. The case
is still the same among a part of the Semitic race, and among some
of the Slavic nations.
On the other hand, the nations of Greece and Italy from the ear-
liest antiquity, ali\'ays held to the idea of private property. We
do not find an age when the soil was common among them ; ^ nor
do we find anything that resembles the annual allotment of land
■ [By FusTEL DE CouLANGES, " The Ancient City " ; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
2 Some historians have expressed the opinion that at Rome property
was at first public, and did not become private till Numa's reign. This
error comes from a false interpretation of three passages of Plutarch
("Numa." 16), Cicero ("Republic," II. 14), and Dioiii/sius of Haliearnas-
sus (II. 74). These three authors say, it is true, that Xuma distributed
361
362 THINGS [Part III.
which was in vogue among the Germans. And here we note a re-
markable fact. While the races that do not accord to the indi-
vidual a property in the soil, allow him at least a right to the fruits
of his labor, — that is to say, to his harvest, — precisely the con-
trary custom prevailed among the Greeks. In many cities the
citizens were required to store their crops in common, or at least the
greater part, and to consume them in common. The individual,
therefore, was not the master of the corn which he had gathered ;
but, at the same time, by a singular contradiction, he had an ab-
solute property in the soil. To him the land was more than the
harvest. It appears that among the Greeks the conception of
private property was developed exactly contrary to what appears
to be the natural order. It was not applied to the harvest first,
and to the soil afterwards, but followed the inverse order.
There are three things which, from the most ancient times, we
find founded and solidly established in these Greek and Italian
societies : the domestic religion ; the family ; and the right of
property — three things which had in the beginning a manifest
relation, and which appear to have been inseparable. The idea of
private property existed in the religion itself. Every family had
its hearth and its ancestors. These gods could be adored only by
this family, and protected it alone. They were its property.
Now, between these gods and the soil, men of the early ages saw
a mysterious relation. Let us first take the hearth. This altar
is the symbol of a sedentary life ; its name indicates this.^ It
must be placed upon the ground ; once established, it cannot be
moved. The god of the family wishes to have a fixed abode ;
materially, it is difficult to transport the stone on which he shines ;
religiously, this is more difficult still, and is permitted to a man
only when hard necessity presses him, when an enemy is pursuing
him, or when the soil cannot support him. When they establish
the hearth, it is with the thought and hope that it will always
remain in the same spot. The god is installed there not for a day,
not for the life of one man merely, but for as long a time as this
family shall endure, and there remains any one to support its fire
by sacrifices. Thus the sacr6d fire takes possession of the soil,
and makes it its own. It is the god's property.
lands to the citizens, but they indicate very clearly that these lands were
conquests of his predecessor, 'I'agri quos bello Romulus ceperat." As
-to the Roman soil itself — "ager Romanus" — it was private property
from the origin of the city.
1 "Earla, laT-n/xi, stare. See Plutarch, "De primofrigido," 21 ; Macrob., I.
23; Quid, "Fast.," VI. 299.
Chap. XXI, § 1.] THE LAW OF PROPERTY 363
And the family, which through duty and religion remains grouped
around its altar, is as much fixed to the soil as the altar itself. The
idea of domicile follows naturally. The family is attached to the
altar, the altar is attached to the soil ; an intimate relation, there-
fore, is established between the soil and the family. There must
be his permanent home, which he will not dream of quitting, unless
an unforeseen necessity constrains him to it. Like the hearth, it
will alwaj's occupy this spot. This spot belongs to it, is its prop-
erty, the property not simply of a man, but of a family, whose
different members must, one after another, be born and die here.
Let us follow the idea of the ancients. Two sacred fires repre-
sent two distinct divinities, who are never united or confounded ;
this is so true, that even inter-marriage between two families does
not establish an alliance between their gods. The sacred fire must
be isolated — that is to say, completely separated from all that is
not of itself ; the stranger must not approach it at the moment
when the ceremonies of the worship are performed, or even be in
sight of it. It is for this reason that these gods are called the
concealed gods, Ati^X^ot, or the interior gods, Penates. In order that
this religious rule may be well observed, there must be an enclosure
around this hearth at a certain distance. It did not matter whether
this enclosure was a hedge, a wall of wood, or one of stone. What-
ever it was, it marked the limit which separated the domain of one
sacred fire from that of another. This enclosure was deemed sa-
cred.^ It was an impious act to pass it. The god watched over it,
and kept it under his care. They, therefore, applied to this god
the epithet of e/3«;eto9.2 This enclosure, traced and protected by re-
ligion, was the most certain emblem, the most undoubted mark of
the right of property.
Let us return to the primitive ages of the Aryan race. The
sacred enclosure, which the Greeks call e/J/co?, and the Latins here-
in m, was the somewhat spacious enclosure in which the family had
its house, its flocks, and the small field that it cultivated. In the
midst rose the protecting fire-god. Let us descend to the succeed-
^"EpKos Upbv. Sophocles, '''Trachin.," 606.
2 At an epoch when this ancient worship was almost effaced bj' the
younger religion of Zeus, and when they associated him with the fire-god,
the new god assumed the title of ep/ce?ots. It is not less true that, in the
beginning, the real protector of the enclosure was the domestic god.
Dionysius of Halicarnassus asserts this (I. 68), when he says that the
6€ol €pK€?oi are the same as the Penates. This follows, moreover, from
a comparison of a passage of Pau,snnias (IV. 17) with a passage of
Euripides ("Troad.," 17), and one of Virgil (''-'En.," II. 514) ; the three
passages relate to the same fact, and show that Zei>s epKeloi was no other
than the domestic fire.
J
364 THINGS [Part III.
ing ages. The tribes have reached Greece and Italy, and have
built cities. The dwellings are brought nearer together : they are
not, however, contiguous. The sacred enclosure still exists, but is
of smaller proportions ; oftenest it is reduced to a low wall, a ditch,
a furrow, or to a mere open space, a few feet wide. But in no case
could two houses be joined to each other ; a party wall was sup-
posed to be an impossible thing. The same wall could not be com-
mon to two houses ; for then the sacred enclosure of the gods would
have disappeared. At Rome the law fixed two feet and a half as
the width of the free space, which was always to separate two
houses, and this space was consecrated to "the god of the en-
closure." ^
A result of these old religious rules was, that a community of
property was never established among the ancients. A phalan-
stery was never known among them. Even Pythagoras did not
succeed in establishing institutions which the most intimate re-
ligion of men resisted. Neither do we find, at any epoch in the
life of the ancients, anything that resembled that multitude of
villages so general in France during the twelfth century. Every
family, having its gods and its worship, was required to have its
particular place on the soil, its isolated domicile, its property.
According to the Greeks, the sacred fire taught men to build
houses ; ^ and, indeed, men who were fixed by their religion to one
spot, which they believed it their duty not to quit, would soon
begin to think of raising in that place some solid structure. The
tent covers the Arab, the wagon the Tartar ; but a family that has
a domestic hearth has need of a permanent dwelling. The stone
house soon succeeds the mud cabin or the wooden hut. The family
did not build for the life of a single man, but for generations that
were to succeed each other in the same dwelling.
The house was always placed in the sacred enclosure. Among
the Greeks, the square which composed the enclosure was divided
into two parts ; the first part was the court ; the house occupied
the second. The hearth, placed near the middle of the whole
enclosure, was thus at the bottom of the court, and near the en-
trance of the house. At Rome the disposition was different, but
the principle was the same. The hearth remained in the middle
of the enclosure, but the buildings rose round it on four sides, so as
to enclose it within a little court.
1 Festus, V. "Ambitus." Varro, "L. L.," V. 22. Servius, ."ad ^n.,"
II. 469.
^ Diodorus, V. 68.
Chap. XXI, § 1.] THE LAW OF PROPERTY 3G5
We can easily understand the idea that inspired this system of
construction. The walls are raised around the hearth to isolate
and defend it, and we may say, as the Greeks said, that religion
taught men to build houses. In this house the family is master
and proprietor; its domestic divinity assures it this right. The
house is consecrated by the perpetual presence of gods; it is a
temple which preserves them.
"What is there more holy," says Cicero, "what is there more
carefully fenced round with e^'e^y description of religious respect,
than the house of each individual citizen ? Here is his altar, here
is his hearth, here are his household gods; here all his sacred
rights, all his religious ceremonies, are preserved." ^ To enter
this house with any malevolent intention was a sacrilege. The
domicile was inviolable. According to a Roman tradition, the
domestic god repulsed the robber, and kept oflF the enemy.'^
Let us pass to another object of worship — the tomb ; and we
shall see that the same ideas were attached to this. The tomb held
a very important place in the religion of the ancients ; for, on one
hand, worship was due to the ancestors, and on the other, the
principal ceremony of this worship — the funeral repast — was to
be performed on the very spot where the ancestors rested.^ The
family, therefore, had a common tomb, where its members, one
after another, must come to sleep. For this tomb the rule was the
same as for the hearth. It was no more permitted to unite two
families in the same tomb than it was to establish two domestic
hearths in the same house. To bury one out of the family tomb,
or to place a stranger in this tomb, was equally impious.^ The
domestic religion, both in life and in death, separated every family
from all others, and strictly rejected all appearance of community.
Just as the houses could not be contiguous, so the tombs could not
touch each other ; each one of them, like the house, had a sort of
isolating enclosure.
How manifest is the character of private property in all this !
The dead are gods, who belong to a particular family, which alone
has a right to invoke them. These gods have taken possession of
1 Cicero, "Pro Domo," 41. 2 Ovid, "Fast.," V. 141.
^ Such, at least, was the ancient rule, since they believed that the
funeral repast served as food for the dead. Eurip.,"Troa,d.,'' 381.
* Cicero, "De Legib.," II. 22; II. 26. Gains, "Instit.," II. 6. "Di-
gest," XLVII. tit. 12. We must note that the slave and the client, as
we shall see farther on, were a part of the family, and were buried in the
common tomb. The rule which prescribed that every man should be
buried in the tomb of his family, admitted of an exception in the case where
the city itself granted a public funeral.
366 THINGS [Part III.
the soil ; they hve under this httle mound, and no one, except one
of the family, can think of meddling with them. Furthermore,
no one has the right to dispossess them of the soil which they oc-
cupy; a tomb among the ancients could never be destroyed or
displaced ; ^ this was forbidden by the severest laws. Here, there-
fore, was a portion of the soil which, in the name of religion, became
an object of perpetual property for each family. The family ap-
propriated to itself this soil by placing its dead here ; it was es-
tablished here for all time. The living scion of this family could
rightly say. This land is mine. It was so completely his, that it
was inseparable from him, and he had not the right to dispose of
it. The soil where the dead rested was inalienable and impre-
scriptible. The Roman law required that, if a family sold the
field w^here the tomb was situated, it should still retain the owner-
ship of this tomb, and should always preserve the right to cross the
field, in order to perform the ceremonies of its w^orship.^
The ancient usage was to inter the dead, not in cemeteries or by
the road-side, but in the field belonging to the family. This cus-
tom of ancient times is attested by a law of Solon, and by several
passages in Plutarch. We learn from an oration of Demosthenes,
that even in his time, each family buried its dead in its own field,
and that when a domain was bought in Attica, the burial-place
of the old proprietors was found there.^ As for Italy, this same cus-
tom is proved to have existed by the laws of the Twelve Tables, by
passages from two jurisconsults, and by this sentence of Siculus
Flaccus : " Anciently there were two ways of placing the tomb ;
some placed it on one side of the field, others towards the
middle." '
From this custom we can see that the idea of property was easily
extended from the small mound to the field that surrounded this
mound. In the works of the elder Cato there is a formula accord-
ing to which the Italian laborer prayed the manes to watch over
his field, to take good care against the thief, and to bless him with
a good harvest. Thus these souls of the dead extended tutelary
action, and with it their right of property, even to the boundaries
1 Lycurgus, '•'against Leoerates," 25. At Rome, before a burial-place
could be changed, the permission of the pontiffs was required. Pliny,
"Letters," X. 73.
• '^ Cicero, " De Legib.," II. 24. "Digest," XVIII. tit. 1. 6.
8 "Laws of Solon," cited by Gains in "Digest," X. tit. 1. 13. De-
mosthenes, "against Callieles." Plutarch, "Aristides," 1. _
* Siculus Flaccus, edit. Goez, p. 4. See "Fragm. terminalia," edit.
Goez, p. 147. Pomponius, in "Digest," XLVII. tit. 12. 5. Paul, in
"Digest," VIII. 1. 14.
Chap. XXI, § 1.] THE LAW OF PROPERTY 367
of the domain. Through them the famih' was sole master in this
field. The tomb had estabhshed an indissoluble union of the fam-
ily with the land — that of ownership.
In the greater number of primitive societies the right of property
was established by religion. In the Bible, the Lord said to Abra-
ham, " I am the Lord, that brought thee out of Ur of the Chaldees,
to give thee this land, to inherit it ; " and to ]Moses, " Go up hence,
. . . into the land which I sware unto Abraham, to Isaac, and to
Jacob, saying, Unto thee will I give it."
Thus God, the primitive proprietor, by right of creation, dele-
gates to man his ownership over a part of the soil.^ There was
something analogous among the ancient Grteco-Italian peoples.
It was not the religion of Jupiter that founded this right, it is true ;
perhaps because this religion did not yet exist. The gods who
conferred upon every family its right to a portion of the soil, were
the domestic gods, the sacred fire, and the manes. The first re-
ligion that exercised its empire on their minds was also the one that
established the right of property among them.
It is clearly evident that private property was an institution that
the domestic religion had need of. This religion required that both
dwellings and burying-places should be separate from each other ;
living in common was, therefore, impossible. The same religion
required that the hearth should be fixed to the soil, that the tomb
should neither be destroyed nor displaced. Suppress the right of
property, and the sacred fire would be without a fixed place, the
families would become confounded, and the dead would be aban-
doned and without worship. By the stationary hearth and the
permanent burial-place, the family took possession of the soil ;
the earth was in some sort imbued and penetrated by the religion
of the hearth and of ancestors. Thus the men of the early ages
were saved the trouble of resolving too difficult a problem. With-
out discussion, without labor, without a shadow of hesitation,
they arrived, at a single step, and merely by virtue of their belief,
at the conception of the right of property ; this right from which
all civilization springs, since by it man improves the soil, and be-
comes improved himself.
Religion, and not laws, first guaranteed the right of property.
Every domain was under the eyes of household divinities, who
1 Same traditions among the Etruscans : ^'Quum Jupiter terram Etru-
rife sibi vindicavit, eonstituit jussitque metiri campos signarique agros."
"Auctores Rei AgrariiE," in the fragment entitled '''Idem Vegoiae Ar-
runti," edit. Goez.
368 THINGS [Part III.
watched over it.' Every field had to be surrounded, as we have
seen for the house,* by an enclosure, which separated it completely
from the domains of other families. This enclosure was not a
wall of stone ; it was a band of soil, a few feet wide, which remained
uncultivated, and which the plough could never touch. This
space was sacred ; the Roman law declared it indefeasible ; - it
belonged to the religion. On certain appointed days of each
month and year, the father of the family went round his field, fol-
lowing this line ; he drove victims before him, sang hymns, and
offered sacrifices.^ By this ceremony he believed he had awakened
the benevolence of his gods towards his field and his house ; above
all, he had marked his right of property by proceeding round his
field with his domestic worship. The path which the victims and
prayers had followed was the inviolable limit of the domain.
On this line, at certain points, the men placed large stones or
trunks of trees, which they called Termini. We can form a good
idea as to what these bounds were, and what ideas were connected
with them, by the manner in which the piety of men established
them. "This," says Siculus Flaccus, "was the manner in which
our ancestors proceeded : They commenced by digging a small
hole, and placing the Terminus upright near it ; next they crowned
the Terminus with garlands of grasses and flowers ; then they
offered a sacrifice. The victim being immolated, they made the
blood flow into the hole ; they threw in live coals (kindled, prob-
ably, at the sacred fire of the hearth), grain, cakes, fruits, a little
wine, and some honey. When all this was consumed in the hole,
they thrust down the stone or piece of wood upon the ashes while
they were still warm." ^ It is easy to see that the object of the
ceremony was to make of this Terminus a sort of sacred represen-
tation of the domestic worship. To continue this character for
it, they renewed the sacred act every year, by pouring out libations
and reciting prayers. The Terminus, once placed in the earth,
became in some sort the domestic religion implanted in the soil,
to indicate that this soil was forever the property of the family.
Later, poetry lending its aid, the Terminus was considered as a
distinct god.
The employment of Termini, or sacred bounds for fields, appears
1 "Lares agri custodes," TibuUus, I. 1, 23. "Religio Larum posita in
fundi villseque eonspectu." Cicero, "I'De Legib.," II. 11.
2 Cicero, "De Legib.," I. 21.
3 Cato, "De Re Rust.," 141. '-'S^eript. Rei Agrar.," edit. Goez, p. 308.
Dionysius of Haliearnassus, II. 74. Ovid, "Fast.," II. 639. Strabo, V. 3.
* Siculus Flaccus, edit. Goez, p. 5.
Chap. XXI, § 1.] THE LAW OF PROPERTY 369
to have been universal among the Indo-European race. It existed
among the Hindus at a \'ery early date, and the sacred ceremonies
of the boundaries had among them a great analogy with those
which Siculus Flaccus has described for Italy. ^ Before the foun-
dation of Rome, we find the Terminus among the Sabines ; ^ we
also find it among the Etruscans. The Hellenes, too, had sacred
landmarks, which they called opoi, 6eol opioi.^
The Terminus once established according to the required rites,
there was no power on earth that could displace it. It was to re-
main in the same place through all ages. This religious principle
was expressed at Rome by a legend : Jupiter, having wished to
prepare himself a site on the Capitoline hill for a temple, could
not displace the god Terminus. This old tradition shows how
sacred property had become ; for the immovable Terminus signi-
fied nothing less than inviolable property.
In fact, the Terminus guarded the limit of the field, and watched
over it. A neighbor dared not approach too near it : "For then,"
says Ovid, "the god, who felt himself struck by the ploughshare,
or mattock, cried, 'Stop : this is my field ; there is yours.' " ^ To
encroach upon the field of a family it was necessary to overturn
or displace a boundary mark, and this boundary mark was a god.
The sacrilege was horrible, and the chastisement severe. Accord-
ing to the old Roman law, the man and the oxen who touched a
Terminus were devoted ^ — that is to say, both man and oxen were
immolated in expiation. The Etruscan law, speaking in the name
of religion, says, "He who shall have touched or displaced a bound
shall be condemned by the gods ; his house shall disappear ; his
race shall be extinguished ; his land shall no longer produce fruits ;
hail, rust, and the fires of the dog-star shall destroy his harvests ;
the limbs of the guilty one shall become covered with ulcers, and
shall waste away." ® We do not possess the text of the Athenian
law on this subject ; there remain of it only three words, which
signify, "Do not pass the boundaries," But Plato appears to
complete the thought of the legislator when he says, " Our first
law ought to be this : Let no person touch the bounds which sep-
arate his field from that of his neighbor, for this ought to remain
immovable. . . . Let no one attempt to disturb the small stone
' "Lawsof Manu," VIII. 245. Vrihaspati, cited by Sice, ^' Hindu Legis-
lation," p. 1.59.
2 Varro, ^'L. L.," V. 74.
3 Pollux, IX. 9. Hesychius, 6pos. Plato, ^'Laws," p. 842.
* Ovid, "Fast.," II. 677. '" Festus, v. ''Terminus."
' "Script. Rei Agrar.," ed. Goez, p. 258.
370 THINGS [Part III.
which separates friendship from enmity, and which the land-owners
have bound themselves by an oath to leave in its place." ^
From all these beliefs, from all these usages, from all these laws,
it clearly follows that the domestic religion taught man to appro-
priate the soil, and assured him his right to it.
There is no difficulty in understanding that the right of property,
having been thus conceived and established, was much more com-
plete and absolute in its effects than it can be in our modern so-
cieties, where it is founded upon other principles. Property was
so inherent in the domestic religion that a family could not renounce
one without renouncing the other. The house and the field were
— so to speak — incorporated in it, and it could neither lose them
nor dispose of them. Plato, in his treatise on the Laws, did not
pretend to advance a new idea when he forbade the proprietor to
sell his field ; he did no more than to recall an old law. E\erything
leads us to believe that in the ancient ages property was inalienable. -
It is well known that at Sparta the citizen was formally forbidden
to sell his lot of land.^ There was the same interdiction in the laws
of Locri and of Leucadia.^ Pheidon of Corinth, a legislator of the
ninth century B.C., prescribed that the num^ber of families and of
estates should remain unchangeable.* Now, this prescription
could be observed onh' when it was forbidden to sell an estate, or
even to divide it.
The law of Solon, later by seven or eight generations than that
of Pheidon of Corinth, no longer forbade a man to sell his land, but
punished the vendor by a severe fine, and the loss of the rights of
citizenship.^ Finally, Aristotle mentions, in a general manner,
that in many cities the ancient laws forbade the sale of land.^
Such laws ought not to surprise us. Found property on the
right of labor, and man may dispose of it. Found it on religion,
and he can no longer do this ; a tie stronger than the will of man
binds the land to him. Besides, this field where the tomb is situ-
ated, where the divine ancestors live, where the family is forever
to perform its worship, is not simply the property of a man, but of
a family. It is not the individual actually living who has estab-
lished his right over this soil, it is the domestic god. The indi-
vidual has it in trust only ; it belongs to those who are dead, and to
those who are yet to be born. It is a part of the body of this
1 Plato, "Laws," VIII. p. 842.
^Plutarch, "Lyeurg.," "Agis." Aristotle, ^'Polit.," II. 6, 10 (II. 7).
3 Ibid., II. 4. 4 (II. 5). * Id., ibid., II. 3, 7.
^ jEschines, "against Timarchus." Diogenes Laertius, I. 55.
^Aristotle, '''Polit.," VII. 2.
Chap. XXI, § 1.] THE LAW OF PROPERTY 371
family, and cannot be separated from it. To detach one from
tlie other is to alter a worship, and to offend a religion. Among the
Hindus, property, also founded upon religion, was also inalienable.^
We know nothing of Roman law previous to the laws of the
Twelve Tables. It is certain that at that time the sale of property
was permitted ; but there are reasons for thinking that, in the
earlier days of Rome, and in Italy before the existence of Rome,
land was inalienable, as in Greece. Though there remains no evi-
dence of this old law, there remain to us at least the modifications
which were made in it by degrees. The law of the Twelve Tables,
though attaching to the tomb the character of inalienability, has
freed the soil from it. Afterwards it was permitted to divide prop-
erty, if there were several brothers, but on condition that a new
religious ceremony should be performed, and that the new parti-
tion should be made by a priest ; - religion only could divide what
had before been proclaimed indivisible. Finally, it was permitted
to sell the domain ; but for that formalities of a religious character
were also necessary. This sale could take place only in the presence
of a priest, whom they called libripens, and with the sacred for-
mality which they called mancipation. Something analogous is
seen in Greece ; the sale of a house or of land was always accom-
panied with a sacrifice to the gods.^ Every transfer of property
needed to be authorized by religion. If a man could not, or could
only with difficulty, dispose of land, for a still stronger reason he
could not be deprived of it against his will.
The appropriation of land for public utility was unknown among
the ancients. Confiscation was resorted to only in case of con-
demnation to exile ^ — that is to say, when a man, deprived of his
right to citizenship, could no longer exercise any right over the
soil of the city. Nor was the taking of property for debt known
in the ancient laws of cities.' The laws of the Twelve Tables as-
suredly do not spare the debtor ; still they do not permit his prop-
erty to be sold for the benefit of the creditor. The body of the
debtor is held for the debt, not his land, for the land is inseparable
from the family. It is easier to subject a man to servitude than to
' "Mitakehara," Orinnnc's trans., p. 50. This rule disappeared by
degrees after Brahrainism became dominant.
2 This priest was called agrimensor. See "Scriptores Rei Agrariae."
3 StohcEus, 42.
* This rule disappeared in the democratic age of the cities.
^A law of the Elaeans forbade the mortgaging of land. Aristotle,
^'Polit.," VII. 2. Mortgages were unknown in ancient Roman law.
What is said of mortgages in the Athenian law before Solon is based on
a doubtful passage of Plutarch.
372 THINGS [Part III.
take his property from him. The debtor is placed in the hands of
the creditor; his land follows him, in some sort, into slavery.
The master who uses the physical strength of a man for his own
profit, enjoys at the same time the fruits of his land, but does not
become the proprietor of it. So inviolable above all else is the
right of property.^
Section 2
development of the idea of property 2
1. Among primitive peoples there is little scope for the institu-
tion of private property. Land, as we shall see more fully later
on, is held in common, and apart from land and its produce, such
peoples possess little which can be appropriated, except their
small personal belongings. These, it would seem, belong to the
individual from the first. Indeed, tools and weapons are so com-
pletely identified with their owner, that they are very frequently
buried with him, and that on one of two grounds — either that he
may use them in his future life, or because as belonging to a dead
man they are regarded as dangerous and are therefore best done
away with. Now the recognition of individual property in' per-
sonal belongings and of communal property in land and its produce
may both be explained as resting on one and the same principle
— the principle of occupation and use. It is the individual who
actually carries and handles the spear or fishing-net, the family
or the tribe which actually occupies and hunts over the land.
Thus we may provisionally accept the view" that property in its
early stages is based on occupation and use, and cannot be dis-
severed from them. But with the destruction of the dead man's
1 In the article of the law of the Twelve Tables which relates to insol-
vent debtors, we read, " Si volet suo vivito " ; then the debtor, having be-
come almost a sls.ve, still retains something for himself; his land, if he
has any, is not taken from him. The arrangements known in Roman law
nnder the names oi fiduciary mancipation, and of pignus, were, before the
introduction of the Servian action, the means employed to insure to the
creditor the payment of the debt ; these prove indirectly that the seizure
of propertj' for debt was not practised. Later, when they suppressed
corporal servitude, it was necessary that there should V)e some claim on
the property of a debtor. The change was not without difficulty ; but
the distinction which was made between property and possession offered
a resource. The creditor obtained of the praetor the right to sell, not the
propertj', dominium, but the goods of the debtor, bona. Then only, by
a disguised seizure, the debtor lost the enjoyment of his property.
-[By L. T. HoBHousE. Reprinted from "Morals in Evolution," by
permission of Henry Holt and Company, New York. Abbreviated and
omitted book-titles with the detail of editions are supplied .by the author's
reference list on p. xiii seq., Vol. I of the original work.]
I
Chap. XXI, § 2.] THE LAW OF PROPERTY 373
belongings we touch on another conception, which we must allow
for at very low, perhaps at the lowest, stages. Among many
rude peoples the statement that property depends upon user must
be qualified by the exception that it may also be secured by taboo.
This is probably the explanation of the extreme scrupulousness
shown by some savages in regard to the belongings of others.
Thus, among the Kunama, Dr. Tylor remarks that a hedge may
be mended by a cotton thread.^ That would certainly not do
in the civilized world. But then the civilized man does not fear
that death will follow from a breach of the fence as a magic result.
In Oceania,^ where taboo reaches its extreme development, it is
freely used for protection of property, real and personal. In
ancient Babylon boundary stones were secured by an impreca-
tion,^ that is to say, a curse was laid upon them which would fall
on those who should remove them. The heap of stones which
Jacob and Laban set up were to be witnesses between them, and
it is possible that here too the power to punish the transgressor
was conceived as lying within the stone itself ; while at a later
stage, in accordance with the regular development of religion, the
curse was laid upon him who moves the stone by Jehovah. When
we read of the Western Esquimaux, whose honesty is highly
praised by travellers, that other people's goods left about with a
stone placed over them are quite secure, we can hardly avoid
wondering whether this is due to simple honesty of character or
to the magic qualities of the stone.
Thus the legal conception of user may be reinforced by the
magical idea of taboo as a basis of property. But — whether
owing to the irregular development of the latter conception or
not — we have next to observe that the regard actually paid to
rights of property is a very fluctuating quantity in the less civilized
world, and the moral attitude to the whole matter differs seriously
from that of more developed races. We cannot, indeed, speak in
general terms. Some savage peoples get a very good character
from travellers for honesty, while others are severely condemned.
This condemnation, again, sometimes refers merely to their habit
of stealing from other tribes or from strangers, and this, as we have
seen, hardly counts. Strangers have no rights, whether of life
or property, except in so far as protected by the law of hospitality.
Thus among the Red Indians the guest was safe while under the
1 Tylor, "Contemp. Re\iew," April 1873, p. 704.
^Ratzel, "History of Mankind," vol. i, p. 285.
' Maspero, p. 762.
374 THINGS [Part III,
roof of his host, but might be freely robbed in the prairie.^ The
real question, therefore, is how far the rights of property are
recognized within the tribe. As to this we find very divergent
statements, and sometimes much difference between nearly allied
peoples. Thus among the Nagas,^ in some tribes theft is punish-
able by fines, beating, and even death, but in two of the tribes
it is not considered disgraceful at all. In some peoples success-
ful theft is held as by no means dishonourable. The case of
Autolycus has been referred to Among some of the
Esquimaux theft when discovered is merely held a clever trick ; ^
among the Balantes in Africa it is held honourable, while among
the Kaffirs the children of chiefs may steal within their own tribe.^
Even in some civilized or semi-civilized communities, as at one
time in ancient Egypt, we find a recognized organization of theft
under constituted authorities who duly restore the property to
the owner on payment of a portion of its value. ^ Further, the
distinction so frequent in early law between the manifest and the
non-manifest thief — that is to say, between the thief taken in
the act and the thief who has got clear away — probably points
to a time when the successful thief was rather admired for his
skill than condemned for dishonesty, and possibly acquired, or
might at any rate confer, a title to the goods.^ This same dis-
tinction illustrates a further point. The tendency of early law
is, as will be understood from the discussion in Chapter VI,, to
treat theft like other delinquencies, from the point of view of
vengeance rather than of justice. The owner, surprising the thief
in the act of carrying off his goods, will naturally attack, and will
very likely kill him. If so, who, on primitive principles, can
blame him ? But if he does not come up with the thief, but finds
out the robbery in cold blood, then he ought to control his vindic-
tive feelings, and be thankful if custom allows him to get restitu-
1 Waitz, vol. iii. pp. 129, 130.
2 Godden, "J. A. I.," 26, op. cit., p. 174.
3 Waitz, vol. iii. p. 309.
* Post, "Afrik. Juris.," vol. ii. p. 83. Similarly there was a class of
privileged thieves in Ashanti.
^ In Abyssinia thieves are organized under a chief who pays tribute.
(Post, loc. cit.) Waitz, (vol. ii. p. 218). mentions that in some parts of
Africa the thief keeps half of what he steals. For the organization of
thieves in Egypt, see Diodorus, i. 80, 1.
^ See Pollock and Maitlnnd, vol. ii. p. 497. Instances of the "receiver "
being vested with ownership of movables occur in contemporary Africa.
{Post, "Afrik. Juris.," vol. ii. p. 162.) On the Congo, according to Waitz
(loc. cit.), secret theft is held slavish, but open robbery lordlj^ and he
states that the Kaffirs generally condemn theft, but admire it when cleverly
executed. (Op. cit., 401.)
Chap. XXI, § 2.] THE LAW OF PROPERTY 375
tion, with perhaps something more, for his pains. In early Eng-
lish law, the thief caught red-handed could be hanged without
opportunity of self-defence before an impromptu court. But an
action for robbery, even in the twelfth century, involved only a
double restitution.^ In the "Book of the Covenant," "if the thief
be found breaking in and be smitten that he die, there shall be
no blood-guiltiness for him. If the sun be risen upon him, there
shall be blood-guiltiness for him." The owner should not let the
sun rise upon his wrath. The thief must merely make restitution.
If the stolen animal is alive he shall pay double, if he has killed
or sold it " he shall pay five oxen for an ox, and four sheep for a
sheep." - The ^Nloors, on the other hand, at the present day do
not punish theft by night, but only by day, and then only when
the thief is caught in the act.^ It is clear that in such distinctions
as these the law takes account, not of the right and the wrong of
the case, as we should conceive it, but merely of the degree of
resentment natural to the man who is wronged and of the man-
ner in which he may be expected to appease it. Clearly, wherever
the thief is allowed to keep a part of the stolen property, or has
simply to make restitution, stealing can hardly be considered a
wicked act in our sense of the term, and even where restitution is
double or manifold, we must regard it as rather intended to satisfy
the injured party than as a punishment of the wrongdoer."*
On the other hand, there are also many cases, even in the un-
civilized world, where theft is severely punished, not only by
fines, which are a form of manifold restitution, but also by beat-
ing, enslavement, mutilation, humiliating exposure, and even
death. ^ Indeed, as soon as public punishments arise, it is generally
punished with great severity. Thus in England an action for
robbery, which only involved double restitution in the time of
Glanvil, who died in 1190, was punished by death and mutilation
in the time of Bracton, who died in 1268,^ and a little while later
death was the invariable penalty, even in the end for the theft
of a shilling ; while smaller thefts — petty larceny — were punished
by whipping, pillory, or by the loss of an ear, and on repetition by
death.
The conclusion to which facts such as these point, and which,
' Pollock and Maitland, vol. ii. pp. 494 and .579.
^ Exodus xxii. 1-^. ^ Post, " Afrik. .Juris.," vol. ii. p. 85. '
^ Restitution is a verj^ common penaltj' in Africa. {Post, "Afrik.
Juris.," vol. ii. p. 83.) " •
^ Instances of all these in Africa. (Post, I.e.)
* Pollock and Maitland, ii. p. 494.
376 THINGS [Part III.
remembering how scanty the evidence is, we may tentatively
adopt, is that the conception of property, even in relation to
personal belongings, is somewhat irregularly developed in the un-
civilized world. Wliere the rights of owners are very strictly
regarded the cause is in many instances the fear of magic, though
in some cases (as among the Iroquois and the Dakotas) ^ it may
have a more decisively moral character. But in a very large num-
ber of cases, if not in the majority, we have reason for supposing
that the right of property is not held morally sacred as with us,
theft not being punished as theft, while in some cases stolen goods
are not even recoverable. On the other hand, with the rise of a
settled society, while private property in land is developing, and
property in movables is increasing through the growth of the arts,
the punishment of the thief is taken out of the category of ven-
geance; he is dealt with as a moral offender, and that with the
extreme of severity.- This is after all only to state in special
relation to property the conclusions which we reached in Chapter
VI. with regard to rights in general. My right to my property,
like my other rights, is in the earlier stages only mine in the sense
that I shall be expected to avenge its infringement by certain
recognized methods. That I have a moral claim to it, which it is
wicked to infringe, and not only wicked but an offence punishable
by society, is a higher conception which is only perfected by
degrees.
2. ... In primitive society, as has been mentioned, private
property is limited to the insignificant personal possessions, the
arms and tools, etc., of the savage — while the land, the great and
permanent source of sustenance, is generally common to the family
or to the clan, and in the rudest forms there is not only common
ownership, but — so far as the land can be said to be occupied —
1 C/. Schoolcraft — Drake, vol. i. p. 222. "Theft is very scandalous
among them since they have no locks but those of their minds to preserve
their goods." (From Coldan's account.) Among the Dakotas pilfering
by women and children was common, l)ut the men despised it as too low a
practice for them. (lb., vol. i. p. 206.)
2 In Rome the Law of the Twelve Tables — like most laws of that
stage — distinguished the thief caught in the act — the fur 77ianifesius
■ — from the tliief not caught in the act — the /wr 7iec nwuifesiiis. The
latter must make double restitution, the former is punished corporally
— in the case of robbery by night or with the strong hand, by death ; in
other eases by beating and slavery. In the later legislation the injured
party had choice of a new form of criminal action whereby corporal
punishment might be inflicted, or of the actio furti which carried infamia
and double or quadruple restitution. {Girard, pp. 392-394.) In the Code
of Hammwrabi, both death and restitution are recognized. (Sections 6
and following.) Manu prescribes fines, corporal punishment and muti-
lations for thefts of various Idnds (viii. 319 ff.).
Chap. XXI, § 2.] THE LAW OF PROPERTY 377
common occupation. A group of Australians wander over a cer-
tain area with assignable boundaries, which of course they main-
tain against others.^ The Red Indians hunt a certain district,
which is special to each tribe, but common to all within it.- Even
the produce of the hunting is often common, or is distributed by
fixed customary rules. All the tribes who hunt in the plains,
except the half-bred Crees, are said to make common stock of the
booty.^ When agriculture begins the land is generally portioned
out, at least temporarily, to the totems or the family groups within
the tribe. But within the family group the produce is still com-
mon, and the land itself is still the common property of the tribe
as a whole*
We have here two kinds of communism, a wider and a narrower,
and these persist with various modifications through much higher
grades of culture. We see the transition to the division of the
tribal property among the households in such an instance as that
of the Iroquois, where families may possess and retain common
lands by occupying them, though the land remains strictl\' the
property of the tribe.^ When a division is made, the allotments
1 Spencer and Gillen, i. p. 8.
^ Kohler, "Zeitschrift fur vgl. Rwst.," 1897, p. 402.
^ Morgan, "House and Houselife of the American Aborigines," p. 69.
He adds that the tribes of the Columbia River make common stock of the
fishing. Among the Western Esquimaux any one may take the game from
the snares, while all large game is common. {Rectus, p. 111.) Among
the South American Indians the common hunt yields common booty, but
there may also be private hunting. The captor has the right to a pris-
oner's head, while the neighbours have the rest of him, but if the captive
is enslaved he belongs to the community. {Schmidt, "Z. f. V. R.," 1898,
p. 311.) The non-agricultural tribes of Africa know no division of land.
{Post, "Afrik. Juris.," vol. ii. p. 167.)
* Among the Crees each village had a common field divided into
patches for each family, the harvest was conducted in common, and a
certain portion was set aside for the common store out of which the needy
were supported. Among the Iroquois, the land was the property of the
tribe. The harvest was carried out by the joint family in common, and the
products distributed l)y the women among the different departments ;
though the village did not make a common stock, the obligations of
hospitality would prevent anybody from going short. {Morgan, "House-
life," pp. 61-66.) Common cultivation and division of the harvest is also
found on the Sierra Leone Coast. {Post, "Afrik. .Juris.," ii. p. 172.)
Sometimes the communism is of a rough and general character rather than
a matter of distinct right. Among some of the Papuans, for instance,
every one is expected to give when asked. "The people is God," it is
irreligious to refuse anything. We see here the borderland between regu-
lar communism and the indiscriminate profusion and liberality which are
such common characteristics of primitive life. {Kohler, "Z. f. V. R.,"
1900, p. 368.)
^Morgan, "League of the Iroquois," p. 326. Similarl.v among the
Yoruba, the land belongs to the tribe, but it is vested in the chief, who
allots it to the householders according to their requirements, and it be-
comes hereditary and inalienable. {Ellis, "Yoruba," p. 188.)
0/8 THINGS [Part III.
may only last for a short period — perhaps a year or two ; ^ often,
again, they depend on cultivation,- and if deserted the land reverts
to the community. But such divisions may also become custom-
ary and periodical, so that there is a redistribution at the end of a
fixed period. Or, lastly, the redistribution may be given up,^
and the lots become family property, but the eminent rights of
the community are still recognized — for instance, in customs
regulating the methods of cultivation or forbidding alienation
without its consent. These rights will also be found surviving
in the common pasture, and with still greater persistence in the
common woodland.
But while the communism of the village gradually wastes away,
there is also a communism on a smaller scale which forms the
economic basis of the joint family. The joint family consists of
a whole group of relations connected by father-right or mother-
right, as the case may be ; the property of this group is generally
administered by the head, but is owned and its produce shared
by all in common. It is in strictness indivisible and inalienable.
It can neither be sold, given away nor bequeathed. But within
this communistic scheme we find private property arising in a
variety of forms in very different degrees. Thus, individual
members may acquire a peculium on certain conditions. For
example, the daughter, who is allowed to retain the savings of her
industry and take them away with her on marriage as her dowry.*
Again, the joint family may break up into separate families ;
alienation may be allowed under varying restrictions ; * or, finally,
1 This is common among the North American Indians. {Kohler,
"Z. f. V. R.," 1897, p. 402.)
2 E.g. in many African tribes land is only appropriated while in use.
On the other hand, land often becomes hereditary among the Foulah of
Futajallon, among the Mandingos and the Somali, but uncultivated land
falls back to the community. {Post, "A. J.," ii. 169, 170.)
In the Code of Hammurabi, it would seem that leaving the land un-
occupied for three years destroys the title to it as against another person
who has occupied and cultivated it. (Clause 30.)
' Thus in India, though the lots have become inalienable, the tradition
of redistribution remains. (Mayne, p. 112.) On the other hand, in the
Russian Mir, the system of periodical redistribution is, according to
Kovalewslcy, an innovation. ("Modern Customs and Ancient Laws of
Russia," p. 93, etc.)
* This appears to be the only form of private property in the Russian
joint family down to the present day. (Kovalewsky, "Modern Customs,"
p. 59.)
* A strong case is the Hebrew Law of Jubilee by which all land reverted
to its original owners at the end of fiftj^ years ; this in effect pro^^ded that
family property should not be permanently alienable. The proprietary
rights of the tribe are also maintained in the priestly code by the rule pro-
hibiting daughters who, failing sons, have inherited property, to marry out
of the tribe. (Numbers xxxvi.) IVIore commonly a right of repurchase
Chap. XXI, § 2.] THE LAW OF PROPERTY 379
the house-father may acquire so much predominance ^ that the
common rights are merged in him.
Without attempting to generaHze as to the procesess by which
the village or family communism breaks up, we may leave the few
points thus noted to suggest the various methods of transition
that are possible and the number of gradations whereby the sys-
tem of private ownership may be approached. But we must
note, further, that with the rise of the monarchical or aristocratic
kingdom the communal system is apt to be qualified or super-
seded by some form of feudal tenure. Vassalage and overlordship
replace the patriarchate or the joint family. Again, the break
up of the feudal organization in the more advanced societies makes
room for private ownership. But even here in relation to land
there are limitations. Law or custom limits the freedom of be-
quest and determines the rules of inheritance, so that the apparent
owner is more often than not a life tenant only. With these
qualifications, however, we may consider private property in land
as the general rule in the more advanced civilizations. In relation
to other forms of property the emancipation of the individual is
probably more rapid and certainly more complete. The impor-
tance of " stock" or " capital" becomes greater as the arts of life
improve, and here, as the joint family breaks up, the individual
becomes absolute owner. The evolving conception of property
as an absolute personal right has full swing, and in proportion as
industry and commerce advance becomes more and more a cardinal
point in the common life of society.
It would appear, then, that a double process of development
lies behind the modern institution of private property. On the
one hand, there is the gradual emergence of the right of ownership
as a right. On the other, there is the gradual extension of owner-
ship by individuals as against ownership b}' families, clans, villages,
remains where alienation has been allowed. The French right of retrail
lignager was not finally abolished till 1790. {Viollet, p. 563.)
^ In early Rome the family property was conjoint, but the sj^stem was
much modified bj- the power of the Roman paterfamilias and also by the
right of the heirs to demand partition at the death of the father. There
was also probably a ^\'ider primitive community of land as between pos-
sibly the whole people or more probably the gens. (Girard, p. 249.)
For the varying positions of the father in the Indian household, see
J. D. Mayne, "Hindu Law and Usage," p. 222 and follo^^^ng. Mayne
makes the distinction between the patriarchal and the joint family turn
on the question whether on the death of the eldest ascendant the family
do or do not remain together (p. 223). He points out that under the
patriarchate all acquired property fell to the father. In this stage the
head of the household acquires private property indeed, but at the ex-
pense of all the rest.
380 THINGS [Part III.
or tribes — an extension standing in close relation to the general
break up of the primitive group and the emergence of the free
responsible individual as an ethical and legal personality. It
appears to be only in relatively high civilizations that private
property, getting within its scope the land and — with still more
completeness — the other leading means of production, becomes
the dominant factor in the economic organization of society.
Section 3
EARLY HISTORY OF PROPERTY AND THE VILLAGE COM-
MUNITY 1
The Village Community is known to be of immense antiquity.
In whatever direction research has been pushed into Indian history,
general or local, it has always found the Community in existence at
the farthest point of its progress. A great number of intelligent
and observant writers, most of whom had no theory of any sort
to support concerning its nature and origin, agree in considering it
the least destructible institution of a society which never willingly
surrenders any one of its usages to innovation. Conquests and
revolutions seem to have swept over it without disturbing or
displacing it, and the most beneficent systems of government in
India have always been those which have recognised it as the basis
of administration.
The mature Roman law, and modern jurisprudence following in
its wake, look upon co-ownership as an exceptional and momentary
condition of the rights of property. This view is clearly indicated
in the maxim which obtains universally in Western Europe, Nemo
in communione potest invitus detineri ("No one can be kept in co-
proprietorship against his will "). But in India this order of ideas
is reversed, and it may be said that separate proprietorship is always
on its way to become proprietorship in common. ... As soon
as a son is born, he acquires a vested interest in his father's sub-
stance, and on attaining years of discretion he is even, in certain
contingencies, permitted by the letter of the law to call for a parti-
tion of the family estate. As a fact, however, a division rarely
takes place even at the death of the father, and the property
constantly remains undivided for several generations, though
every member of every generation has a legal right to an undivided
share in it. The domain thus held in common is sometimes ad-
1 [By Henry S. Maine. Reprinted from ''Ancient Law," by permission
of Henry Holt and Company, New York.]
Chap. XXI, § 3.] THE LAW OF PROPERTY 381
ministered by an elected manager, but more generally, and in some
provinces always, it is managed by the eldest agnate, by the eldest
representative of the eldest line of the stock. Such an assemblage
of joint proprietors, a body of kindred holding domain in common,
is the simplest form of an Indian Village Community, but the
Community is more than a brotherhood of relatives and more than
an association of partners. It is an organised society, and besides
providing for the management of the common fund, it seldom
fails to provide, by a complete staff of functionaries, for internal
government, for police, for the administration of justice, and for
the apportionment of taxes and public duties.
The process which I have described as that under which a Village
Community is formed, may be regarded as typical. Yet it is not
to be supposed that every Village Community in India drew to-
gether in so simple a manner. Although, in the North of India,
the archives, as I am informed, almost invariably show that the
Community was founded by a single assemblage of blood-relations,
they also supply information that men of alien extraction have
always, from time to time, been engrafted on it, and a mere pur-
chaser of a share may generally, under certain conditions, be ad-
mitted to the brotherhood. In the South of the Peninsula there
are often Communities which appear to have sprung not from
one but from two or more families : and there are some whose com-
position is known to be entirely artificial ; indeed, the occasional
aggregation of men of different castes in the same society is fatal
to the hypothesis of a common descent. Yet in all these brother-
hoods either the tradition is preserved, or the assumption made, of
an original common parentage. Mountstuart Elphinstone, who
writes more particularly of the Southern Village Communities,
observes of them ("History of India," p. 71, 1905 edn.) : "The
popular notion is that the Village landholders are all descended
from one or more individuals who settled the Village ; and that
the only exceptions are formed by persons who have derived their
rights by purchase or otherwise from members of the original stock.
The supposition is confirmed by the fact that, to this day, there
are only single families of landholders in small villages and not
many in large ones ; but each has branched out into so many
members that it is not uncommon for the whole agricultural
labour to be done by the landholders, without the aid either of
tenants or of labourers. The rights of the landholders are theirs
collectively, and, though they almost always have a more or less
perfect partition of them, they never have an entire separation. A
382 THINGS [Part III.
landholder, for instance, can sell or mortgage his rights ; but he
must first have the consent of the Milage, and the purchaser steps
exactly into his place and takes up all his obligations. If a family
becomes extinct, its share returns to the common stock."
. . . No institution of the primitive world is likely to have been
preserved to our day, unless it has acquired an elasticity foreign to
its original nature through some vivifying legal fiction. The Vil-
lage Community then is not necessarily an assemblage of blood-rela-
tions, but it is eitJier such an assemblage or a body of co-proprietors
formed on the model of an association of kinsmen. The type with
which it should be compared is e^•idently not the Roman Family,
but the Roman Gens or House. The Gens was also a group on the
model of the family ; it was the family extended by a variety of
fictions of which the exact nature was lost in antiquity. In
historical times, its leading characteristics were the very two which
Elphinstone remarks in the Village Community. There was al-
ways the assumption of a common origin, an assumption sometimes
notoriously at variance with fact : and, to repeat the historian's
words, "if a family became extinct, its share returned to the com-
mon stock." In old Roman law, unclaimed inheritances escheated
to the Gentiles. It is further suspected by all who have examined
their history that the Communities, like the Gentes, have been
very generally adulterated by the admission of strangers, but the
exact mode of absorption cannot now be ascertained. At present,
they are recruited, as Elphinstone tells us, by the admission of
purchasers, with the consent of the brotherhood. The acquisition
of the adopted member is, however, of the nature of a universal
succession ; together with the share he has bought, he succeeds
to the liabilities which the ^'endor had incurred towards the aggre-
gate group. He is an Emptor Familise, and inherits the legal
clothing of the person whose place he begins to fill. The consent
of the whole brotherhood reciuired for his admission may remind
us of the consent which the Comitia Curiata, the Parliament of that
larger brotherhood of self-styled kinsmen, the ancient Roman
commonwealth, so strenuously insisted on as essential to the legal-
isation of an Adoption or the confirmation of a will.
The tokens of an extreme antiquity are discoverable in almost
every single feature of the Indian ^'illage Communities. We have
so many independent reasons for suspecting that the infancy of
law is distinguished by the prevalence of co-ownership, by the
intermixture of personal with proprietary rights, and by the con-
fusion of public with private duties, that we should be justified in
Chap. XXI, § 3.] THE -LAW OF PROPERTY 383
deducing many important conclusions from our observation of these
proprietary brotherhoods, even if no similarly compounded
societies could be detected in any other part of the world. It
happens, however, that much earnest curiosity has been very
recently attracted to a similar set of phenomena in those parts of
Europe which have been most slightly affected by the feudal
transformation of property, and which in many important partic-
ulars have as close an aflSnity with the Eastern as with the Western
world. The researches of M. de Haxthausen, M. Tengoborski,
and others, have shown us that the Russian villages are not fortui-
tous assemblages of men, nor are they unions founded on contract ;
they are naturally organised communities like those of India. It
is true that these villages are always in theory the patrimony of
some noble proprietor, and the peasants have within historical
times been converted into the predial, and to a great extent into
the personal, serfs of the seignior. But the pressure of this superior
ownership has never crushed the ancient organisation of the
village, and it is probable that the enactment of the Czar of Russia,
who is supposed to have introduced serfdom, was really intended
to prevent the peasants from abandoning that co-operation without
which the old social order could not long be maintained. In the
assumption of an agnatic connection between the villagers, in the
blending of personal rights with privileges of ownership, and in a
variety of spontaneous provisions for internal administration, the
Russian village appears to be a nearly exact repetition of the
Indian Community ; but there is one important difference which
we note with the greatest interest. The co-owners of an Indian
village, though their property is blended, have their rights distinct,
and this separation of rights is complete and continues indefinitely.
The severance of rights is also theoretically complete in a Russian
village, but there it is only temporary. After the expiration of a
given, but not in all cases of the same, period, separate ownerships
are extinguished, the land of the village is thrown into a mass, and
then it is redistributed among the families composing the com-
munity, according to their number. This repartition having been
effected, the rights of families and of individuals are again allowed
to branch out into various lines, which they continue to follow
till another period of division comes round. An even more curious
variation from this type of ownership occurs in some of those
countries which long formed a debatable land between the Turkish
Empire and the possessions of the House of Austria. In Servia,
in Croatia, and the Austrian Sclavonia, the villages are also brother-
384 THINGS [Part III.
hoods of persons who are at once co-owners and kinsmen ; but there
the internal arrangements of the community differ from those
adverted to in the last two examples. The substance of the com-
mon property is in this case neither divided in practice nor con-
sidered in theory as divisible, but the entire land is cultivated by
the combined labour of all the villagers, and the produce is annually
distributed among the households, sometimes according to their
supposed wants, sometimes according to rules which give to partic-
ular persons a fixed share of the usufruct. All these practices
are traced by the jurists of the East of Europe to a principle which
is asserted to be found in the earliest Sclavonian laws, the principle
that the property of families cannot be divided for a perpetuity.
The great interest of these phenomena in an inquiry like the
present arises from the light they throw on the development of
distinct proprietary rights inside the groups by which property
seems to have been originally held. We have the strongest reason
for thinking that property once belonged not to individuals nor
even to isolated families, but to larger societies composed on the
patriarchal model ; but the mode of transition from ancient to
modern ownerships, obscure at best, would have been infinitely
obscurer if several distinguishable forms of Village Communities
had not been discovered and examined. It is worth while to attend
to the varieties of internal arrangement within the patriarchal
groups which are, or were till recently, observable among races of
Indo-European blood. The chiefs of the ruder Highland clans
used, it is said, to dole out food to the heads of the households under
their jurisdiction at the very shortest intervals, and sometimes
day by day. A periodical distribution is also made to the Sclavo-
nian villagers of the Austrian and Turkish provinces by the elders
of their body, but then it is a distribution once for all of the total
produce of the year. In the Russian villages, however, the sub-
stance of the property ceases to be looked upon as indivisible,
and separate proprietary claims are allowed freely to grow up, but
then the progress of separation is peremptorily arrested after it has
continued a certain time. In India, not only is there no indivisi-
bility of the common fund, but separate proprietorship in parts of
it may be indefinitely prolonged and may branch out into any
number of derivative ownerships, the de facto partition of the
stock being, however, checked by inveterate usage, and by the
rule against the admission of strangers without the consent of the
brotherhood. It is not of course intended to insist that these differ-
ent forms of the Village Community represent distinct stages in a
Chap. XXI, § 3.] THE LAW OF PROPERTY 385
process of transmutation which has been even-where accomplished
in the same manner. But, though the evidence does not warrant
our going so far as this, it renders less presumptuous the conjec-
ture that private property, in the shape in which we know it, was
chiefly formed by the gradual disentanglement of the separate
rights of individuals from the blended rights of a community. Our
studies in the Law of Persons seemed to show us the Family ex-
panding into the Agnatic group of kinsmen ; then the Agnatic
group dissolving into separate households ; lastly, the household
supplanted by the individual ; and it is now suggested that each
step in the change corresponds to an analogous alteration in the na-
ture of Ownership. If there be any truth in the suggestion, it is to
be observed that it materially affects the problem which theorists
on the origin of Property have generally proposed to themselves.
The question — perhaps an insoluble one — which they have
mostly agitated is, what were the motives which first induced
men to respect each other's possessions? It may still be put,
without much hope of finding an answer to it, in the form of an
inquiry into the reasons which led one composite group to keep
aloof from the domain of another. But, if it be true that far the
most important passage in the history of Private Property is its
gradual separation from the co-ownership of kinsmen, then the
great point of inquiry is identical with that which lies on the thresh-
old of all historical law — what were the motives which originally
prompted men to hold together in the family union? To such a
question. Jurisprudence, unassisted by other sciences, is not com-
petent to give a reply. The fact can only be noted.
The undivided state of property in ancient societies is consistent
with a peculiar sharpness of division, which shows itself as soon as
any single share is completely separated from the patrimony of the
group. This phenomenon springs, doubtless, from the circum-
stance that the property is supposed to become the domain of a
new group, so that any dealing with it, in its divided state, is a
transaction between two highly complex bodies. I have already
compared Ancient Law to Modern International Law, in respect
of the size and complexity of the corporate associations, whose
rights and duties it settles. As the contracts and conveyances
known to ancient law are contracts and conveyances to which
not single individuals, but organised companies of men, are parties,
they are in the highest degree ceremonious ; they require a variety
of symbolical acts and words intended to impress the business on
the memory of all who take part in it ; and they demand the pres-
386 THINGS [Part III.
once of an inordinate number of witnesses. From these peculiari-
ties, and others allied to them, springs the universally unmalleable
character of the ancient forms of property. Sometimes the patri-
mony of the family is absolutely inalienable, as Avas the case with
the Sclavonians, and still oftener, though alienations may not be
entirely illegitimate, they are virtually impracticable, as among
most of the Germanic tribes, from the necessity of having the
consent of a large number of persons to the transfer. Where these
impediments do not exist, or can be surmounted, the act of con-
veyance itself is generally burdened with a perfect load of ceremony,
in which not one iota can be safely neglected. Ancient law uni-
formly refuses to dispense with a single gesture, however grotesque ;
with a single syllable, however its meaning may have been for-
gotten ; with a single witness, however superfluous may be his
testimony. The entire solemnities must be scrupulously com-
pleted by persons legally entitled to take part in it, or else the
conveyance is null, and the seller is re-established in the rights of
which he had vainly attempted to divest himself.
These Various obstacles to the free circulation of the objects of
use and enjoyment, begin of course to make themselves felt as soon
as society has acquired even a slight degree of activity, and the
expedients by which advancing communities endeavour to over-
come them form the staple of the history of Property. Of such
expedients there is one which takes precedence of the rest from
its antiquity and universality. The idea seems to have spontane-
ously suggested itself to a great number of early societies, to classify
property into kinds. One kind or sort of property is placed on
a lower footing of dignity than the others, but at the same time is
relieved from the fetters which antiquity has imposed on them.
Subsequently, the superior convenience of the rules governing the
transfer and descent of the lower order of property becomes gener-
ally recognised, and by a gradual course of innovation the plasticity
of the less dignified class of valuable objects is communicated to
the classes which stand conventionally higher. The history of
Roman Property Law is the history of the assimilation of Res
Mancipi to Res Nee Mancipi. The history of Property on the
European continent is the history of the subversion of the feudal-
ised law of land by the Romanised law of movables ; and though
the history of ownership in England is not nearly completed, it
is visibly the law of personalty which threatens to absorb and
annihilate the law of realty.
The only natural classification of the objects of enjoyment, the
Chap. XXI, § 3.] THE LAW OF PROPERTY 387
only classification which corresponds with an essential difference
in the subject-matter, is that which divides them into ^Movables
and Immovables. Familiar as is this classification to jurispru-
dence it was very slowly developed by Roman law, from which
we inherit it, and was only finally adopted by it in its latest stage.
The classifications of Ancient Law have sometimes a superficial
resemblance to this. They occasionally divide property into
categories, and place immovables in one of them ; but then it is
found that they either class along with immovables a number of
objects which have no sort of relation wdth them, or else divorce
them from various rights to which they have a close affinity. Thus
the Res Mancipi of Roman Law included not only land but slaves,
horses, and oxen. Scottish law^ ranks with land a certain class of
securities, and Hindoo law associates it with slaves. English law,
on the other hand, parts leases of land for years from other interests
in the soil, and joins them to personalty under the name of chattels
real. Moreover, the classifications of Ancient Law are classi-
fications implying superiority and inferiority ; while the distinc-
tion between movables and immovables, so long at least as it was
confined to Roman jurisprudence, carried with it no suggestion
whatever of a difference in dignity. The Res Mancipi, however,
did certainly at first enjoy a precedence over the Res Xec ^Mancipi,
as did heritable property in Scotland, and realty in England, over
the personalty to which they were opposed. The lawyers of all
systems have spared no pains in striving to refer these classifica-
tions to some intelligible principle ; but the reasons of the severance
must ever be vainly sought for in the philosophy of law : they
belong not to its philosophy, but to its history. The explanation
which appears to cover the greatest number of instances is, that
the objects of enjoyment honoured above the rest were the forms
of property known first and earliest to each particular community,
and dignified therefore emphatically with the designation of
Property. On the other hand, the articles not enumerated among
the favoured objects seem to have been placed on a lower standing
because the knowledge of their value was posterior to the epoch at
which the catalogue of superior property was settled. They were
at first unknown, rare, limited in their uses, or else regarded as
mere appendages to the privileged objects. Thus, though the
Roman Res jNIancipi included a number of movable articles of
great value, still the most costly jewels were never allowed to
take rank as Res ^Mancipi, because they were unknown to the
early Romans. In the same way chattels real in England are said
388 THINGS [Part III.
to have been degraded to the footing of personalty, from the infre-
quency and vahielessness of such estates under the feudal land-
law. But the grand point of interest is the continued degradation
of these commodities when their importance had increased and
their number had multiplied. Why were they not successively
included among the favoured objects of enjo;vTiient ? One reason
is found in the stubbornness with which Ancient Law adheres to its
classifications. It is a characteristic both of uneducated minds
and of early societies, that they are little able to conceive a general
rule apart from the particular applications of it with which they
are practically familiar. They cannot dissociate a general term
or maxim from the special examples which meet them in daily
experience ; and in this way the designation covering the best-
known forms of property is denied to articles which exactly re-
semble them in being objects of enjoyment and subjects of right.
But to these influences, which exert peculiar force in a subject-
matter so stable as that of law, are afterwards added others more
consistent with progress in enlightenment and in the conceptions
of general expediency. Courts and lawyers become at last alive
to the inconvenience of the embarrassing formalities required for
the transfer, recovery, or devolution of the favoured commodities,
and grow unwilling to fetter the newer descriptions of property
wdth the technical trammels which characterised the infancy of law.
Hence arises a disposition to keep these last on a lower grade in the
arrangements of Jurisprudence, and to permit their transfer by
simpler processes than those which, in archaic conveyances, serve
as stumbling-blocks to good faith and stepping-stones to fraud.
We are perhaps in some danger of under-rating the inconveniences
of the ancient modes of transfer. Our instruments of conveyance
are written, so that their language, well pondered by the profes-
sional draftsman, is rarely defective in accuracy. But an ancient
conveyance was not written, but acted. Gestures and words
took the place of WTitten technical phraseology, and any formula
mispronounced, or sjoiibolical act omitted, would have vitiated
the proceeding as fatally as a material mistake in stating the uses
or setting out the remainders would, two hundred years ago, have
vitiated an English deed. Indeed, the mischiefs of the archaic
ceremonial are even thus only half stated. So long as elaborate
conveyances, written or acted, are required for the alienation
of land alone, the chances of mistake are not considerable in the
transfer of a description of property which is seldom got rid of
with much precipitation. But the higher class of property in the
I
Chap. XXI, § 3.] THE LAW OF PROPERTY 3S9
ancient world comprised not only land but several of the common-
est and several of the most valuable movables. ^\Tien once the
wheels of society had begun to move quickly, there must have been
immense inconvenience in demanding a highly intricate form of
transfer for a horse or an ox, or for the most costly chattel of the old
world — the Slave. Such commodities must have been constantly
and even ordinarily conveyed with incomplete forms, and held,
therefore, under imperfect titles.
The Res ]\Iancipi of old Roman law were, land, — in historical
times, land on Italian soil, — slaves and beasts of burden, such as
horses and oxen. It is impossible to doubt that the objects
which make up the class are the instruments of agricultural labour,
the commodities of first consequence to a primitive people. Such
commodities were at first, I imagine, called emphatically Things
or Property, and the mode of conveyance by which they were
transferred was called a INIancipium or ^Mancipation ; but it was
not probably till much later that they received the distinctive
appellation of Res ^Mancipi, " Things which require a ]Mancipa-
tion." By their side there may have existed or grown up a class
of objects, for which it was not worth while to insist upon the full
ceremony of ^Mancipation. It would be enough if, in transferring
these last from owner to owner, a part only of the ordinary formali-
ties were proceeded with, namely, that actual delivery, physical
transfer, or tradition, which is the most obvious index of a change of
proprietorship. Such commodities were the Res Xec ]Mancipi of
the ancient jurisprudence, "things which did not require a ]Manci-
pation," little prized probably at first, and not often passed from
one group of proprietors to another. AVhile, however, the list
of the Res ^^!bc Mancipi was irrevocably closed, that of the
Res Xec Mancipi admitted of indefinite expansion ; and hence
every fresh conquest of man over material nature added an
item to the Res Nee Mancipi, or effected an improvement in those
already recognised. Insensibly, therefore, they mounted to an
equality with the Res ^Mancipi, and the impression of an intrinsic
inferiority being thus dissipated, men began to observe the mani-
fold advantages of the simple formality which accompanied their
transfer over the more intricate and more venerable ceremonial.
Two of the agents of legal amelioration, Fictions and Equity, were
assiduously employed by the Roman lawyers to give the practical
effects of a ^lancipation to a Tradition ; and, though Roman
legislators long shrank from enacting that the right of property in a
Res Mancipi should be immediately transferred by bare delivery
390 THINGS [Part III.
of the article, yet even this step was at last ventured upon by
Justinian, in whose jurisprudence the difference between Res
Mancipi and Res Nee INIancipi disappears, and Tradition or
Delivery becomes the one great conveyance known to the law.
The marked preference w^hich the Roman lawyers very early gave
to Tradition caused them to assign it a place in their theory which
has helped to blind their modern disciples to its true history.
It was classed among the "natural" modes of acquisition, both
because it was generally practised among the Italian tribes, and
because it was a process which attained its object by the simplest
mechanism. If the expressions of the jurisconsults be pressed,
they undoubtedly imply that Tradition, which belongs to the Law
Natural, is more ancient than Mancipation, which is an institution
of Civil Society ; and this, I need not say, is the exact reverse
of the truth.
The distinction between Res Mancipi and Res Nee Mancipi is
the type of a class of distinctions to which civilisation is much
indebted, distinctions wdiich run through the whole mass of commod-
ities, placing a few of them in a class by themselves, and relegat-
ing the others to a lower category. The inferior kinds of property
are first, from disdain and disregard, released from the perplexed
ceremonies in which primitive law delights, and then afterwards
in another state of intellectual progress, the simple methods of
transfer and recovery which have been allowed to come into use
serve as a model which condemns by its convenience and simplicity
the cumbrous solemnities inherited from ancient days. But in
some societies, the trammels in which Property is tied up are much
too complicated and stringent to be relaxed in so easy a manner.
Whenever male children have been born to a Hindoo, the law of
India, as I have stated, gives them all an interest in his property,
and makes their consent a necessary condition of its alienation.
In the same spirit, the general usage of the old Germanic peoples
— it is remarkable that the Anglo-Saxon customs seem to have
been an exception — forbade alienations without the consent of
the male children ; and the primitive law of the Sclavonians even
prohibited them altogether. It is evident that such impediments
as these cannot be overcome by a distinction between kinds of
property, inasmuch as the difficulty extends to commodities of all
sorts ; and accordingly, Ancient Law, when once launched on a
course of improvement, encounters them with a distinction of
another character, a distinction classifying property, not according
to its nature but according to its origin. In India, where there
Chap. XXI, § 3.] THE LAW OF PROPERTY 391
are traces of both systems of classification, the one which we are
considering is exemplified in the difference which Hindoo law
establishes between Inheritances and Acquisitions. The inherited
property of the father is shared by the children as soon as they are
born ; but according to the custom of most provinces, the acquisi-
tions made by him during his lifetime are wholly his own, and can
be transferred by him at pleasure. A similar distinction was not
unknown to Roman Law, in which the earliest innovation on the
Parental Powers took the form of a permission given to the son
to keep for himself whatever he might have acquired in military
service. But the most extensive use ever made of this mode of
classification appears to have been among the Germans. I have
repeatedly stated that the allod, though not inalienable, was com-
monly transferable with the greatest difficulty ; and moreover, it
descended exclusively to the agnatic kindred. Hence an extraor-
dinary variety of distinctions came to be recognised, all intended
to diminish the inconveniences inseparable from allodial property.
The icehrgeld, for example, or composition for the homicide of a
relative, which occupies so large a space in German jurisprudence,
formed no part of the family domain, and descended according to
rules of succession altogether different. Similarly, the reipus, or
fine leviable on the re-marriage of a widow, did not enter into the
allod of the person to whom it was paid, and followed a line of devo-
lution in which the privileges of the agnates were neglected. The
law, too, as among the Hindoos, distinguished the Acquisitions of
the chief of the household from his Inherited property, and per-
mitted him to deal with them under much more liberal conditions.
Classifications of the other sort were also admitted, anci the familiar
distinction drawn between land and movables ; but movable
property was divided into several subordinate categories, to each
of which different rules applied. This exuberance of classification,
which may strike us as strange in so rude a people as the German
conquerors of the Empire, is doubtless to be explained by the
presence in their systems of a considerable element of Roman
Law, absorbed by them during their long sojourn on the confines
of the Roman dominion. It is not difficult to trace a great number
of the rules governing the transfer and devolution of the commod-
ities which lay outside the allod, to their source in Roman jurispru-
dence, from which they were probably borrowed at widely distant
epochs, and in fragmentary importations.
392 THINGS [Part III.
Section 4
THE VILLAGE COMMUNITY AS A PRIMITIVE INSTITUTION ^
In order to understand properly what the village communities
of Britain really represent in the history of our race, it is neces-
sary we should start with a clear view of what a village community
is. The term has become popular, and has lost somewhat of its
more precise historical and archaeological meaning. The two
sources of its popularity in England are the writings of Sir Henry
Maine and Mr. Frederic Seebohm. Sir Henry Maine some years
since drew attention to the traces of the village community in
English local institutions and customs, basing his proofs upon
the parallel which exists between some English and Indian phe-
nomena. ]Mr. Seebohm, more recently, has chronologically traced
back the existence of certain economical phenomena in English
villages to a period which, speaking roughly, may be identified
with the Roman occupation of this island, and he seeks, in the
events of this period, the origin of the village community in its
English form. And it happens that, in the contrast between the
village community as represented by each of these great scholars,
the institution which the term connotes has become somewhat
indefinite and obscure. A group of men cultivating their lands
in common and having rights and duties in common is the typical
form ; but students are divided as to whether this institution is
of historical origin and growth, or of primitive origin and growth.
It is just this question of origin which is of the first importance,
and if, as I suggest, the village community can be proved to be
a primitive institution, this must have a most important bearing
upon its history in Britain. It means that the village community
originated at a stage of social development long prior to the polit-
ical stage, and that hence its appearance among the local institu-
tions of Britain is of the nature of a sur\ival from prehistoric
times. If this view is once fully understood and accepted, much
of the difficulty arising from a conflict in terminology will ^■anish,
because the whole method of future research must be coloured by
the evidence as to origin. If the village community is of primitive
origin, and its later existence a survival, we should be able to note
its opposition to the political phenomena of civilized history. If it
arises out of the advanced political organization of the Roman
1 [By George Laurence Gomme, "The Village Community," (Ch. I),
London. The Walter Scott Publishing Company, Limited, 1890 ; re-
published by permission.]
Chap. XXI, § 4.] THE LAW OF PROPERTY 393
Empire we should be able to note that it has developed into and
forms part of the political and economical phenomena of civilized
history, which, indeed, under this hypothesis it must have helped
to form ; for, with all the spur of Roman civilization, it must have
so influenced English institutions as to make English institutions
themselves but a continuation of Roman institutions. Thus the
evidence as to origin is of great importance ; and before we can
properly examine the types in Britain, or ascertain what they
really represent in English history, we must know something of
the more primitive types, which alone can tell us anything of
origin.
If the village community is a primitive institution, it must be
granted that from the present position of the subject in the hands
of those students who have dealt with it, there are some consider-
able obstacles to be got over in taking up this new position. In
the first place, we must sooner or later come to the question of
race in the formation of such an institution, because in Britain
alone we have certain evidence of an Iberic, a Celtic, and a Teu-
tonic population, all of which lived in communities, and all of
which have left their mark upon later British history. With the
researches of Professor Boyd Dawkins and ]Mr. Elton before us,
it is idle to attempt an investigation into any section of English
institutions without taking count of the ethnic influences. Sec-
ondly, we have to disentangle ourselves from the notion that the
form in which the village community is found in Britain could
only have arisen from the influences of civilizing powers, a position
forced upon us by ]\Ir. Seebohm ; we have to get rid of the idea
that as an institution it is a special heritage of the Aryan race,
a position forced upon us by Sir Henry Maine. And, finally, we
shall have to establish if possible that it is exactly similar in its
wide extension to other ascertained phases of human society, and
must, therefore, be reckoned with as one of the phases through
which practically all mankind who have reached a certain stage of
development must have passed. Thus it will be seen that in
attempting to investigate the village communities of Britain our
study is, in fact, a chapter in the science of comparative custom,
not in the chronological history of a nation. What we shall be
doing is to trace out the history of an institution, which may be
said to be almost universal, during its existence in a special coun-
try, namely, Britain, where it has been subject to special influences ;
it is not the*history of a British institution, but the history of a
human institution in Britain.
394 THINGS [Part III.
It seems remarkable that the early history of institutions in
this country, and in the Western world generally, should have
been so infrequently studied side by side with the monumental
and other evidence of the existence of different ethnic stocks.
Cave dwellers, hill men, lake dwellers, dolmen builders, have all
left very important proofs of their lengthened occupation of this
country, but their influences are never reckoned with when
anything but monumental archaeology is being considered. Mr.
Elton was the first to point out that certain rude customs among
the peasantry could best be accounted for by the theory of their
survival from non-Aryan tribes ; but, except to explain the prev-
alence of junior right in a certain well-defined tract of country,
he does not suggest that this survival may possibly direct our
attention to these race influences for an explanation of much that
is obscure in our remarkably diversified local institutions. In the
meantime Sir Henry INIaine had put a more express limit upon
the value of race influences in comparative jurisprudence. The
tribes of men with which the student of jurisprudence is concerned,
he tells us, are exclusively those belonging to the races now uni-
versally classed, on the ground of linguistic affinities, as Aryan
and Semitic : besides these he has at most to take into account
that portion of the outlying mass of mankind which has lately
been called Uralian, the Turks, Hungarians, and Finns. ^
Now an appeal to comparative custom to unlock some of the
hidden secrets of our own early life means that we must study not
only the prehistoric monuments and the barbaric customs of Aryan
nations, but the very rude forms of life still existing ; for, as Mr.
jNIcLennan has well observed, the preface of general history must
be compiled from the materials presented by barbarism. Rude
stone monuments tell us something of the rude people who built
them ; philology tells us something of the archaic social conditions
of Aryan man ; but the knowledge gained from these two sources
of scientific observation, however true as to general outline, is
not rich in detail. For this we can only go to comparative custom ;
and it is in detail that an institution like the village community
must be examined.
Comparative custom, not seeking for evidences of early man
merely in the written records of ancient nations, does not define
as old everything that is chronologically early. It has ascer-
tained that man is an unchanging being under certain conditions
which have been present over a large part of the globe ; it there-
^ "Early History of Institutions," p. 65.
<
Chap. XXI, § 4.] THE LAW OF PROPERTY 395
fore seeks for evidence of early man from the unchanged represent-
atives still living, and it defines as old that which has not advanced
and become progressive. If we can find rude types of the village
community in India and in Europe, we may conclude that these
rude types are probably as old as the Indo-European race ; and if
we can go one step further and find rude types of the village
community in still more backward races of the world, we may con-
clude that these rude types show us what early man was capable
of doing in the matter of social and economical organization
before there was any chance of his contact with any civilized or
civilizing system.
This seems to be the necessary starting-point in our researches.
We must first note some of the details available from this source
of information, in order to set forth as clearly as may be that the
village community belongs essentially to the primitive and archaic
stage of social development ; and we can then see if there are any
traces of continuity between the rudest forms of this institution
and the forms found to exist in civilized Britain.
For this purpose I shall first of all turn to some examples of
the village community among savage races, and I shall choose
the Fijians, the Basutos, and the Dyaks. Low down in the scale
of humanity, it will be seen that these people have yet developed
a system of village economy remarkably close to that surviving in
India and Europe. The effect of such evidence is twofold. It
shows that the mental efforts which called forth such a system did
not serve to make the race other than savages ; and it suggests
that in these savage institutions we have types of the early stages
of our own history when the village community was first formed.
It may seem a far-off cry from the Fijians of to-day to the inhabit-
ants of our own island in prehistoric days ; but while we know
from the evidence of monumental remains that man in his most
primitive condition lived in these islands long enough to impress
his barbarism upon the successive waves of civilization, while we
can trace evidences of that stage of barbarism in a race of people
which must at least have extended from Central Asia to Britain,
and while we know that modern savagedom retains habits and
beliefs which best explain the silent monuments of ancient savage-
dom,^ it is abundantly clear that to understand the survivals of
* A very good example of this is to be found in Dr. E. B. Tylor's com-
parison of tlie Digging Sticks as the earliest agricultural implements, used
both among the North American Indians and in Sweden, and the system
of shifting-brand tillage among the Basutos and in Sweden. See " Con-
temporary Review," vol. xxii, p. 04.
396 THINGS [Part III.
early institutions in civilized countries, we must examine existing
types of these self-same institutions in the rudest form in vrhich
they are to be found, x^nd if authority is needed for such a course
as I propose to take, I am content to stand by the great name of
Dr. E. B. Tylor, who, in one of his most pregnant essays on prim-
itive society, connects the various steps in the history of legal
ownership of land by evidence v\'hich commences with the low
savages of Brazil, and leads up to the old Scandinavian and
Teutonic communities. "The case is indeed plain," says Mr.
Tylor, " showing us that while we have a land law modified from
that of our barbaric ancestors, their law again had its origin in
the simplest form of tenure still to be found among savages who
have but just come to the agricultural stage." ^
But there is something more to be said for such a comparison.
I have suggested that an examination of the village community
among the most backward races will go far to estab-
lish the widespread extension of this institution as a phase of
development through which mankind must have passed to reach
civilization. And let me note how necessary a complement
this is to those other researches into the early history of man which
are identified with the names of Tylor, McLennan, INIorgan, and
Lubbock. These scholars have established landmarks in the social,
religious, and mental development of man to which every day
brings further research, either confirming or varying the conclu-
sions arrived at. But nothing, or very little, has been attempted
to set out the landmarks of primitive economics. The totem
tribes, with female kinship and exogamous marriages, in their
progress towards male kinship and full tribal society, built their
stone circles and their burial mounds, their rude habitations, their
extensive defences against hostile tribes, and we are beginning
more and more to trace out the connection between the monu-
ments and their builders. But there also existed throughout all
this period of early culture a system c^ economics which governed
or marked the life of the tribes. Primitive economical conditions
are just as important in tracing out the early history of man and
the bearings of that early history upon all succeeding periods as
other primitive conditions. They may be studied by the same
methods, illustrated by the same types of modern barbarism, and
traced along the same lines of development, which have been
adopted in the corresponding studies of early man ; and thus,
when from the evidence of contemporary savagedom we for our
1 "Contemporary Review," vol. XXII, p. 66.
Chap. XXI, § 4.] THE L.^W OF PROPERTY 397
present purposes come to select one or two instances to guide us
to the earliest stages of primitive economics, we may allow this
evidence to stand as typical of what further research would
bring forth upon the question of the widespread existence of the
village community.
Proof of this widespread existence of a definite primitive eco-
nomical system cannot now be undertaken, because it is a subject
by itself, and needs immense research into some of the b\'ways of
the literature of travellers. But I may indicate some of the lines
which such a study would proceed upon, and where such lines
converge upon the examples I shall more particularly examine.
It appears to me that the true way to study primitive economics
is to commence with the structural details of primitive residences.
In prehistoric archaeology a very considerable section is occu-
pied by the remains — sometimes structural, sometimes consisting
of mere deposits of domestic utensils — of early dwelling places.
In savage archaeology w^e meet with examples of early dwelling
places peopled still by those who built or adapted them. If
there is an overlapping of these two departments of archaeology
at any given point, they must illustrate and elucidate each other,
because they both deal with the same phenomenon — the swarm-
ing of human groups into their shells during a vast period of
time. It is important, therefore, to ascertain, if possible, whether
such an overlapping does take place, and if so, at what point.
But to accomplish this task with anything like success it would
be necessary to gather together the evidence, now almost hope-
lessly scattered, as to the dwelling places and home economy
of the savage races. Only one authority, so far as I know, has
paid close attention to this subject, namely, the late ]\Ir. Lewis
Morgan, but his book relates entirely to the evidence derived from
the American Indians. His researches, however, into this branch
of the human race are so true that it is not unimportant to note
that they are confirmed in ail essential particulars when we extend
the area of research to other uncivilized peoples. For the rest,
it would be necessary to pick our way among the recorded observ-
ances of travellers who have seldom noted the essentials of savage
economics.
Mr. Tylor has remarked that "thinking of the nests of birds,
the dams of beavers, the tree platforms of apes, it can scarcely be
supposed that man at any time was unable to build himself a
shelter." ^ That he does not do so is due to causes which are
^ "Anthropology." p. 229.
398 THINGS [Part III.
inseparably connected, though how we cannot exactly say, with
the form of the society in which he is living. In such types of
society which may perhaps best be identified with the primitive
human horde to which INIr. McLennan worked back,^ there is
no room for artificially-built dwellings. Such, for instance, are
the wild Bushmen of South Africa. "A cave with its opening
protected by a few branches, or the centre of a small circle of thorn
trees, round which skins of wild animals were stretched, was the
best dwelling place that they aspired to possess ; if neither of these
were within their reach they scooped out a hole in the ground,
placed a few sticks or stones round it, and spread a skin above
to serve as a roof, or sometimes nothing more than a reed mat
on the side from which the wind was blowing : a little grass at the
bottom of the hole formed a bed, and though it was not much
larger than the nest of an ostrich, a whole family would manage
to lie down in it." ^ This is the indiscriminate squatting of a
human horde, the atoms of which are kept together by forces which
operate from outside, instead of by forces originating from the
recognition and use of the ties of blood relationship, as among
more advanced peoples. The use of constructed dwellings would
not fit in with the mental attitude or wdth the unregulated indi-
vidualism of this stage of human life, and accordingly it seems
possible to date the rise of a permanent form of dwelling from the
time w^hen blood kinship began to be utilized in the building-up of
society. Much profitless discussion has taken place upon Mr.
McLennan's theory as to a period in human history w^hen blood
relationship was not recognized. That blood relationship has
always de facto existed of course needs no proof ; that it has always
to some extent been one of the means of calling forth the springs
of natural affection in the human race, may be accepted also as a
general fact ; that it has not always been utilized as the foundation
of political societies, that it has not always been made the cement
which bound large groups of men arfd women together, are the
points to which jNIr. McLennan has directed attention.
The stage when permanent forms of artificial dwellings were
constructed seems to mark a definite point in the line of devel-
opment ; and we may proceed from it to fix upon such races
as the Fijians, Basutos, and Dyaks as sufficiently indicative of
the rudest forms of the village community. When we have
examined the details presented by these examples we shall be
' Cf. my paper in " Journ. Anthrop. Inst.," vol. XVII, pp. 118-133.
^ ThcaVs "Compendium of South African History," p. 55.
Chap. XXI, § 4.] THE LAW OF PROPERTY 399
able to affirm that the formation of the village community as a
human institution arose in the period of primitive economics,
and that a reasonable conclusion may be drawn from this, namely,
that its existence among economical conditions which were not
primitive is not due to such conditions, but to a resistance which
all primitive institutions actively exert when they are brought
into antagonism with a system which must in the end overthrow
them.
(a) Villages in Fiji are sometimes inhabited by land-owning
tribes, and sometimes by people who have no land of their own.
Our business is with the former of these two classes, but it is
worth while pointing out that the existence of this distinction
shows some advance in social development. The village in-
habited by landowners is surrounded by moat and mound and
war-fence. It is divided into two sections separated by a ditch,
which sections are subdivided into quarters. Apparently in
some cases the sections do not appear, but the quarters gen-
erally do.
The houses are thus arranged. Each family group has its own
town lot. It is subdivided into smaller lots until each family or
household has its own. This is the precinct, and may be sur-
rounded by a fence at the will of its owners. Each family lot
must be built upon so as to leave a pathway between it and the
adjoining lot. It is sacred against all encroachments of any kind.
Each of the quarters belongs to a section of the community
called a mataqali, a word which means literally a number of men
who are twisted together, i.e., of common descent. It is com-
posed of the descendants of a band of brothers, from each of
which is descended a minor division called a yavusa, and each
yovusa may be again subdivided into a number of vuvale, con-
sisting of brothers with their families who inhabit either the
same house or adjoining houses. The people of a village are
theoretically of common descent, though they are not actually so.
The village has its own lands distinct from those of other
villages. They are of three kinds: (1) the Yavu or town lot;
(2) The Qele, or arable land ; (3) the Veikau, or forest. The
town lot, as we have noted, is that which is occupied by the
house and the garden, and there seems to be a close connection
between this town lot and the arable land, the ownership of one
appearing to go far towards establishing that of the other. The
arable land lies beyond the village. In some places it is divided
into lots, and subdivided into smaller lots, each having its owner
400 THINGS [Part III.
or owners. Elsewhere it is not so divided, and all the joint
owners appear to use any piece that may be convenient. Beyond
the arable is the forest. It is not subdivided like the arable, but
is common to all the mataqali of the village. Its members have
the joint right of felling timber for building and other purposes,
but one community may not trespass upon the forest of another.^
(6) The villages of the Dykas of Borneo are mostly built along
the banks of the rivers, though here and there are solitary houses
hidden from view among the forests at a short distance from a
stream or creek. The houses are from 80 to 100 feet in length,
20 to 30 feet in width, and with walls about 10 feet high, the ridge
of the roof rising another 5 or 6 feet. The house proper has only
one floor, raised about 15 to 20 feet from the ground on posts of
hard timber. Under the actual habitation is a raised floor or
platform of boards and bamboo poles, about 4 or 6 feet from the
level of the ground, and open on all sides. Here the women pound
their rice, the men hold bitcharas or councils, the infants are
nursed, and the rising generation play or practise war-dances.
The ground under and around these platforms is occupied by the
pigs, cats, dogs, and fowls. The floor of the house proper is
reached by a ladder consisting of a block of timber or thick board,
in which deep notches are cut to form steps. The floor is composed
of bamboo and the walls of mixed bamboo and timber boards.
The roof is covered with wood or with the split leaves of the
nipa palm. Internally the house is divided longitudinally by a
bamboo partition. One of the long compartments so formed
serves as a sleeping place for the unmarried youths and men,
and as a general living room for all the occupants ; the other
compartment is subdivided into a series of smaller rooms for
the married members of the family and the women.
Every Dyak has his rice-field, on which he grows sufficient
rice for his own consumption. He selects a piece of forest land
and begins, with the assistance of his family, to clear the ground.
The large trees are cut down and the undergrowth fired, the
ashes of which act as manure. Having sown their rice, they build
small huts in the rice-fields, remaining there till the miniature
plants are transplanted out into the newly-cleared field, on which
the women have all the time been busily engaged.
Near the houses are plantations of maize, bananas, pisangs,
a sort of turnip, sugar-cane, penang, and a few cocoa-nut palms.
Their agricultural implements are the mandau and a peculiar
1 " Journ. Anthrop. Inst.," vol. X, p. 332 et seq.
Chap. XXI, § 4.] THE LAW OF PROPERTY 401
axe or adze, the iron of which is fastened with cords made from
the sinews of deer plaited in chequer fashion to a shaft made of
a piece of hard wood. This again is stuck into a large handle,
to which it is firmly fastened by means of gutta-percha.^
(c) The tribes of the Basutos are subdivided into groups, which
form a number of little villages, motsis, placed under influential
men. The village settlement is nearly always in the form of a
vast circle, the centre being occupied by the flocks, while the
huts form the circumference. The site being chosen, the chief
drives into the ground a peg covered with charms, in order that
the village may be firmly nailed to the soil. The highest spot
is reserved for the habitation of the chief. Near this is a large
court, formed by a circle of rushes or boughs, which is the general
place of resort for the men, but women are not allowed to enter.
Here public affairs are discussed, lawsuits decided, and criminal
causes adjudged. In the centre of the village are large enclosures,
perfectly round, formed of branches of the mimosa, in which the
cattle are shut in the evening : the ground is so holy that it serves
as a burial-place for the chiefs and their families.
In the country of the Batlapsis, the Barolongs, and the Baha-
rutsis, where the heat is excessive and wood abundant, the hut
is high and well ventilated. It is in the form of a conical dome,
round which is a little verandah which serves to support the
roof. The Basutos, who inhabit a mountainous country, en-
deavour to shut out the cold and wet, and their huts are in the
form of a large oval oven, and are entered by creeping along a very
narrow passage, which serves to prevent the wind from reaching
the interior. The walls are perfectly well plastered, and often
decorated with ingenious designs. The sleeping place is on the
ground. The most remote part of the hut generally serves as a
receptacle for the enormous vases of coarse earthenware, contain-
ing the provision of wheat, and other articles of food. The door
by which they go in and out of the hut leads into a circular court
surrounded by rushes or branches ; in which place is the fire and
where the family generally assemble. Each hut is occupied by
a married couple and their children. A polygamist has the same
number of huts as he has wives.
The land is understood to belong to the whole community,
and no one has a right to dispose of the soil from which he de-
rives his support. The sovereign chiefs assign to their vassals
^Bock's "Head Hunters of Borneo," pp. 195-202; "Journal Ethno-
logical Society" (New Series), vol. II, p. 28.
402 THINGS [Part III.
the parts they are to occupy, and these latter grant to every
father of a family a portion of arable land proportionate to his
wants. The land thus granted is insured to the cultivator so
long as he does not change his locality. If he goes to settle else-
where he must restore the fields to the chief under whom he
holds them, in order that the latter may dispose of them to some
other person. The bounds of each field are marked with preci-
sion. The possession of pasture land is also subject to- rules.
It is understood that the inhabitants of one village should pre-
vent their flocks from grazing on ground which belongs to another.
Among the Basutos it is the duty of every petty village chief to see
that a part of the adjacent territory is reserved for winter pasture.
The cultivated fields are generally situated at some distance
from the village. When a piece of land is exhausted, another
piece is cleared by its side.
The Basutos, Bechuanas, and Caffres use oval hoes. The
blade is thick in the middle, and gets thinner towards the two
sides and the lower part, which renders it at the same time solid
and sharp. It is furnished at the top with a kind of elongated
tail, which is inserted into a hole bored in the end of the handle.
The hoe is raised perpendicularly over the head, and allowed to
descend almost by its own weight. The Tembukis and Amakosas
dig the ground with a little wooden spade.
The Basutos assemble every year to dig up and sow the fields
appropriated for the personal maintenance of their chief and
his first wife. Hundreds of men, in a straight line, raise and
lower their mattocks simultaneously, and with perfect regularity.
The Basutos preserve their sorgho (a grain) in large straw
baskets in the shape of a dome. The Caffres have recourse to
pits. They make deep excavations in the enclosures where their
cattle are penned. The walls of these pits are carefully plas-
tered. The opening, which is only large enough to admit a
man, is even with the ground. When the subterranean granary is
filled the opening is hermetically sealed, and the whole is covered
with a thick coating of dung and earth.
Most of the flocks and herds captured in war become the prop-
erty of the chief, and the subjects regard it as a favour to become
the depositaries and guardians of these new acquisitions. The
milk belongs to them ; they use the oxen as beasts of burden,
and from time to time obtain permission to kill an animal which
is already old.^
1 Casalis, "The Basutos," pp. 123-178.
Chap. XXI, § 4.] THE L.\W OF PROPERTY 403
It seems not difficult to trace in these three types of the prim-
itive mode and condition of life, represented by modern savagery,
the roots of the tribal and village communities which have been
hitherto identified with Aryan races only. We have representa-
tives of lake-dwellers in the Dyaks ; of totem tribes in the Basutos ;
of the early crystallization of a village s^'stem in the Fijis. That
lake-dwellers, totem-formed tribes, and settled villagers are
represented in the archaeological remains of early Britain is well
known, and there is no scientific reason why we should not pursue
the parallel in order to find out what we can of the economical
system of the early inhabitants of our land. I have stated the
details somewhat fully in order to show how frequently they
conform to the evidence of archaeology in Europe, but an analysis
of the economical details presented by these examples will show
at once where the real interest of this suggested parallel begins.
We may tabulate such an analysis as follows :
1. The chief, actually present in the Basuto village, has been pushed
upward into a caste, and hence disappears from the Fiji village to form the
Fiji state.
2. Common living is the basis of the Dyak unit ; the possession of a
wife that of the Basuto ; common descent that of the Fiji unit.
3. Common descent brings with it the conception of the sacredness of
the homestead among the Fijians.
4. The grouping of houses into a village among the Fijians.
5. The homestead determines the right of user in the village lands
among the Basutos and Fijians.
6. The division of the tribal territory into homestead, arable and
pasture among the Basutos and Fijians.
7. The houselands being carved out of the unoccupied forest lands by
the Dyaks, and the shifting of the arable lands ]:)y the Basutos.
8. The village council as the source of village rights.
If we strike out of this analysis the names of the savage tribes
which have been the subject of our examination, we might use
very nearly the same terms to describe the features of the village
system of Britain as it survives in different parts of the country.
Such evidence enables us to say that the village community
is of primitive origin ; and that it is not stamped with the marks
of advanced political progress. And it is significant that when
we come to consider its position among the institutions of the
Western world, we never see it as the dominant factor in the
constitution of nations. In all the countries of Europe, including
those occupied by the great classical centres of civilization, it is
found to have existed during times which are well within the ken
of history. But it is always subordinated to a more or less strong
central governing power, and, according as it is interfered with by
the central authority for purposes of government, so is the pro-
404 THINGS [Part III.
portion of its completeness as a primitive institution. While
almost every local institution of Great Britain — the parish, the
manor, the borough — bears upon it the impress of its origin in
the primitive village community, no local institution of any im-
portance is an exact representation of what might be expected
to have resulted from a normal development of the primitive
village community. There is always a twist somewhere. Most
generally this may be discovered from the growing commercialism
of post-Xorman times when the customary law of England was
being incorporated into the king's law. Where we can succeed
in subtracting the commercial elements in English manorial and
village history we come upon the remnants of the primitive
village community. These are represented by practices and
customs whose startling antagonism to anything appertaining
to commercial economy or political progress is the one remark-
able phenomenon in English economical history which quadrates
with those old faiths, beliefs, and usages, which, under the generic
title of folklore, students have now shown to have existed side by
side, but subordinated to, the established religion of the nation.
This subordinate position of the village community in the Western
world, contrasted with its prominent position elsewhere, is a fea-
ture in its history which has escaped notice, and which, when
examined, helps us to understand many elements in its composi-
tion hitherto explained by an appeal to events of political history
which do not seem to come into the question at all. It places
it among the institutions of the land whose origin is lost in the
unrecorded history of the past ; it answers the question of those
who suggest that, because the village community is never men-
tioned in the charters and diplomatic documents of advancing
political times, therefore it is of modern origin ; and, above all,
it forces upon the student the recognition of a most important
factor in its history, namely, the cause of its long continuance,
after the era to which it essentially belongs had wholly passed
away. The consideration of this point, indeed, forms a most
material section of the history of the village community as a
primitive institution.
The village community is thus presented to us as a primitive
institution, having a prominent position among the backward
races and a subordinate position among the advanced races of
the world, and it is suggested that the latter of these two phases
is a survival from the former. It should, therefore, be marked
by all the characteristics of a survival. One of these charac-
Chap. XXI, § 4.] THE LAW OF PROPERTY 405
teristics will be found in the traditional sanction given to local
practices by long ages of ancestral usage. The evidence of
folklore is very important at this stage. If there is any value
in the contention of folklorists that the elements of folklore
are survivals from primitive belief and custom, they must have
belonged to some form of social organism. They were not always
waifs and strays, but once helped to consolidate the social struc-
ture of which they formed a part. As Professor Sayce well says,
the religion of the primitive villager "in its outward form was
made up of rites and ceremonies which could only be performed
collectively." ^ It seems, therefore, that we may fairly classify the
survivals of folklore and the survivals of the village community as
belonging to the selfsame stage of primitive social development.
This conclusion is considerably strengthened by the fact that the
causes of the survival of folklore and of the survival of the village
community are identical, namely, the persistence of traditional
usage. Proof of this in the case of folklore is hardly needed, and
this is not the place to set it forth. Proof of the traditional sanc-
tion for the customs belonging to the village community has never
been set forth, and has never been sufficiently insisted upon as
an important element in the question of origin. But it is over-
whelming. Fortunately for science, the backward condition of
agriculture in this country, during the last years of the eighteenth
century and the first decade of the present, was so alarming as
to arrest the serious attention of the government. Under the
able and indefatigable guidance of Arthur Young and Sir John
Sinclair, the Board of Agriculture set to work to collect informa-
tion, county by county, about the actual state of agricultural
industry, the obstacles to improvement, and the best means of
introducing something like scientific principles. The one answer
which seems to have almost overwhelmed the inquirers was that
the then existing system was carried on simply because it had
always been so from time immemorial — an answer which was
backed up by deep-rooted aversion to change of any sort, especially
when change meant an enclosure of lands and the allotment of
several parcels, held in common by a group, to individual owners.
Over and over again in the reports presented to the Board of Agri-
culture, and in contemporary literature dealing with the same
subject, was this view of the case brought prominently before the
economical reformers, and over and over again do they complain
of the unreasoning folly of the peasant farmers, who loved to do
^ "Introduction to Science of Language," vol. II, p. 290.
406 THINGS [Part III.
only what their fathers had done, and who looked upon the
improvements at last gradually introduced as so extraordinary
that they must have been the result of a disordered intellect.^
A fact of the highest importance has thus been obtained from
the lips of the villagers themselves, namely, that the agricultural
practices observed at the beginning of the century were not the
result of known economical forces ; but were, on the contrary,
derived from immemorial usage, were therefore traditional methods
of agriculture. Now, traditional methods of agriculture, like
traditional methods of belief, are valuable to the scientific inquirer
just because they are traditional, and this brings prominently
before us an historical fact of some importance, namely, that
the attitude of civilization towards primitive institutions, in toler-
ating them and keeping them alive even long after their meaning
and usefulness have been lost, cannot be determined without
taking count of primitive economics. The sanction of tradi-
tional reverence for habits and ways that have come down with
men from that far-off time which memory and fancy hold so dear,
transcends and keeps in check even the forces of political economy
which we have been taught to look upon as so irresistible, and it is
worth bearing in mind that some of the traditional features of
the village community are not very far removed from the social-
ism of to-day. In the history of human thought it will be found
that the influences of traditional ideas far outweigh the influ-
ences of philosophy.
Thus our preliminary examination of the village community by
the light of comparative custom has led us first to see that it is a
product of the backward races of the world, not of the foremost ;
secondly, that its existence amidst the more advanced institu-
tions of civilization is due to survival, not to creation ; and,
finally, that from its widespread existence, absolute proof of
which has not however been undertaken, it represents a phase
of economic development through which all progressive races
must have passed.
1 See Stewart's !' Highlanders of Scotland," vol. I, pp. 147, 228.
Chapter XXII
ORIGIN OF COMMERCIAL INSTITUTIONS ^
In tracing the advances in civilization, made by the various
peoples of the earth, one can seldom mark off with certainty the
distinction between what is borrowed and what is independently
devised. Certain typical features are repeatedly revealed to us
in the most widely separated epochs, yet with a most astonishing
likeness. These surprising similarities meet us alike in the in-
fancy,^ the youth, and the maturity of nations so completely cut
off from each other, that no influence of one by the other can ex-
plain what we find.
1. Barter, and Money; Peddling; Personal Sale; Foreigners and
Brokers. Primitive men, as yet without a State or any other or-
ganized form of community, and lacking the advances which man in
history shows us, lived without any exchange of goods. The de-
velopment of the human race is fulfilled only in proportion to the
constant increase of intercourse and association, supporting and
stimulatmg material needs and assistance, both economic and in-
tellectual. It is a notable stage when dwelling-places become
fixed, and division of labor thus necessarily arises and separate
occupations are formed. The habitual exchange of products pre-
supposes that private ownership has been recognized ; this ap-
pears already in the primitive period, at least for movables.
In its first stages, all exchange of products is marked by three
features : the transaction is a barter (goods for goods) ; it is itiner-
ant (house to house) ; and the producer is his own distributor.
1 [This passage is a translation of pp. 19^6, § 4 (omitting a portion) of
Levin Goldschmidt's "Universalgesehichte des Handelsrechts," Part I.
This work, of which no more was ever published, formed the first portion
of the third edition of the author's projected "Handbuch des Handels-
rechts," and appeared in 1891 (Ferd. Enke, Stuttgart), shortly before his
death. The author was the greatest authority of his generation on the
history of commercial law.
The translation is by John H. Wigmore.]
- Of course, we do not possess a knowledge of the infancy of certain
peoples, — hardly any for the Germans and the Hellenes ; and none at
all for the Italics and for the extensive Semitic and Hamitic States of Asia
and North Africa, which were destined early to attain a luxuriant growth.
407
408 THINGS [Part III.
(1) Very early, as soon as a common medium of exchange is
formed, i.e., money, this elementary barter develops into regular
selling-trade. This appears first in the intercourse between mem-
bers of different nations or tribes. The "money " is some product
held in greatest esteem (jewels, cattle, tool-materials, salt, etc.) ;
but the substance does not matter, either economically or legally.
If indeed the "money " is a substance valued only within a people's
own territory, the external trade of that people will of course be
barter. The wider the circle in which the particular medium is
recognized, the more regular and extensive is the trade. In all the
great peoples of civilization the metals have served as money.
Their order of succession has been generally (but not always) :
copper, silver, gold. At first, mere bars or ingots were used (meas-
ured by weight and fineness) ; later, coins were devised, the State
stamp guaranteeing the weight and fineness. Yet, even at a highly
developed stage, bar-money has remained, both for internal com-
merce (as in China) and for international commerce, a safest me-
dium for exchange and pajTuent.
(2) House-to-house peddling is replaced (but only gradually)
by fi.ved places of trade ; yet even in our own day the traveling
peddler is found, in thinly populated districts and in the once
highly civilized countries of Asia and Africa.
(3) Among the latest features to appear is trade through factors
and brokers; for commercial rights must first have become es-
tablished and a system of credit developed. In the earliest period,
there is naturally little exchange of goods between members of the
same community. Extensive and regular exchange arises through
the effort of foreign dealers brmging into a country wares which
both stimulate and satisfy some need — jewelry, metals, weapons,
tools, wines, etc. In exchange for these desired articles, the
foreigner takes away some surplus product of the place. The for-
eign trader may come merely from another district, or from another
clan, or even people. To the mistrustful primitive mind, he is
both welcome and hateful. Throughout the primitive period, and
indeed even in every people's " Middle x\ges," the skilled foreign
trader, constantly getting the best of the native in the transac-
tion, is regarded as a cheat.^
1 Hence, apparently the Greek /cdTnjXos (trader) derives his name.
Hence, too, Ulysses' precautions against being mistaken for a foreign
trader ("Odyssey," VIII, 158 ff.) ; Ulysses at Phaeacia declines to take
part in the athletic contests, whereon the Phseaeian champion sneers :
"Stranger, I well perceive thou canst not boast,
As many others can, of skill in games.
Chap. XXII.] ORIGIN OF COMMERCIAL INSTITUTIONS 409
In the primitive stage, the chieftain decides whether the visits of
outsiders shall be permitted ; thus, after the benefits of regular
trade come to be appreciated, the chieftains often are found holding
a monopoly of its exercise. At first, through mutual distrust and
lack of common language, the bargaining is done by signs. In a
later stage, a go-between, skilled in languages, is employed ; ^
hence the professional interpreter and the broker come to play an
important part in trade with foreigners ; and the official broker is
required to be employed."
As domestic industry grew in strength, and competition became
more keen, the domestic trader developed, though gradually only ;
finally, he becomes the important figure, displacing the foreigner.
Retail trade is of course the only trade at first; as wholesaling
grows, it becomes a separate occupation. Domestic industry and
hand-labor develops at last the machine-factory system. The
medieval features and their stages of development, viz., home-
industry, hand-labor, separation of the wholesale contractor from
the retail seller of stocks on hand, seem in the main to have been
true of the ancient nations.
2. Markets, Caravans. The more toilsome and dangerous was
trade, the less the competition, hence the more irregular and unset-
tled the methods of commerce ; hence the higher the profit. The
prices were virtually monopoly prices. Prices came to be
equalized as markets and fairs grew up, — culminating in the
modern bourses and exchanges, erected at fixed places and kept
continuously open.^
But thou art one of those who dwell in ships •
With many benches, rulers o'er crews
Of sailors, — a mere trader, looking out
For freight, and watching o'er the wares that form
The cargo. Thou hast doubtless gathered wealth
By rapine, and art surely no athlete."
' At Dioscurias, on the Black Sea, three hundred languages could be
heard, and the Romans there had one hundred and thirty interpreters
(Straho, XII, 498).
2 We find this in the first trade treaty (a.d. 509) between Carthage and
Rome; and again, in the treaties of the 1200 s, and later between Italy
and the Moslem States, this personage is termed " turcimanus," the modern
"dragoman." It is worth noting that the Roman term was borrowed
from the Greek ; the medieval one ("sensalis") from the Arabic ("simsar"),
and the middle High German ("doUmetch") from the Turkish through
the Sla\nc or Hungarian. The inn-keeper of the Middle Ages was often
at the same time the interpreter and the lawful broker for the foreign
merchants who lodged with. him.
' The market price is based on substantially constant standards of
value. From the merchant's professional point of \new, goods and
money cease to be simply consumable things ; they become spendable
things (capital) ; the merchant is thus the representative of capitalism.
410 THINGS [Part III.
The market was a place where producer, trader, and consumer
all met at appointed times. At first it was usually a tract of land
placed specially under religiovis protection (''peace-girt") on the
borders between two tribal or national territories. Between the
peoples or tribes, or even villages, their normal relation would be,
primitively, one of mutual hostility ; and to make possible the de-
sired exchange of goods, a " trade-peace" was agreed upon, ex-
pressly or implicitly, at least for the period of the treaty. This
arrangement for the market, as well as for the usual tribal feast-
days and the court-assemblies, was usually connected with the
religious cults of the peoples, or itself developed a new one. Trade
and religion found a common meeting point. ^ The market-trade
came to be given protection by formal treaties of amity and com-
merce. Here we reach the beginning of international customary
law; and the traditional readiness to overreach the foreigner
becomes discountenanced.
For going to the market-day and the feast-day (holy-day), great
travel caravans were "formed, of pilgrims and merchants, usually
both together. A system of regular transportation began. It
involved huge expense, indeed,^ for the roads lay through the un-
inhabited deserts and plains of Asia and Africa and amidst regions
of marauding nomads. These latter persons are the owners and
breeders of the animals needed by the merchant for his transport ;
and for many nomad races the chief business became (and still is)
the supply of caravans.^ The pilgrim-caravans, indeed {e.g. to
Mecca), still were virtually traveling markets; the pilgrims form-
ing a market community at the various stations. Little by little
permaifent roads develop. Towns grow up around or near the mar-
ket-places, and become the permanent and extensive centers for
regular trades, which gradually specialize. Thus the " market-
peace " becomes the "town-peace."
3. Sea-Traffi,c; AdmiraHy; Trade-Colonies. Meanwhile, sea
carriage and sea-traffic, starting with fishery, was developing on
the great rivers, the coasts, and the open sea. Originally, the
Among all the occupations the merchants' (or traders') is the earUest
to cease to be an incidental home industry and to become a complete
occupation by itself.
1 Lampreciit tells us, in the Middle Ages, of the large towns which had
"not only the largest trade, but almost always the best relics of saints."
2 Even in modern times, for freighting a single caravan in India, 4000
camels have been used. The burthen-animals earliest used were the ass,
the horse, the mule ; the camel was introduced elsewhere from Arabia.
The wagon is first found in Alexander's time.
^ Anciently, better organized than now.
Chap. XXII.] ORIGIN OF COMMERCIAL INSTITUTIONS 411
vessel was a tree-trunk hollowed out ; then it was a framework of
wdthes or beams covered with skins ; mast, rudder, sails, were then
added. The first voyagers kept in sight of land ; and the devious
lengths of the ^Mediterranean coast were, for a period, the usual
limits to the sea-trafRc of those peoples. But, as the art of seaman-
ship developed, and the observation of the heavens increased their
knowledge of astronomy (amounting in Babylon to a veritable
science), the voyages were made on the high seas, as early as the
Phoenician period, and as distant as to the Red and the Persian
seas, the Atlantic and the Indian oceans. Though the use of sails
reached a complete development, nevertheless, the oar-boat
(galley, etc.) remained the usual (though manifold) type of vessel
throughout all antiquity and till nearly the end of the Middle
Ages. Hence in the winter months (until up to modern times) it
was customary ^ to cease sea-trips (" closed shipping season ").
Piracy, well down into the INIiddle Ages, is closely connected with
the history of sea-traffic.^ And just as convoyed protected cara-
vans developed on land, so arose regular admiralties {'' conservse ")
to convoy the merchants' ships.
In the early Asiatic empires and in Africa, the land-commerce
naturally was the greatest part. But with the rise of the Phoe-
nician coast-tow^ns, then of Hellas and of Italy (greater Greece,
Etruria), sea-commerce came into the foreground ; and this domi-
nation it preserved until very modern times — the era of railroads.
Herodotus opens his history of the Greek world by a description
of sea-commerce : " The sea is a road, which unites the peoples of
the earth to each other. He who dwells inland is as one shut off
from the facilities and attractions of human intercourse anH unac-
quainted with the progressive growth of the race." It was only
through sea-commerce, in antiquity, that local industrial seclusion
was overcome and the lines of organization for the world's trade
were marked out. An important part of the principles of coriwier-
cial law, in ancient times as well as in the Middle Ages, had their
origin in sea-commerce and thence ^ were gradually imported into
land-commerce.^
1 Rhodes was an exception.
^ The oldest hero-myths of the Greeks — the Argonauts and the Trojan
expedition — turn upon feats of piracy. The Vikings of Skandina\ia
were both sea-merchants and sea-robbers. The Pisans in the 1200 s
still conceived of sea-war and piracj- as a business bringing wealth. The
Arab merchant of Africa was, even to modern times, primarily a robber
of men to sell as slaves.
5 There were exceptions; e.g. the law of general average ("lex Rhodia
de jactu").
* This influence is mostly clearly revealed in the law of Rome and of
412 THINGS [Part III.
The sea-coast communities (Phoenicians and Carthaginians,
Hellenic, Romanic Mediterranean, North Germanic) came to
open up permanent trading posts (" factories ") in the foreign land
itself, — usually after a considerable period of ordinary trading
with that place. In some cases, colonies grew up, i.e., separate
communities of their own members ; Greece and Carthage were
the first to create such colonies by design. In these trading-posts
and colonies groups of foreign traders settled down (sometimes re-
maining for life) and managed their own affairs ; usually preserv-
ing the religion and the law of their original home. Throughout
antiquity and the Middle Ages (and in places even to-day, as in
the Levant and the Far East of Asia) they formed a community of
their own, alien in religion and in law^s to the people in whose terri-
tory they abode. Here the most striking analogies re-appear be-
tween the oldest trade-settlements recorded in history, the Romanic
and the Hanseatic traders of the INIiddle Ages, and the European
instances of the present day in the Orient. Through these trade-
stations the network of commercial interests extended over the
whole globe. The general method and aim was to exploit the
wealth of the country of their settlement, and to control its com-
merce, or at least its distributing trade. As the native communi-
ties grew stronger and learned how to get along without the for-
eigners, they devised ways to drive out their now unwelcome
teachers, or to assimilate them.
4. Credit; Interest; Banks; Commercial Paper. Along with
barter and cash-sale there early appears the first form of credit-
transaction, the loan. The charge of interest appears in the Orient
at an early stage.^ In the more advanced stages, when money has
become the universal medium, the use of credit in commerce grad-
ually expands to a vast extent ; here again the peoples of the
Orient are the earliest.^ The security of the credit is found in
personal suretyship and property-gages of various forms. The
loan (as a business transaction) is a leasing-out of capital ; hence
it involves a charge for the use of the capital. In a community
the Romanic Mediterranean States ; for example, the "actio exercitoria,"
the "receptum nautarum," the "foeniis nauticum," in the former law,
and the "commenda," the insurance by premium, and the stock-company,
in the latter law. Even the ordinary bill of exchange derives its essential
features from the maritime-loan contract, borrowed into land-commerce.
1 With the Greeks, perhaps not yet used in Hesiod's time (though
they had special penalties for delayed payment, etc.). With the Germans,
it was unknown in Tacitus' time.
^ In the Germanic tribes, and in North Germany, even into the 1400 s,
transactions on credit were scanty.
Chap. XXII.] ORIGIN OF COMMERCIAL IXSTITUTIOXS 413
where fungible ^ goods (gold, grain, cattle) re-paying the loan are
not abundant, or where for any reason (personal or social) the pros-
pect of repayment is uncertain, credit is scanty. And the scantier
is credit, the higher will be the interest-charge. In early times
the borrowing of capital was an extremity unwelcome and abhor-
rent. The very act of borrowing was often only the first step to
commercial downfall.^ The habitual lender-on-interest, the capi-
talist (" usurarius ") tends to exploit his advantage selfishly, often
ruthlessly, and became a hated object. Popular opinion even stig-
matized as usurious the ordinary interest-loan indispensable to
commerce, if the borrower's results from its productive investment
turned out to be scanty. The history of usury {i.e., interest on
capital loaned) is one of the richest chapters in the legal and eco-
nomic annals of all epochs. Only the greatest commercial peoples
(Babylonians, Phoenicians, Athenians) disdained either to forbid
interest-charges or to fix their maximum. Not until our own times
was reached that view of usury which is alone tenable in ethics,
economics, or law, viz., usury depends on whether the particular
transaction is in fact an exploitation of one party by the other :
^' non quantitate pretii, sed qualitate facti sestimatur."
In primitive times, this scanty resort to commercial credit goes
along with another feature, the harshness of the law to the
debtor.
As the use of credit and money increases, a special occupation
develops, the ba)iking-tTade. As early as in Phoenicia and Baby-
lonia the money-changer (banker) is regularly found with the other
merchants. He tests the coins, reckons their equivalence, receives
and takes care of investments of surplus money-capital.
The idea of salable property, at first confined to tangible things,
enlarges gradually, to include credit-obligations, especially those
embodied in documents (commercial paper). Finally it brings
within the protection of the law those relations of patronage for
ideas which have come to be included (inadequately) under the
term "intellectual property" — copyright, trademark, and pat-
ents for inventions.
As occupations of trade become specialized, and a commerce
based on money-values develops, along with a credit-system also
based on the use of money), the "capitalistic" organization of
1 ["Funj^ible," a good Roman law word, is the only term that expresses
the idea of uniformity in the single pieces of an article, such that any
number of them is equivalent to any other number.)
- Hesiod, "Works and Days," G47, classes the fear of borrowing with
the fear of being hungry.
414 THINGS [Part III.
society — part and parcel of the division of labor comes into
full existence.
5. Slavery. An institution universally found in primitive times
is slavery. This, to be sure, itself marks a step of progress beyond
the earliest customs, that of the destruction of all enemies, and
even of aliens in general, as well of debtors and wrongdoers.
Throughout the ^Middle Ages it persisted among the Christianized
peoples, and to our own times among non-Christian peoples. In
a mild and patriarchal form it was found in the Orient, and in
the earlier Hellenic and Roman period, as well as among the Ger-
manic periods. Its harsher form marks particularly the later
Roman period, and the still later Christian times of negro slavery.
A related feature — not abandoned by even the Christian commu-
nities tmtil the 1700 s — was serfdom (in various forms). The con-
ditions of primitive slavery and serfdom varied, of course, accord-
ing to the type of its economic life, and therefore of its laws of trade.
As this element in the community gradually diminishes, the class
of small traders becomes professionally stronger ; the formation
of a " middle class " (" third estate ") is favored ; and the principle
of association (group organization) is fully developed ; and the
differentiation of types of commercial transactions is stimulated,
so that each has its own group of practitioners and its distinctive
legal rules, — wholesale dealers, carriers, and many others.
6. Wholesale. The economic principles underlying wholesale
and retail trade being different, and the social position of the capi-
talist wholesaler being naturally above that of the retailer, a differ-
ence was not uncommonly found (notably from the ^Middle Ages
onwards) in the law's treatment of them, — in eligibility to high
office, etc., in police regulations, and in tax methods. No princi-
ple, however, for drawing an exact line between wholesale and re-
tail trade, or between machinery-factories and manual or house-
industry seems ever to have been attainable. And the modern
tendency is to go beyond mere negative abolition of the distinction,
and to articulate anew the relations of industrial society.
7. Commercial Custom and Laws; Mercantile Honor; Status of
Foreigners. The positive law of the State is merely the external em-
bodiment of some legal principle immanent in the life of any partic-
ular epoch and people. Each specific legal transaction or relation,
sale or partnership, bearer-bills or checks, marriage or filial status,
citizenship or trade with neutrals — has a distinctive purpose
(reXo?) of its own, and therefore a nature objectively ascertain-
able C' Natura," " natura rei," " natura lis ratio"). The transac-
Chap. XXII.] ORIGIN OF COMMERCIAL INSTITUTIONS 415
tion or rule is variant, indeed, according to time and place, — the
national traits and the changes in the course of civilization. Thus
develops a common consciousness of the principles just and suit-
able for these purposes. The principle may indeed be imperfectly
carried out in law, or even perverted ; for the ideal to be attained
varies in law as in art, and the juristic gifts of different nations vary
extremely (as with the Romans and the Hellenes, for mstance).
In commerce, as in other relations, what we call law appears at
first only as social custom ; not until later does it take the form of
legal enactment. The customs of commerce were formed chiefly
in the various tradal occupations. Wholesale and retail dealers
were grouped separately, and the former were mternational in
character. In primitive times the State has but slender power and
activity to protect trade by courts and police, and the treaties with
foreign peoples, supplementing domestic law, are equally scanty;
to this extent it was then the more natural and necessary that the
mercantile groups should develop definite and inviolable customs,
often under the sanction of religion, from which the individual
trader departed at his peril. This growth of fixed custom, gradu-
ally condensed into customary law, was furthered by the physical
and social conditions of the times. Trade was restricted to certain
seasons and places ; land-roads were scanty and unsafe, and inns
were few. Ship-convoys and land-caravans had fixed rules of the
road. Moneys and their valuation, and indeed every tradal trans-
action, even the simplest — and the simplest were those of widest
observance among nations — became subject to these fixed " folk-
ways." And here developed the great and indispensable mercan-
tile principle of good faith (commercial honor). ^ At the markets
and fairs, especially, grew up the system of fixed terms and periods
for payment and credit, of organized supervision, and of speedy
court-procedure.
This principle of good faith was of special significance in its
relation to foreigners. In primitive times, as in classic times, and
even until late in the INIiddle Ages, the foreigner was without the
pale of law and rights (except indeed when given temporary protec-
tion in the status of " guest-friend," long sanctioned by religion) .^
' The Greek "Tr/tms," the Roman "(bona) fides."
2 The view of some scholars, that the institution of "guest-friend"
was devised (by the Phoenicians) to assist commercial intercourse, is open
to much doubt, in that it undervalues the ethical and the religious motive.
In ^-Eschi/lus' "Eumenides " (v. 531 ff.), in the list of Roman moral duties,
that of "hospitium" is named even before that of blood-relationship.
The primitive society is of course founded on an exclusi^•e community
of religious cult ; its law and rights are for its own members only. The
416 THINGS [Part III.
But gradually, by treaty, or by custom, or by special enact-
ment conceding limited rights, he came to receive the legal right
known at Rome as " commercium," i.e., to participate in trade
under protection of law ; and a special procedure is later allowed, to
speed the suits of foreigners, mainly in commercial cases.
Nevertheless, there obtained, even till modern times (with elabo-
rate development in medieval Italy), a special discrimination in
the principle of reprisal. The pruiciple that one wronged by per-
sonal injury or by default in a debt might seek redress from the
family or relatives of the wrongdoer, allowed him, when the wrong-
doer was a foreigner, to resort to any fellow-countryman within
the territory. Herein lay the kernel of a far-spreading principle of
solidarity. Gradually certain customs of commerce, originally
local to a tribe or territory, tended to become universal, when fitted
to do so; while, conversely, certain general customs of nations
became locally accepted and differentiated, by statute or code.
Here came into play the influence of the dominantly commercial
peoples and cities. These left indelible marks upon commercial
custom and law, while the other communities played chiefly a
receptive role. In far antiquity, the Phoenicians stand out as the
merchant-people ; in the IVIiddle Ages, the Genoese, the Lom-
bards, the Hanse towns ; in East Europe, often the Jews ; in the
Orient of to-day, the Greeks, the Armenians and the English. A
special mark of such trade-supremacy is usually revealed in the
wide currency of the coins of that people or town.^
8. Lines of Evolution. In human transactions, as well as in
the laws that govern them, the double aspect of all evolution may
be observed, i.e., the principle of successive stages of differentia-
tion and integration (heterogeneity and homogeneity). The
simple transactions of exchange, credit, association, — the medie-
val loan and joint-undertaking (" commenda "), — the Roman
power of attorney (" mandatum "), -^ the Skandinavian joint-
tenure ("felag"), — these and many other typical transactions
produce gradually a number of distinct varieties. A transaction
originally having a simple and narrow use enlarges into a type,
assimilating many similar species. Marine insurance, for example
Greek word for "guest," " ^^vos," originally means "enemy," "alien";
so also the Gorman "gast"; and the Latin "hostes," which afterwards
preserved this ineaning in the broader "peregrinus." And the Slavic
"gosti" signified both "stranger" and "merchant," for the foreigner
was generally a merchant.
^ E.g., those of Babylon, Athens, Byzantium, the Arabian empires,
Venice, Genoa, Barcelona, the Champagne markets, Cologne, and (in
modern times) England.
CiiAi'. XXII. j ORIGIX OF COMMERCIAL INSTITUTIONS 417
— the earliest form — (leveloj)s into insurance of various sorts;
groups of ])erscjns contributing jointly for \arious puri)oses (pro-
tection, purchase) develop a type of economic association; com-
panies formed to carry on colonies, banks, and insurance, develop
the general type of stock-company. Conversely, legal transac-
tions and relations originally inde[)endent of each other, are ulti-
mately recognized (by courts, legislators, and jurists) to be united
in principle, as varieties of a single economic and legal type. For
<'xample, the classification of all commercial associations intf) the
three varieties, viz., partnership, limited partnership, and stock-
company, was first made in modern times, in the French Code of
Commerce (1807). Sometimes the manifold forms originally exist-
ing, or afterwards developed, fall gradually int(i disuse, and u single
form replaces them ; for not every simplification, in evolution,
signifies progress. For example, the original lloman transactions
of " sponsio," " fidepromissio," " mandatum," " constitutum
debiti," " receptum argentarii," ** fidejussio argentarii," give place
to a colorless abstraction, viz., warranty or suretyship. So also
the sundry primitive forms of joint obligation are rejjlaced by the
single idea of solidarity ; and the innumerable kinds of marital
property tenures are simplified into a few tyi)es.
The kernels, or even the defined principles, of important legal
institutions can sometimes be traced in existence for centuries, be-
fore they come to their full development. Here the liindrance was
perhaps some unfavorable economic condition, or some rival legal
principle ; until finally, under changed conditions, the principle
reached its maturity. The early classic times, for example, pos-
sessed the principle of insurance, of money-remittance by bill of
exchange, of instruments transferable to order or bearer; yet all
of these, so far as can })e learned, waited for a thousand years or
more h)efore they found general recognition.
9. Commercial Law as a Separate Body of Law. A special law of
commerce, as a separate branch, had not been known as early as
the times of the Oriental peoples. In classic anticpiity, and
among the Germanic peoples, it appeared only in the nucleus.
Nevertheless, a considerable j>art of private law in classic times, as
well as in the Gennanic period, after the rise of tlie great medieval
cities, bears dominantly commercial features, and is formed partic-
ularly to favor the needs of commerce, especially the wholesale
trade between nations and localities. The more or less well de-
fined separation, now obtaining in one form or another in almost
all ci\ilized peoples, is a creation of the later Middle Ages in Italy
118 THINGS [Part III.
and of modern codifications. But the further the division of labor
progressed in occupational pursuits, the more distinctly the middle-
man's function of the merchant became separated from other call-
ings — the greater became the economic scope of this service, —
so much the more extensive became the body of law specially appli-
cable to it.
The distinguishing feature of commercial law may be sought
either in the fact or in the idea ; i.e., we may emphasize either the
commercial fact (and incidentally the legal idea applicable), or
we may emphasize and formulate the controlling legal principle.
The same group of commercial facts may be governed by distinct
legarrules, and vice versa. The distinction is illustrated when we
remember that in the ancient world we owe the origin of our com-
mercial transactions (in great part) to the Babylonians and the
Egyptians, the Phoenicians and the Greeks ; but it was the Romans
who first gave them definite legal principles. So again, in the
Middle Ages, the various commercial methods and institutions were
contributed partly from the Germanic peoples, partly from the
Orientals, partly from the inheritance of classic times; but they
received their typical legal forms from the Romanic peoples, es-
pecially the Italians. This process of devising legal principles
and forms for the commercial transactions can be traced from its
earliest beginnings in the annals of the professional clerks and
notaries.
If, now, we ask, which are the peoples whose contributions have
been the vital ones in the continuous development of the body of
universal commercial law, we may thus name them in the order of
their historical rise : ^ 1,2. The empires of Western Asia and the
East Mediterranean, especially the Egyptians and the Phoenicians,
form the great commercial region. The "merchant" is here pre-
eminently the Phoenician, whose trading-posts and colonies spread
even to the Atlantic shores. 3. The Hellenes gradually took over
the domination, in commerce as well as in civilization generally,
of a large part of both East and West, and from Alexander's time
assimilated to themselves the Orient more and more markedly.
4. The Romans, founding a world-empire, brought it into well-
ordered mastery in about five centuries, and gave it an ever-
increasing unity of law.
^ [The author here eliminates the far Eastern peoples ; the Hindus and
the Persians ; the Finns and the Lithuanians and Slavic peoples ; the
Kelts; and the early Americans. He then groups the remainder for (1)
ancient times, (2) medieval times, (3) modern times. Here the descrip-
tion of the first group only is reproduced.]
Chap. XXII.] ORIGIN OF COMMERCIAL INSTITUTIONS 419
The four great peoples of antiquity — the Egyptians, the Baby-
lonians (and their Semitic relatives, the Syrians, Phoenicians, etc.),
the Greeks, and the Italians, — each (as Mommsen says) in its
own way built up a civilization of its own on a grand scale, and
helped in manifold relations to each other to develop in a well-
defined and ample way all the elements of human progress, until
its destiny was fulfilled. It is a truism that in economics, as in
legal life, innumerable rivulets and springs unite to form one great
stream. But the universal features in the history of this merging
were received only from those nations which were gifted with the
talent of absorbing and infusing these elements with its own spirit
and of preserving and transmitting them to its successors. It is
in this sense that the economic and legal ideas of the Oriental
peoples, of the Hellenes, of the Romans, and the Romanic ^Nlediter-
ranean region, of the Germanic peoples North and West, may be
deemed universal, as well as national, in their significance.
And yet, it remains to say, the contrast between antiquity and
modern times must ever be kept in mind. In the period between
ancient Egypt in its industrial prime and the 1700 s our own era
— a period of from two to three thousand years or so — the
technical features of industrial life underwent no radical alteration.
And so also, for the technique of commerce and commercial law,
it is equally true that in the more than fifteen centuries that wit-
nessed the successive predominance of Phoenicians, Hellenes, and
Romans, progress and regress apparently alternate in the scales,
without decisive gains maintained. No period of the later ^liddle
Ages can be named which in all its aspects so surpasses the com-
mercial life of the ancient world at its best period, especially that
of the Roman empire, that we can speak of an absolute superiority
in commercial and legal type. It would not be far wrong to assert
that not until the last two centuries of our own era do we find the
full development of all the principles which already existed pro-
fusely in embryo for the many thousand preceding years of com-
mercial history.
Chapter XXIII
PRIMITIVE COMMERCIAL LAW^
It may be taken as established by political economy that the
most ancient commerce was of a migratory sort, and between
different tribes, or peoples.^ The origin of commerce, therefore,
is closely related to the activities of peoples ; and the beginning
of commercial law is bound up with the laws of peoples and inter-
national law, as well as the most primitive form of international
law — the law of strangers or aliens. It has been rightly empha-
sized by Post ^ and other investigators,^ that everywhere on the
earth, it is the first principle of the law of aliens, that the stranger
has no rights whatever. "Only a relationship to a social group
provides any guaranties for life and property." ^ Therefore,
between peoples who are foreign to each other by descent and
language, there is either no communication at all, or only inter-
course of a positively hostile nature. Inasmuch, as the death or
imprisonment of an alien is regarded not as a wrong, but as a
praiseworthy act,^ so on a chance meeting, every person who is
unwilling to meet a stranger as an enemy, takes to his heels as
speedily as possible.^ Yet, it would be a mistake to suppose that
an utter absence of friendly communication among imcivilized
peoples, is the rule. On the contrary, it may be regarded as
demonstrated by ethnology and ancient history, that definite
beginnings of commerce are not incompatible with the lower
stages of culture ; for even among such peoples there are found
"implements and adornments which have come from thousands
' [By Carl Koehne, "Markt-, Kaufmanns-, und Handelsreeht in priin-
itiven Culturverhaltnissen," VI, in "Zeitschrift fiir Vergleichende Reehts-
wissenschaft," Bd. XI (1895) pp. 196 seq.; and translated by Albert
Kocourek.]
^SchmoUer, Jahrb. XIII, pp. 10.53-55, XIV, p. 1036; Roscher, " System
der Volkswirtsehaft," III, See. 16, pp. 99 seq.
5 "Aiifgaben," p. 38, "Afr. Jur.," p. 176.
4 Cf. FaUafi, "Z. f. d. ges. Staatsw.," VI (Tubingen, 1850), pp. 185,
201; bargun, " Z. f. v. R.," V, p. 82; Roscher, "System," III, p. 111.
5 Post, "Afr. Jur.," p. 175.
^ Cf. Dargun, loc. cit., p. 82. '' Cf. Fallati, loc. cit., p. 175.
420
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 421
of miles." ^ In fact, there may be extensive commerce among
uncivilized races, based on the well-known custom of "silent
trading," without diminishing the principle of a lack of rights in
aliens, or the distrust which arises from it. One party places
an article at the boundary, or at some other place which is visited
by the other, and withdraws ; thereupon, the other party lays
down, in return, an article, which, however, is not removed until
it corresponds in worth to the offer." An advance is indicated,
when the traders stand face to face, but yet at a distance which
makes violent acts, and especially seizure of the person, im-
possible.^
Notwithstanding the great interest of these kinds of commerce
for ethnology, they are of no significance for jurisprudence. On
the other hand, the various ceremonies by which different un-
civilized peoples communicate their desire to engage in friendly
commerce are the first germs of international institutions, and are
equally of importance for the universal history of law. For this
reason, such customs as gestures and touching which express
friendly salutation, the smoking of the pipe of peace, entertain-
ment in the home, bearing of twigs, etc., are significant not only
for [the evolution of] commerce, but also for such international
objects, as for example, a treaty of peace."^ It may be recalled,
therefore, that the frequently attested, and even to-day, here and
there, existent custom of using twigs for the purpose of giving
notice of the making of commercial agreements,'^ has its origin
in the usage which employed foliage as a token of peace. But
this custom is not only a "common Germanic, and, presumably,
a common Aryan" ^ institution (as has recently been stated by
' C/. Schmoller, Jahrbuch, XIII, p. 1053; Peschel, " Volkerkunde"
(Leipzig, 1885), pp. 215-6.
- Cf. Schmoller, loc. cit. ; Roscher, "System," III, p. 112; ''Z. f. allg.
Erdkiinde" (Berlin, 1854), I, pp. 13-16 (Andree), and II, p. 243 (Gujn-
precht).
^ Such is the commerce of the Malays at the southern point of Timor ;
see George Windsor Earl, ^'The Native Races of the Indian Archipelago,"
(London, 1853), p. 183.
* Cf. Fallati, loc. cit., pp. 201-210. That the smoking of the peace-
pipe is employed as a legal symbol for the establishment of commerce, is
observed by Lafiteau, "Moeurs des Sauvages Amerieains" (Paris, 1724),
p. 331.
^ CJ. Richard Schroder, in Beringuier, "Die Rolande Deutschlands,"
(Berlin, 1890), pp. 20, 21. In addition to the evidence there noted, it
maj^ be added that in Vienna, according to an ordinance of 1450, the public
criers of wine held a branch in their hands — ("Ber. des Wiener Alter-
thumsv." Ill, p. 286) ; and that even to-day, in Siberian villages, the
vodka tavern is made known bv a branch — (Kennan, "Siberien" (trans.
by Kirchner, Berlin, 1890), p.' 203).
° Schroder, loc. cit.
422 THINGS [Part III.
an eminent Investigator of German legal history), but has been
found widely disseminated among the peoples.^ For the pur-
poses of the present study, the branch as a symbol of peace comes
particularly under consideration in those ceremonies in which it is
used in connection with other symbols, for commercial transactions.
Examples of such legal symbols are found in various books of
travel. When Captain von Kotzebue, on his well-known voyage
of discovery, was nearing the Penrhyn Islands in Polynesia, va-
rious boats of the natives approached his ship, and in each of the
larger boats an old man adorned with a chaplet of palms in his
hair, and a neck-piece of cocoa leaves, held aloft a palm branch.
When the boats came within 20 fathoms of the ship, they stopped,
and the islanders commenced a peculiar song. After the natives
had completed these ceremonies, they came without fear to the
ship, and showed themselves ready to engage in barter. ^ In
a similar way, the natives of Noatka Sound on the North-west
coast of America [Kotzebue Sound(?)l rowed around the ship of
Cook, "while on each ship a man provided with a mask spoke or
called out a long time." When the circling of the ship was com-
pleted, the boat laid alongside of the ship, and then the natives
began to barter.^ The Brazilian Indians also have a special
legal symbol for the initiation of commercial transactions. They
lay down " their arms in common, and alongside of one another ;
and when the transaction is completed, which is indicated by
certain words frequently repeated on both sides, both parties
at the same moment seize their weapons." ^ There we have one
of the many cases where a legal solemnity is at the same time a
legal symbol.^ The laying down and taking up of the weapons,
in order that the possibility of attack may be made more difficult
and lessened, signifies, (in that both acts are simultaneous on
both sides), the renunciation of malevolence, and notice of it.
It is noteworthy, that here the peaceable situation, so far as it
may be inferred from the legal symbolism, exists only during the
continuance of the legal transaction ; the same persons who for
the time being mutually grant peace, may, on meeting again,
' Especially, also, among the Australians, and South Sea Islanders ;
cf. Waitz-Gerland, ''Anthropologie," VI, p. 750; Ratzel, "Volkerkunde,"
II (Lpz., 1886), p. 210; Fallati, loc. cit., pp. 180-1.
^ Von Kotzebue, ^' Entdeckungsreisenach der Siidsee und naehBeringstr."
(Weimer, 1821), I, p. 124.
^ Cook's "Third Voyage of Discovery" (trans, by G. Forster) (Berlin,
1789), III, pp. 12, 13, "18, 19.
^ Von Martins, "Von dem Reehtszustande unter den Einwohnern
Brasiliens" (Munich, 1832), p. 44.
^ CJ. Heusler, "Inst. d. deut. Privatrechts.," I, p. 72.
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 423
consider each other as enemies. On the contrary, the ceremonies
above described, of the natives of Noatka Sound, appear to indi-
cate a permanent peace between the parties. When Cook con-
tinued trading the next day with the natives, the same ceremonies
were performed only by the occupants of such boats as had come
to the ship the first day.^
As a rule, primitive law has another method for making perma-
nent trade possible; some important societies have taken
the foreign merchant under their special protection. Such
relations are found developed, quite conspicuously, among
various peoples of East Africa. Reference may especially be
made to the so-called " Ashkerays," subjects of the Naib of Samhar,
who regularly visit the land of the Bogos for commercial pur-
poses.^ Each "Ashkeray" chooses among the Bogos a protector
to whom he pays, by custom, yearly, a moderate sum of money.
The protector is obligated to receive the "Ashkeray" at his home,
to furnish his board for the first day, to assist him in his business,
and especially in the collection of his claims, and he must also
furnish him safe escort to the next tribe. If the "Ashkeray" is
killed while in Bogoland, then the master has the right of blood-
revenge. If he prefers .to take weregild, the same as for a Bogo,
then he may keep the entire amount for himself ; yet, he usually
turns over a part of it to the relatives of the dead man.^ Similar
protective relations are found developed among other African
peoples ; thus among the Wogo-Galla, the Somali, the Barea and
Kumana ; and such a relation is the only measure of safety for
life and property of strangers in the markets in Berbera and
Massua.^ Among the Kumanas the stranger must always be
accompanied by a native; otherwise he would be considered an
enemy and killed.''
The most complete information, in detail, concerning the pro-
tective relation among merchants comes from Somaliland ; and
it may be accepted, that in the essential features, it is the same
there as among the peoples already mentioned. Protector and
' Cook, op. cit., p. 18.
- Munzinger, '''Das Reeht der Bogos" (Winterthur, 1859), p. 46, Nos.
72-75.
^ Munzinger, op. cit.
^ Cf. Krnpf, "Reisen in 0.stafrika" (Kornthal u. Stuttg., 1858), p. 106;
Burton, "First Footsteps in East Africa" (London, 1856), p. 89 seq.;
Haggenmacher, in Peterniann's "Mitth. Erganz.," X, No. 47, pp. 36,37;
Hildebrand, in "Verb, der Ges. f. Erdkunde zu Berlin," 1874, p. 274;
Munzinger, "Ostafr. Studien" (Schaffh., 1864), pp. 121, 314, 315, 477;
further. Post, "Afr. Jur.," I, p. 177; Aridree, " Welthandel," p. 213.
* Munzinger, op. cit., p. 477.
424 THINGS [Part III.
protectee are called by the Somalis "Abban" ;^ yet it is allowable
according to the usage of books of travel to apply the term solely
to the protector. The protective relation is created by an ex-
change of gifts ; " and with this, the merchant also permits the
"Abban" to fortify the security of the relation by an oath.^
Protection consists in defence against all hostile attacks on the
traveler and his property proceeding as well from the protector's
tribesmen as from non-tribesmen. Furthermore, the "Abban"
is the representative of the merchant before the courts. Finally,
he furnishes him with a residence and subsistence, serves him as
interpreter, and negotiates his business affairs, or executes them
in his own name as commissioner.^ This office, called "el
Tabaan," is bound up with unlimited power over the life and
property of the stranger ; so that he is entirely dependent on his
"Abban." ^ For this service, the "Abban" receives a courtage,
fixed by customary law, upon all the business done by the client,
whether he took part in it or not,^ and occasionally other com-
pensation.^ The relation ends as soon as the merchant leaves
the tribal territory of the patron ; and, also, as a rule, on the death
of one of the parties. Yet, it is reported of the vSomalis, that if
the patron is killed, it becomes the duty of his kin to assume the
undertaking of protection, and to assist the merchant in getting
his goods, which, perchance, are out of his reach.^ If the relation
is terminated by reason of the killing of the merchant, it may be
assumed that among all these peoples, the protector becomes
vested with the right of blood-revenge.^ Among the Barea and
Kumana tribes, this right is employed in such manner that the
protector of the murdered man kills a client of the murderer. ^°
As to most peoples, there is no information whether the protective
relation may be ended by the will of one of the parties. It is
reported only of the market in Berbera in Somaliland, that there,
no one may change his "Abban" without the approval of the
judicial assembly. ^^ On the contrary, among the Bogos the
' Burton, op. cit., p. 89, note.
- Haggenmachcr, op. cit., p. 32. ^ Ibid., pp. 7, 8.
* Cf. esp. Haggenmacher, op. cit., p. 36; Munzinger, op. cit., p. 121.
5 Burton, op. cit., p. 89, note.
^ Haggenmacher, op. cit., p. 37.
Mn the market at Berbera, the "Abban" has a claim secured by-
customary law to a garment of 16 ells of calico for each ship which arrives
belonging to the client. Furthermore, when the merchant leaves the
market, the "Abban" has a claim to the timbers of the hut erected by the
merchant at the market; cf. Haggenmacher, op. cit.
* Burton, op. cit. " Cf. note 3, p. 423, supra.
1" Munzinger, op. cit., p. 477. " Haggenmacher, op. cit., p. 37.
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 425
" Ashkeray"may change his protector at will.^ The Information
is given, that this protective relation is of no value to the merchant,
unless he selects an honest and skillful patron who is well regarded
in his tribe ; yet, frequently, unqualified persons present them-
selves for this office, to foreign merchants.^ The English traveler,
Burton, therefore, in 185G, proposed to establish a list of the best
"Abbans" in Somaliland.^
The statement, here, of this point, is not to be regarded as
superfluous, since in connection with the information afforded
regarding the protective relation, it throws a strong light on the
legal evolution of the institution of brokerage, in legal circles
different from that of the Somalis. ^^^lat Burton proposed in
1856 for Somaliland was actually done, to a certain extent, in
1864 in Massua. Here, an exclusive class of persons, the so-called
"Nesil," who serve the merchants as patrons, hosts, and com-
missioners, dominate the market to such an extent that it would
be "foolish" to expect "to engage them only as agents" for the
purpose of cutting down their high courtage.'* In another locality,
where the function of host and broker is identical, among the
south Arabians, these persons (dallal) constitute a special guild
under self-chosen directors ; here the restrictions on the office of
broker have gone so far as to limit the exercise of this calling to
sons of brokers.^
These facts may now be considered with reference to the de-
velopment of Germanic law. Here, also, at first, the stranger
had no rights, and only the usages of hospitality, which the host
observed with reference to his "patronus" or "senior," was able
to secure him protection for life, liberty, and goods. ^ That
influential persons furnished hospitality to merchants is attested
at least among the north Germans. It is to be remarked, how-
ever, that hospitality was not given to merchants for nothing, as
to other persons, but only for compensation in goods or money .'^
' Munzinger (Bogos), p. 46, No. 72. - Burton, op. cit. ' Ihid.
* Munzinger, "Ostafr. St.," p. 121. The absence of differentiation,
sharply defined in our law, between the concept factor and broker,
is not attributable to a deficiency of legal knowledge of the informant.
As a matter of fact, it is easy to understand that the same persons who
negotiate business affairs with their own people, in many cases also exe-
cute the business of strangers in their own names. First, only, with the
appearance of the sworn broker in Islamitic law, and among the Germanic
and Roman nations, is a clear distinction seen between the functions of
the broker and factor.
^ Cf. Van den Berg, "Le Hadhramount" (Batavia, 1886), p. 74.
^ H Busier, "Inst.,'" I, p. 144; Schroder, "D. R. G.," pp. 37, 72, n. 7,
p. 323.
^ Cf. Weinhold, "Altnord. Leben" (Berlin, 1856), p. 450.
426 THINGS [Part III.
For the rest, it may be said that analogous relations corresponding
to the same phase of culture of other peoples developed, so that
frequently the same person was the protector, host, business
intermediary, and interpreter of the alien merchant.^ From
the time that a kingly protection of strangers grew up,^ this
protection became limited in effect to support by testimony in
the courts. This was usually provided for by inviting the agent
to join in the customary drink ^ with which a transaction was
closed, whereby the agent became a witness to the business in
question. It appears, also, that improper inducements entered to
require the foreign merchant to rely on a business agent. In any
event, the laws regulating commerce in the period from the 11th
to 13th century — the regulations conferring commercial privileges
on foreigners, as well as domestic Stadtrecht, which, for the greater
part, designated as competent business agents, the "Unter-
kaufer" or "Litkaufer," ■* — ^ were unfavorable. Their testimony
w^as admitted only in unimportant matters, or when it agreed
with that of persons of consequence.^ Or, only those agents
were competent to testify, who were also hosts of the stranger.^
Again, there were regulations which made their testimony wholly
incompetent ; and, here and there, remunerated agency was
entirely prohibited.^ Yet, at the same time, men preferred to
1 Cf. Pappenheim in "Z. f. Handelsrecht," XXIX (1884), pp. 440-444.
He points out that among the north Germans those who served strangers
as brokers or commissioners, were also frequently called interpreters
(Dolmetscher). See, further, Schmoller, "I'Strassb. Tueher- und Weber-
zunft" (1881), p. 78, concerning the connection between the function of
host and business agent for aliens ; and Ehrenbergin "Z. f. Handelsrecht,"
XXX, p. 414 seq., concerning membership of the "Hostellers" in Brugge
in the guild of brokers, and the natural relation between these callings.
2 Cf. Heusler, ''Inst.," I, p. 145.
^ Cf. Schroder, "D. R. G.," p. 54; Grimm, "Deutsche Reehtsalter-
thiimer," p. 191.
^ Example of such provisions will be foimd in the citations entered
below; also in Goldschmidt in "Z. f. Handelsrecht," XXVIII, p. 118.
The term " Unterkauf er " shows that in Germany a business agency for
aliens was connected with the termination of a business in the agent's name
for account of the alien. The origin of the term "Litkaufer," however,
is as follows : on the conclusion of a transaction where performance still
remained to be made, a light repast was served to which the agent was
invited. At first, there was used a home-made wine (lit) ; therefore the
transaction was also called litkouf. Cf. Schroder, "D. R. G.," and also
my " Hansgraf enamt " (1893), p. 58, note 75.
^ Cf. "Wiener Stadtrechtsbch.," art 110 (ed. Schuster, Vienna, 1873),
p. 106 ; Stdr. Leopold VI for Vienna c. 21 (Rechtsquellen der Stadt
Wien, 1877, Bd. I, p. 13).
« Ibid., I, p. 2.
^ Cf. the examples given by Laband in "Z. f. deutsehes Recht," Bd.
XX (1861), p. 24, notes 65, 66; also "Bremisches Urkundenbuch "
(1873), I, p. 142.
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 427
swear in to a faithful performance of his duties an " Unterkauf er "
of good report, and avoided giving the function of business agency
to others.^ In this manner, the institution of the sworn broker
arose in Germany. It did not proceed from the authentication
of officers commissioned in commercial matters, which first con-
cerned itself with business agency per abusum.- Neither is its
origin attributable to a reception of Italian commercial law ;
since this law itself adopted the notion of the "Sensale" [licensed
broker] from Oriental commercial u.sages.'^ Here, as elsewhere,
the same necessity has, in an entirely dift'erent locality, brought
forth a similar institution. Thus, it is possible to supph' the
vacancies in the evolution of this important commercial institu-
tion in German legal history, by comparison of related forms in
entirely foreign countries.
The same is true with respect to the origin of the market law
of the jMiddle Ages. Eminent investigators represent the view
that, primarily, Germanic market law must be referred to the
King's Peace which has a connection with Market Peace.'* But,
if the notion is permitted to assert itself, that economic necessi-
ties must be considered as peculiarly decisive of these questions,
then it will seem probable that a special IMarket Peace has existed
even among peoples not living under a monarchical constitution.
Indeed, originally, the market did not involve territorial power, and
1 See examples in Schmoller, "Strassb. Tueher- und Weberzunft,"
p. 78, n. 2, and Gengler, " Stadtreehtsalterthiimer " (Erlangen, 1882),
p. 464, n. 48. Since it was desired, in the interest of other merchants,
not to give the sworn broker an actual legal monopoly in the consumma-
tion of the affairs of strangers, it was necessary at the same time to pro-
hibit them from executing a transaction in their own names. Thus is
explained the prohibition considered, as an essential in the legal concep-
tion of the sworn broker, and also the complete separation of this function
from that of the factor. Cf. Laband, oc. cit. (note 7, p. 426), pp. 25, 26,
and the parallel in Islamitic law (note 3, below).
2 As is well known, Laband represents this view (see note 7, p. 426),
which is followed by Struck, "Die Effectenborse" (Lpz., 1881), pp. 188-9.
^ One might erroneously arrive at this notion from the article above
cited (p. 426) of Goldsehmidt. Yet, it will appear from the discussion,
taken in connection with Goldschmidt's sources, that there was an extraor-
dinary similarity of development with reference to the commercial broker
in German, Italian, and Islamitic law. Touching the last, compare, also,
Behrnauer, "Memoires sur les institutions de police chez les Arabes"
(Paris, 1861), p. 187. According to this work, in the states of Islam in
the 13th century, brokers were nominated and controlled by the Chief
of Police (Muhtasib). They were rigidly prohibited from doing business
on their own account.
* Sohm, "Entstehung des deutschen Stadtewesens" (Lpz. 1890), and
Kuntze, "Die deutschen Stadtgriindungen " (Lpz., 1891). The latter
even attempts to prove that market freedom first arose out of kingly munic-
ipal peace which itself is referable to Roman connections ; c/. my recen-
sion of the book in "Z. f. v. R."
428 THINGS [Part III.
the market visitors themselves, in the beginning, provided for the
maintenance of the Market Peace. The marketers were not united
in any kind of association except the interest of maintaining the peace.
Thus, by way of example, in central Africa, periodical market-
days are held "on neutral territory in the heart of the primitive
forest." The otherwise hostile tribes, the Boluas, Balubas, and
Baketes, meet here together in amity. ^ In Bogelo in the northern
part of East Africa a daily market is held in a large inclosed
place outside the village. This place is regarded as neutral, and
not as belonging either to the inhabitants of the village or to the
other visiting tribes.^ Various North-American Indian tribes
also met in market commerce at a place on the INIississippi, re-
garded as neutral territory.^ Furthermore, ancient mythology
points out similar conditions in the founding of European peoples.
At any rate, two eminent investigators, Lubbock and IMaine,
explain the well-known fact that the Helleno-Italic god Hermes
or Terminus was at once the god of boundaries and merchants,
by the circumstance that markets in these places, at first, were
held on neutral territory.'* Finally an institution of the Kabyles,
among whom, notwithstanding the acceptance of Islam, many
primitive legal establishments maintained their integrity,^ is
of the highest importance for the question of the origin of JNIarket
Peace. Although there these markets were, as a rule, subject
to the power and regulation of a definite tribe,^ yet punishment
1 Ludwig Wolf, in "Z. f. Ethnol.," XVIII (188G), p. 726.
2 Munzinger, "Ostafr.," p. 519.
' Carver, "Travels through the Interior Parts of North America"
(London, 1778), p. 99. In connection with these observations it is shown
by Klemm, "Allg. Cultiirgesch.," II, p. 133, and after him bj' Kulischer,
p. 382, that similar legal customs existed among the Indians of Chili.
Here, the market, however, is for the Indians and Whites ; cf. Poppig,
"Reise dureh Chile," etc. (hpz., 1835), p. 377. On the other hand,
reference may be made to the declaration of peace in the market assem-
blies of Guzula on the West African coast. Yet, of course, the tradition
for this fact, for Avhich Kulischer, loc. cit., gives Bastian, "Rechtsv. bei
verschiedenen Volkern" (Berlin, 1872), p. Ixix, n. 63, as authority,
is little to be relied upon, since it is separated by a period of nearly two
centuries from the occurrence reported.
* Lubbock, "Origin of Civilization," 2d ed. (London, 1870), p. 220;
Maine, "Village Communities" (London, 1876), pp. 192-3. It is
noteworthy that Maine reconciles the fact that Hermes was also god of
thieves, with the speedy conviction and severe punishment of thefts
committed in the market ; while this fact had frequently, and erroneously
as well, been explained as resting on the small trust put in the honesty of
merchants; cf., for example, Roscher, "System," III, p. 67, n. 14.
^ Cf. Hanoteau and Letourneux, "LaKabylie et les coutumes Kabyles,"
(Paris, 1872), II, p. 135 seq.
^ Ibid., II, p. 78 seq. Sometimes, also, two tribes establish a common
market, and exercise in common the right of control over it (ibid., II,
p. 78).
i
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 429
for violations of ^Market Peace was inflicted, frequently in the
most primitive way, by the marketers themselves.^ ^^^len
anyone calls out that a murder has been attempted, or theft, or
an imposition committed against the peace of the market, then
all the bystanders attempt to stone the real or supposed culprit.
The market master of the tribe having the control of the market,
as a rule, exerts himself to save the accused from this kind of
justice. Sometimes he succeeds, and then the accused is tried
by judicial procedure. Of course, the market master desists
at once in his attempt to rescue the culprit, if he regards him as
guilty, or thinks it improper to defend him. If the accused is
a person of influence, then his friends intervene, and the market
becomes the field of a bloody fight.^ Thus, this method of
securing ^Market Peace by instantaneous blood punishment of
all disturbances, is the most primitive and completest method
of securing peace.
These customs conspicuously suggest the most ancient legal
conditions known of the Greeks and Germans. Here, in the
beginning, public criminal justice was limited to "intervention
by the public as to offenses of special evil." But then the "com-
munity did not proceed by way of a defined" procedure, but
acted as an "unregulated mob assisting the person injured in
self-help" or considered it a duty to destroy the person who had
set himself in opposition to the institutions of peace, the same as
if he were a wild beast.^
Concerning protection of the jNIarket Peace by the visitors to
the market, which, of course, is brought about in a different way,
we also have information from Berbera. There, if a stranger
is murdered, the merchants all go away, and do not visit the
place again until full settlement of the blood debt is made with
the heirs of the murdered person.^
Also, when breaches of the INIarket Peace are not disciplined
by the market traders, by an immediate blood punishment,
and regular measures govern such cases, even to-day, in primitive
countries, as in Germany in the ^Middle Ages, the same crime
is more severely punished if committed at the market than out-
side the market. For instance, the local customary usages and
statutes of the Kabyles, as a rule, provide for severer punishment
1 Ibid., II, p. 81 ; III, 302 seq.
2 Ibid., Ill, p. 304 seq.
' Cf. Bcrnhoff in "Z. f. v. R.," I, p. 7 ; Bninner, "Z. d. Sav.-Stft.
Oerm. Abth.," XI (1890), pp. 63, 64.
* Haggenmacher, loc. cit. (see note 4, p. 423 supra), p. 37.
430 THINGS [Part III.
of offences committed at the market, in providing for the juris-
diction of the market-master. Theft is punished not only by
the customary money penalty, but also by the disgraceful discipline
of burning the clothing and cutting the beard of the culprit.^
It is especially worthy of remark, that among the Kabyles the
visiting stranger is considered as under the protection (anaia)
of the tribe to which the market belongs, not only while he is
visiting the market, but also in going and returning.- Offences
against ^•isitors going or returning from the market receive the
same punishment as if committed at the market ; and such of-
fences have frequently provoked bloody quarrels among the
Kabyle tribes when the home tribe of the delinquent has refused
to deliver him up to the market authorities.^ In the market of
Berbera, also, breaches of Market Peace are more severely pun-
ished. If the peace is broken by a quarrel in the market-place,
both sides must pay a penalty fixed by the common assembly
of the home tribe. All grosser offences are punished by death. ^
Wlien a dispute arises, the parties at once withdraw from the
market-place, and at some distance from the market, end the
quarrel — often with knives and daggers.^
In addition to severer punishments for crimes committed at
the market, the Market Peace also extends to give immunity, to
those present at the market, for previous offences. In Berbera,
no one may take blood-revenge at the market ; ® and in the
markets of the Kabyles any killing by way of blood-revenge is
treated on the part- of the market associates in the same way as
any other crime.'' If a merchant in Berbera recognizes goods
put up for sale as having been taken from him by robbery, he may
not even so much as make claim to them against the robber.*
In the market in America, to which reference has been made,'
hostile tribes associate together on terms of peace.
The markets which have been so far considered are all either
held in neutral territory or concern peoples still living under a
primitive clan constitution. If we find, under these conditions, a
Market Peace with all the essential attributes already developed,
1 Hanoteau and Letourneux, III, p. 303.
2 Ibid., Ill, pp. 108-9. The same custom extending market protec-
tion to the coming and going of market visitors is well-known in German
law; cf. Waitz, "Deutsche Verfassungsgesch.," VII, pp. 378-9.
' Hanoteau and Letourneux, III, p. 109.
* Haggenmacher, p. 37. ^ Burton, op. cit. (note 4, p. 423 supra).
^ Haggenmacher, p. 37.
' Cf. Hanoteau and Letourneux, III, p. 303.
* Haggenmacher, p. 37. ^ Carver (see note 3, p. 428 supra).
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 431
it seems incorrect, therefore, to refer it to a people with a monar-
chical constitution — where a special peace obtains near the
king,^ and where at the market the king's presence is fictitiously
assumed.^ When the market is altogether under territorial
authority, then so long as the clan constitution ^ prevails, the
village community maintains the peace of the market and collects
the revenues therefor, but as soon as a competent kingly power
arises with the rudiments of state organization, then the main-
tenance of peace and the revenues appertain to it.
It has already been pointed out, that in Berbera the common
assembly fixes the penalties for the lesser offences against the
Market Peace, and that the consent of this authority is necessary
in order that an "Abban" may be changed.'* This assembly
also has jurisdiction over capital crimes, and levies on each moor-
ing vessel a definite money tax.^ It consists of all male adult
members of the Somali tribe, Rer Achmet Noh ; in which tribe
only those persons are regarded as adults who have killed an
enemy .^ At Emberria, also, in the land of the Wanikas in East
Africa, the village community is the protector of the Market
Peace ; it receives the oath of the captains of the visiting caravans
that they will respect the peace.^ As has already been observed,
the markets of the Kabyles are subject to the authority of a definite
tribe, which selects the master of the market, fixes the punish-
ments for breaches of the Market Peace, and regards all visiting
strangers at the market as under its protection. The market-
master, however, is vested only with police and criminal juris-
diction.^ When disputes ari.se in civil matters, the parties resort
to the "Aiem" (the sage) of the market, a Marabout (priest)
who resides at some distance from the market.^ He, likewise,
is appointed by the tribe which controls the market ; but every
visiting Marabout may claim the privilege of participating in
the judgment, with an advisory voice. ^° The jurisdiction of the
Alem is not, however, exclusive ; the parties may resort to a
■ The same phenomenon is found, moreover, in German and Anglo-
Saxon law, also in Celtic, Polish, Chinese, and ancient Peruvian law ;
cf. Post, "Bausteine," II (Oldenb., 1881), p. 249.
2 The view of Sohm (see note 4, p. 427, supra).
^ Thus appropriately called by Post ('''Aufgaben," p. 38), to distin-
guish it from conditions when there appear the rudiments of a state con-
stitution in which "a people lives in a small community essentially inde-
pendent of others, or connected with others only by agreement."
* See above, p. 424. » Haggenmacher, p. 37. « Ibid., p. 36.
^ Krapf, pp. 273-4.
^ Hanoteau and Letourneux, II, pp. 80-1.
» Ibid., p. 82. 10 jbid,, III, p. 37.
432 THINGS [Part III.
referee ; and when they are from the same village, they may take
the law of the home court. ^ On the other hand, disputes may
be adjudicated before the Alem, of matters not originating at the
market.^
The procedure is usually brief. The plaintiff and defendant
speak; the witnesses are heard, who either appear voluntarily,
or are produced by the master of the market; and then follows
the judgment which as a rule makes the final decision dependent
on an oath of the parties judicially administered. The judg-
ment is executed not by the Alem, but by the market-
master.^ If the judgment debtor cannot or will not pay at
once, execution follows, by means of which his goods, and con-
tingently his clothing, are attached in favor of the judgment
creditor.
It is worthy of note, that the tribe to which the market belongs
establishes special officers for the measuring and weighing of
merchandise. These officers are compensated by fees paid by
the traders,^ Sometimes, these offices are sold by the masters
of the market.^ Otherwise no taxes are levied, except that,
when the tribe with dominion over the market has a school, a
small portion of meat of all animals killed at the market must be
delivered to it.^
Thus, among the peoples considered, so far as there do not ap-
pear remnants of the protection of the peace by the assemblage
of the traders themselves, the Market Peace is controlled by all
the members of a primitive village or tribal community and the
officers appointed by it. On the contrary, it may be regarded as
an universal legal phenomenon that where a vigorous chieftain
or kingly power has developed, it assumes the function of
regulating the markets. Kingly market sovereignty existed to
some extent, perhaps as early as in time of the dispersion of the
peoples,^ and in developed form, at all events, as early as the
Carolingian period.'' Royal protection of Market Peace is found
very early, in fact before the influence of Germanic law, among
^ Hanoteau and Letourneux, III, p. 38. ^ Ibid., Ill, p. 39.
3 Ibid., Ill, p. 38. " Ibid., II, p. 79. ^ Ibid., II, p. 82.
6 Cf. Eugippius, "Vita S. Severini," e. 22 ("Mon. Germ. Auet. Ant.,"
II, p. 19), aeeordiiig to which residents of a Roman city desired to go to a
neighboring German prince to receive permission to trade in his domain.
Against the view that ' ' there were no markets in ancient G ermanic so-
ciety" (Da/m, "Deutsche Geschichte," Bd. I, Th. 2, p. 707), cf. Eugipp.,
op. cit., cc. 6, 9.
^ C/. Eoi^(7en, "Entstehung der Markte in Deutschland" (Darmstadt,
1881), p. 9 seq.; Schroder, "D. R. G.," p. 186.
Chap. XXIII.] PRIMITIVE COMMERCIAL LAW 433
the Slavs ^ and Magyars.- Among the Chinese ^ and the peoples
of Islam/ officers of the ruler are found caring for the regulation
and law of market commerce. In primitive cultural conditions
there may be found a developed market-police ; thus, especially,
in the capital city of the Bautshi in Sudan, living under a monar-
chical system of government. The Ssersi-n-kurmi, in all proba-
bility a royal officer, is seen daily at the market. He decides all
barter disputes, and sees to it that only unadulterated milk,
and that only flesh separated from the bones, are offered for
sale.^ In the kingdom of the Bomas on the Loango coast, a
special royal officer was vested with supervision over the market
as early as the previous [ISth] century; it was his function to
oversee all the commerce between the natives and the Europeans,
and to prevent trading between native-born slaves and Euro-
peans.^ Lastly, reference may be made to the conditions in the
kingly territory, Whydah, in Guinea. It was already reported ^
in the previous century that there a special royal officer heard
all complaints between buyers and sellers at the market, and
decided by summary procedure. The still primitive medium of
exchange was also under the control of a royal officer in Whydah.^
Just as in the case of the public (State) law and criminal law
foundations of the regulation of market commerce, so also in the
construction of the standards of private commercial law, there is
seen a surprising similarity among widely separated peoples. It
must be conceded, that for the lowest stages of culture there is
almost an entire absence of information concerning private com-
mercial law, if we except the institution of the broker, discussed
above, who is also a protector of the alien, and the special form of
company law of the caravans,^ where certain elements of public
law still play a part. It is certain that this is due in no small
degree to the fact that under such conditions civil law and com-
mercial law are nearly synon^Tiious. But it requires to be men-
1 Cf. Tomaschek, "Deutsches Recht in Oesterreieh" (1859), p. 71.
^ Fessler, "Gesch. von Ungarn" (Lpz., 1867), I, p. 192.
3 Biot, "Le Tseheou-Li" (Paris, 1851), p. 309 seq.
* Bchrnauer, op. cit., p. 138 seq., 184 scq., 187 scq.
^ Rohlfs, "Quer durch Afrika," II (Lpz., 1875), p. 100, and in Peter-
manrCs "Mitth. Erganzungsh.," VII, No. 34, p. 36.
^ Proyart, "Histoire de Loango" (Paris, 1776), p. 124; cf. also Bastion,
"Die deutsehe Expedition an der Loangokiiste" (Jena, 1874), Bd. II,
p. 40.
'' Labat, "Voyage du chevalier des Marchais en Guinee" (Amsterd.,
1731), II, pp. 162, 163.
^ This phenomenon is better treated in another connection ; cf. Ku-
lischer, p. 385 seq., Haggenmacher, p. 32, Munzinger, p. 124, Kohler,
"Rechtsvergl. Studieu" (1889), p. 171.
434 THINGS [Part III.
tioned that among the Kabyles there existed local commercial
usages. In a period now left behind, in the markets of the tribes,
Ait Yahia, and Akbil, the actio redhibitoria on account of latent
defects in goods sold, was not admitted in the sale of cattle.^
It hardly needs to be suggested, that, also, in Germany, notwith-
standing the existence of a general commercial law, special com-
mercial usages, and many special commercial statutes, for a long
time governed the markets.
Much greater analogies are found in the private commercial
law of developed legal systems, even when full allowance is made
for the wide reception of foreign law, and the leveling process in
commercial legislation of modern peoples. It will here suffice
to point out the similarity between Germanic commercial law of
the later Middle Ages and Indian law. According to the code of
jNIanu,^ one acquires "ownership of an object who buys it at the
market before witnesses," whether the seller himself was the
owner or not. This corresponds fully with the fact that, in the
later Middle Ages, "whoever buys a stolen article in the open
market, is protected against the claim of the true owner." ^
These examples, however, lie outside our field, in that they do
not any longer represent the theme of primitive law. For this
reason, the writer forbears to discuss the other analogies of this
and later stages of legal development.^ ... In any event, it
may be apparent from the facts introduced by this study that
the field of commercial law involves a fulness of problems, of
interest for ethnological jurisprudence, as well as universal legal
history.
* Hanoteau and Letourneux, II, pp. 79, 390.
2 Book V, Sec. 201 (trans, hy Jolly) ; cf. also Maine, "Earlv Law and
Custom," pp. 194, 195.
3 Heusler, II, p. 215; Schroder, "B. R. G.," p. 664.
^ It may be added, that in China, the raising and lowering of a flag
was a signal for the beginning and ending of Market Peace, precisely as
was the case in many German places ; cf. Biot, p. 213, No. 5, with Schroder,
"Rolande," pp. 16, 23 seq.
Chapter XXIV
BARTER AND TRANSFER
Section 1
BARTER 1
1. Barter is based on the idea of equalizing values. A man
gives something and receives something in return, and this relation
of giving and receiving is not governed by chance ; rather, the
persons stand in an economic relation to each other, a relation
in which values are equalized. The tertium comperationis of both
acts is the equivalence of their value.
2. The barter value is not the same as the value in use ; for
it is not the value that is determined by the individual's need,
but the value that is fixed by the social function of the article
in general commerce. Under value in this sense, we understand
the extent of the economic worth of an article, which is determined
by its comparison with other wares and their economic uses. It
is incorrect to say (with Marx) that value always corresponds
to the labor that the article represents. Value is rather deter-
mined by a whole series of social factors : the demand for the
article, the effort to obtain it, the greater or lesser frequency with
which it is offered for sale, the facility with which it is obtained
and its greater or lesser rarity, w^hich is by no means only a matter
of labor conditions but is rooted in natural circumstances. All
these factors will affect value, and will cause the thing — even
though it may always represent the same amount of labor — to
assume sometimes a greater, sometimes a lesser social importance.
3. It is not only need that is of importance in barter. A num-
ber of other, mainly psychic circumstances come under con-
sideration, especially the human love of variety which is strongly
developed, particularly in nations that have little self-control and
' [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
435
436 THINGS [Part III.
little mental culture. Men grow tired even of what is best and
most beautiful and want something else. Then, too, the psychic
needs that are esthetic or partly esthetic in their nature have to
be considered. People want what dazzles and attracts them,
what appeals at the time to their sense of beauty, or rather their
mental aspirations. The sudden, unaccountable popularity of a
thing, the immeasurable attraction that some article has for
people, often plays a great part.
4. It is a misconception to assert that barter grew out of the
division of labor. The division of labor naturalh" increased the
need of barter ; for whereas, formerly, it might have been possible
for the individual to satisfy his own needs and longings himself,
it ceased to be so as soon as the individual was limited to the pro-
duction of certain definite wares. It is true only, that while
otherwise the tendency favoring barter transactions was based
more or less on chance, the whole system of economic production
made it essential.
5. The backbone of barter is, as has been said, the equalization
of value. This idea of equalization increases, as soon as articles
are produced which are not regarded as a means of satisfying
personal needs, but are intended to represent values. Wliile,
otherwise, value is an .r which is contained invisibly in the objects
a and b, value now, at least on one side, appears openly. It is
no longer an .r but a certain quantity, v, and the question of value
which otherwise comes under consideration in respect to both
the objects a and b (because in both value lies invisibly dormant),
need now be considered only in connection with the article a,
since the exchange value of the value-representative, v, is given,
representing clearly and unmistakably to everyone a definite
value. In this way money originates. This not only means
great progress in the valuation of things, it being possible to
reduce the value of everything to a money unity, just as when
we bring all fractions under one denominator ; ^ but a second
advantage is involved, — an advantage with the most momentous
consequences, — that the value-representative, money, is not,
at the same time, a means of satifying any one special human
purpose. If one who wishes to dispose of article a, wants to
obtain article b, he must, in a period in which barter is the only
means of commerce, seek a person who wants article a, and at
the same time has article b to dispose of. In other words, the
transaction as regards a and b depends upon chance — chance
1 "Einfiihruug in die Rechtswissenschaft," p. 69.
Chap. XXIV, § 1.] BARTER AND TRANSFER 437
on both sides, in fact — for the sale can only take place if one
individual wishes to dispose of a and obtain b, and the other wishes
to obtain a and dispose of b. This is, of course, a powerful obstacle,
and not only imposes difficult conditions on the barter transaction,
but necessitates a great deal of human effort, till finally, an op-
portunity is found that combines both requirements. -.
It becomes necessary to eliminate this chance, and one of the
principal means of accomplishing this is the introduction of money ;
for if one wishes to dispose of article a and obtain article b
he has only to find a person who wants a, and will give him the
value-representative, money, for it. With this value-represen-
tative, he can now seek some one else who Welshes to dispose of
article b, and in this way he succeeds in acquiring article b instead
of the article a which he possessed. Here the contingency is
only on one side ; the sole chance is, that some one wishes to
acquire article a, and further that some one else wishes to dispose
of article 6. Separated in this way, the contingency is much more
easily overcome than when it is combined. If the simple chance
occurs in perhaps fifty per cent of the cases, the combined chance
occurs in only about ten per cent of the instances.
6. In order that money may come into use, things must enter
into commerce that are most generally used, and which are fairly
uniform in value. When this is the case, the custom will gradually
grow up of giving an article for such an article of general use, which
is much easier to find and circulates more freely in commerce than
any other. \\Tien it has become usual, instead of satisfying one's
wants directly by barter, to seek first for such an article, and
then to find the man who wishes to dispose of the thing desired,
the peculiar use of the article will be less and less considered, and it
will become more and more a representative of value until finally
it comes to be regarded only in the latter aspect. Among peoples
that live by hunting, such articles are chiefly animals' pelts, which
everyone needs; among cattle-raising peoples, cattle. Different
kinds of animals acquire a general value-significance ; small cattle
(calves, sheep, goats, and pigs) represent a certain value, large
cattle another; and, as medium sized animals are the standard,
the size of the individual animals does not matter. This is made
especially easy among pastoral tribes, by the fact that one shepherd
has all the animals of the place in his keeping ; so that the transfer
can be made simply by re-branding those that have changed hands.
The disadvantages of using animals in this way appear as soon
as the institution of money becomes more developed ; for then
43S THINGS [Part III.
money must not only be a representative of value, but also a
means of keeping or storing value, and a means of dividing it.
This presupposes that the articles have a certain permanency,
and do not decay after a time ; also that the}- do not require con-
stant attention, as is the case with animals. Thus, instead of
pelts or animals, leather money comes to be used. Hence, also,
some nations use shells and other permanent objects of value-
But it should also be possible to represent different degrees of
value, from the smallest to the greatest, for if the objects a, h, c,
having different degrees of value, are exchanged, the value-repre-
sentative must be such that the value of a, h, c, can be represented.
This is only possible if it is divisible, which is not the case with
animals, but is with leather and shells, inasmuch as a larger or
smaller number can be strung together.
But metals have all these qualities in a much higher degree;
hence, it soon occurs to peoples that have metals to give up all
other value-representatives, and to use only metallic mone}';
ore, of course, at first, and then, when the production of gold
and silver is sufficiently developed, these metals too.
The division of value, when metals are used, presupposes of
course that weighing scales are always at hand, on which the
quantity can be weighed that corresponds to the value ; until
at last, the new idea arises of marking on a piece of metal the
amount of metal it contains, and in such a way that it is universally
credited. Thus coined money originates. Coined money has
two qualities : it is a value-representative in itself, and it is a
value-representative with a publicly announced metal content.
In this way, the public offices that mark the pieces of metal
gain a tremendous influence over money. Soon the idea of
allowing semblance to take the place of reality appears more and
more persistently. The State begins to make out false certificates,
to coin or mint money, that is, to stamp the coin with a higher
value than the true value of the piece of money. If this is done
secretly, and in order to deceive the people, it is immoral and leads
to the destruction of public confidence. Whenever it has been
done in this way, it has always ended in a period of confusion
and disorder. It is entirely different, however, when the sem-
blance is not intended to deceive, when the stamp is not supposed
to convey the idea that the coin contains a certain amount of
metal, but only that it is to be used as if it contained that amount.
In this way fractional currency and paper money arise.
7. Even after the introduction of money one element of con-
CuAP. XXIV, § 2.] BARTER AND TRANSFER 439
tingency still remains, and this element the intermediaries of
commerce seek to eliminate as far as possible. This kind of
commerce consists of acquiring goods not for one's own use but
in the expectation that others will need them. They are kept
in stock on the chance of their being wanted. The result of this
is that if some one wishes to sell article a, it is not necessary for
him to find a person who needs this article ; he has merely to go
to the middleman : and similarly, if he wishes to buy the article
b, he need not seek a person who happens to have such an article,
and is willing to sell it ; he need only apply to the middleman
who, without himself being in need of any special article, disposes
of the object h for money. The progress of culture can be per-
ceived in this process, inasmuch as chance is eliminated as far as
possible, and man overcomes the obstacles that nature and society
throw in his path.
8. At first all barter transactions were promptly and imme-
diately completed, particularly barter between different tribes,
which developed as private commerce. But, even among members
of the same tribe, a thing was given for a thing received at the
time. To give something for a thing that is to be received in the
future presupposes an economic mind that is directed toward
the future, which primitive peoples did not possess, and which
some peoples never attain. \Vlien sale takes the place of barter,
the idea of credit will arise much more easily ; though, even then,
the mind is not able to renounce the idea of a bargain for ready
money. Thus, if a man wishes to buy something and pay for it
later, he does it indirectly by paying the price "constructively,"
and then receiving it again as a loan. By this method two trans-
actions are combined that gradually become one : the "construc-
tive" pajTnent is no longer taken into account, and the return of
the loan is treated as a part of the original transaction.
Section 2
PRIMITIVE TRANSFER OF GOODS i
1. Tribes among whom Commerce is supposed to be unknown
The fundamental fact from which we must start out is that
among all the tribes here investigated, there was commerce not
^ [By Felix Somlo, Professor in the University of Kolozsvar. Trans-
lated by Albert Kocourck from " Der Giiterverkehr in der Urgesellschaf t "
("Travaux de I'lnstitut de Sociologie" [Solvay Institution], I, Notes et
440 ' THINGS [Part III.
only within the tribes but also between tribes. We must, however,
hear the recitals concerning tribes which are supposed to ha\e
known nothing of trade. Grierson has collected a small number
of such assertions. Cook found that the Australians had no idea
of barter. The same fact is deposed by Dampier also, for the Aus-
tralians; by'Le Yaillant for the Hottentots; by Wallis for the
natives north of the Magellan Straits ; by Herrera for the aborig-
ines of America with whom Alonso de Ojeda and Amerigo Vespucci
first came into contact ; and by Labillardiere for the natives of
the Solomon Islands.^ It has been shown, however, for all of these
tribes, that these statements are untrue. It has been the mis-
fortune of many authors, such as Herbert Spencer, and Ch. Letour-
neau," to be misled by such superficial assertions. A. Coste
also maintains that of all social phenomena, barter was the last
to appear and to develop.^ So far as social development can be
traced back, we also find a circulation of goods. This activity
goes parallel with all other activities of social life.
We have come very near to the same conclusion that Grierson
arrives at in his book ("The Silent Trade") where he states that
the custom is almost universal of expecting an equivalent in return
in making gifts ; and that there are many cases where there is an
understanding between the giver and taker that a return gift is
to be made. It is, of course, reported of various tribes that they
had no idea of trade ; yet, it is to be remarked, that in many cases
these assertions are contradictory, and that such an assertion for
all cases, does not mean anything more than that certain Europeans
w^ere not able to trade with certain savage peoples. It is entirely
possible that these instances do not show a lack of knowledge of
trade, but are due to fear, mistrust, or misunderstanding. A
savage may be quite ready to trade with a tribesman when he
would decline any association with a foreigner.^
Memoires, Fasc. 8, Brussels, 1909), p. 155 seq. The primitive societies
examined in this work are the following : The aborigines of Tasmania,
the Botoeudos, the Fuegians, the Andaman Islanders, the Negritos, the
Bushmen, the Seri Indians, and the Veddahs.]
1 Grierson, "The Silent Trade," pp. 20-21 (where the respective refer-
ences are entered) ; cj. also A. Sartorius, " Die Entstehung des Tausch-
handels in Polynesien," "Z. f. Sozial u. Wirtschaftsgeschichte," IV,
1896, pp. 5-9.
'Spencer, "The Principles of Sociology." London, 1897, 111,380-1;
Letourneau, "L'evolution du Commerce," Paris, pp. 6, 10, 24.
' Adolphe Cosie, "L'Experience des peuples," Paris, 1900, p. 197.
* Grierson, "The Silent Trade," 39, 40.
Chap. XXIV, § 2.] BARTER AXD TRANSFER 441
2. Exchange of Gifts
We find not only that barter is known to all these primitive
peoples, but that there is also considerable commerce between the
tribes and, likewise, among the individuals of these tribes. This
circulation of goods is not always based on the juristic plan of
barter familiar to us. Yet the juristic form of these transactions
is only of secondary importance. Too much weight has heretofore
been ascribed to juristic form. Because the legal form of barter,
as we know it, has not been found among these peoples, it has been
concluded that the fact of exchange of goods did not exist. The
gift, it is true, was found, but since in our economic life it has no
great importance, it was supposed, in like manner, that it also had
no importance as an idea of primitive peoples. Incidentally, it
may be observed, that to denominate these primitive transactions
as gifts is not accurate. Such a transaction is neither our form of
gift nor our form of barter, but lies intermediate between them.
It is a legal transaction rigidly circumscribed by definite rules and
is the primitive form of gift and barter in the modern sense. Both
■ have evolved out of this original undifferentiated institution. It
is a mistake, therefore, to call these primitive transactions gifts.
They resemble gifts in this, that at first there is a one-sided giv-
ing corresponding to a one-sided taking, and that the amount of
the gift, as well as the gift itself, depends on the one-sided act of
the giver. They resemble barter, however, in so far as the gift
is made with the expectation of a gift in return which return gift
is one of the most stringent customary duties. Custom regulates
the value of the gift and the return gift by strict rules. It is
therefore proper to call this legal transaction barter-gift.^
]\Iore important than the form, is the fact that the legal trans-
action is widely disseminated among primitive peoples, and has
great economic significance as a means for the interchange of
goods.
3. Origin of the Caste System
The fact of tribal barter, and the division of labor resulting
therefrom, as well as the reciprocal dependence of the tribes on
^ Berolzheimer, "System der Reehts- und Wirtsehaftsphilosophie,"
Munich, 1907, Bd. IV, p. 223, accurately states that " the foundation of
commerce is the offer of a gift with the expectation of a gift in return."
H. Panckow, "Betrachtungen iiber das Wirtschaftsleben der Xaturvolker"
in "Z. d. ges. Erdk.," Berlin, XXXI, 181, on the contrary inaccurately
draws the conclusion that "in this stage, barter entirely misses any direct
connection between performance and counter-performance, and, also,
any concept of its value."
442 THINGS [Part III.
each other, attain significance when combined and connected with
another fact generally known. We know that it is a world-wide
phenomenon which regularly appears, for primitive social organ-
izations to integrate into higher forms. Spencer has even been
able to demonstrate that the higher social organizations never
result from simple extension or development of primitive forms,
but that a combination of lower organizations is always neces-
sary in this process.^ The ways in which this integration is brought
about may be very dissimilar. In one locality it may result from
an amicable union of neighboring tribes in perpetual wars of
defense against an overpowering enemy ; in another, such a new
construction may follow^ permanent subjugation. Let us see w^hat
are the necessary consequences of such an integration between
tribes which during their independence had developed various
tribal industries, and had attained a tribal division of labor ; like
those of Australia, Central Brazil, and the North American In-
dians ; and which, likewise, is an universal phenomenon. At one
stroke, the tribal industries turn to a variety of industries of the
new social unity ; and the different tribes become differentiated
into elements of a greater society with an internal division of labor
now sharply defined, and unknow^n in the earlier stages of devel-
opment. The enlarged social entity, together with the differen-
tiation of function which it conditions, is already in existence in
the independent tribes with different tribal industries, and only
awaits an incidental, external circumstance which, now% in one
form, and then, in another, brings about an integration.^
4. Silent Trade
According to a view widely accepted so-called "silent trade"
is the primitive form of barter.^ . . .
We are unable to share this conclusion. We have seen that
silent trading even among the most primitive tribes is very little
diff'used. Of those discussed [in the original work] only the
Veddahs know this kind of barter. We learned also that silent
trading in Ceylon is an ancient institution which has stood thou-
sands of years and is thoroughly established. Greeks, Persians,
1 Spencer, "The Principles of Sociology," London, 1904, 1,543.
- Ratzel, " Volkerkunde," I, 81 ; Panckow, op. cit. [p. 441 note], pp. 186-7 ;
Rene Maunier, "Vie religieuse et vie economique," Paris, 1908.
^ Thus Post, "Grundriss der Ethnolog. Jur.," II, 628; and Letourneau,
"L'evolution du Commerce," Paris, 1897, p. 529. The latter even de-
rives the barter-gift from silent trading.
I
Chap. XXIV, § 2.] BARTER AXD TR.\.XSFER 443
Arabians, and Chinese have had commercial relations with Cey-
lon, and have used the silent trading method as a custom of the
country. It is highly probable that silent trading among the
Veddahs is not an original institution with them but has been
adopted from neighboring tribes. We may, therefore, assert that
silent trade among the most primitive tribes which we have
examined is not an autochthonous form of barter. In support
of our view that silent trade cannot be regarded as a rudimentary
form of barter, it is significant that while this institution is not
found as a general autochthonous usage among the most primitive
tribes, yet otherwise it is very widely disseminated. Grierson in
his comprehensive examination of this question has demonstrated
that silent trading is not an exceptional peculiarity of this or that
people, but is an institution of the widest diffusion. He collects
accounts of forty tribes which employ this form of barter. . . .
If the data assembled by Grierson also relate to entirely primitive
tribes — aside from the Veddahs only the Kubus of Sumatra and
the Akkas of the Belgian Congo come here under consideration —
yet it is to be observed that these are tribes which have come
into commercial touch with peoples of higher development.
Among the great mass of data, on the contrary, which inform us
of barter transactions of the most primitive tribes among them-
selves, silent trade is wholly unknown. This is sufficient to prove
that silent trade is not the original basis of barter, but that it
belongs to a higher stage of development in the exchange of
goods.^
This shows the vice of the prevailing ethnological method
which chooses to proceed without a classification of social types
and simply assumes that that which appears to be primitive is the
token of the earliest form of society. Thus, it is believed that
nothing can be more primitive than when two persons want to
barter with each other, that they should not meet face to face,
but that they should lay down their wares and run away ; - and the
conclusion is reached, regardless of the people who adopt this
form of barter, that this is the starting-point of barter relations.
One sees how necessary it is for the reconstruction of primitive
society which is still accessible to us to confine our investigation
to the most inferior tribes.
1 See Grierson, "The Silent Trade," pp. 41-50; H. Schxrtz, "Grundriss
leiner Entstehungsgesehichte des Geldes," Weimar, 1898, p. 71.
^ [See Chap. XXIII, p. 421, supra — "Primitive Commercial Law."]
444 THINGS [Part III.
We may incidentally indicate the only explanation which it
seems can be given of silent trading in primitive, ages, by calling
to mind the Ngia-ngiampe in Australia.^ Two children of differ-
ent tribes are mutually estranged by certain ceremonies. They
may not speak together, touch each other, or come near each other.
Such persons take great pains to remain apart from another. As
soon as they reach maturity they become agents through whom the
tribes in question carry on their barter transactions. Grierson,
to whom this fact was not unknown, has nothing to say of it,
except that this kind of barter has nothing to do with silent trade.
He inclines, moreover, to the view that silent trade is an invention
for securing the safety of foreign tribes in their dealings. The
practiced eye of Durkheim perhaps does not deceive itself when
he says, contrary to the views of Grierson, that the ceremonies of
silent trade "are visibly of a religious origin." ^ . , .
Durkheim appears to have hit the right path with this state-
ment of the problem, and by taking the Australian Ngia-ngiampe
for illustration of the origin of silent trading, to have made a dis-
tinct advance. For the religious ceremonies in the barter trans-
action of Ngia-ngiampe are entirely the same as those which are
typical of silent trade. . . .
5. The Payment of Tribute
. . . The various forms of compulsory tribute are well known.
Husband and wife each owe certain material performances to the
other ; the same is true between parents and children ; also, on
the part of the son-in-law to the father- and mother-in-law, and,
less frequently, in the reverse order. In general, every one must
make these performances in favor of a strictly defined order of
relatives, sometimes even to the entire group association. Fre-
quently, also, the tribal associates owe these duties to prominent
individuals, and, in turn, the most prominent and wealthy to the
tribal members. Very often, a rigidly defined class in the tribe
must make performances in favor of another class ; and lastly the
younger people to certain elders. These duties of giving tribute
are all of a compulsory character, and may appear in the most
diverse juristic forms. It may be a duty of liberality which,
however, may be in performance of an external prescription, as
well as an inner compulsion. Again, it may be a parental or a
1 Cf. Howitt, "The Native Tribes of South-East Australia," p. 181.
^Durkheim, "L'annee Sociologique," Paris, 1905, VIII, 485.
Chap. XXIV, § 2.] BARTER AND TRANSFER 445
filial duty. Furthermore, tribute may be given in the form of
religious ceremonies. The occasion may be nuptial, pre-nuptial,
or post-nuptial. Many forms of tribute relate to the event of
death ; others are due to the taking of booty, or are occasioned by
certain meetings or ceremonies, or are made obligatory in some
other way through usage casuistically defined for the case.
A phenomenon of primitive circulation of goods of special
interest, and hitherto wholly unnoticed on the part of sociology,
is that which developed about the chieftain. Among the Dieri,
individuals collect a large amount of property in all kinds of
weapons and adornments, which they present to the leading chiefs
in order in this way to promote their own position. Especially
in the more developed tribes of Southeast Australia, who also
have a more developed form of chieftainship, there is a lively
giving and receiving of goods among the chieftains. We learn
even of the miserable Fuegians that they often have feasts where
the host serves, and shows himself to be very generous. . . .
The fact which confronts us, in view of these usages of giving pres-
ents, and tributes, whatever the juristic form may be, is that these
peoples have a developed tribal and intra-tribal system of trans-
ferring goods, and that we can attain no proper idea of their
economic situation without taking this fact into account. . . .
6. Circulation of Goods iciihout Division of Labor
It is generally assumed that distribution of property must be
based on division of labor. Where there is no division of labor,
where all persons produce the same things, there is nothing to
barter ; and there is no occasion for the circulation of goods.
Inasmuch as among the most primitive peoples, division of labor,
and, especially', intra-tribal division of labor on the whole, is
limited only to a sexual distinction, it is supposed that here
there can be no movement of goods except between man and
woman. ^ . . .
On the contrary, the facts show that circulation of goods is not
exclusively connected with division of labor, but rather that a
development of individualized labor cannot come about without
antecedent exchange of property. It is only when exchange has
become a durable practice that the varying phenomena of special-
' Karl Biichcr, "Die Entstehiing der Volkswirtschaft," 5e Auflage,
Tubingen, 190(3, p. 62; Berolzheimer, "System der Reehts- u. Wirt-
schaftsphilosophie," IV, 221-3.
446 THINGS [Part III.
ization of production are seen. Barter is the primary phenome-
non, and division of labor secondary.
7. Individual Satisfaction of Wants
According to the prevailing view, primitive society shows us an
economic situation \^'ithout barter. Differences of opinion first
arise in laying a foundation for this view. One extreme has it,
that there is no exchange of goods in primiti\e society because there
was no economic association between individual persons ; each
one standing economically apart from the others. According to
the other extreme, primitive society has no room for a circulation of
goods, and especially none for barter, because the primitive group
w^as the most exclusive economic society. Primitive communism
had no need for exchange of goods.
One extreme is represented by Biicher : ^ "If we eliminate from
the life of the Bushmen or the Veddahs the use of fire, and the bow
and the arrow, there will be nothing left except individual effort
to pro\'ide the means of subsistence. Each one consumes raw
what he is able to lay his hands on, or scratch out of the earth with
his nails — small animals, roots, and fruits. At one time men
gather in small troops or in larger companies ; at another time
they break up their crowds according to the productiveness of the
country or the hunting ground. But these gatherings are not
societies ; they do not mitigate the lot of the individual." " Each
individual consumes immediately what he finds, and there is no
such thing as a common household or home." For proof of this
supposed stage of individual satisfaction of wants, Biicher relies
on the fact that among many tribes there are no common meal
hours "in the family." "Each person is separated from the rest
and it is considered unbecoming to disturb another when eating or
to take food in the presence of a stranger." Furthermore, within
the family nearly every object is individually owned by a member
of the family. "So certain is it that, as to such things, the first
thought is of mine and thine, and so numerous are the observ-
ances which point in that direction, that this idea of ownership
becomes attached to the individual and succumbs with him.
Possession sinks into the grave loith the possessor.'' - . . .
i"Der wirtsehaftliehe Urzustand" and "Die Wirtsehaft der Natur-
volker" in his "Entstehung: der Volkswirtschaft."
2 See, also, H. Schurtz, "Urgesehiehte der Kultur," Leipzig u. Wien,
1900, pp. 212-3; H. Pnuckoic, "Betr. ii. d. Wirtschaftsleben d. Natur-
volker" in "Z. d. Ges. f. Erdk. zu Berlin," XXXI, 178-80.
Chap. XXIV, § 2.] BARTER AND TRANSFER 447
It is perhaps not necessary to say much on the insufficiency of
this description of primitive society. Others have already done
this.^ I may conveniently limit my discussion to the question of
the stage of individual satisfaction of wants.
Of such a stage of evolution we know nothing at all, and we have
no right to assume it. Truly, there is a sharply defined separation
of work between the sexes. Women everywhere have provided
the man with plant food and frequently share to some extent in
the animal food gotten by the man. The youths are obliged to
make provision for the elders. Division of the spoils of the chase
is a matter strictly regulated. Various tribute duties are paid to the
families of women, to the members of the individual's own family,
to the members of certain tribal classes, etc. The pursuit of means
of subsistence is everything, but it is not limited to the individual.
It must be admitted that the primitive family is not found to
be an exclusive consuming unity. Yet, this is not proof of an an-
terior individualist economy. Husband and wife are usually of
different clans. That in many places they do not have a common
meal time is perhaps easier explainable as a condition of exogamy
than as a survival of individual seeking of subsistence. This is
most clearly shown by the fact that not all the members of the
tribe are required to shun each other at meal times. In Australia
a great deal of food must be eaten in public and not by each
individual for himself. ^ . . .
One may see how unprofitable is the customary ethnological
method of which we have already spoken, and which Biicher con-
1 L. Wodon, "Sur quelques Erreurs de Methode dans I'etude de
rHomme Primitif" ("Trav. d. I'lnst. Solvay," Fasc. 4), Bruxelles, 1906;
S. R. Sieinmetz, " Classification des types sociaux" in "L'annee Sociolo-
gique," III, 1900, p. 101.
^ Liimholz, "Reponse au Questionnaire" in "Bulletin de la Societe
d'Anthropologie," Bd. XI, p. 649. [For further examples, from the omit-
ted text, see:] Ehrenreich, "Ueber die Botokudos," in "Z. f. Ethnologie,"
1887, Bd. XIX, p. 31; Ph. M. Rey, "fitude anthropologique sur les
Botocudos," Paris, 1880, p. 79; Hyades el Deniker, "Mission seientifique
du Cap Horn," 1882-3, Tome VII, Anthropologie, Ethnographic,
1891, p. 243; M. Hyades, "Ethnographie des Fuegiens," in "Bull, de la
Soc. d'Anth. de Paris," 1887, X, 328; Man, "Aboriginal Inhab." 327,
344-54; P. Felipe Calayag y Cleynente, "Vida de los Aitas o Negritos,"
1877; L. Meischnikoff, "Bushmen et Hottentots," in "Bull, de la Soe.
Neuehateloise de Geog." 1889-90, V, 81; Passarr/e, "Die Busehmanner
der Kalahari," BerHn, 1907, 57, .58; Featherman, "Social History of the
Races of Mankind," First Div., "Negritians," London, 1885, 529; Mc-
Gee, "The Seri Indians" [see Vol. I of this compilation]; Tennent, "Cey-
lon," II, 441, 444, 445. Cf. Thonnar, "Essai sur le systeme economique
des primitifs," pp. 9-12; F. Simiand, in "L'Annee Soc." VI, 485.
448 THINGS [Part III.
sciously follows. If it is allowable to select at random from the
great mass of ethnological data what appears to be primitive, or
to declare facts so selected to be survivals of a hypothetical prim-
itive stage of evolution without reference to a precedent general
classification of the peoples, then it is possible to prove anything
with ethnology. In such case, it will make no difference what the
facts themselves show, but our conclusions will depend on what
we hold to be true a priori. It is certain, that when we trace back
the course of economic development, the distance traveled from the
production of goods to their consumption, becomes progressively
shorter. It is easy then to represent a primitive situation where
the distance between production and consumption has been
wiped out ; a situation where production and consumption coin-
cide in the same individual ; where there is no movement of goods
at all ; and where there is only individual satisfaction and seeking
of necessities, as Biicher has outlined it. What can be simpler,
what can be more primitive than that situation where every indi-
vidual eats raw food, and where only animal instinct governs to
satisfy necessities limited to the individual and to the moment?
This picture of a primitive economy is, however, purely specu-
lative; it is not the simplest economic situation which actually
has existed ; but is the simplest, the most primitive arrangement
which can he thought out. But the most primitive economic
state cannot, by any means, have had its basis on what has been
thought to be most primitive.^
8. Beginnings of Inheritance Rights
It is likewise widely accepted that in the lowest stages of cul-
ture, inheritance of private property does not obtain. The con-
cepts, mine and thine, cleave, as Biicher assumes, to the indi-
vidual, and perish with him.^ ...
^ [Biicher argues that to limit ethnological investigation to the lowest
stages of culture has the undesirable effect of narrowing the point of view,
and that a reconstruction of institutions is possible by taking into account
social phenomena appearing among developed peoples which "can only
have arisen from the earliest conditions among primitive peoples." The
author objects, in the concluding paragraphs of this division, that this
method leads to the acceptance of conclusions regardmg primitive society
which can not be demonstrated. One of such conclusions is the theory
of individual satisfaction of wants which is not discovered in fact among
the most imdeveloped peoples.]
2 Biicher, "Entstehung der Volkswirtschaft," p. 10. [See to the same
purpose:] Wilutzky, " Vorgeschichte des Rechts," II, 166.
I
Chap. XXIV, § 2.] BARTER AND TRANSFER 449
According to the method which we have adopted, the question
arises, what is the situation as to inheritance rights in the lowest
stages of social development, an inspection of which development
is still possible? We may here recall that among the central
Australian tribes, the Warramunga, Walpari, Wulmala, Tjingilli,
Umbaia, and Binbinga, all the things of a dead man pass to the
possession of men, the brothers of his mother, or the husbands of
his daughter. In other words, everything is inherited by that
half of the tribe to which his mother belongs. The wives inherit
only the digging-sticks. It is customary for the heirs to divide the
goods among others. We may also recall that there is a regular
movement of goods between different tribal groups based on the
event of death. In the Warramunga tribe, for example, the goods
of a Tjunguri go to a Thakomara ; those of a Thakomara to a
Thapanunga ; those of a Thapanunga to a Tjambin ; and those
of a Tjambin to a Tjunguri.^
Among the Botocudos, the weapons and effects of the dead are
not consigned to the grave.^ Among the Fuegians the relatives
of the dead divide everything which he possessed, among his
friends.^ The property of an Andaman Islander goes to his nearest
relatives who within a short time divide it among his friends.'*
Among the Negritos the wife and children inherit.^ . . .
Under these circumstances, may we not question whether the
termination by death of private ownership is a part of primitive
society and the antecedent of the right of inheritance? It seems,
rather, that the widespread fear of death which reached its full
development in later times with the belief in spirits, brought w^ith
it the entire renunciation of the goods of the dead, and that this
situation belongs to a somewhat higher stage of development.
^Spencer and Gillen, "The Northern Tribes," etc. pp. 615-618; [see
ante chap. VII, vol. I, p,. 234 seq. — "The Urabunna Tribe"].
2 See, Ph. M. Rey, "Etude anthropologique sur les Botocudos," Paris,
1880, p. 79; Louis Agassiz, "Scientific Results of a Journey in Brazil,"
Boston, 1870, p. 598.
3 Hijadrs et Deniker, "Mission scientifique du Cap Horn," 1882-3,
Tom. VII, "Anthropologie," "Ethnographie," 1891, p. 379; Bridges,
"Moeurs et Coutumes des Fuegiens" in "Bull, de la Soc. d'Anthrop. de
Paris," 1884, VII, 175; Hyndes, "Ethnographie des Fuegiens" in "Bull,
de la Soc. d'Anthrop. de Paris," 1887, X, 335.
■• Man, "On Andamanese and Nicobarese Objects" in "Journ. of the
Anthrop. Inst." XI, London, 1882, 286; and, by the same author, "On
the Aboriginal Inhabitants of the Andaman Islands," I. c, XII (1883).
* Montana, "Voyage aux Philippines," 1886, p. 71.
450 THINGS [Part III.
9. Primitive Communism
According to the view which we have rejected, there can be no
such thing as a transfer of property in primitive society by reason
of the fact of communism. Thus Engels speaks of " the primitive
communal household of a number, often many famihes." "In
earlier stages of development, there could only be occasional trans-
fers of goods. Special skill in making weapons or tools might lead
to a transitory division of labor. But, in no event, in this stage,
could there be any exchange of goods, except that within the tribe,
and this sort was exceptional." The development of pastoral
tribes first leads to inter- tribal barter.^ . . .
The term communism is not a happ}' designation of the earliest
economic stage known to us. We find rather, simply, strictly
regulated, but not always uniform, distribution of articles of food
in certain tribes, whereby wide scope is left for undivided private
ownership of other objects. This so-called communism is by no
means an obstruction to the movement of goods in the tribes
considered ; but, on the contrary, is a conspicuous example of
primitive circulation of goods. Indeed, it sometimes results in
barter transactions which are made obligatory by custom. Still
the interpretation of primitive economic life as communism, even
though highly inexact, strikes nearer the truth than the view of a
stage of pure individualism.
Naturally, when we compare the beginnings of the transfer of
property with the commerce of modern societies, we arrive at a
very extended meaning of the idea of barter. Modern man pro-
duces almost exclusively to satisfy the wants of others, and ex-
change of goods is effectuated by means of a long chain of inter-
mediate exchange transactions. The distance between producer
and consumer is a great one. On the contrary, in rudimentary
society man produces more largely for his own needs, and where
there is exchange, the chain from producer to consumer is usually
short. Products usually go directly from the producer to the
consumer. Yet, it is not allowable to project this tendency any
farther in order to create a basis of construction where there is
^Engels, "Der Ursprung der Familie, des Privateigentums und des
Staats," 2 Aufl., Stuttgart, 1886, pp. 20, 122. For the error of the notion
of primitive communism, ef. Panckoiu, "Betr. u. d. Wirtsehaftsleben
d. Naturvolker," in "Z. d. Ges. f. Erdkunde zu Berlin," 1896, XXI,
188-90. See also to the same effect as Engels, Letoumeau, "L'evolution
du Commerce," Paris, 1897, (Preface), 25, 527 ; Lafargue, "The Evolution
of Property," London, 1905, p. 43.
Chap. XXIV, § 2.] BARTER AND TRANSFER 451
no transfer of goods, and where it is assumed that pure individual
satisfaction of wants is the exclusive situation. . . .
In that it is impossible to dispose of the production of goods by
the group with the label communism, so, also, we cannot disregard
the movement of goods within the group between individuals.
The group which appears externally as a more or less isolated
economic unity, and which various authors call by the name
tribe, clan, kindred, and most frec^uently, the family, is a compli-
cated structure made up of a variety of producing and consuming
unities. First are the individuals from which the higher economic
form of the group is formed. Next is the family in the modern
sense {i.e. man, wives, and small children) which is an addition by
way of a special economic unity. The family is an exclusive eco-
nomic institution in affairs of the household, but it has a closer eco-
nomic connection and a narrow^er economic dependence on individ-
uals than the group which circumscribes the family as a superior
economic unity.
It is not legitimate even to speak of collective production in
the family ; for also within the family the individuals are indi-
vidual producers who owe duties strictly fixed by custom of giving
parts of what they produce to certain family associates.
The primitive economic situation, therefore, cannot be disposed
of, either with the acceptance of the proposition of individual
satisfaction of wants, or yet with the catch-word, communism or
collective production. We can assent neither to an economically
isolated individual, nor to a group of individuals economically
fused together, as the first stage of social development. In the
earliest period of society we already have to do with a compound
economic group, constituted of mutually dependent economic
individuals and smaller economic groups, which represents the
primitive system of transfer of property.
Chapter XXV
PLEDGE
Section 1
FORMS OF PLEDGE RIGHTS i
1. The pledge may be interpreted in two ways, and has taken
on two fundamentally different forms in the legal systems of the
nations. The object of the pledge may serve to satisfy a debt,
inasmuch as the creditor's claim is settled with it. As yet, how-
ever, nothing final has occurred ; for the debtor still has the
power to redeem the pledge, and until the question of redemption
is settled, the matter remains pending ; but this does not prevent
the pledged object from amounting to a satisfaction. It is so,
if it is the aim of the pledge that the thing shall by the operation
of time, become the property of the creditor. The change of
ownership takes place as soon as the redemption term has passed.
The pledge relation may, however, assume the opposite form,
the object becoming immediately the property of the creditor,
and the redemption being considered an act of re-purchase. The
matter is developed still somewhat differently if, on the expiration
of the term of redemption, the object is, indeed, to be kept by
the creditor, but that he is to make settlement with the debtor
for its surplus value. In this case, the delivery of the pledge is,
everywhere, the satisfaction of the claim.
2. This form leads to the second fundamental interpretation ;
according to which the delivery of the pledge is not in itself satis-
faction, but merely the means of satisfaction. If the creditor
turns the pledge into money and pays himself with it, the idea
is that the delivery of the pledge does not discharge the debt,
but that only the acquisition of the money obtained from the
pledge operates as a discharge. Whereas, according to the pre-
' [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
452
I
Chap. XXV, § 1.] PLEDGE 453
vioiis view, the intrinsic value of the pledged object covers the
creditor, so that afterwards, at the most, an equalization has to
be made. This interpretation requires a sale, before there is
satisfaction.
This latter interpretation has become so predominant, and is
so general in modern law, that we scarcely ever think of the
former interpretation until studies of comparative la\\ remind
us of it. It was, indeed, distinctly present in the Geniianic law,
but it was not found possible to include it under a larger principle.
3. The practical difference between the two views is this :
according to the principle of satisfaction, the creditor at once
takes the risk, and if the thing is destroyed, he cannot make a
second demand on the debtor ; for the surrender of the thing has
settled his claim, just as pa^anent would have done. The thing
is the creditor's satisfaction ; and, if, after being taken it is de-
stroyed, he must of course bear this loss ; just as he would the
loss of money that the debtor had paid him.
The second view is entirely different; for even though the
creditor holds the means of satisfying himself, yet he has not the
satisfaction itself. Thus, if the means perishes, the debtor must
give him another means of satisfaction. The possibility of satis-
faction is not the same as satisfaction.
At most it may be asserted that the creditor to whom the
pledged object is delivered is the depositary of the pledge, and is
liable as such ; and this liability can then be more or less extended,
according to whether he is regarded as a remunerated or unre-
munerated depositary. It accords with the nature of the trans-
action to regard him as a remunerated depositary, as the delivery
of the pledge is made in his interest.
Although to-dAy this last standpoint is universal, a few frag-
ments of the former principle have remained, as, for instance, the
principle of our bankruptcy law, that whoever has a pledge can-
not bring forward his whole claim at the meeting of the creditors,
but only the amount not covered by the pledge ; and, also, the
principle in civil procedure, that whoever has a pledge right can-
not proceed against the debtor in as far as the pledged object
affords him satisfaction, etc.
4. A second important division of pledges is into pledges de-
livered into possession (" Besitzpfand "), and pledges not delivered
into possession ("Xichtbesitzpfand"). In the first case, the
pledge is delivered into the creditor's keeping, so that he is not
merely legally but actually secured. In the latter, the debtor
454 THINGS [Part III.
retains possession of the thing, and the creditor is more or less
dependent on his honesty.
It is easy to understand that, in early times, the pledge was
commonly delivered into the creditor's keeping, because the
measures of the law were weak, and confidence in dealing was
not yet firmly established. This arrangement was also desirable,
because the transaction was then made public to a certain extent.
On the other hand, it has the great disadvantage that the debtor
is thus deprived of the use of the thing : this may possibly bring
his business to a complete standstill. Take, for instance, the
case of agricultural implements given in pledge, without which
the w^ork of the farm cannot be carried on.
And this is not only a disadvantage to the debtor, but a uni-
versal economic disadvantage ; for, as the debtor cannot, and
as the creditor will not, use the thing — and the latter is, perhaps,
unable to use it in most cases — it is impossible for it to be used
at all, and thus humanity is deprived of the service of often very
important wealth.
5. This can be remedied by allowing the creditor to use the
thing, thus making it a usufructuary pledge ("Nutzpfand").
This presupposes, to be sure, that the creditor has a business or
establishment in which the pledge can be used, and this requisite
obstructs one of the main advantages of the pledge : the abstract
nature of its value. Nevertheless, in earlier times, when all the
subjects of the State w^re very similarly engaged, this was more
easily accomplished ; and, in particular, where agriculture pre-
dominates, it is very appropriate, if a pledge consists of land that
it be given over to the use of the creditor ; in which case, of course,
the use of his own land is simply extended to include the pledged
property.
This usufructuary pledge has played a great part, and has
served to make money fruitful, and to weaken somewhat the
prohibition of taking interest : the creditor had the use of the
thing, without the profits of this use being deducted from his
capital, or only a part was deducted, and the remainder com-
pensated him for being deprived of his capital.
This form of the pledge is less practical with movable things;
at least, when there is a great difference between the occupations
or establishments of individuals, so that it is more or less a chance
whether the creditor can make use of the thing pledged.
6. All these circumstances have contributed to bring about
an arrangement whereby the debtor retains possession of the
Chap. XXV, § 1.] PLEDGE 455
pledge, and the creditor is not actually but only legally secured.
When the State has attained a firm development so that the
faithful conduct of the debtor is legally assured, no great obstacle
will oppose this arrangement ; hence it developed in the Orient,
in Greece and Rome, as well as in Germany. It is the Roman
" hypotheca," and the newer principle of German law.
Nevertheless this form has its considerable disadvantages,
because a man's financial condition is thus more hidden than
formerly. No one knows what is pledged and what is not, and
thus a wild chaos of legal relations arises, from which escape is
only possible by the adoption of the principle, that when a person
acquires a pledged thing in good faith it is freed from the pledge.
But the financial condition of the debtor also becomes more and
more uncertain. The man who is supposed to be well oft' is per-
haps already overburdened with pledges ; one evil involves
another, and as each creditor seeks to cover himself as far as
possible, each will endeavor to obtain a pledge of the debtor's
whole property ; in this way the economic relations become more
and more entangled.
The attempt was made to remedy this by publicity, so that
everyone could see from a public record how the debtor's credit
stood. This proved very effective in respect to land ; hence the
publication of mortgages (" Hypotheken ") was adopted in Egypt,
Greece, and later in Germany and in all Germanic countries. It
has not been found as practical with movable things, however.
Two systems have been used, either the system of keeping public
books, which, however, can only suffice where mo\'ables of a
certain durability are concerned, such as agricultural, or manu-
facturing implements; or the system of "marking" pledge-
objects by sealing, etc.
Another disadvantage that arises when the pledge remains in
the debtor's possession cannot, however, be avoided in this way :
this arrangement furthers the debtor's recklessness, and he is led
to overstrain his credit, and pledge everything that can be pledged,
as he suffers no inconvenience at the moment, and the "day of
reckoning" does not come till afterwards.
7. The pledge is not now turned into money by being first
given into the creditor's possession, but is sold, and the proceeds
are gi\en to the creditor, or divided among them, if there are
more than one, according to their priority. The manner of sale,
whether by private sale or public auction, is a matter of legal
technic and belongs to the civil law.
456 THINGS [Part III.
8. A later development displays the following tendency : A
distinction may be made between the original thing and the thing
as it exists after an improvement has been made upon it. The
improvement {ameJioration) can only become separate property
when it is actually separable ; as, for instance, a structure built
on a piece of land. But, if, for example, the land has gained in
value owing to irrigation, or drainage, the improvement cannot
be distinguished from the rest ; in this case, the improvement is
not an addition but an internal alteration. On the other hand,
security rights (" Wertrechte ") may attach to the improvement,
though not in such manner that the right of security embraces
a component part of the thing, while another component part
remains unaffected ; but in such a way that in the exercise of the
right of security, that part of the value which corresponds to the
improvement, falls to the holder of the security. This is the case
w^ith mortgages on improvements ("Ameliorations-hypotheken"),
and they exemplify the great advantages of security rights which
are much more mobile, and conform much better to the interests
of humanity, than the more rigid rights of servitude.
Section 2
THE PLEDGE IDEA: A STUDY IN COMPARATIVE LEGAL
IDEAS 1
The pledge-idea — briefly expressed, that of collateral security
■ — is familiar enough in modern law. But it is distinctly an idea
of modern times. The various known systems of law recognize
it with various degrees of definiteness, according to the social
stage which their development has reached, or had reached when
arrested. The idea familiar to us has grown, in the history of the
law, out of a very different one. The attempt here will be to go
back to the primitive notion of that transaction, and notice its
development and the traces it has left on the law as handed over
to us in its later stages.
To realize the root notion of the transaction, we may put our-
selves in the place of the primitive traders and try to reconstruct
the conditions of their traffic. In the ordinary case of barter
between passing travellers, or at the monthly or half-yearly
markets, A will find what he wants in B's hands, but the equivalent
' By John H. Wigmore, editor ; reprinted, by permission, from "Har-
vard Law Review," Vol. X, No. 6 (1897), p. 321 seq.
Chap. XXV, § 2.] PLEDGE 457
which A has to give may be either not to B's Hking in kind or not
of proper value. They must and will make a provisional trade or
pa\'ment, B taking something of A's that will induce him to sell,
but A having the privilege of substituting later an equivalent not
now available. So, too, when A has injured B, and B seeks self-
redress by his own hands, A may be able to buy off B by handing
over whatever he has that is available, but subject to the right of
subsequent substitution of something more nearly an equivalent. In
short, all transactions of the sort must be cash transactions, be-
cause there is no credit. We know that the absence of credit is a
feature of the times, both from the ethnological study of primitive
surviving communities, and from the fact that credit presupposes
a use, legal or moral (customary), of the force of the community,
which is wholly inconsistent with the private redress notions of
primitive times. ^ One must try, moreover, to realize this absence
of credit subjectively ; i.e. to remember that the seller or claim-
holder is not willing to go away from the spot leaving the matter
unsettled, and trusting to (crediting) the other's future action;
he is going to get something then and there in satisfaction, and
the best allowance that the would-be borrower or the tortfeasor
can obtain is that the settlement shall be provisional in his favor,
i.e. the res given over shall be open to future redemption. The
cardinal feature of the transaction is, then, that the party whom
we should call the creditor goes away with nothing left to claim,
though the (as we call him) debtor has a right of redemption
against the other.
We shall be better able to appreciate the primitive state of
mind if we remember that in at least four important bodies of law
and language the primitive word for the ideas of "pledge," "bet"
(or "forfeit"), and "promise," was substantially the same. In the
Scandinavian we have vaed, ved.- In the Germanic we have ivetti,
wette, ivedde, vadi-um, guadi-um, and (by sliding the di into ji)
wage, guage, gage.^ In the Latin we have pignus in the first two
' Gold Schmidt, "Handelsreeht," I, 29, 20: "In its first stages all circu-
lation of goods is done by barter. ... In the Germanic tribes, in North
Germany even into the 1.5th century, trade on credit is scanty." Com-
pare the following recital of 11.50 a.d. : "Vinum mihi vendidit. . . .
Non habens igitur admanum pecuniam, censum quendam ... in vadi-
monio ei deposui" (Kohler, 120). Compare the ways in which both
Franken (213) and Heusler (II, 131) posit this.
- Amira, " Nordgermanisches Obligationen-recht," I, §§ 28-31; II,
§22.
^ Mcihom, "Deutsches Pfandrecht," 24: Val dc Lierre, "Launegild
und Wadia," 97 ff. ; Diez, "Worterbuch der Romanischen Sprachen,"
s. V. "Gaggio." Our modern word "forfeit" (i'ori'Cf/ja) preserves closely
458 THINGS [Part III.
meanings, and from the same root {irr^'yvvixL) pango, pag, pact-um,
in the third meaning. In the Greek, the verb-stem Oer- (put)
has all three meanings. It is not merely that the words for the
three ideas were the same ; it is much more than that ; there ivas
only one idea for what we now distinguish as three. That is, the
transactions which we now distinguish as pledge, forfeit, and prom-
ise, were then not distinguished at all, and only differentiated them-
selves later and gradually. We may get some slight notion of the
unity by noticing how to-daj' we ourselves say, " I pledge you my
word," and "He pledged his watch" (thus using one word for the
jBrst and third notions) ; or, " I stake my honor upon it," and " He
held the stakes" (using thus one word for the second and third
notions) ; or how the Germans say "pfand" for the first notion,
and " pfandspiel" for a game of forfeits. But of course with us
the ideas are still different, though the words may coincide ; while
with the primitive speaker the one root represented the same gen-
eral notion. We can, however, describe the past only in terms of
our own notions; and, in fixing on the idea which most nearly
represents to us the essence of the primitive notion, we find the
second one to be the chief and suggestive one, i.e. "bet," or, more
closely, "forfeit." The "forfeit" idea is the important one, be-
cause, first, out of it the other two seem to have developed, and,
next, it brings out most clearly the contrast between the original
and the modern idea of the transaction which we now call " pledge."
The "promise" idea developed by transferring the moral emphasis
from the fact that the transaction was settled to the fact that
it was only provisionally settled ; the "forfeit" itself was used as a
mere form, and was subordinated in idea to that which it came to
mark, i.e. the debtor's duty.^
the ved and the wctte form, as does ^'bet" {pace the Century Dictionary)
less clearly; while ''wager" follows the guagium development. In
Scotland, in the 1600's, wed-sctten was still the generic word for a mort-
gage : Skene, " De Verborum Significatione," s. v. " Vadium " (1641). _ Cu-
riously enough, there is a similar coincidence in the verb used, which is
usually a synonym of "put"; saetia in Gothic and Icelandic, setzen in
German, ponere in Latin, Tidr)iJ.i in Greek, ire in Japanese.
^ The connection of the wadimn with the promise idea is no part of the
present subject ; but a reminder of the probable features of its develop-
ment ^vill perhaps make more clear the unity of the primitive root-notion.
We may assume (though this has been disputed) that it is the infra-
judicial wadium promise which was first recognized, and therefore is the
process to be explained. This puts before us the case of a defendant
against whom judgment is given by the assembly ; he finds himself ordered
to pay. How shall he pay? There is no credit; present satisfaction,
provisional or final, is all that creditors of that time take. There are
three primitive ways of gi^^ing satisfaction. One is by handing over
property ; this is simple enough. Another is by self-surrender, working
out the debt if possible. A third is by handing over the body of a rela-
Chap. XXV, § 2.] PLEDGE 459
On the other side, the "pledge" or "collateral security" idea
developed by a similar transfer of emphasis where the res handed
live ; this is natural enough from the debtor's point of view, such is the
sohdarity of family responsibility ; from the creditor's point of view
it is equally natural, for his ultimate hold on the family property or the
corporal servitude of the surety (geisel, pleige, fidejussor) is ample ; and it
is even a question whether this payment by corporal surety was not the
most natm-al early form. At any rate, it would be so where a judicial
sentence of the assembly was to be satisfied ; for property enough the
debtor has jiroliably not with him, and his own freedom he needs in order
to collect what will pay his creditor. He therefore offers one or more of
his relatives as provisional satisfaction. A common form (now accepted as
authentic) for this was : the debtor hands a stick, a glove, etc., as his
wadium, to the creditor, bringing forward at the same time the fidejussor,
and the creditor passes the wadium to the fidejussor. The problem is
to explain this process. A question which all the theories have to answer,
viz. how the wadium came to be a mere valueless artieje, is here answered
by pointing out that the fidejussor was the real payment, — not a surety
in our modern sense, but the substantial substitute for present payment,
and the real reliance of the creditor. Another question next occurs :
Why have the stick-wadium at all? Why not merely hand over the
pleige without the other formality? In fact, we do not find the inter-
vening stick-ivadium in all primitive laws, — not in the Roman, for
example, although we do find the human pledge. But there seem to be
two good reasons which account for it in the Germanic law. One is, that,
as the typical transaction of provisional payment in every-day life in-
volved the handing over of some res on the spot to the creditor, it was en-
tirely natural that this part of the process should persist in form at least.
Another is that the handing of the wadium to the pleige made it possible
for him to get redress against the original debtor if he subsequently left
the pleige to suffer. The debtor could not be thought of as subject to
a levy from another unless the other had some mark of a creditor ; and
the surety would be content with a wadium of nominal value (as the
creditor would not), because family feeling would compel the debtor to
redeem. Thus, the wadium was handed to the creditor as a formal,
though worthless payment, freeing the debtor ; then the pleige surren-
dered himself to the creditor, and thus liberavit wadium, taking it himself.
In later times, the personal surety dropped out of the transaction, because
it was no longer in harmony ^vith social conditions, and because credit
had developed, while the imdium stick or glove remained associated in
form with the idea of plighted faith.
Three facts in particular seem to narrow down the explanation of the
process to something like the above: (1) The wadium was the regular
and proper accompaniment in judgment promises, but was casual only
in extra-judicial promises, — indicating the former as the home of the
form ; (2) the debtor Jiad to give a substantial substitute for payment,
either property or self or relative ; he was primitively never let off with a
mere form, — indicating that the ivadium would never have been allowed
to become a res of trifling value if it had not been accompanied by other
sufficient ^'alue ; and (3) in the judgment-promise with wadium the
pleige always accompanied it, indicating that it was the presence of the
substantial pleige, which allowed the wadium to become of mere nominal
value and paved the way for its becoming a conventional form.
The foregoing attempt to restate the origin of the wadium promise is
of course based only on tlie material that has been pulilished by the va-
rious workers in that field (Sohm, Brunncr, Stobbe, Heusler, Franken,
Val de Lie\Te, Esmein. Wodon, etc.) ; but none of the theories hitherto
(except Heusler's) seem to have taken into account the original unity of
the wed-idea, from which the three branches developed, and a restatement
from that point of view seems to explain certain facts otherwise unac-
counted for. The above statement is substantialb' Heusler's.
460 THINGS [Part III.
over remained of substantial value ; i.e. the idea that it was pro-
visional led to the disappearance of the "forfeit" idea; the origi-
nal claim became ultimately the measure of the parties' rights, and
therefore the debtor could no longer throw the creditor exclusively
on the res for satisfaction, nor could the creditor keep it all in case
of default. It is this progress from the idea of forfeit to the idea
of collateral security which we are to keep in mind as the general
feature of our present subject ; and we may now proceed to the
evidence that this was in fact the course of development of this
legal idea.
The varied aspects of the subject and the richness of the
material make it necessary to keep within narrow bounds. . . .
It is enough to trace the mam idea, and to distinguish the various
transactional forms that throw light on it. The topics will be : —
I. The Forfeit idea, in general, as the forerunner of the Col-
lateral-Security idea. 11. The Hypothec (pledgor's possession) as
distinguished from the ordinary Pledge (pledgee's possession).
III. The Sale for Re-Purchase, as distinguished from the Pledge.
IV. The Vifgage as distinguished from the Mortgage.
After noting the development of the idea in the legal systems
which furnish the richest materials for examining different stages
of the law, the Germanic and the Scandinavian, we may then ex-
amine what evidence there is in other systems, — Jewish, Moham-
medan, Egyptian, Chaldean, Slavic, Hindu, and Japanese ; leaving
to the last the Greek and the Roman, as presenting peculiar diffi-
culties, and the French, as involving an acquaintance with the
Roman.^
1 Until Heuslcr, the true significance of the Germanic pledge law, in
spite of much research and discussion, seems not to have been appre-
ciated. In 1867, von Meibom had established the chief data so as to
clear away most previous errors of fact ; but he saw in the transaction
only an "exchange," and this prevented him from understanding the
complete relation of the facts and their historical changes, and it particu-
larly misled him as to the h.vpothec. In 1882, von. Amira clearly worked
out the chief data for Swedish Scandinavia. But Heusler (in his Institu-
tionen, 1886) was the first to advance the forfeit-theory for Germanic
law, and to state all its bearings, and his analysis (though accompanied
by little evidence) is irresistible in its plausibility and its harmony with
the evidence elsewhere abundant. The statement in the following pages
is substantially an adaptation of Heuslcr' s theory ; though the mode of
presentation is different, and his theory is not to be held responsible for
all the arguments here advanced in its support (especially as to the rela-
tion between the auflnssun(j-Q\sM?>e and the evasion of the duty to restore
the surplus, which does not seem to have attracted his attention). Al-
most all of the passages quoted in illustration have been culled for the
present purpose from earlier publications whose authors knew nothing
of the forfeit-theoi'y.
In 1895, von Amira (in his second volume), writing in the light of
Chap. XXV, § 2.] PLEDGE 461
Germanic and Scandinavian Law^
I. The Forfeit Idea, in general
If the idea above described was that which marked the transac-
tion of primitive times, — the idea of forfeit or provisional satis-
faction, — what would be some of the legal consequences in the
relations of the two parties ? Certain main features would surely
be found.
A. 1. If the pledgor chooses not to paj' (redeem), the pledgee
cannot compel him ; he looks exclusively to the res for payment ;
it is a provisional payment. Hence : a. the pledgee cannot sue
the pledgor, inasmuch as the res is his payment ; b. the pledgee
has no redress if the res perishes by accident ; c. the pledgee has
no redress if at the maturity of the period the res has become less
in value than the original claim, or on being sold leaves a deficit.
2. The pledgee, while thus having the detriment arising from
the res being a payment, has also the advantage ; for on default
the res becomes his in toto, i.e. he is not bound to restore the sur-
plus value.
B. Along with these features, but not peculiar to this trans-
action, is another, whose steps of development have to be noted
in order to distinguish them from the preceding features, and to
explain later problems, i.e. the feature of defect of absolute title,
due to the fact that the transfer of the res, being provisional
only, lacked the auflassung or final abandonment of right by the
Heusler's published view, found it amply confirmed and proved it to be
the key to the West Scandina\'ian development. But outside of these
two fields, the forfeit-idea as the key to the history of the pledge-idea seems
never to have been advanced for any system of law, not even for the
Roman ; and it wUl be the purpose of a later article to test its validity for
other systems.
^The references that follow are to these works: 1855, Stobbe, "Deut-
sches Vertragsrecht " ; 1875, /d., "Deutsches Privatrecht," II, 1 ; 1865,
Neumann, "Geschichte des Wuchers in Deutsehland " ; 1867 v. Meibom,
"Deutsches Pfandrecht " ; 1867, Sohm, "Prozess der Lex Salica" (tr.
Thevenin) ; 1875, Id., "Recht der Eheschliessung" ; 1873, Schulte,
"Lehrb. der Deutsches Reichs-und Rechtsgeschichte" ; 1874, Endemann,
"Roman.-Kanon. Wirthsch.- u. Rechtslehre" [really "Die Wueherlelire"] ;
1877, Val de Lievre, "Launegild und Wadia" ; 1879, Franken, "Franzos-
isches Kandreeht im Mittelalter" ; 1880, Brunner, "Rechtsgeschichte der
Romischen und Germanischen Urkunden" ; 1892, Id., "Deutsche Rechts-
geschichte"; 1881, Weisl, "Deutsches Pfandrecht bis zur Reception;"
1882, Kohler, " Pfandrechtliche Forschungen " ; 1883, Esmein, "Etudes
sur les Contrats dans le tres-aneien droit frangais " ; 1885-86, Heusler,
"Institutionen des Deutschen Privatrechts" ; 1893, Wodon, "La Forme
et la Garantie dans les contrats francs" ; 1882-95, v. Amira. "Xordger-
manisehes Obligationenrecht : I. Altschwedisches R. ; II. Westnordisches
R."
462 THINGS [Part III.
pledgor. Even after default at the time appointed for redemp-
tion, the pledgee's title still has this defect ; and while the other
features are passing into their later stages, we here find the pledgee
successfully endeavoring to remedy this defect; it is this process
that has to be carefully distinguished from the others.
To take up the e\'idence.
A. 1. a. No personal action for the pledgee against the pledgor.^
In the first place, the documents usually do not (as our modern
ones do) mention any obligation of debt as arising from or accom-
panying it;- e.g. "we have pledged the manor of Blackacre for
100 marks." Furthermore, the early documents expressly speak
of the transaction as a "payment," i.e. extinction of a claim.^
Finally, some laws particularly mention the pledgee's inability to
treat the claim as surviving.^ Strong light is also thrown by the
analogy of the transaction which we now call personal suretyship.
The fidejussor (as already mentioned) comes to the front in the
development of the legal promise through the wadia, and the
notable thing about his function is that the wadia is first given,
and then the giving of the fidejussor pays and frees the wadia; as
in the much discussed passage of Liutprand, 37 (Lombard) : " si
wadiam dederit, et antequam eam per fidejussorem liberit," etc.
Furthermore, the whole notion of the fidejussor was that he freed
the debtor, and stepped into his place just as a res would ; thus,
in the Frankish law, the debtor "liber erit, si fidejussor moritur" ;
1 Meibom, 274 ff. ; Heusler, II, 132, 133 ; Kohler, 99, 100, 137.
2 Ibid., 276.
^ '''Cum in solutionem dietaruin 500 marearum . . . turn in recom-
pen sationem damnorura . . . castrum . . . pro 1000 mareis obligavimus "
{Meibom, 278) ; "pro ipsa causa solidus tantus in pagalia mihi dare debu-
eras, quos et in praesenti perwadio tuo visas es transolsisse" (Wodon, 122) ;
"per suum wadium ipsas res . . . reddidit" {Id. 108), and of course the
phrases "per wadium meum componere" and "cum uno wadio emendare"
were common ones for the process of payment by wadium; "ducentas
libras HoUandenses ad [dotem] dicte Aleidis promisimus conferendas, et
pro solutione dicte pecunie eidem obligavimus decimas segetum et minutas
deeimas" {Kohler, 52; this is as late as 1269).
* "I'When one man sues another for a sum of money and the other an-
swers, 'I deny him not the sum which he claims, but he has a pledge from
me [for it],' . . . the former shall use it [the res], and the latter shall re-
main harmless, and the former shall sell the pledge, as is right" (Bayr.
Landr. 240; quoted Meibom, 422). A Lombard commentary on the fol-
lowing formula, "Cujus placiti vadimonia (per usum) debent esse cum
fidejussoribus tacita pena," says: ["If the debtor does not come to trial
as thus pledged,] nou est intelligendum ... is rem unde agitur debeat
amittere ; immo . . . intelligendum est quod penam wadie debeat
solvere"(FaZ de Lievre, 142); and the pains thus taken by the later
scribe to assert that the debtor could not get off by letting his pledge be
forfeited show that the contrary notion had prevailed and was to be
combated.
Chap. XXV, § 2.] PLEDGE 463
the creditor could not sue the original debtor/ and it was only in
later times ^ that he had his choice between the debtor and the
fidejussor; while the question whether he must first seek the
debtor before suing the surety is an essentially modern one.
Again, the fact that, in later times, when other debts were in-
herited, the liability of the fidejussor was not,^ (witness the maxim,
"le pleige mort, la pleigerie meurt,") is apparently best explained
by the notion that his person was simply paid over to the creditor,
like a res, in liberation.'*
The progress to the later stage, in which the liability is recog-
nized as independent of the pledge, came through express contract,
i.e. if there had been an express promise (gelobet) of liability, the
res became merely collateral to that.^
1. b. Xo claim for the pledgee if the res perishes by accident.
This feature was long a matter of dispute ; but the work of ]Mei-
bom and of Heusler has explained all the difficulties, and settled
beyond a doubt the question of fact.^ The fact is equally clear
1 Esmein, 85; Heusler, II, § 126. Sohm ("Eheschliessung," 38, n. 38)
offers the forced explanation that "the surety, because he last received
the wadium, is thus the first in liability" ; but it is clear that he admits
in effect the fact of the hberatory function, for he had already said ("La
Procedure de la Lex Saliea," ed. Thevenin, App. I, and § 5) : "La con-
trainte procedurale, a laquelle donne lieu le refus , s'exerce principalement
contre le fidejusseur, et non centre le debiteur" ; when, moreover, he says,
^'Le debiteur principal reste lie vis-a-vis du creancier; mais Taction du
creaneier est dirigee contre le fidejusseur," the first statement can hardly
be correct if the second is, and the law indorses the second. As late as
the "Schwabenspiegel" (285 b, quoted in Stobbe) we find a rule that if a
pledged animal dies, the creditor has no claim for the debt, unless there is
a surety ; which shows how the surety was assimilated to a res substituted
for the claim.
^ Stobbe, 124-12Q. ^ Esmein, 145; 5to6&e, "Vertr." 132, 195.
■• Another significant notion of the Middle Ages is the "tavern right" ;
by which the tavern keeper was obliged to set out di-ink not only for money
offered, but for pledges offered, provided they exceeded the drink value
bj' a certain ratio; the pledge is payment, and the tavern keeper "may
re-pledge it for the claim, and shall notify the debtor that he may redeem
it, if he wishes, at the place where it has been re-pledged" {Kohler, 13).
5 In the later records, the independent sur\'ival of the debt is of course
fully recognized, although this does not necessarily indicate that the
creditor could look to the pledgor personally. Roughly, there are three
stages : (1) to pay off, per wadium componere, the pure forfeit idea, and
no notion of debt sur\ival ; (2) to pay pro\isionally, the debt survi\ing,
but the res being the creditor's sole resort for payment ; (3) to secm-e in
a purely collateral way. See post.
8 Significant passages: " Sachsenspiegel," III, 5, § 5: "[If a pledged
animal dies ^\^thout the creditor's fault, the creditor] ne gilt es nicht ;
he hevet aber verloren sein gelt, dar it ime vor stund, [for it stood in its place
to him]" ; "Prague Rechtsb." 166: "Er gilt sein nicht; er hat aber ver-
loren sein gelt" ; " Ledebach Privil." : " [If a pledged house burns down,]
si vero domum suam redificare [sc. pledgor] non voluerit, quod remansit
de igni cum possessione dat illi cujus vadimonium prius fuorat, et sic se
absoluat ; creditor postea, quantumcumque debiti superest, ?iihil amplius
464 THINGS [Part III.
in Scandinavian law.^ This rule points clearly to the notion that
the res is provisional payment. If the pledgee had been merely
compelled to deduct its value from his claim, this result might
well have been explainable on some theory of a counter-liability on
his part as bailee of the res. But the treatment of the res and
his claim as equivalent shows clearly how the res is regarded as
measuring the claim, as representing it, as having in effect paid
it by forming the sole resort of the pledgee for satisfaction.^
h'. The next stage is reached by the aid of an express contract ;
i.e. the pledgee can claim nothing, unless the debtor has otherwise
promised (in the common phrases, "ere vorwort ne sy anders,"
"ire gelovede ne stunde [settle] den anders"). This is the first
step towards getting away from the primitive rule ; the step
being taken, of course, at different times in different communities.^
h" . Finally, that which at first needed to be expressly pro-
vided for in the contract becomes the general rule without
express provision, and the accidental loss of the res does not bar
the pledgee's action.*
ah eo extorquere, secundum nostram justitiam, possW {Schulte, 500);
" Statuta Susatica " : "... relinquet creditor! reliquias incendii vel ruine
et fundum pro pignore, sic creditor nil amplius potest peter e'' (Kohler,
114). The passages are collected in Meibom, 283, 426; Kohler, 19, 111-
115; Heusler, 11,202; Weisl, 61; Stobbe, "Vertr." 263-5. "Ein Haus,
ein Brand" was a proverb implying that the risk of fire was on the pledgee :
Chaise martin, " Proverbes et Maximes du droit germanique," 223 (1891).
For an explanation of the difference between this risk of loss of his claim
through provisional payment and the creditor's burden of risk as a bailee,
see post.
^ Amira, I, 213; II, § 22.
2 This notion occasionally finds express mention in the documents :
"Verloren se [pledgee] aver edder ere ammechtlude dat slot [castle] van
wanhuede edder van unlukke, des god nicht en wille, so scholden se ere
gheld in deme slote unde we dat slot verloren hebben" {Kohler, 114); in
another document the pledgor promises to help the pledgee recover the
castle if he should be spoiled of it, but if the castle should not be recov-
ered, "so scholet ze [pledgee] dat ghelt verloren hebben, dar id en vore
satet was van uns, unde vor der scholet ze dar nene nod umme liden"
{Kohler, 114).
3 The just-quoted passage from the "Prague Rechtsbuch" ends: "jr
gelubde stee zwissen in den andere " ; so also the " Sachsenspiegel" passage,
"ire gelovede stunde den anders." A clause in a document of 1344 reads :
"Wore ouch daz se [creditor] das . . . hus verloren in unseme . . .
dinste,so solde wir [debtor] ener phenningewedergeben" {Stobbe, "Vertr."
269) . The passages are collected in the following places : Weisl, 61 ; Meibom,
290; Stobbe, "Vertr." 269; Heusler, II, 204; Kohler, 115, 315; and for
Scandinavia, in Amira, I, 213; II, § 22.
* Meibom, 290; Stobbe, "Priv." 625, "Vetr." 256. In this stage by
express agreement the risk is often thrown back on the pledgee ; thus :
"and if any harm comes to the castle [pledged,] of whatever sort it be, that
shall they [pledgee] not demand of us [pledgor] or our successors, . . .
nor have any claim or action therefore against us in any way" (document
of 1435, Kohler, 332).
Chap. XXV, § 2.] PLEDGE 465
1. c. No claim for a deficit. If at the time for redemption the
res is not redeemed, and proves deficient in value, by deterioration
or otherwise, the pledgee has no redress ; the res is his forfeit, and
he cannot look beyond it for payment.^ The significance of this
rule for the forfeit idea seems clear.
c". Later still we find the next step taken, and the law expressly
authorizes pledgees to collect the deficit from their pledgors.-
2. a. No return of surplus by the pledgee. If the res is really a
forfeit, standing for and in place of the claim, the pledgee gets the
benefit as well as the detriment, and if, when the pledgor fails to
redeem, the res is worth more than he would have needed to pay
for redeeming, the pledgee cannot be looked to for the surplus ;
and this is equally true whether the res is merely kept by the
pledgee or is sold and turned into money.^ a'. The transition
comes first through a contract clause requiring restoration of the
surplus ; ^ and, a" , then this settles into the fixed custom.^ It
seems (where careful chronological tracing is possible) to have
come first for personal property.^ Moreover, the notion (2 a)
that the pledgee need not restore the surplus seems (often or
^ Liibeck Stadtrecht : "Brickt erne ock, dat is des schade deme dat erve
vorpandet is [But if it falls short for him, that is the loss of him to whom the
land is pledged]" {Stobbe, "Vertr." 261). The passages are collected in
the following places : Meibom, 280 ; WeisL 61 ; Schulte, 500 ; Stobbe,
"Priv." 271, 623; "Vertr." 260; Neumann, 202; and for Scandinavia,
Amira, I, 213; II, § 22.
^ See the same citations. The development is neatly seen in the
successive revisions (quoted Meibom, 424) of the Hamburg Stadtrecht.
The text of 1270 read : "Umbreke eme ok wat, de schade is syn" ; while
the re-\ision of 1292 left it, "Untbreke eme och wat, dhat sea eme dhe
voldcn des dat goet oder dat erve was."
3 Tills we notice most clearly in the form of the judgment which the
creditor (as explained later) obtained. There is no talk of returning the
surplus value ; it is simply ordered that "he take the pledge to liis own use
and be from the other man quit and free" ; it is his forfeit, and its value
is immaterial. The authorities are found in Meibom, 230; Heusler, II,
204; Schulte, 500: Stobbe, ''PrW:' 270, 627 ; "Vertr." 260; Kohler, 137 ;
and for Scandina\ia, Amira, I, 203, 213; II, § 22.
* Example of a document clause (Hesse, 1248) : "eo pacto, ut . . . si
quid superest, aut restituat," etc. {Meibom, 295) ; for other passages, see
the citations of the preceding note.
^ Liibeck Stadtrecht: "Wat dat erve [land] mer gelt, wan dit it ver-
volget [forfeited] is, dat schal he ime wedder geven" (Stobbe, "Vertr."
261) ; Ditmars Landrecht, 1541 a.d. : "Wunneth he averst mit darumme,
also he gelaveth heft ; dat overighe gheldt schall he dem rechten sackwolt
wedergeven" {Neumann, 202). In the Stadtrecht of Freiberg we see
another shade of transition: "Was die pfant bezzer suit, wi si sten, daz
mag he l>ehalden ; he mac iz ouch widergeben ob er wiV {Weisl). For
authorities, see those of the preceding note, and Neumann, 204; Weisl,
25, 39.
^ Amira, I, 203, 213.
4C6 THINGS [Part III.
usually) to have suffered the change earlier than the correlative
notion (1 c) that the pledgor need not pay the deficit ; ^ perhaps
the explanation of this is, first, that the pledgee usually took care
to obtain a res much in excess of his claim, and hence the case of
a surplus was forced oftener than the reverse case upon the com-
munity's thoughts; and, secondly, the fairness of the pledgee's
returning the surplus could be worked out on the theory merely
of the pledgor's right to redeem (i.e. if he had paid cash to re-
deem, he would have got back this surplus value ; hence, why not
assume a redemption jjer rem ipsam, and give back the surplus,
leaving the pledgee no worse?), while the pledgor's duty to make
up a deficit could not be appreciated until the independent sur-
vival of an obligation, alongside of the pledge, had been fully
recognized in thought.
These four features, then, just described, seem to mark as clearly
as anything can the theory of the transaction of wd, icette, satzung,
as that of a redeemable forfeit or provisional pa^'ment. In all
four there is a gradual change to the notion of modern times
which looks on the debt as continuing in full force, and the res
as handed over purely as an auxiliary resource for the creditor. ^
We are not to seek in the law of pledge itself for the reasons of
the change. The change came about as soon as the community
recognized credit widely and developed varieties of obligation and
forms of action for them; but this was an independent process.
As soon as there were many ways of creating a principal debt, and
of enforcing it without a wette, then it could be seen that the icette
need only be collateral and not substitutive. But this would take
^ Amira, I, 205, 213; II, § 22; Stobbc, "Vertr." 260; Mezbom, 331.
2 It should be noted here, as to the feature 1 a above, that the views of"
Heusler and von Amira differ. The view of the latter (I, 206) is that after
receiving the ved the creditor has no claim {/order ungsrecht) of any kind
left against the debtor ; and this is also the doctrine of von Meibom (274).
The former thus answers it, and states his own view (II, 133): "It is
here overlooked that the pfand is only a potential [eventuelles] equivalent
for the debtor's performance, i.e. is given on the condition that pay-
ment do not ensue. But this assumes in itself the survival of the credi-
tor's claim. ... It does not alter the matter that he cannot bring an
action for payment ; the reason that he cannot is, not that he no longer
has a claim, but that he has already in hand his potential means of satis-
faction, and thus can of course no longer demand that which already he
has provisionally received." Kohler (99, 100) takes the same \'iew. The
solution of this difference seems to be that each lays stress on a different
stage of development. In the primitive notion of wette, there is no more
of a surviving debt or obligation than there is to-day in our bet with
stakes ; but in the course of development the independent sur^^val of the
debt becomes more and more emphasized ; and one of these stages of
transition (and an early one) might undoubtedly be expressed in the
language of Heu.sler, though the view of von Amira more accurately
represents the primitive stage.
Chap. XXV, § 2.] PLEDGE 467
time to see, and meanwhile the old traditional rules of icette would
persist by mere inertia. Thus it is that we find some of them
even in the late ^Middle Ages long after a fully developed system
of debt had arisen ; and even in the last century it was necessary
in some of the codes in Germany to declare that the loss of the
res did not deprive the creditor of his claim. ^
B. a. Along with the features of the development just de-
scribed, there are also constantly mingled certain other phenom-
ena that have to be carefully separated and accounted for. They
are the product of the limited nature of the pledgee's property
right in the res after default, and their transition stages are the
result of his effort to make that right absolute. The key to their
explanation is the part played by the aufiassung (resignatio, abdi-
1 The primitive doctrine above explained (1 b), that the creditor could
not recover, even though the res had accidentally perished, would prob-
ably never have been doubted by scholars as an historical fact if it had
not been for the concurrent primitive doctrine that the pledgee was, as
bailee, absolutely responsible even for accidental loss. These two doc-
trines were sometimes, in the legal records, merged into a rule of thumb
which has been misinterpreted by some scholars. It can best be explained
by taking the troublesome " Sachsenspiegel " passages. This first says
(III, 5, § 4), that the pledgee-bailee is absolutely Uable : "Svat man aver
deme manne liet [lets] oder sat [pledges] dat sal he [the bailee] unverderft
wederbringen, oder gelden na sime werde." Then it makes an exception
(§ 5) for animals pledged : "Stirft aver en perd oder ve, binnen sattunge,
ane jenes scult [without the pledgee's fault], bewiset he dat und darn he
dar sin recht to dun, he ne gilt es nicht." So much as to his liability as
bailee to the pledgor offering to redeem. But suppose the pledgor does
not redeem, and the pledgee claims the debt (which he would try to do if
the res were lost) ; this the law next calls to mind : "He hevet aver ver-
lorn sine gelt, dar it ime vorstunt." Thus, there is an alleviation made
for him from his generic liabihty as bailee to a redeeming pledgor ; but
the forfeit idea — i.e. as regards his claim against the pledgor — is strictly
maintained. The oath of innocence which he takes has to do only with
his getting the benefit of the former, and does not affect the latter at all.
In the later Magdeburg law the situation is thus described : "der schade
ir beide schade sein" ; i.e. the res is at the risk of the pledgor so far as he
is bailor, and is at the risk of the pledgee so far as he has taken it, in lieu
of his claim as a pledge. The distinction in Sweden {Amira, I, 213) and
elsewhere by which "both bear the loss" {i.e. the pledgor can hold the
pledgee by an offer to redeem) if the res has been burned with the pledgee's
own goods, though he must replace it if it is stolen, involves a modifica-
tion of the pledgee's bailee-liabihty, and does not affect his loss of his
claim against the pledgor, which it assumes as unquestioned.
It is thus useless to lay down simply the proposition (as certain earlier
scholars did) that in pledges the "risk" primitively was, or was not, the
pledgee's ; only by taking the above distinction can the situation be
accurately described. The two situations may arise separately ; for it is
only when the perished res was worth more than the del>t that the pledgor
will ever offer to redeem and thus raise the question of the pledgee's lia-
bility as bailee ; while if the res was worth less, the pledgor will not try to
redeem and the pledgee will try to make the pledgor pay, and will thus
raise the single question of the nature of the pledge-transaction.
Stohhe ("Vertr." 260) and Mvibom (367) have fully explained, in sub-
stantial harmony, the correct significance of the passages ; Heuslcr (II,
203) expresses the same conclusion briefly.
468 THINGS [Part III.
catio, "se exitum dicere") of the Germanic law. It is enough to
call to mind that the Germanic notion of a complete transfer of a
property-right invohed three distinct elements, — the sale or tra-
ditio, the gewere or invesiitura, and the verzicht, iiplaten, iverpitio,
dewerpitio, aiiflassung, or resignatio. The first two dealt with the
transfer of possession or control over the res, and were later sym-
bolically merged in a transaction which was in effect single, and is
sufficiently indicated by the one word traditio. The third, how-
ever, remained essentially separate ; it signified the final and com-
plete abandonment of all right or interest in the res. One would,
for example, give traditio equally in a sale, a life-estate, a pledge ;
but in the first there would also be aufiassung, in the last two
there would not.^ To the Anglo-American lawyer the idea pre-
sents no difficulty, for it is already familiar to him throughout the
history of his own law ; it is in essence and in historical con-
tinuity the remittere and quietmn clamare of the 1200's and the
"release" and "quitclaim" of later times. ^ . . .
Now, when the primitive Germanic pledgor defaulted, the
pledgee was not hampered by any question of a duty to appraise
or sell the res and hand back the surplus value ; on the contrary,
the res, so far as it was now his, came to him as a whole and un-
diminished. But the res was not his absolutely ; that was his
difficulty. It was not that he had a duty to sell ; such a notion
was then unthought of ; it was that he had not the right to sell.
He had only a defective title to give, and even if he disposed of
that, the ultimate possessor might (in the case of personalty) hold
the res successfully against the pledgor by the doctrine of hand
muss hand icahren,^ and then the pledgor might come against the
pledgee for wrongfully disposing of the goods. The fact that the
pledgor was in default by not redeeming at the due time did not
help the matter ; the trouble was that a defect existed in the very
propertj-right of the pledgee, i.e. he had never had an aufiassung
from the pledgor.^ This defect prevents him from doing as he
' ^'Aufiassung'' was sometimes used by older German scholars in a
sense inclusive of traditio. The true doctrines of Germanic law, in par-
ticular the significance of aufiassung , are here assumed to be those estab-
lished by Heusler in his "Gewere," and expounded in their latest form
in his "Institutionen," II, §§ 92-94.
2 Pollock and Maitland, "Hist. Eng. Law," II, 90.
3 Heusler, II, 10, 212.
* Ibid., II, 141: "If any doubt could exist on this point, it would
be removed by the fact that the documents in a satzring never speak of
resignare; that the laws always place setzen and aufiasseji in antithesis,
using the former for pledge-giving, the latter for ownership-transfers ;
that the land-registers were classed into lihri rcsignationum and lihri
Chap. XXV, § 2.] PLEDGE 469
pleases with the res ; usually, he pleases to sell ; hence he must
get a good right to sell.
Furthermore, the process of curing this defect of title after de-
fault must be distinguished from the process of reducing to a term
the unlimited period for redemption which the pledgor had if no
period had been expressed for redemption. The icette without any
• fLxed period was (primitively at least) as common, if not commoner
than the other, ^ and in such case the right of redemption might go
on through generations.- This, too, the tribe of pledgees were
interested in changing. But notice that two steps would here be
necessary : first, a period must be supplied for redeeming, and
then the situation is as if there had been a limit originally ; but,
next, after a default at maturity of the period, the defect of title
also remained, and this, too, had to be remedied, as in the general
case above described.
a'. This being so, it is easy to see that the sale of the res, about
which so much is said in the earlier sources, has nothing whatever
in common with our modern compulsory sale. It is simply an
incident, and the commonest, in the pledgee's efforts to cure the
defect in his title by cutting off the pledgor's outstanding right
and thus curing the lack of auflassung. Let us examine the
unmistakable marks of this.
(1) He is always spoken of as asking for or receiving a "liber-
tateni vendendi" or " distraJiendi'' ; i.e. he wants to sell, and some
obstacle to a sale has been removed.^
(2) In the stage reached by some of the laws, the permission to
realize is confined to a re-pledge by the pledgee for the amount of
his claim, and a sale by him is expressly disallowed.^ Another
stage is represented by laws permitting the sale only where a re-
pledge is not practicable.^ Still others give an option either to
re-pledge or to sell.^
impignorationum ; and that after a sale the regular entrj' is 'coram
consulibus resignavit,' which is wholly lacking for pledges."
1 Neumann, 192.
2 Meibom, 380 ; Ajnira, II, § 22 ; hence the proverb, " versatz verjahret
nicht."
3 "Potest venumdare de licentia" is another phrase. See instances
in Meibom, 3.31 ; Kohler, 7 ff. ; Weisl, 25, .39, 63 ; Arnira, I, 213.
*E.g.: "[When the pledgee wants to realize on default,] daz [the res]
sol er dem andern ansagen [notify], und wann der daz nit zu lossen hat, so
sol er daz nit hoeher versetzen als um sein schult, aber verkoufen soil 'ers
■nil" (Kohler, 11).
^E.g.: "Wei her [pledgor] is denne nicht loszen, so vorseczte her
[pledgee] is vor sin gelt, ob her mac ; kan her is nicht vorsecze, so mag her
is vorkouffe" {Kohler, 6).
8 Kohler, 7, 14. The reason for the pledgee's readiness to re-pledge
470 THINGS [Part III.
(3) The proceeding which he took was the generic one for cut-
ting off outstanding claims. The pledgee or other person applies
to the judge to summon all who may have any claim to the res to
come and make it known ; then the judge appoints a period for
this, and at its end, by the expedient of mittere in hannum, declares
the petitioner's title absolute.^ . . .
(4) That the cut-off proceedings had in essence nothing to do
with sale, and in particular that the sale had nothing to do with
any duty to restore the surplus to the pledgor (our modern idea,
which is apt to be associated with this older process), is further
clearly seen from the facts that (a) the pledgee was allowed to
employ the cut-off process, and to get permission to sell or to keep,
long before he was compelled to restore the surplus,^ and (6),
conversely, the duty of restoring the surplus, when that stage is
reached, is found even where the pledgee keeps the res, and quite
independent of sale by him.^
a". This proceeding, then, by means of aufbietung and mittere
in bannum supplied the defect of title which arose from the lack
of the miflassujig, resignatio, or "release" element. But why
seems to have been, as Kohler suggests (19), that as the risk of loss (both
as bailee and as creditor) was upon him, he would naturally be anxious
to get rid of the risk in any way.
1 Heusler (II, 85) describes the process; examples of terms of delay,
etc., are given in Kohler, 10 ff. This ufhiten, aufbietung, or offering to the
debtor for redemption, is not to be confused with the same process when
made to cut off the claims of the heirs (or other persons ha\dng the
retraktrecht, retrail lignager, or right of preferment in buying). In the
periods and places where this survived, the cutting-off process might also
have to be employed as against such persons ; yet by some customs the
debtor was bound to have offered the res in pledge first of all to those per-
sons, and thus there was no need for cutting off the right which they had
previouslv renounced. The different varieties of situations are illus-
trated in" A7nira, I, 221; Kohler, 116; Weisl, 42.
2 E.g. in Liibeek, as late as 1325, he might sell without accounting for
the surplus: Meibom, 332, see also Amira, I, 203. A custom of Noyon,
in 1181, shows clearly the process: "Si quis terram vel domum in vadi-
monio posuerit, vel aliquid aliud, et determinato tempore non reddiderit
[paid], ille qui vadimonium habet, si voluerit illud assignare sibi et ad se
trahere, judices et scabinos illue adducat, et si post infra quindecim dies
redemptum non fuerit, perpetuo sibi jure possident" {Kohler, 138).
3 E.g. in Freiberg, it was provided by law "doch das dieses pfand ges-
chatzt sey durch das gerichte, und die besserung an dem das guth gewest
[i.e. pledgor] geweiset werde" {Meibom, 338). So for an express clause
in a document of 1077 in Salerno : " Et si ipsi tari [golden money] minime
nobis [pledgee] retdere potuerit de propria sua causa, et illud nobis dandum
venerit, atjungamus [hand over] ei pretium a super [over and above]
ipsi tari, sicut ipsa rebus abpretiata fuerit per doctos omines et deum
timentes, et firma nobis carta emtionis secundum legem facta et cum pena
obligata" {Kohler, 88) ; on default the pledgee is to restore the surplus
"quanto tres justi hominis existimaverit," and the pledgor is to execute
a deed of sale {Id. 86). See also Amira, I, 205. In many laws the pledgee
is expresslv said to have his choice between keeping the res and selling it :
Weisl, 69;" Stobbe, "Priv." 623, 627; Amira, I, 205; II, § 22.
Chap. XXV, § 2.] PLEDGE 471
could not this be supplied by the pledgor himself? It could be.
It might be done by actual aiifMSSung or resignatio after default ; ^
but this was rare, of course, being dependent on the pledgor's
good will. Instead of this the customary method came to be the
embodiment of an aiiflassung clause in the original document, —
this being done at a time when the debtor would be more ready
to concede any terms demanded. . . .
a'". Abuse of the resignatio-QlsMse. So far all was well ; the
thought of the community was that the pledgee should have his
cut-off, and he was allowed to get it either by the judicial proceed-
ing or by the deed clause. If the primitive rule as to non-restora-
tion of surplus had continued, and, even then, if the judicial process
had remained the sole or usual cut-off method, no new problem
would have arisen. But the old rule had been left behind, and
the pledgee was by this time bound to restore on default the
surplus value to the debtor (whether he kept or sold the res).
So long as he resorted to the judge for achieving his cut-off, the
duty of restoration was managed easily enough ; the judge declared
the title of the pledgee absolute, either for keeping or for selling,
on the terms, in the former case, that the res was appraised and
the excess value paid to the debtor, and, in the latter case, that the
surplus money received was so paid over. But wdien the cut-ofif
came to be attainable (for landed property) by a resignatio-c\?i\xsQ
in advance, the pledgees soon found that this was an excellent
method of evading the new rule about surplus restoration ; for the
res on default became the absolute property of the pledgee without
his going to court, and he could keep it all, which he could not do
if he had had to apply to the court ; hence the popularity of the
clause.
It will be seen that, in the examples cited in the preceding
note, the clauses all provide that the res shall go in toto to the
pledgee, without any provision for surplus restoration. Now until
the old notion of forfeit or equivalency had been thoroughly cast
aside, and until the rule about surplus restoration had become a
solid and instinctive element in the legal thinking of the commu-
nity (which in some places did not come till the 1400's), the com-
munity would not be prepared to protest against this ingenious
evasion of the rule by the use of the resignatio-c\2i\\?,Q. But when
1 Heusler gives an example (II, 139) : "Predium meum abbati pro C
mareis exposui et statute die cum memorata pecunia solvere proposui ;
cum vero prefixus dies advenisset et abbas argentum mihi dudum datum
requisisset, minime illud reeompensare valens, predium abbati in per-
petuam possessionis institutam obtuli."
472 THINGS [Part III.
that time did come, the evasion would have to be stopped. It was
not that there was anything to be said against the resignatio-clause
in itself, i.e. as a cut-off ; for this very cut-off was that to which
the courts themselves had been accustomed for several centuries to
aid pledgees. It was the abuse of this particular cut-off process
in evading the surplus-restoration, that made it vicious. Now the
enabling circumstance for the pledgee was that he got absolute
title by operation of the deed, without going into court ; and thus
the obvious thing, by way of remedy, was to oblige him to do just
what he had been used voluntarily to do under the old mittere in
bannum proceeding, \iz. come into court to get a complete title;
for then the court itself could see that he accounted for the sur-
plus. Thus the dift'erence between his coming into court in the
900's and his coming into court in the 1500's was radical ; then,
he came voluntarily to get justice and have a defect of title cured ;
now, after he had found out another way of curing that defect, and
was using it to abuse a principle of justice that had grown up in
the meantime, he came into court comjmlsorily to be made to do
justice; the two situations being wholly distinct.^
This, then, is the stage at which the pledge transaction emerges
into what we call modern history. . . . The imperial prohibition
of the lex commissoria in Roman law, which has served as the
theme of much fruitless discussion, is nothing more or less than
the same feature in the development of another legal system. . . .
For the form in which the problem was presented to modern
law, then, we were indebted to two distinct principles, operating
together to cause confusion and misinterpretation in the modern
student's mind. First (A) the forfeit notion which had primitively
prevailed, and had then given way to the notion of collateral secu-
rity ; and, next (B), the necessity of a resignatio or auflassung,
which left a defect in the pledgee's title, and led him to strive to
cure it, and revealed to him, in curing it, a way of evading the
other principle ; so that it became necessary for the law, in main-
taining the former principle, to deal with that form of the latter
through which the abuse was perpetrated. Only by keeping clear
the history and separate workings of these two principles can we
understand the form which, by their collision, they gave to the
1 So that such a provision for sale or forfeiture as the following, which
would fairly represent in its terms one of the earlier mediaeval town laws,
exists on modern statute books for wholly different reasons ; Code Civil,
art. 2078 : " Le ereancier ne pent, a defaut de paiement, disposer du gage ;
sauf a lui a faire ordonner en justice que ce gage lui demeurera en parement
et jusqu'a due concurrence d'apres une estimation faite par experts, ou
qu'il sera vendu aux encheres."
Chap. XX\", § 2.] PLEDGE 473
transaction and the problem as it came before modern Germanic
courts.
II, The Pledge ivitlwut Creditor's Possession
Neither etymology nor usage furnishes us in our language with
terms exactly expressing the antithesis between the giving and the
not giving of possession of the res to the pledgee; for the pur-
poses of discussion, however, it is necessary to have a term that
implies merely this antithesis ; and accordingly the word " hypo-
thec" will be here employed as indicating a pledge of which the
custody is not given to the pledgee, but is retained by the pledgor.
The problem, of course, is to ascertain why that form of the
transaction was in a given case chosen instead of the other, — to
account for its existence as a distinct legal expedient. Not until we
have learned this shall we be able to interpret and to harmonize its
peculiarities, whatever they may be, and to understand its develop-
ment. . . . This natural relation which is found in the legal
thought of the modern community that peculiarly represents in
its law the continuity of Germanic tradition will to us suggest
a priori the plausibility of a wholly different view of the hypothec's
history, which has been championed by Heusler and von Amira, —
the view that it is historically of a piece with the generic ived (or
satzung) already described ; that it was simply a variety of that
transaction, adapted to a special purpose; that it bore features
and followed in the main the development of the wed; and that
it had no connection with the peculiar expedient of judicial execu-
tion until fairly modern times. This view we may now consider ;
first setting out the evidential marks of identity between the
hypothec and the generic wed or satzung already explained ; next,
examining the raison d'etre of the former ; and then noticing its
ultimate fate.
1. The hypothec, or "neue satzung," as identical in purpose and
features with the generic wed, satzung, ved.
a. In the first place, the name is identical ; this alone starts the
probabilities in favor of an identity of institution.^ They are en-
1 Satzen, verselzen (verb idea), and ved, wed, weddeschaft (the res idea),
were the generic terms for both: Meibom, 36; Stohbe, "Priv." 273;
Amira, I, 193, 216; II, §§ 22, 23. U nterpf and {^perhaps a translation of
subpignus) and subpignus (the Roman term) came to designate the
hypothec form : Meibom, 36, 263 ; NeumanK, 197 ; Heusler, II, 148. {Sub-
pignus in modern German writers is often used to mean a pledge upon a
pledge, or afterpfand, i.e. by a pledgee himself; but it did not mean this
either in Roman or in Germanic law: Sohm, "Lehre der Subpignus," 1.)
Faustpfand, handhabendes pfand, denoting the pledgee's possession of
474 THINGS [Part III.
lianced, moreover, when we find that the phrases in the other line
of doctrines about private redress — pledge-taking, etc. — and
about the later judicial execution are constantly contrasted with
the terms indicating a voluntary pledge.^
personalty, were later phrases based on the false etymology {pugnus, fist)
of the Roman pignus: Meibom, 37. V orkummern or bekuminern (our
English "encumber") came to be, so far as anything was, the term for
hypothec ; and the terms verselzen and vorkummern are in later times often
grouped as covering all kinds (see examples in Meibom, 429), much as
pignus vel hypotheca were in Roman law, the former being the generic
term and the latter a species. Kistenpfand in some regions was used to
denote the hypothec; "posuit domum suam pro cistoli pignare," "sette
sin hus to eyme kistenpande" : Meibom, 423; Aviira, I, 216. Furpfand,
or contingent pfand, was another name used in Bavaria : Heusler, 11, 148 ;
Kohler, 234.
1 The contrast of ideas appears in the two words nam, and set, nehmen
and setzen ("seize" and "hand over") : Meibom, 24; Amira, I, §§ 15-21.
Other words in some places used instead of nam have the same idea :
badian (force), raf {raub, seize) : Brunner, II, § 110. This antithesis in
the verb idea of the transactions lasts till modern times. The develop-
ment of one is a part of the history of procedure ; of the other, a part of
the history of substantive law ; and all the associations of the hypothec
transaction are with the latter, not with the former.
But there is one confusing circumstance ; pfand, pant, is used for both
transactions ; and this must be accounted for. Now the sources of the
later law of execution were, roughly speaking, two {Heusler, II, § 117;
Brunner, II, §§ 110-112; Amira, I, §§ 15-21, 28; II, §§ 11-16). (1) The
creditor or injured person could primitively, in limited cases and follow-
ing certain rules, go himself and carry off (nam) movable goods of the
debtor sufficient to pay ; they then became to him a forfeit-payment of
the ordinary sort, i.e. they were at his risk till redeemed, and if not re-
deemed they were forfeited to him absolutely without regard to any surplus
value ; in Scandinavia the thing thus taken was designated (from the
verb idea) as 7iam, while in Germanic tribes the thing taken was called
usually pant (a word of uncertain origin, but probably having the same
force). (2) Where the debtor's outlawry had occurred, the injured
person might by a strudes Icgitima or "legal rape," go and get satisfaction
from the outlaw's confiscated personalty ; and, much later, the doctrine
of missio in bannum regis obtained for him a similar satisfaction out of
the confiscated realty, — the phrases being missio in vorbajinum, fronbote,
fronung, and the like. Now these two processes worked towards each
other, so that they came to share the common feature of securing satis-
faction from any defaulting debtor subject to the control of the court.
But the distinctive feature of the former process was still that the creditor
got the res as a redeemable pledge only ; while in the latter he got a true
payment on execution. Hence the former process had bonds of relation
with both the ordinary wed transaction and with the execution or vor-
bannung process ; and for the one relation the pant word came to serve,
while for the other the nam or nehmen idea was emphasized. Moreover,
since what the creditor almost always got by nam was personalty, person-
alty pledges came naturally to be called pant generically, and the ived
term was thus largely driven out of usage for personalty (though wadium
originally covered both personalty and realty, and though the process
itself — the nam — from which pant was borrowed, had a history indepen-
dent of the ived) ; moreover, the original state of things is further shown
by the fact that in Scandinavia ved was not thus driven out, though pant
when borrowed from the German in later times covered, as in Germany,
pledges both 7iam and set. Later still, pfand partly extends to realty also,
— in such compound words as kistenpfand, pfandschaft. The case is
much like that of our "pledge"; originally pleige, a personal surety, it
Chap. XXV, § 2.] PLEDGE 475
b. The pledge without creditor's possession is found quite as
early as the other form ; ^ which indicates that it cannot have made
its first appearance through the development of the missio in
hannum.
c. The documents indicate its nature to be simply that of a post-
poned or contingent iced^ This characteristic is the key to its
origin, and will be explained later. . . .
d. The unmistakable marks of the forfeit idea, which we have
seen to belong to the ordinary iced, are found also in this form.
In the first place, the res, if default occurs, in primitive times, pays
the pledgee regardless of its deficiency of value, and the pledgor
cannot be looked to for the deficit ; ^ while (as we saw above) the
later law finds this departed from, and the debtor made liable for
the deficit.^ In the next place, the res was forfeited, in the sense
that the creditor took the whole, without any duty to return the
practically drove out gage for personal property and restricted it (as
"mortgage") to realty; yet the old law of personal suretyship is no
more to be looked to as the source of our "pledge" doctrines than is the
process of nam for the Germanic doctrines of wed and pfand. It should
be added that as most hypothecs were of realty, and as pfand was chiefly
applied to personalty, the hypothec is almost always (except in kisten-
pjand) dealt with in mediaeval Germanic law in the terms wed, satz, satzung ;
and thus there is ample e\Tdenee from etymology that the hypothec is
quite distinct historically from the process of execution, independently of
whether we are able or not to account for the use of pfand. Nevertheless,
that use, though confusing, seems quite capable of explanation in the
above manner.
^ Stobbe, "Priv." 272; Heusler, II, § 104; Amira, I, 216. Kohler,
24, gives a capitidum as early as 866, dealing with it.
^ A Scandinavian example (Atnira, II, § 23) : After selling a piece of
land with warranty : "That this sale may be more firm and trustworthy,
J. [the seller] has put us [the buyer] his farm of five acres, in M., in full
liability, so that we are to take it if the above piece of land should be sued
away from us." Germanic examples : After selling a mill and engaging
to get the lord's consent to the sale: "quod si negligentia vel culpa pre-
pediti non fecerimus, curias duas in M. ecelesiae loco molendini contuli-
mus perpetuo possidenda" (Heusler, II, 14.5, also 152) ; after stating a
debt: "Predictam autem villam tibi obligo et in pignore pono, ut si
minime feeero te ad deliberandum ad suprascriptum terminum eo hordine
et racione ut supra legitur, tunc tribuat tibi potestas acccdere et intro-
mittere sive ad proprium dominare ipsa vestra pignora, et tamquam le-
gitimum documentum possidere, nullo vobis homine contradicente"
(Kohler, 353); "Nos . . . subpignoramus curiam nostram . . ., et si
in solucione . . . negligentes extitimus, . . . immediate, cum ipsis
[creditors] plaeuerit, . . . accipiant subpignora nostra" (Meibom, 227,
261).
^ Stobbe, "Priv." 276-278; A7nira, I, 216; II, § 23. Moreover, the
same general l)ut indescribable e\adences of the equivalency-idea run
tlirough the documents, wMeh give the reader a clear impression of the
identity of the trcd idea in both.
'' Stobbe, lb. ; Amira, lb. (in the first passage, the Wisby law represents
the more advanced or later stage).
476 THINGS " [Part III.
surplus,^ — as in the ordinary wed or satzung ; but here, too, the
later law gets gradually away from this, and we find a valuation
and return of the surplus.- x\s before, in the ordinary loed, the
latter development — the pledgee's duty to restore the surplus —
comes before the former, — the pledgor's liability for the deficit.^
Parallel with this development of the forfeit-idea went also, of
course, the development of the pledgee's efforts to cure the defect
of his title, as already described for the ordinary wed with pledgee's
possession. . . .
e. The pledgee obtained a title to the res, good against third per-
sons. This, if true, militates strongly against the theory that the
debtor has merely promised the creditor a general right of levy
and sale on default which he would otherwise either not have at all
or have only by legal proceedings. This, if true, is more in har-
mony with the notion that the specific res is now the creditor's,
subject to the contingency of default. . . .
/. The debtor who gave a hypothec could not, by primitive law,
during its life give another one to a third person.'* This is a nota-
^ Stobbe, lb.; Amira, lb.; Meibom, 435.
^ Stobbe, Meibom, Amira, ubi supra. A clause from a document in
Meibom, 261, 262, shows how the auflassung or commissoria clause was
used to dispense with the duty of restoration which the later law ordinarily
placed on the pledgee; upon default, the pledgees "cum placuerit, im-
mediate aceipient subpignora nostra, faeientes cum hiis omnibus, secun-
dum formam proprietatis tituli, quitquit ipsis \'idebitiu' expedire";
again, "Si non redederemus . . . licentia aveatis tu aut tuos heredes
supradicta terra avire et dominare in vestra potestate" (Kohler, 85).
In Norway, the different stages appear very distinctly ; the pledgee
takes the whole res in forfeit, unless there is a special agreement that he
is to take the equivalent of his claim only ; in the next stage, he is to take
the exact equivalent of his claim, unless by special agreement he maj^
take the whole. In Iceland an intermediate stage appears, in which he
is to take double the amount of his claim, by measuring off for himself
the land required, according to a valuation of the neighbors, — unless
other creditors would suffer owing to the debtor's insolvency, in which
case he takes onlj^ the exact equivalent ; in the later law, he takes always
the exact amount only.
' Stobbe, Amira, ubi supra. This is neatly to be seen in the laws men-
tioned by Stobbe ; in some of them the stage of handing over the surplus
is not yet reached ; but in most of them a sale is to be made and the
surplus handed over ; within this latter group, however, are still some
which do not require the pledgor to make up a deficit. So in Amira's
records, the Wisby law, representing the later stages, requires the pledgee
to restore the surplus, and the pledgor to make good any deficit ; but an
earlier text of the Hamburg law, on which the Wisby law was founded,
does not contain a clause making the latter requirement.
4 Meibom, 429; Stobbe, "Priv." 274, 283; Amira, II, § 23 (in Iceland
the pledgee might take possession immediately upon the pledgor's
transferring to the third person) ; Kohler, 23. A later but transitional
stage is seen in the rule that a second could be given only for the surplus-
amount over the first ; but as soon as the forfeit-idea disappears, and the
pure notion of collateral security becomes established, it is perceived that
Chap. XXV, § 2.] PLEDGE 477
ble feature of other systems of law, and it seems to be explainable
on only one theory, viz. that since the res has been dedicated
specifically as contingent payment for a possible default, and since
(as we have just seen) the creditor-pledgee obtains a title to it pur-
suable in the hands of a third person, and since on default the
pledgee will obtain the whole res as the equivalent of his claim,
regardless of any surplus value that may exist, it is impossible to
conceive of any other creditor as having a concurrent interest in
that res. In short, this well-proven rule is not only consistent with,
but is the inevitable consequence of the fundamental forfeit-idea in
the iced or satzung.
2. The hypothec then, being originally in legal nature nothing
but a form of iced or satzung in which the pledgee was not given
possession, what were the circumstances to which this form of
satzung would be appropriate? Why and when would this form
be used instead of the other? The answer has already been
pointed out, viz. wherever the existence of a claim is not yet cer-
tain, i.e. a default is only contingent. The chief cases of this
sort, as enumerated by Heusler (147) are: (1) Warranty of title
in a sale of land ; (2) Rent from a lessee or other rent-grantor ;
(3) Liability of a debtor to a surety for possible default ; (4) Lia-
bility of a guardian on account of an infant's revocation of a sale
at majority, of a husband for a wife's claim of dower in property
sold, and the like. In such cases, as Heusler remarks, "it would
be unreasonable to make a satzung which would transfer the enjoy-
ment of the property immediately to the creditor, for that would
be wholly unnecessary and quite beyond what the creditor could
have any pretext for demanding." The res was to be the iced, if
there sh6uld be a default ; but as there might not be any default,
it was enough assurance for him to have the res legally dedicated
in advance to cover that default, while remaining in the meantime
in the obligor's hands. This explanation is a priori wholly natural
and harmonious with the forfeit idea.^ . . .
any number of creditors are welcome to take their chances with the res,
even though their united claims exceed its value ; and so we find (Stobbe,
283) the codifications of the 1.500's providing expressly that additional
hypothecs are allowable.
1 [In later chapters of the original work, the author traces a correspond-
ing development in Egyptian, Babylonian, Jewish, Japanese, Greek, and
Roman law.]
Chapter XXVI
SURETYSHIP 1
1. Suretyship originally meant the giving of a hostage, the
debtor being released by a new debtor, either at once or when the
need arose. Not until later did suretyship change its character
so that it implied an addition to the debtor's credit instead of an
attachment of the person.
The principle of giving pledge of a hostage is based on the idea
of representability, one person being considered as fitted as an-
other to assume the liability for the debt and thus to satisfy the
creditor. This applied not only to obligatory relations of an
economic kind, but also to penal obligations, a surety taking the
place of the guilty subject. Here, too, we find the idea of equiv-
alence, resting on the view which at that time dominated criminal
justice, and did not necessarily connect the punishment with the
perpetrator, but even extended it to other persons.
2. To act as surety was considered the special duty of the
members of the family ; this was an outgrowth of the earlier idea
of the collective liability of the family. Wliile formerly, by virtue
of the law, the family was liable for the individual, the later form
reversed this, so that the individual took upon himself the liability
for other members of his family.
3. Suretyship does not, of course, aim at subjecting the surety
to the debtor's difficulties ; rather, it is understood that he is to
be released by the debtor's doing what is necessary to satisfy the
creditor either economically or by undergoing the penalty. Not
to protect the surety against liability was a reprehensible breach
of faith, and whoever was guilty of it not only incurred the blame
of society, but the surety was allowed to proceed against him
rigorously. At first, this so-called recourse developed within the
family, and the State paid little attention to it originally ; because
1 [Reprinted, by permission, from Josef Kohler, "Philosophy of Law,"
(Albrecht's trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
478
Chap. XXVI.] SURETYSHIP 479
the family kept order In its own circle, and of its own accord re-
venged all negligences and failures on the part of its members to
perform their duty.
4. Suretyship was a liability of the person. It was not a
trade obligation but a personal intervention for another; hence
the principle that suret\'ship expires with the surety ; it is not
handed on to the heirs.
5. But this leads to serious evils, for the debtor is freed from
the creditor by virtue of the suretyship, and then the creditor
loses the surety also.
Of necessity, then, the rule developed, that in such cases the
debtor must produce a new surety, or must again offer himself,
and this brings about a far-reaching change in the institution.
As long as obligations existed only for a short time, this condition
of affairs either did not occur at all, or had no effect deep enough
to influence the institution to any considerable extent. Butj
when long-continued obligatory relations arose, it was necessary
to provide for the creditor in the way mentioned ; and this gave
rise to the rule, that by procuring a surety the principal debtor
is indeed freed, but not completely ; he must again become answer-
able if the guaranty of the surety fails. This conditional, further
liability of the debtor gradually grew to be unconditional ; and so
it came to be that both the debtor and the surety were liable to
the creditor — a condition that would have been impossible,
according to the views held in earlier times ; for then the principle
was maintained : one debt, one debtor. Gradually the debtor's
liability became so conspicuous that some systems of law have
forced the surety entirely into the background; so that he is
answerable only if the debtor fails in some way to perform. What
is called the beneficium. e.vcussionis, according to which the surety
may require that the creditor first proceed against the debtor and
resort to the surety only if this attempt is unsuccessful, is a very
meager institution and one that discourages credit, for it makes
the creditor's security unstable. The security of credit requires
not only full, but also easy satisfaction to the creditor ; in order
that credit may be easily obtainable, it is necessary not only that
the creditor be paid, but also that he attain his object quickly
and without trouble. Hence the idea, that appeared in Germany
in the ^Middle Ages, that the surety may require the creditor to
proceed punctually against the principal debtor, so that the
latter may not become insolvent and thus cast the burden on the
surety, is entirely at variance with the meaning of the institution
480
THINGS
[Part III.
and deprives it of a great part of its value. The only proper
course, in such a case, is to allow the surety to proceed against the
debtor and to leave it to him, whether he will do so ; so that the
debtor' may be compelled to give the surety security, or to release
him (either by finding another surety or in some other way).
Chapter XXVII
EVOLUTION OF THE LAW OF CONTRACT
Section I
THE FIDES COMMANDMENT 1
The Belief in Zey? Trtcrrio? (Dius fidius)
The belief in two powers — gods and the spirits of ancestors — •
who stand in a certain contrast to each other, is the basis of the
ancient Aryan system. Among the south Aryan tribes, the wor-
ship of the "parentes" of the first three grades [father, grand-
father, and great grand-father] differed in a pecuHar manner
from the general cult of more distant ancestors, especially famous
heroes. Out of this, the Greeks and the Latins developed the
precept of obedience to the fatherland. A fourth idea has been
annexed to this cult — aid to fellow-creatures needing protec-
tion, who if despised have the power of the curse. According
to the ancient fundamental ideas, sacrifices are made to these
four powers. The commandments to honor them are religious.
These four commandments are unmistakably found in ancient
Roman "fas." In contrast to them are the five moral injunc-
tions — [physical and moral cleanliness, not to defame, not to
inflict physical injury, not to steal, and not to lie.]
Four peoples which will be more closely considered here, have a
clear connection with these five moral precepts — the Indians,
Iranians, Greeks, and Latins. But in the use of these precepts,
these peoples finally drew far apart. The seeds of these five
rules already lay in the first religious commandments : one must
1 [By Dr. B. W. Leist, Professor of Law at the University of Jena.
Translated from " Alt-Arisches Jus Civile," Erste Abtheilung, Jena, 1892
(pp. 42()-4.:)()), by Albert Kncoitrek. The translator is glad to acknowledge
the use, for purposes of comparison, of a preliminary translation of the
same material, courteously made at his request, by Mr. H . R. J ucrgensen
of Chicago, a former student of law at the University of Munich. The
present translator, however, is solely responsible for whatever may have
missed the mark in the rendering now made.]
481
482 THINGS [Part III.
keep oneself pure towards the gods and be loyal and true. These
rules then shaped themselves in the form of general precepts of
conduct towards other men. In that these rules were unified by
basic moral ideas, they were alike in calling for expiations when
violated. These expiations were established for physical unclean-
liness as well as for intentional injuries, and also for the three chief
wilful offenses of the ancient world — defamation, killing, and
theft. For the latter violations (as well as other offenses altogether
apart from the question of purity) revenge on the part of those
entitled to it by authority or by reason of their own injuries,
prevailed. Lastly, these expiations were provided for untruths
and faithlessness.
With reference to the three intentional misdeeds, the historical
development among the Indians, Iranians, Greeks, and Italians
took quite different courses. In India, a kingly system of penal
justice was added to the Praya^^itta system which at first had
a wide extension ; but this addition did not accomplish a unified
legal establishment. In Persia, a real system of public justice
in the beginning far superior to that of other nations took the
plan of the ancient Upazana system. Here the substitution of
the principle of civil legal protection, for priestly revenge and
individual retribution, was first clearly expressed. This principle
became equally effective in private concerns against the ancient
method of self-help. In Greece and Latium, however, the trans-
formation from the system of personal revenge and self-help to
the stage of civil legal protection was much more tardy and com-
plicated. But especially for this reason, Rome brought forth a
product W'hich will always be the standard of all real progress for
the w^hole civilized world. In any event, with this development,
the whole question was once and for all removed from the domain
of the ancient ideas of "fas" law into the sphere of civil law.
Thus, it came to pass that with the dropping out of the three
middle rules of the five moral precepts, the first and fifth drew
closer together. This occurred most conspicuously among the
Iranians. These two injunctions constitute the substance of the
Zoroastrian teaching. A similar combination, however, is not
discovered either among the Greeks or the Romans. But the
rules themselves are found in perfect clearness. The form which
they took, especially among the Latins, is the object of this in-
quiry. Having already, with this purpose, [in previous pages of
the original work] considered the precept of cleanliness, it remains
only to examine further the "fides" commandment. This inquiry
Chap. XXVII, § 1.] EVOLUTION OF THE LAW OF CONTRACT 4S3
falls into three divisions: the elements of the "fides" concept;
the relations which especially are based on "fides"; and, lastly
and chiefly, the acts by which the obligation of "fides" is effected.
I. Elements of the Fides Concept
The Latin idea of "fides" is entirely the same as the Greek
TTto-Ti?. "Fides" and TrtcrTt? are indeed the same word. And
yet it is not even conceivable that the "fides" concept of the
Latins and Romans was borrowed from the Greeks. It was for
the Latins an ancient, deeply-rooted ethical precept which, in
their own way, they formed and cultivated with more energy than
the Greeks who were more easily moved by the impulses of the
moment. We have already seen that the primitive Aryan
injunction against lying (the fifth Manava precept) had been ab-
sorbed in a characteristic way by the Iranians in the Zara-
thustra teaching with the commandment of cleanliness, of which
traces may be found in the Indian sutras. The Greeks and
Romans of a later age, of course, were familiar with the Zarathustra
teaching, but it is not to be believed that they were acquainted
with this doctrine from the beginning. The conclusion, therefore,
alone remains that the ancient Aryan injunction not to lie, with-
out its special Zarathustrian color, had already' been a fundamental
ethical possession of the fore-fathers of the Greeks and Latins in
p re-ethnic ages ; and that they developed from it much the same
detailed rules found in the Indian sutras. This conclusion also
fully agrees with the fact. In connection with the question of
truth, there stands out conspicuously in the parallel series of
Semitic commandments, fashioned in a similar manner, the only
proposition of the kind reduced to a formula : " thou shalt not
bear false witness against thy neighbor."
One of the most important institutions of Themis and "fas"
law was that which required in matters of dispute, before resort
could be had to self-execution, that a judicial judgment must be
invoked, which had to be supported by witnesses. The precept
that, here, the witness must speak the truth, accordingly vindicates
among the Greeks and Romans a primitive situation ; even though
the statutory provision in Rome of punishment first dates from
the Twelve Tables. But not only in procedure, but generally in
public and in private matters, it was always a commonly recog-
nized ethical postulate of the Latins, that one must keep "fides."
It was precisely in accord with the Latin character to require a
484 THINGS [Part III.
particularly strict observance of this commandment. A certain
mutuality was involved in the idea, as shown in the saying : " da
et accipe fidem " . . .; "accipe daque fidem." On one side, it is
presupposed thatwhatis declared conforms to the truth. Whoever
may not be trusted to speak the truth is not fitted to be a witness ;
he is "intestabilis" ; . . . "intestatusest, cuius verbis fides non ha-
betur." On the other side, confidence is to be reposed in him who
is trustworthy ; one is not only to give "fides," but also to accept
it; . . . "'credere' est fidem habere dictis et factis." Thus,
"fides" appears to be an objective totality of principles of faith-
fulness governing mankind in a mutually obligatory "fidelitas."
. . . The principles of faithfulness are called to the attention of
one's adversary where it is perceived that they may be violated ;
and their observance is especially expected in those of mature
years. . . .
If we regard "fides" as an objective standard, yet clearly this
does not mean that it originates in the State, or in the force of legis-
lation or customary law. It had to do rather with one of the
ancient Aryan Themis or "fas" law commandments. Therefore
the basis of its coercive force is the belief in the gods. The gods
know whether truth is in the hearts of men ; they protect and
reward the faithful, and punish the breach of "fides." The pro-
tection of "fides," accordingly is committed to the will of the gods.
Thus it was, both among the Greeks and the Romans. The
supreme protector is Zew iricmo'i, the "Dius fidius."
In connection with the extent of the "dharma-Themis-fas"
legal commandment under discussion, we may state its further
historical development among the various Aryan peoples. The
fifth Manava command deals only with veracity, and for that
reason the detail of the sutras is limited essentially to the view-
point : " speak the truth, not untruth" ; even though it is accom-
panied by the maxim : "deal justly, not unjustly." In the Iran-
ian Zarathustra teaching and the Persian magi doctrine, the truth
conception, on the contrary, has an extraordinary extension. The
Greek "pistis" and the Roman "fides" idea has much narrower
boundaries, but still reaches beyond the Indian formula of truth-
fulness.
The highest obligation of "fides" is expressed by "jurare";
and this may be either declarative or promissory; . . . "jus
jurandum apud Romanes inviolate sancteque habitum servatum-
queest"; . . . "'juro' tunc dici debere cum confirmamus aliquid
aut promittimus." The keeping of "fides" therefore signifies not
Chap. XXVII, § 1.] EVOLUTION OF THE LAW OF CONTRACT 485
simply the maintenance of truth in what is asserted, but also faith-
ful conduct in what is promised. The "fides" idea has even ex-
tended beyond the sphere of assertion and promise. One may be
placed in a position of trust, where, without either assertion or
promise, the situation itself unequi^'ocally demands the duty of
faithfulness. A single concept of fidelity, however, runs through
all these forms, which has a clear connection with the narrower
idea of veracity. This idea of veracity and fidelity may be said
to be a characteristic Aryan element, however rude it may appear
in the beginning, and however diversified its use and development
among individual Aryan peoples. It will not be said that non-
Aryan peoples have not possessed and do not possess the notion
of fidelity as a parcel of their growing ethical ideas; but closer
inspection will show that this idea among non-Aryans is in essence
of different complexion than that produced by Aryan blood.
Still, from another side, the Latin idea of "fides" requires exami-
nation. I have already observed that the ancient Aryan com-
mandments of cleanliness and truthfulness were combined in a
peculiar manner among the Iranians. One should be pure and
true in thought, in word, and in deed. Nothing similar to this is
found in Latium. But here a certain combination of the com-
mandments of purity and fidelity with more general ethical postu-
lates, was, however, effected. The Roman, also, combined the
requirements of morality in a harmonious picture — that of the
"vir bonus." He is the man who is honored by his fellow men for
his virtue (honestus) which he practices, not for external gain,
but for its own sake. This moral character, according to Roman
views, also had a double aspect — negative and positive. The
negative side was in being clean of fault ; the positive side was life-
long proof of integrity or trustworthiness, which was especially
expressed in the keeping of "fides," "dictorum conventorumque
constantia et Veritas." ... In particular his integrity and
"fides" must be manifested in such wise that he holds aloof from
all treachery, that crime which can be traced back to the most
ancient times, and the punislm^ient of which fell to the revenge
of the ^aaiXeis as well as the " animadversio " of the king.
According to the Latin \iewpoint, the consequences of violations
of the commandments of purity and truthfulness, may be consid-
ered as resting on the same fundamental idea. In the first in-
stance such a violation is against the gods. They are injured by
unclean and unfaithful behaviour. In both cases in order to
be made clean and whole again, it was necessary to make expia-
486 THINGS [Part III.
tion in favor of the gods ; just as among the Indians, atonement
for such offences lay in the domain of the Praya99itta system.
Kingly punishment could not remain excluded, as already appears,
as to some of these violations, in the siitras ; and in greater meas-
ure among the Greeks and Romans as the particular laws of cities
and states developed ; whereupon the commandments of purity
and truthfulness of "fas" law came to be recognized in the most
various ways in civil law. . . .
The commandment "thou shalt not bear false witness" which
we found to be of great antiquity may be regarded as the central
point of the commandment of veracity. In Rome it was provided
with civil legal punishment in the provision of the Twelve Tables
that "qui falsum testimonium dixisse convictus esset, e saxo
Tarpeio deiiceretur" (Gell. 20, 1).
Another proposition concerns the oath. The Greek and the
ancient Roman world regarded it as an institution lending security
to the civil law as well as indispensable to "fas" law. In a highly
characteristic way, the oath is described in Roman legend as a
pact with the gods, attributed to Numa as the final representative
of " fas." The oath of ancient times took a great variety of forms ;
it was a means for invoking the greatest diversity of gods. At
the time when the whole important sphere of the religious system
was exclusively set apart with rigid boundaries from the State, it
was necessary that the manifold forms of the oath should have a
unified operation. Violation of the oath brought down the re-
venge of all the gods. Thus it was said, that Numa by giving
a votum, through which the judgment of the gods is obtained,
was directed, once and for all, that every oath, even one addressed
to an individual god, stood under the combined protection of all
the gods; ("Incert. ad Mn.," XII, 234 :) "Granius Flaccus scribit
Numam Pompilium, cum sacra Romanis conderet, voto impetrasse,
ut omnes dii falsum juramentum vindicarent." ^
The general principle, however, arising from the combination
of the two "fas" law commandments, of freedom from guilt and
the integrity of "fides," which continued to be a permanent fact
and also persevered under the dominion of civil law, is the fol-
lowing. He who lives in accord with these commandments is the
"vir bonus." The individual rules into which these command-
ments break up in the manifold conditions of life are not newly
1 [For a full discussion of the procedural importance of the oath in
ancient law, see Part IV of this volume, post (Chapter XXXI, Section 4)
— " The Ordeal and the Oath."]
I
Chap. XXVII, § 1.] EVOLUTION OF THE L.\W OF CONTRACT 487
thought out by each "vir bonus." They become, by progressive
development, a complex of principles which, in the long course of
generations, the totality of a unified people become accustomed
to follow. There is, therefore, a complex of "boni mores" which
may be called the residue of ancient ''fas." But the "fas" ele-
ment has never been eliminated by " jus " (civile) . It still survives
as the foundation of the latter. Thus the principle still prevails
that what is " contra bonos mores" is not permitted. Accordingly
the ancient "fas" law standard of the old Aryan moral code will
always have a place in the domain of "jus civile" ; with conditions,
of course, dependent on the circumstances of particular cases.
II. Fides Relations
"Fides" duties are owed: 1, to parents; 2, to wards: 3, to
clients; 4, to guests; 5, to cognates and aflBnes. There have
been differences of opinion as to the order of succession of these
relations. Many place No. 4 before No. 3 ; but I shall let the
question pass. My problem is to discover how this series arose
at all "ex moribus Romanorum" ; and to me it seems that these
five divisions themselves clearly furnish the answer.
We have already demonstrated what follows concerning the an-
cient household organization. The ancient Aryan household estab-
lishment ["koinonie"] in Latium and Rome underwent far-reach-
ing changes. The "paterfamilias" took the place of the master
and mistress of the household [" pati" and "patni"]. This substi-
tution of authority was effected with great energy and in vigorous
conception ; it resulted in an entirely new Roman family system
governed by particular law — the agnatic family. But the
Romans were not able to make of it more than a governing insti-
tution ; they could not eradicate the ancient Aryan system of
household authorities. Important residues continued to exist ;
and certain of these survivals at last again overthrew the agnatic
system.
Upon what elements did these five duties, to parents, to wards,
to clients, to guests, and to cognates and affines, rest? It is be-
yond question that they all belonged to the ancient Aryan "jus
gentium." As to the second of these duties also, in which as we
have already seen, there were definite seeds of the agnation con-
cept, it can by no means be asserted that it was simply the product
of the Roman agnation principle. These five duties clearly show
488 THINGS [Part III.
their ancient Aryan origin if we disregard in the comparison the
"potestas" of the house-lord (and the house-mistress). The
"potestas" itself is not a duty in favor of the members of the
household. Each one has a different position in the house, but
all are subject to the "ditio" of the house-lord ; and this "ditio"
is something quite different from a duty. For the rest, these five
duties furnish a distinct picture of the unified special relations
according to which the Aryan house-lord owed a variety of duties
shortly expressed by the term "fides-performance." The wife
does not bear an "officium" [duty] relation to the husband; ac-
cording to the ancient view she is a co-ruler of the house. The
"officium" of the child, however, to both parents, stands out con-
spicuously. This duty survives the lives of the parents, and after
their death continues as a solemn obligation to render them
"obsequium."
Closely connected (to consider the next form) is the ancient rela-
tion of fidelity which the house-lord owes to the children of his
brothers ; if these brothers had maintained separate establish-
ments, and one of them died leaving minor children. Again this
relation has a near likeness to the protection of clients, which also
goes back to the most ancient times. A kindred system such as
then existed is hardly to be thought of without clients. For there
were always persons reduced by necessity or diminished by war
who would desire for security to ally themselves as clients to a
powerful family. A similar relationship likewise was created when
a settlement was made in a conquered country, if the former in-
habitants were not enslaved, but were attached as free persons to
the various families of the ruling tribe. And, precisely, because,
in such client-relationships, the strong ones dominate the weaker
ones, the more intensive is the duty of "fides." The Latins re-
stored the ancient client relationship by means of the sacral
ceremony of manumission.
Next in order, comes the "fides" duty to the guest. The guest
relation is usually temporary, while the client relation presupposes
life-long duration. The concluding "fides" relation, that toward
the cognates and affines, springing from the ancient Aryan root of
societies of "propinqui" for defense and oflfense, has elsewhere
been discussed in detail. We may, therefore, be permitted to
observe that these "officia" transmitted to the Romans by the
"majores," and reaching back' to ancient Aryan times, fare simi-
larly with other facts which were not found to belong to the domi-
nating agnatic system. All the more the necessity was felt to
Chap. XXVII, § 1.] EVOLUTION OF THE LAW OF CONTRACT 4S9
intrust them to the memory of succeeding generations in a fixed
form of numbers and in a studied order.
III. Fides Acts
1. Marriage
It remains to examine the Latin acts which operate to create
the obhgation of "fides," and to show to what extent they are
connected with pre-ethnic ages. Since it is certain that such
acts may be discovered not only in Latium, but also in Greece,
and even farther away, in the Indian sutras, there is danger that
the institutions in question will be incompletely understood or
even misunderstood, if we restrict our investigation solely to the
Roman sources. We must scrutinize that which is found to be
one and the same institution, with its local variations among dif-
ferent peoples, in its entire historical development in a common
race element, as well as its special developments. We must not
comfortably limit the inquiry to the written Roman sources which
contain many gaps, and which in other things give too narrow a
point of view. Where the sources of other Aryan peoples make
possible a more extended horizon, the effort is not to be avoided
which a broader view requires. We must be content to meet
inconvenience in order that an enlarged vision may make compre-
hensible what now cannot otherwise be explained. First of all, it
is our object to deal with that which is capable of being made
certain.
Four institutions come under consideration in connection with
acts of "fides," which unmistakably appear, not only among the
Latins, but also among other Aryan peoples, and especially
among the Greeks, in such manner that we are compelled to regard
them as historically coherent. These are marriage, the alliance,
the "sponsio," and various real acts. We shall consider them
in detail ; not exhaustively, but with the purpose of attaining
established points of view.
Marriage is an alliance ("foedus"). The word itself tells us
that its fundamental principle involves "fides." The Greeks say
the same thing in that they designate marriage as the leading
7riaTco/xa. . , . We may at once call marriage the basic " foedus "
of the Aryan legal system. So far as the peoples here re\iewed are
concerned, we do not find mother-right. And also in a survey of
490 THINGS [Part III.
the marriage concept, despite all that is crude and rough in this
race, we find a constant elYort to assign to woman a higher position
than she has attained, even to this day, in marriage, among many
non-Aryan peoples.
In Aryan marriage three stages recognizable even in later days
are found, which have been derived from the manner of construct-
ing the physical seat of the matrimonial life. The foundation of
the house is first constructed ; then the building is erected on it ;
and lastly it is inhabited. The three stages of marriage were not
created either by legislation or yet by customary law. They are
the product of ancient Aryan recognition of the "rita" of the sepa-
ration of the sexes. The effort to establish marriage on a higher
ethical plane is supported by the belief that it is regulated by di-
vine authority ("dharma," "Themis," "fas"); and that it has
its model in the marriage of Jupiter (Tellus) and Juno. Ancient
marriage law is not founded on organized "popular conscious-
ness," but on a precedent "rita" system and divine principles
based thereon revealed through the wisdom of exegetes. The
ancient Aryan marriage therefore is a holy "fides" institution for
the orderly propagation of the human race. Its basis is the order
establishing the course of legitimate descent ("aurasa," 'yvrjaLoC),
"causa liberorum (legitimorum) quserendorum."
The wife has a high position of honor in the house, because she
is the means whereby man attains his highest wish to beget legiti-
mate children, especially sons, who at some time can take his
place. The marriage relation presupposes the legitimacy of the
children arising therefrom. It is manifest then that the hus-
band has to provide for the support of the wife and the children.
But more important yet than physical maintenance is the spiritual
and moral training. In ancient times all instruction and educa-
tion of the growing generation were provided in the heart of the
household. It is the highest aim of the husband to make his sons
like himself, that they may grow up in the fear of the protecting
"dii patrii" as strong, able, and clever members of the tribal
community. In this the mistress of the house has a part as well
as the lord ; but in order to develop the ethical powers, it is neces-
sary that the marriage be of life-long duration. Even when the
children have become independent the counsel of the parents is
necessary ; and when the parents become feeble, it is the purpose
of Aryan marriage that the father and mother be cared for in the
homes of the children. Therefore as the Aryans understood this
"naturale rita" of marriage, it is a "fides" relation . . . enduring
Chap. XXVII, § 1.] EVOLUTION OF THE LAW OF CONTRACT 491
until death. There was no temporary marriage among the
Aryans. And since marriage was governed by "rita," it did not
rest solely on the will of man and wife like an association in pro-
prietary matters.
In each of the three stages of marriage, there is involved a
"fides" obligation. In the first there is a binding of the purity of
the maiden as well as the will of the groom ; but not by virtue of
a contractual willing, but through a betrothal of the maiden by
him who has power over her, to him who is the suitor [''Freier"].
But this act of betrothal on the part of the person in authority
does not proceed out of his pure free-will. According to the
"rita" he is bound, in order to avoid the punishment of the gods,
to arrange a marriage as soon as the girl is of marriageable age.
According to ancient ideas it is the duty of the wife to bear chil-
dren as soon as she is able. This duty is so firmly implanted in
the maiden that her own independent will does not come into
question. . . .
The second stage of marriage is likewise not explainable on the
theory of contract. It is a unilateral exercise of "potestas" by
the husband with the consent of the person in authority. The
seizing with the hands in the matrimonial ceremony does not dis-
close in any of its operations the "datio" of the person in authority
over the maiden, but still the "datio" is included. It is an act
of forcible establishment of power according to "fas" which is
not explained away by an existing "jus" which is based on con-
tractual ideas. . . .
Lastly, in the third stage, in the founding of the household, man
and wife are united to a common domicile, but again not by a
special contract, but through the definite fact of cohabitation
which makes them as one.
The manner in which the Aryans formed the institution of mar-
riage, in large measure was the cause of the wonderful power and
vitality which distinguished this race above others. For the
reason that in its Aryan originality it was the leading ground ele-
ment of the legal system, it is necessary to reconstruct it first of
all from its pure "fas" law elements. Then only will we be able
to understand its continuance in the succeeding ages of civil
law. We will then perceive that marriage as the original and most
important of all other "fides" institutions, is the source of cate-
gories, ideas, and regulations met in later periods of the hegemony
492 THINGS [Part III.
of civil law, which appear to lie far apart from, and to be foreign
to the marriage institution.
2. International Foedus
The second ancient foundation of the concepts, agreement, legal
transaction, sale, conveyance, etc., is the "foedus" entered into
between different clans, especially Aryan societies which worship
the same Zeus-Jupiter. In the "fa^dus" the "fides" expression
is verbally adhered to. In a narrower technical sense it is desig-
nated the "foedus," while in the marriage relation it is called a
"foedus." In any event, they occur together as distinctive basic
Aryan institutions which rest on a "fides" act, and accordingly in
their content are treated as "fides" relations. While they have
a common foundation, yet in other respects they are essentially
different. One rests upon the principle "naturalis ratio," — the
other on a voluntary element.
The fact is well established of all Aryan (as well as non-Aryan)
peoples that various tribes unite for the purpose of protecting each
other in their perpetual wars. Testimony of this is furnished among
the Indians by the battle of the ten kings ; among the Greeks, by
the Trojan war; and among the Italians by the ancient "foedus
Latinum." The characteristic method of sanctioning such a
"foedus" is the oath in its most solemn form. . . .
An essential condition of this "fides" transaction is the making
of a sacrifice whereby the gods are invoked to participate in the
entire solemnity. Alliances with non-Aryan peoples are possible
where each of the parties calls upon its own gods. But, as it is
easy to see, an alliance mutually sanctioned by the same Aryan
gods, especially the king of the gods, Jupiter, had a particular
holiness and obligation.
3. The Sponsio
In the marriage "foedus" based on "naturalis ratio," and in
the international "foedus" which discloses the voluntary element,
we have before us beyond doubt the most ancient "fides" acts of
Themis and "fas" law. We now approach a very important
third type also of pre-ethnic ages, the "sponsio." An investiga-
tion of this institution is surrounded by the greatest difficulties,
but yet it is a subject of the highest historical interest. We
Chap. XXVII, § 1.] EVOLUTIOX OF THE L.\W OF CONTRACT 493
shall approach it from the standpoint of what is securely estab-
lished by the sources.
When we found among the Indians, Persians, Germans, Greeks,
and Romans, three stages in the consummation of marriage —
the foundation, installation, and performance — no doubt was left
that we had discovered the fundamental basis of this ancient
Aryan institution. From this port of safety we may without
peril go a little farther. In the middle phase of the three stages
in the evolution of marriage where we found the ceremony of for-
cible seizure, lies the germ of the whole marriage "foedus." Indie
as well as Iranian sources accordingly shortly express a valid mar-
riage by the term "hand seizure." I have therefore considered
it justifiable to identify the Roman marriage mancipation (which
only later developed the general institution of mancipation) with
the similar ancient Aryan ceremony of "hand seizure" as being
historically coherent ; in like manner as, without question, the
"domum deductio," of the third stage, among the Indians, Per-
sians, Greeks, and Romans, may be regarded as one and the same
historicall}^ connected usage. We are furthermore constrained
to connect the peculiar coemption mancipation of Latin particular
law (where the thought enters more and more that the consensus
of man and wife constitutes the basis of marriage) with the " dex-
trarum conjunctio" of the Greeks which was thought to fortify
the consensus ; and to regard them as common survivals of the
ancient ceremonies of "hand seizure." . . .
In the same way that the marriage "foedus" is supplemented
by a "sponsio," so also we find a similar element in the inter-
national "foedus." This is discovered of the Greeks as well as
the Latins. In Homer the (nrovhai are still a complete constituent
in the solemn oath of the "foedus." But in Greece as in Latium,
the international "sponsio" became detached from the "foedus."
It takes an inferior place as a "fides" act alongside the supreme
solemnity of the sworn agreement of alliance in a similar way
that in the celebration of marriage by "dextrarum conjunctio"
the independent and preliminary "sponsalia" of "dare" of the
maiden are subordinate to the marriage itself. And, again, the
Latins injected a general proprietary legal idea into the original
conception — "dare spondes," "spondeo" — in the same manner
that the general institution of mancipation attached itself to the
ancient matrimonial mancipation. They gave it a technical mean-
ing which could not be constructed out of the Greek language for
a similar legal transaction. But they always acknowledged that
494 THINGS [Part III.
the Greeks also had a general "sponslo juris gentium." The
Laws of Gortyn have furnished the most convincing proof for the
Greek eTna-irevheiv.
We may, therefore, assert that the sponsio, the libation solem-
nity (and, only later, the declaration that one undertakes the
solemnity — the verbal act) is a "fides" act which has appeared
among the Indians, Greeks, and Latins ; even though in varying
form, yet in such manner that it can be traced back to pre-ethnic
tribal society. In Latium it was a weaker form of "fides" obliga-
tion by the side of the precise central act of the marriage alliance,
and alongside of the international alliance which was entered into
with the fullest solemnity of the oath. But in Latium it developed,
as in Gortyn, into a special formal act for undertaking proprietary
performances. With the declaration eirKTirehw, "spondeo," a
man pledged his word to carry out a promise. A residue of the
time when the " sponsio" was a sacral act, a libation to the gods, is
found in the fact that the condition of being "reus" sprang from
the Latin "sponsio," and also from the " votum." Being "reus"
signifies a sacral legal obligation of a special kind. But in other
respects the obligation of the votary is something quite different
from that of sponsor. As soon as the gods have done their part,
the votary by reason of the real act of the gods becomes a "voti
damnas"; and no "fides" relation subsists between him and the
gods. The obligation of "fides" through the pledge of one's word
can obtain only between persons, and not between gods and men.
Such an obligation by pledging one's word, however, appears
in Latium in still other forms than that of "sponsio." Especially
important in this regard is the use of the word " vas," and besides
and of yet greater importance, the word "prses." In the sense of
wager, "vas" has had a far-reaching extension in Indo-Germanic
speech to indicate an obligatory relation. It is indispensably neces-
sary to investigate closely the wager transaction from every side.
Linguistically "vas" and "prses" are related ; but the actual con-
nections between them remain to be explained. Since in Latium a
plurality of formal acts was employed, so also do we find in Gortyn
five methods of creating an obligatory relation enumerated . . . the
individual relations of which to eTriairevhaiv remain undiscovered.
Again, however, all formal acts also require explanation as to their
exact connections with the law of slavery for debt.
Large provinces of this domain are still unexplored. Inasmuch,
however, as we are able to distinguish the leading land-marks of
these inquiries, and even though in detail our explanations may be
Chap. XXVII, § 1.] EVOLUTION OF THE LAW OF CONTRACT 495
wholly defective, yet we may hope that in time we may make prog-
ress in knowledge of individual institutions. For the present,
we may venture a generalization. Aryan antiquity, grounded on
the ethical command of fidelity, already recognized promises
("nudae pactiones") as having a certain binding force. The com-
positions for debt arising from defamation, battery, and theft
("pacta de non petendo") especially are very ancient. But
pacts of a positive content did not have a position sufficiently
fixed to be considered as generally obligatory. They were open to
the objection that they need not be considered as binding by the
debtor. It was otherwise, however, when in answer to a formally
worded question, one used the definite technical term "spondeo,"
"vas," or "prses," and thus gave his word the same value as a
pledge of a thing. In this way the formal contract arose. In
different countries a great diversity of such forms, of course, could
come into being ; but in the Aryan countries there would still be
historical connections between these different terms which can
be traced out.
4. Real Acts
... In the age when Themis and "fas" law dominates, the
real act has, as is self-apparent, a high importance. Where there
is no judge appointed by the State to protect one's claims, the
security which one has for the physical taking and holding of things
is all the more valuable. The transaction of sale, for example,
apart from all legal protection, has its guaranty in that it is a cash
operation, where the thing is not delivered until the price is paid.
On the other hand, where one delivers the object of sale without
receiving the price, then there is involved a relation of trust, as
where a thing is leased to another ; in which case, upon the expi-
ration of the appropriate time, the thing may be taken back by
force according to "fas" law. It is not my object to follow the
dominion of real relations in all their points of view. But it is
my purpose to enter in the inquiry, how in pre-ethnic Graeco-
Italic ages one is able to obtain real security apart from formal
transactions. Undoubtedly the giving of pledges already served
the purpose. But I shall examine this point more in detail later.
However, reference must be made here to the pledge of the hand as
a real act for the creation of a "fides" obligation, and its relation,
on one side, to the giving of a pledge, and, on the other, the pledge
of one's word already noticed, in a formal act.
The question as to what meaning the pledge of one's hand, the
496 THINGS [Part III.
Se^iaL, the "data dextra," has had since ancient Aryan times,
will seem to many as quite unprofitably raised. It is thought to
be an act so simple and so natural as to make any effort to extract
from it a special meaning a mistaken labor. But the extending
of the hand (like kissing) is not so natural that it had the same
meaning among all the peoples of the earth. And, with reference
to those peoples which know the custom, it cannot be said that
it also involves a special juristic significance. What has elsewhere
[in the original w^ork] been brought forward from Persian sources
with regard to the Ancient Iranian contract doctrine is of great
interest. It appeared there that the hand-pledge as a tie of
"fides" had the same function as the giving of a pledge. The
only difference is that in an actual pledge the thing which the
pledgee receives for his security speaks for itself; and he can
always make it plain by showing the pledge, that the debtor at
the time of making the pledge acknowledged himself as under a
duty to pay. In a hand-pledge the pledgee, of course, does not
take with him the pledge ; it is not chopped off. But this is no
counter argument for the primitive legal mind. The hand even
though it remains with the pledgor is none the less pledged.
Ideally it is just as much pledged as if it were an independent ob-
ject. In fact, the ideal sense of obligation is so firmly established
that the pledgee, even wdien he is agent for another, can deliver
the pledge in an ideal sense to his principal.
But the need of providing the hand-pledgee with a permanent
token, as in the case of a real pledge, by which he can prove that
at a certain time the hand was pledged, developed the practice of
placing in the extended hand of the pledgee an object which the
hand-pledgee retained as evidence of the obligation of "fides."
I have already shown [elsewhere in the original work] that this
ancient Iranian legal theory of contractual obligation coincides at
all points w^ith the Greek and Latin principles concerning the crea-
tion of the guest relation. Here, also, the purpose is to establish
the bond of "fides" even though not involving a single proprietary
performance. It is always founded on Se^tai, "data dextra."
But a guest-present is also added as a permanent token of the
concluded friendship, and it is also possible to establish an "hos-
pitium" with an absent person by sending a guest-present. The
similarity of the Iranian contractual obligation by means of a
hand-shake and the Grseco-Italic guest-contract raises the sup-
position that the interpretation of the "data dextra" as a giving
of pledge also rests on the same ancient Aryan legal conception
i
I
Chap. XXVII, § 1.] EVOLUTION OF THE LAW OF COXTRACT 497
This supposition is in fact confirmed by our Roman sources. Even
in later Rome this interpretation was not lost — giving the hand
means giving consent ; it involves the bond of "fides" ; one gives
his hand as a pledge of performance; and the "dextra" is the
embodiment of "fides." . . . And, again, since the "dextra"
is the incarnation of "fides," the Greeks and Romans readily em-
ployed the "data dextra" in the highest form of "fides" obliga-
tion, the international alliance. . . . Furthermore, the hand is
extended in salutation to indicate a friendh' disposition when no
alliance or contractual obligation is in question, because the
"dextra " is the symbol of "fides."
We have found, despite the thick obscurity which hangs over
the pre-ethnic contract doctrine, important connections between
the Iranian contract theory, especially in its descent from the idea
of giving pledge, and between the Roman conceptions of real
acts. We have now to add to this discussion of ancient Aryan
formal and real acts two negative propositions which may be
laid down with considerable assurance.
The first proposition is that even though the Romans carried
along the ancient "fas" law ideas of the obligation of "fides"
by means of "data dextra," still they did not adopt it in their
system of civil contract law. They did not recognize any prin-
ciple, such as that of the Persians, that invested every contract
fortified with a hand-pledge with legal protection. Still, an im-
portant exception must be noted. The ancient Aryan usage of
hand-seizure in the matrimonial ceremony is in itself the taking
hold of "potestas," which the Romans carried as a survival into
their matrimonial mancipation. But we have seen that from
early times in the matrimonial ceremony of hand-seizure, there
was visible the seed of the idea that it involved a mutual obliga-
tion of "fides." The farther the thought developed that "consen-
sus facit nuptias," the more clearly the notion was received among
the Greeks and Romans that the "dextrarum conjunctio" was the
corporal expression of this consensus. To this extent we may
say, also, that the "dextra data" as a " fides "-obligation act
became a parcel of Roman civil law.
The second negative proposition relates to the formal act of
pledging one's word, as we found it distinctly formulated in the
Iranian contract theory. In my exposition of the elements of the
formal act, I have intentionally dwelt on the word-pledge, be-
cause it corresponds with ideas of Germanic law. It is not even
entirely foreign to our present-day ideas to speak of "pledging
498 THINGS [Part III.
one's word," or of "redeeming the given word."^ But in the
Roman sources I think no trace of such a conception can be
found. The Roman interpretation of this matter —" spondeo,"
"vas," "prses" — rests on original foundations. We may ac-
cordingly draw the conclusion, that notwithstanding the wide
extension of the " sponsio" act as well as the wager act throughout
the various Aryan peoples, the Latin-Roman treatment of these
contract forms developed under the preponderant influence of
strictly national tendencies.
Section 2
EARLY HISTORY OF CONTRACT 2
Neither Ancient Law nor any other source of evidence discloses
to us society entirely destitute of the conception of Contract.
But the conception, when it first shows itself, is obviously rudi-
mentary. No trustworthy primitive record can be read without
perceiving that the habit of mind which induces us to make good
a promise is as yet imperfectly developed, and that acts of flagrant
perfidy are often mentioned without blame and sometimes de-
scribed with approbation. In the Homeric literature, for instance,
the deceitful cunning of LTlysses appears as a virtue of the same
rank with the prudence of Nestor, the constancy of Hector, and
the gallantry of Achilles. Ancient law is still more suggestive of
the distance which separates the crude form of Contract from its
maturity. At first, nothing is seen like the interposition of law to
compel the performance of a promise. That which the law arms
with its sanctions is not a promise, but a promise accompanied
with a solemn ceremonial. Not only are the formalities of equal
importance with the promise itself, but they are, if anything, of
greater importance; for that delicate analysis which mature
jurisprudence applies to the conditions of mind under which a
particular verbal assent is given appears, in ancient law, to be
transferred to the words and gestures of the accompanying per-
formance. No pledge is enforced if a single form be omitted or
misplaced, but, on the other hand, if the forms can be shown to have
been accurately proceeded with, it is of no avail to plead that
the promise was made under duress or deception. The transmuta-
* [Compare here the etymologies for " promise " and " pledge " cited in
Chapter XXV (supra) See. 2 — "The Pledge Idea."]
2 [By Sir Henry S. Maine. Reprinted from "i' Ancient Law," by per-
mission of Henry Holt and Company, New York.]
Chap. XXVII, §2.] EVOLUTION OF THE Ui.W OF CONTRACT 499
tion of this ancient view into the familiar notion of a Contract is
plainly seen in the history of jurisprudence. First one or two
steps in the ceremonial are dispensed with ; then the others are
simplified or permitted to be neglected on certain conditions ; lastly,
a few specific contracts are separated from the rest and allowed
to be entered mto without form, the selected contracts being those
on which the activity and energy of social intercourse depend.
Slowly, but most distinctly, the mental engagement isolates itself
amid the technicalities, and gradualh' becomes the sole ingredient
on which the mterest of the jurisconsult is concentrated. Such a
mental engagement, signified through external acts, the Romans
called a Pact or Convention ; and when the Convention has once
been conceived as the nucleus of a Contract, it soon becomes the
tendency of advancing jurisprudence to break away the external
shell of form and ceremony. Forms are thenceforward only retained
so far as they are guarantees of authenticity and securities for cau-
tion and deliberation. The idea of a Contract is fully developed,
or, to employ the Roman phrase. Contracts are absorbed in Pacts.
The history of this course of change in Roman law is exceedingly
instructive. At the earliest dawn of jurisprudence, the term
in use for a Contract was one which is ver}^ familiar to the students
of historical Latinity. It was nexum, and the parties to the con-
tract were said to be nexi, expressions which must be carefully
attended to on account of the singular durableness of the metaphor
on which they are founded. The notion that persons under a con-
tractual engagement are connected together by a strong bond or
chain, continued till the last to influence the Roman jurisprudence
of Contract ; and flowing thence it has mixed itself with modern
ideas. What then was involved in this nexum or bond? A
definition which has descended to us from one of the Latin anti-
quarians describes nexum as omne quod geritur per ces et libram,
"every transaction with the copper and the balance," and these
words have occasioned a good deal of perplexity. The copper
and the balance are the well-known accompaniments of the ]Manci-
pation, the ancient solemnity described in a former chapter, by
which the right of ownership in the highest form of Roman Prop-
erty was transferred from one person to another. ^Mancipation
was a conveyance, and hence has arisen the difficulty, for the
definition thus cited appears to confound Contracts and Con-
veyances, which in the philosophy of jurisprudence are not simply
kept apart, but are actually opposed to each other. The jus in re,
right in rem, right "availing against all the world," or Proprietary
500 THINGS [Part III.
Right, is sharply distinguished by the analyst of mature jurispru-
dence from the jus ad rem, right in personam, right " availing against
a single individual or group," or Obligation. Now Conveyances
transfer Proprietary Rights, Contracts create Obligations — how
then can the two be included under the same name or same general
conception? This, like many similar embarrassments, has been
occasioned by the error of ascribing to the mental condition of an
unformed society a faculty which pre-eminently belongs to an
advanced stage of intellectual development, the faculty of dis-
tinguishing in speculation ideas which are blended in practice.
We have indications not to be mistaken of a state of social affairs
in which Conveyances and Contracts were practically confounded ;
nor did the discrepance of the conceptions become perceptible till
men had begun to adopt a distinct practice in contracting and
conveying.
It may here be observed that we know enough of ancient Roman
law to give some idea of the mode of transformation followed by
legal conceptions and by legal phraseology in the infancy of Juris-
prudence. The change which they undergo appears to be a change
from general to special ; or, as we might otherwise express it, the
ancient conceptions and the ancient terms are subjected to a
process of gradual specialisation. An ancient legal conception
corresponds not to one but to several modern conceptions. An
ancient technical expression serves to indicate a variety of things
which in modern law have separate names allotted to them.
If, however, we take up the history of Jurisprudence at the next
stage, we find that the subordinate conceptions have gradually dis-
engaged themselves, and that the old general names are giving
way to special appellations. The old general conception is not
obliterated, but it has ceased to cover more than one or a few of the
notions which it first included. So too the old technical name
remains, but it discharges only one of the functions which it once
performed. We may exemplify this phenomenon in various ways.
Patriarchal Power of all sorts appears, for instance, to have been
once conceived as identical in character, and it was doubtless dis-
tinguished by one name. The Power exercised by the ancestor was
the same whether it was exercised over the family or the material
property — over flocks, herds, slaves, children, or wife. We can-
not be absolutely certain of its old Roman name, but there is very
strong reason for believing, from the number of expressions indicat-
ing shades of the notion of yower into which the word manus enters,
that the ancient general term was manus. But, when Roman
Chap. XXVII, §2.] EVOLUTION OF THE LAW OF CONTRACT 501
law has advanced a little, both the name and the idea have become
specialised. Power is discriminated, both in word and in concep-
tion, according to the object over which it is exerted. Exercised
over material commodities or slaves, it has become dominium —
over children, it is Potestas — over free persons whose services
have been made away to another by their own ancestor, it is
mancipium — over a wife, it is still manus. The old word, it will
be perceived, has not altogether fallen into desuetude, but is con-
fined to one very special exercise of the authority it had formerly
denoted. This example will enable us to comprehend the nature
of the historical alliance between Contracts and Conveyances.
There seems to have been one solemn ceremonial at first for all
solemn transactions, and its name at Rome appears to have been
nexum. Precisely the same forms which were in use when a con-
veyance of property was effected seem to have been employed in the
making of a contract. But we have not very far to move onwards
before we come to a period at which the notion of a Contract
has disengaged itself from the notion of a Conveyance. A
double change has thus taken place. The transaction "with the
copper and the balance," when intended to have for its office
the transfer of property, is known by the new and special name of
Mancipation. The ancient Nexum still designates the same cere-
mony, but only when it is employed for the special purpose of
solemnising a contract.
When two or three legal conceptions are spoken of as anciently
blended in one, it is not intended to imply that some one of the
included notions may be not older than the others, or, when those
others have been formed, may not greatly predominate over and
take precedence of them. The reason why one legal conception
continues so long to cover several conceptions, and one technical
phrase to do instead of several, is doubtless that practical changes
are accomplished in the law of primitive societies long before men
see occasion to notice or name them. Though I have said that
Patriarchal Power was not at first distinguished according to the
objects over which it was exercised, I feel sure that Power over
Children was the root of the old conception of Power ; and I cannot
doubt that the earliest use of the Xexum, and the one primarily
regarded by those who resorted to it, was to give proper solemnity
to the alienation of property. It is likely that a very slight per-
version of the Nexum from its original functions first gave rise to
its employment in Contracts, and that the very slightness of the
change long prevented its being appreciated or noticed. The old
502 THINGS [Part III.
name remained because men had not become conscious that they
wanted a new one ; the old notion ckuig to the mind because no-
body had seen reason to be at the pains of examining it. We have
had the process clearly exemplified in the history of Testaments.
A Will was at first a simple conveyance of Property. It was only
the enormous practical difference that gradually showed itself
between this particular conveyance and all others which caused it
to be regarded separately, and even as it was, centuries elapsed
before the ameliorators of law cleared away the useless encum-
brance of the nominal mancipation, and consented to care for
nothing in the Will but the expressed intentions of the Testator.
It is unfortunate that we cannot track the early history of Con-
tracts with the same absolute confidence as the early history of
Wills, but we are not quite without hints that contracts first
showed themselves through the nexum being put to a new use and
afterwards obtained recognition as distinct transactions through
the important practical consequences of the experiment. There
is some, but not very violent, conjecture in the following delinea-
tion of the process. Let us conceive a sale for ready money as the
normal type of the Nexum. The seller brought the property of
which he intended to dispose — a slave, for example — the pur-
chaser attended with the rough ingots of copper which served for
money — and an indispensable assistant, the lihripens, presented
himself with a pair of scales. The slave with certain fixed formal-
ities was handed over to the vendee — the copper was weighed
by the lihripens and passed to the vendor. So long as the business
lasted it was a nexum, and the parties were 7iexi; but the moment
it was completed, the nexum ended, and the vendor and purchaser
ceased to bear the name derived from their momentary relation.
But now, let us move a step onward in commercial history. Sup-
pose the slave transferred, but the money not paid. In that case,
the nexum is finished, so far as the seller is concerned, and when
he has once handed over his property, he is no longer nexus ; but,
in regard to the purchaser, the nexum continues. The transac-
tion, as to his part of it, is incomplete, and he is still considered to
be nexus. It follows, therefore, that the same term described the
conveyance by which the right of property was transmitted, and
the personal obligation of the debtor for the unpaid purchase-
money. We may still go forward, and picture to ourselves a
proceeding wholly formal, in which nothing is handed over and
nothing paid ; we are brought at once to a transaction indicative
of much higher commercial activity, an executory Contract of Sale.
Chap. XXVII, §2.] EVOLUTIOX OF THE LAW OF CONTRACT 503
If it be true that, both in the popular and in the professional
view, a Contract was long regarded as an incomplete Conveyance, the
truth has importance for many reasons. The speculations of the
last century concerning mankind in a state of nature, are not
unfairly summed up in the doctrine that " in the primitive society
property was nothing, and obligation everything"; and it will
now be seen that, if the proposition were reversed, it would be
nearer the reality. On the other hand, considered historically,
the primitive association of Conveyances and Contracts explains
something which often strikes the scholar and jurist as singularly
enigmatical, I mean the extraordinary and uniform severity of
very ancient systems of law to debtors, and the extravagant powers
which they lodge with creditors, ^^^len once we understand that
the nexum was artificially prolonged to give time to the debtor, we
can better comprehend his position in the eye of the public and of
the law. His indebtedness was doubtless regarded as an anomaly,
and suspense of payment in general as an artifice and a distortion
of strict rule. The person who had duly consummated his part
in the transaction must, on the contrary, have stood in peculiar
favour ; and nothing would seem more natural than to arm him
with stringent facilities for enforcing the completion of a proceeding
which, of strict right, ought never to have been extended or deferred.
Xexum, therefore, which originally signified a Conveyance of
property, came insensibly to denote a Contract also, and ulti-
mately so constant became the association between this word and
the notion of a Contract, that a special term, ^Nlancipium or
INIancipatio, had to be used for the purpose of designating the true
nexum or transaction in which the property was really transferred.
Contracts are therefore now severed from Conveyances, and the
first stage in their history is accomplished, but still they are far
enough from that epoch of their development when the promise of
the contractor has a higher sacredness than the formalities with
which it is coupled. In attempting to indicate the character of
the changes passed through in this interval, it is necessary to
trespass a little on a subject which lies properly beyond the range
of these pages, the analysis of Agreement effected by the Roman
jurisconsults. Of this analysis, the most beautiful monument
of their sagacity, I need not say more than that it is based on the
theoretical separation of the Obligation from the Convention or
Pact. Bentham and INIr. Austin have laid down that the "two
main essentials of a contract are these : first, a signification by
the promising party of his intention to do the acts or to observe
504 THINGS [Pabt III.
the forbearances which he promises to do or to observe. Secondly,
a signification by the promisee that he expects the promising
party will fulfil the proffered promise." This is virtually identical
with the doctrine of the Roman lawyers, but then, in their view,
the result of these "significations" was not a Contract, but a
Convention or Pact. A Pact was the utmost product of the en-
gagements of individuals agreeing among themselves, and it
distinctly fell short of a Contract. Whether it ultimately became
a Contract depended on the question whether the law annexed
an Obligation to it. A Contract was. a Pact (or Convention)
yliis an Obligation. So long as the Pact remained unclothed
with the Obligation it was called nude or naked.
What was an Obligation? It is defined by the Roman lawyers
as "Juris vinculum, quo necessitate adstringimur alicujus sol-
vendse rei." This definition connects the Obligation with the
Nexum through the common metaphor on which they are founded,
and shows us with much clearness the pedigree of a peculiar con-
ception. The Obligation is the "bond" or "chain," with which
the law joins together persons or groups of persons, in consequence
of certain voluntary acts. The acts which have the effect of
attracting an Obligation are chiefly those classed under the heads
of Contract and Delict, of Agreement and Wrong ; but a variety
of other acts have a similar consequence which are not capable
of being comprised in an exact classification. It is to be remarked,
however, that the Pact does not draw to itself the Obligation in
consequence of any moral necessity ; it is the law which annexes
it in the plenitude of its power, a point the more necessary to
be noted, because a different doctrine has sometimes been pro-
pounded by modern interpreters of the Civil Law who had moral
or metaphysical theories of their own to support. The image of
a vinculum juris colours and pervades every part of the Roman
law of Contract and Delict. The law bound the parties together,
and the chain could only be undone by the process called solutio,
an expression still figurative, to which our word "payment" is
only occasionally and incidentally equivalent. The consistency
with which the figurative image was allowed to present itself,
explains an otherwise puzzling peculiarity of Roman legal phrase-
ology, the fact that "Obligation" signifies rights as well as duties,
the right, for example, to have a debt paid as well as the duty of
paying it. The Romans kept, in fact, the entire picture of the
"legal chain" before their eyes, and regarded one end of it no more
and no less than the other.
Chap. XXVII, §2.] EVOLUTION OF THE LAW OF CONTRACT 505
In the developed Roman law, the Convention, as soon as it
was completed, was, in almost all cases, at once crowned with the
Obligation, and so became a Contract ; and this was the result
to which contract-law was surely tending. But for the purpose
of this inquiry, we must attend particularly to the intermediate
stage — that in which something more than a perfect agreement
was required to attract the obligation. This epoch is synchronous
with the period at which the famous Roman classification of Con-
tracts into four sorts — the Verbal, the Literal, the Real, and the
Consensual — had come into use, and during which these four
orders of contract constituted the only descriptions of engagement
which the law would enforce. The meaning of the fourfold dis-
tribution is readily understood as soon as we apprehend the theory
which severed the Obligation from the Convention. Each class
of contracts was in fact named from certain formalities which
were required over and above the mere agreement of the contract-
ing parties. In the Verbal Contract, as soon as the Convention
was effected, a form of words had to be gone through before the
"vinculum juris" was attached to it. In the Literal Contract,
an entry in a ledger or table-book had the effect of clothing the
Convention with the Obligation, and the same result followed,
in the case of the Real Contract, from the delii^ery of the Res
or Thing which was the subject of the preliminary engagement.
The contracting parties came, in short, to an understanding in
each case ; but, if they went no further, they were not obliged
to one another and could not compel performance or ask redress
for a breach of faith. But let them comply with certain prescribed
formalities, and the Contract was immediately complete, taking
its name from the particular form which it had suited them to
adopt. The exceptions to this practice will be noticed presently.
I have enumerated the four Contracts in their historical order,
which order, however, the Roman Institutional writers did not
invariably follow. There can be no doubt that the Verbal Con-
tract was the most ancient of the four, and that it is the eldest
known descendant of the primitive Nexum. Several species of
Verbal Contract were anciently in use, but the most important
of all, and the only one treated of by our authorities, was effected
by means of a stipulation, that is, a Question and Answer; a
question addressed by the person who exacted the promise, and
an answer given by the person who made it. This question and
answer constituted the additional ingredient which, as I have
just explained, was demanded by the primiti^^e notion over and
506 THINGS [Pabt III.
above the mere agreement of the persons interested. They formed
the agency by which the Obhgation was annexed. The old Nexum
has now bequeathed to maturer jurisprudence first of all the con-
ception of a chain uniting the contracting parties, and this has
become the Obligation. It has further transmitted the notion of
a ceremonial accompanying and consecrating the engagement,
and this ceremonial has been transmuted into the Stipulation.
The conversion cf the solemn conveyance, which was the promi-
nent featureof the original Nexum, into a mere question and answer,
would be more of a mystery than it is if we had not the analogous
history of Roman Testaments to enlighten us. Looking at that
history, we can understand how the formal conveyance was first
separated from the part of the proceeding which had immediate
reference to the business in hand, and how afterwards it was
omitted altogether. As then the question and answ^er of the
Stipulation were unquestionably the Nexum in a simplified shape,
we are prepared to find that they long partook of the nature of a
technical form. It would be a mistake to consider them as ex-
clusively recommending themselves to the older Roman lawyers
through their usefulness in furnishing persons meditating an
agreement with an opportunity for consideration and reflection.
It is not to be disputed that they had a value of this kind, which
was gradually recognised ; but there is proof that their function
in respect to Contracts was at first formal and ceremonial in the
statement of our authorities, that not every question and answer
was of old sufficient to constitute a Stipulation, but only a question
and answer couched in technical phraseology specially appro-
priated to the particular occasion.
But although it is essential for the proper appreciation of the
history of contract-law that the Stipulation should be understood
to have been looked upon as a solemn form before it was recognised
as a useful security, it would be wrong on the other hand to shut
our eyes to its real usefulness. The Verbal Contract, though it
had lost much of its ancient importance, survived to the latest
period of Roman jurisprudence ; and we may take it for granted
that no institution of Roman law had so extended a longevity
unless it served some practical advantage. I observe in an
English writer some expressions of surprise that the Romans
even of the earliest times w^ere content with so meagre a protection
against haste and irreflection. But on examining the Stipulation
closely, and remembering that we have to do with a state of society
in which written evidence was not easily procurable, I think we
Chap. XXVII, §2.] EVOLUTION OF THE LAW OF CONTRACT 507
must admit that this Question and Answer, had it been expressly
devised to answer the purpose which it served, would have been
justly designated a highly ingenious expedient. It was the
promisee who, in the character of stipulator, put all the terms of
the contract into the form of a question, and the answer was given
by the promisor. "Do you promise that you will deliver me such
and such a slave, at such and such a place, on such and such a
day?" "I do promise." Now, if we reflect for a moment, we
shall see that this obligation to put the promise interrogativeh'
inverts the natural position of the parties, and, by effectually
breaking the tenor of the conversation, prevents the attention
from gliding over a dangerous pledge. With us, a verbal promise
is, generally speaking, to be gathered exclusively from the words
of the promisor. In old Roman law, another step was absolutely
required ; it was necessary for the promisee, after the agreement
had been made, to sum up all its terms in a solemn interrogation ;
and it was of this interrogation, of course, and of the assent to it,
that proof had to be given at the trial — not of the promise, which
was not in itself binding. How great a difference this seemingly
insignificant peculiarity may make in the phraseology of contract-
law is speedily realised by the beginner in Roman jurisprudence,
one of whose first stumbling-blocks is. almost universally created
by it. When we in English have occasion, in mentioning a con-
tract, to connect it for convenience' sake with one of the parties,
— for example, if we wished to speak generall}' of a contractor, —
it is always the promisor at whom our words are pointing. But
the general language of Roman law takes a different turn ; it
always regards the contract, if we may so speak, from the point
of view of the promisee ; in speaking of a party to a contract, it
is always the Stipulator, the person who asks the question, who is
primarily alluded to. But the serviceableness of the stipulation
is most vividly illustrated by referring to the actual examples
in the pages of the Latin comic dramatists. If the entire scenes
are read down in which these passages occur (ex. gra. Plautus,
Pseiidolus, Act I. sc. 1 ; Act IV. sc. 6 ; Trinummus, Act V. sc. 2),
it will be perceived how effectually the attention of the person
meditating the promise must have been arrested by the question,
and how ample was the opportunity for withdrawal from an im-
provident undertaking.
In the Literal or Written Contract, the formal act by which
an Obligation was superinduced on the Con^'ention, was an entry
of the sum due, where it could be specifically ascertained, on the
508 THINGS [Part III.
debit side of a ledger. The explanation of this contract turns
on a point of Roman domestic manners, the systematic character
and exceeding regularity of book-keeping in ancient times. There
are several minor difficulties of old Roman law, as, for example,
the nature of the Slave's Peculium, which are only cleared up
when we recollect that a Roman household consisted of a number
of persons strictly accountable to its head, and that every single
item of domestic receipt and expenditure, after being entered in
waste books, was transferred at stated periods to a general house-
hold ledger. There are some obscurities, however, in the descrip-
tions we have received of the Literal Contract, the fact being
that the habit of keeping books ceased to be universal in later
times, and the expression "Literal Contract" came to signify
a form of engagement entirely different from that originally under-
stood. We are not, therefore, in a position to say, with respect to
the primitive Literal Contract, whether the obligation was created
by a simple entry on the part of the creditor, or whether the con-
sent of the debtor or a correspondent entry in his own books was
necessary to give it legal effect. The essential point is however
established, that, in the case of this Contract, all formalities were
dispensed with on a condition being complied with. This is
another step downw^ards in the history of contract-law.
The Contract which stands next in historical succession, the
Real Contract, shows a great advance in ethical conceptions.
Whenever any agreement had for its object the delivery of a
specific thing — and this is the case with the large majority of
simple engagements — the Obligation was drawn down as soon
as the delivery had actually taken place. Such a result must
have involved a serious innovation on the oldest ideas of Contract ;
for doubtless, in the primitive times, when a contracting party
had neglected to clothe his agreement in a stipulation, nothing
done in pursuance of the agreement would be recognised by the
law. A person who had paid over money on loan would be unable
to sue for its repayment unless he had formally stipulated for it.
But, in the Real Contract, performance on one side is allowed to
impose a legal duty on the other — evidently on ethical grounds.
•For the first time then moral considerations appear as an ingredient
in Contract-law, and the Real Contract differs from its two pred-
ecessors in being founded on these, rather than on respect for
technical forms or on deference to Roman domestic habits.
We now reach the fourth class, or Consensual Contracts, the
most interesting and important of all. Four specified Contracts
Chap. XXVII, §2.] EVOLUTION OF THE LAW OF CONTRACT 509
were distinguished by this name : Mandatum, i.e. Commission or
Agency ; Societas or Partnership ; Emptio Venditio or Sale ; and
Locatio Conductio or Letting and Hiring. A few pages back,
after stating that a Contract consisted of a Pact or Convention to
which an Obhgation had been superadded, I spoke of certain
acts or formahties by which the law permitted the Obligation to
be attracted to the Pact. I used this language on account of the
advantage of a general expression, but it is not strictly correct
unless it be understood to include the negative as well as the
positive. For, in truth, the peculiarity of these Consensual
Contracts is that no formalities are required to create them out
of the Pact. IMuch that is indefensible, and much more that is
obscure, has been written about the Consensual Contracts, and
it has even been asserted that in them the consent of the Parties
is more emphatically given than in any other species of agreement.
But the term Consensual merely indicates that the Obligation is
here annexed at once to the Consensus. The Consensus, or mutual
assent of the parties, is the final and crowning ingredient in the
Convention, and it is the special characteristic of agreements
falling under one of the four heads of Sale, Partnership, Agency,
and Hiring, that, as soon as the assent of the parties has supplied
this ingredient, there is at once a Contract. The Consensus draws
with it the Obligation, performing, in transactions of the sort
specified, the exact functions which are discharged, in the other
contracts, by the Res or Thing, by the J^erba stipulationis, and by
the Literce or written entry in a ledger. Consensual is therefore
a term which does not involve the slightest anomaly, but is exactly
analogous to Real, Verbal, and Literal.
The Consensual Contracts, it will be observed, were extremely
limited in number. But it cannot be doubted that they con-
stituted the stage in the history of Contract-law from which all
modern conceptions of contract took their start. The motion
of the will which constitutes agreement was now completely
insulated, and became the subject of separate contemplation ;
forms were entirely eliminated from the notion of contract, and
external acts were only regarded as sjinbols of the internal act
of volition. The Consensual Contracts had, moreover, been
classed in the Jus Gentium, and it was not long before this classi-
fication drew with it the inference that they were the species of
agreement which represented the engagements approved of by
510 THINGS [Part III.
Nature and included in her code. This point once reached, we
are prepared for several celebrated doctrines and distinctions of
the Roman lawyers. One of them is the distinction between
Natural and Civil Obligations. When a person of full intellectual
maturity had deliberately bound himself by an engagement, he
was said to be under a natural ohligation, even though he had
omitted some necessary formality, and even though through some
technical impediment he was devoid of the formal capacity for
making a valid contract. The law (and this is what the distinction
implies) would not enforce the obligation, but it did not absolutely
refuse to recognise it ; and natural obligations differed in many
respects from obligations which were merely null and void, more
particularly in the circumstance that they could be civilly con-
firmed, if the capacity for contract were subsequently acquired.
Another very peculiar doctrine of the jurisconsults could not have
had its origin earlier than the period at which the Convention
was severed from the technical ingredients of Contract. They
taught that though nothing but a Contract could be the founda-
tion of an action, a mere Pact or Convention could be the basis
of a plea. It followed from this, that though nobody could sue
upon an agreement which he had not taken the precaution to
mature into a Contract by complying with the proper forms,
nevertheless a claim arising out of a valid contract could be re-
butted by proving a counter-agreement which had never got
beyond the state of a simple convention. An action for the
recovery of a debt could be met by showing a mere informal
agreement to w^aive or postpone the payment.
The doctrine just stated indicates the hesitation of the Praetors
in making their advances towards the greatest of their innovations.
Their theory of Natural law must have led them to look with
especial favour on the Consensual Contracts and on those Pacts
or Conventions of which the Consensual Contracts were only
particular instances ; but they did not at once venture on extend-
ing to all Conventions the liberty of the Consensual Contracts.
They took advantage of that special superintendence over pro-
cedure which had been confided to them since the first beginnings
of Roman law, and, while they still declined to permit a suit to
be launched which was not based on a formal contract, they gave
full play to their new theory of agreement in directing the ulterior
stages of the proceeding. But, when they had proceeded thus
far, it was inevitable that they should proceed farther. The
revolution of the ancient law of Contract was consummated when
Chap. XXVII, § 2.] EVOLUTION OF THE LAW OF CONTRACT 511
the Prsetor of some one year announced in his Edict that he would
grant equitable actions upon Pacts which had never been matured
at all into Contracts, provided only that the Pacts in question
had been founded on a consideration (causa). Pacts of this sort
are always enforced under the advanced Roman jurisprudence.
The principle is merely the principle of the Consensual Contract
carried to its proper consequence ; and, in fact, if the technical
language of the Romans had been as plastic as their legal theories,
these Pacts enforced by the Praetor would have been styled new
Contracts, new Consensual Contracts. Legal phraseology is,
however, the part of the law which is the last to alter, and the
Pacts equitably enforced continued to be designated simply
Praetorian Pacts. It will be remarked that unless there were
consideration for the Pact, it would continue nude so far as the
new jurisprudence was concerned; in order to give it effect, it
would be necessary to convert it by a stipulation into a Verbal
Contract.
The extreme importance of this history of Contract, as a safe-
guard against almost innumerable delusions, must be my justifica-
tion for discussing it at so considerable a length. It gives a
complete account of the march of ideas from one great landmark
of jurisprudence to another. We begin with the Xexum, in which
a Contract and a Conveyance are blended, and in which the for-
malities which accompany the agreement are even more important
than the agreement itself. From the Xexum Ave pass to the
Stipulation, which is a simplified form of the older ceremonial.
The Literal Contract comes next, and here all formalities are
waived, if proof of the agreement can be supplied from the rigid
observances of a Roman household. In the Real Contract a
moral duty is for the first time recognised, and persons who have
joined or acquiesced in the partial performance of an engagement
are forbidden to repudiate it on account of defects in form. Lastly,
the Consensual Contracts emerge, in which the mental attitude
of the contractors is solely regarded, and external circumstances have
no title to notice except as evidence of the inward undertaking.
It is of course uncertain how far this progress of Roman ideas
from a gross to a refined conception exemplifies the necessary
progress of human thought on the subject of Contract. The
Contract-law of all other ancient societies but the Roman is
either too scanty to furnish information, or else is entirely lost;
and modern jurisprudence is so thoroughly leavened with the
Roman notions that it furnishes us with no contrasts or parallels
512 THINGS [Part III.
from which instruction can be gleaned. From the absence,
however, of everything violent, marvellous, or unintelligible in
the changes I have described, it may be reasonably believed that
the history of Ancient Roman Contracts is, up to a certain point,
typical of the history of this class of legal conceptions in other
ancient societies. But it is only up to a certain point that the
progress of Roman law can be taken to represent the progress of
other systems of jurisprudence. The theory of Natural law is
exclusively Roman. The notion of the vinculum juris, so far as
my knowledge extends, is exclusively Roman. The many pe-
culiarities of the mature Roman Law of Contract and Delict
which are traceable to these two ideas, whether singly or in com-
bination, are therefore among the exclusive products of one par-
ticular society. These later legal conceptions are important, not
because they typify the necessary results of advancing thought
under all conditions, but because they have exercised perfectly
enormous influence on the intellectual diathesis of the modern
w^orld.
Section 3
SPONSIO AND PRIMITIVE CONTRACT i
In the early history of the "stipulatio," or rather of the "spon-
sio," one point appears to be now settled, viz., its religious nature.
Its form, to be sure — which would have been originally an oath
— is still in dispute. A recently advanced hypothesis of the
correct translation of "stipulatio" — that this early word of
religious usage signified "to complain on oath," i.e. to challenge
the opponent and to make an offering ("stips," "stipula," some
small object) to the deity ^ — would give to it the same religious
character, involving plainly the "sacramentum," the early sanc-
tion for the "sponsio."
But none of the scholars (so far as we are aware) has pursued
the inquiry whether the role of the "sponsio" was in primitive
times the same as we find it in the developed Roman law, viz. a
form for giving obligatory effect to all varieties of legal rela-
tions by the utterance of the simple words, " Spondesne etc. ?
Spondeo." It is conceivable that the " sponsio " was not always
1 [Translated from an essay bj' Pol Collinet, Professor of the History
of French Law in the University of Lille, and pulalished in the "Melanges
Gerardin," a volume in honor of the 70th birthday of Professor Gerardin
(Paris, 1907, Larose & Tenin). The translation is by John H. Wigmore;
some portions on the technique of Roman Law are omitted.]
2 P. Huvelin, "Stipulatio, stips, et sacramentum" (Naples, 1906,
"Studi in onore di Carlo Fadda").
Chap. XXVII, §3.] EVOLUTIO:; OF THE LAW OF COXTRACT 513
a generic "contract-factory"; and its primitive purpose is what
we now propose to inquire into.
§ 1. Scantiness of Contract Transaction's in Primitive Law. —
It is difficult to believe that the primitive Italic peoples invented
the "sponsio" as a general form of validit}' applicable to all
varieties of simple agreements.
In the first place, the psychology of primitive peoples makes
against this. Modern legal practice and theory is used to this
method of using legal ideas. But primitive peoples do not begin
by devising a general rule or principle capable of application to
an unlimited or numerous variety of situations. Every legal
institution makes its first appearance in a single aspect only ; it
is a species, not a genus. It is like a bacillus, which enlarges and
propagates itself. Primitive men, like simple-minded moderns,
are concrete. Whenever it was that they devised the broad
verbal form of the "sponsio," they did not conceive of it as a
general "contract-factory." Rather must we suppose that, when
aiming to validate some specific agreement, thej^ employed a
formula which was concrete in their thought, though generic in
its terms. It was reserved for their descendants, more advanced
in legal ideas and more addicted to generalizations, to profit by
this form of words.
In the second place, the "sponsio" could not have been in-
vented to cover a group or species of transactions, but only to
cover a single kind of promise. We must remember the rudimen-
tary conditions of the Italic civilization as it existed before the
foundation of Rome, and even into the fifth and sixth centuries
of the Roman era. They did not need a generic legal form as a
cloak for numerous kinds of simple contracts. We know that
contract-transactions are few in all primitive communities. And
in Italy there were already enough forms, scanty as they were,
for the legal needs. They possessed the "nexum" and the "man-
cipatio," — these two reducible to the form of " per ses et libram " ;
this was little, but it was enough. The "mancipatio" was a sale
for cash. Primitive peoples have not reached the sale on credit ;
as they emerge from the stage of barter, they devise the sale, but
for cash, — a natural mode of transferring title. The archaic
form for this was the transaction "per ses et libram," — again,
a natural enough form, as soon as money comes to be used, in the
shape of ingots, measured by weight not by number. The sale
for cash, then, was one of the oldest transactions. The money-
loan, which was perhaps not so old, was also practised by the
514 THIXGS [Part III.
Italiots with this same form "per ses et Hbram," and for the same
necessary reason. But these two types of transaction sufficed,
it would seem, for these primitive peoples. Why? Because
most of the known forms, real and consensual, of contract are not
prehistoric, nor even "protohistoric," but are known to be of later
date, — at Rome, specifically about the seventh century. This
is true of sale (as a contract), letting, mandate, partnership, de-
posit, etc. We may go even further, and say that, among the
contracts known to primitive Roman law, the one that is generally
stated to be earliest, viz, the "nexum," cannot in our opinion be
regarded as a true contract at all.^
In short, the view here advanced is that there was^ in primitive
Roman law, hut one species of contract, viz. the " sponsio/'
The Italiots were not making contracts. Their family chiefs
had no commercial transactions with each other, except the sale
and the money-loan ; or, if there were such transactions, they were
not recognized by any law; "fides" alone controlled them. The
main and sufficient explanation of this is the conditions of primitive
life. Each family within its own circle satisfied its needs (few
enough at that), and such transactions within the family were
not within the purview of the tribal law, which aimed principally
at regulating the relations between "patresfamilias," who were
aliens to each other's family and perhaps to each other's gens.
The same reasons also explain why (in our opinion) the "nexum"
originally applied only to money-transactions ; for though money
might be had from another member of the same family, yet it
would also often be necessary (especially when the family was poor
or straitened) to resort to the head of another family to borrow ;
whereas such resort would seldom be had for borrowing products
of the soil, because one's own family would be able to supply them,
or if not, this would be because of bad harvests, which would
probably have affected other families as well.^
1 This point, the precise nature of the "nexum," has been much dis-
cussed of late years ; but it need not here be examined. See Girard,
"Manuel elementaire de droit romain," 4th ed., 1906, p. 480, n. 2. In
our opinion, the "nexum" is a peculiar transaction which has no corre-
sponding one in the developed law and therefore no term that exactly
describes it. But that it is not a contract, i.e. does not create an obliga-
tion, in the strict sense, is plain. The "damnas esto" of the nexum does
not generate a " dare oportere " ; and it is not easy to see how the term
"contract" can be applied to a transaction for which the procedural right
of action lacks the technical "oportere." The latter word is indispensable
to the idea of obligation ; and it appears for the first time in the "sacra-
mentum," which is the sanction for the " sponsio " and not for the "nexum."
■ The large land-owners, with whom we later hear of I ' nexi " being made,
did not exist in the primitive period.
Chap. XXVII, § 3.] EVOLUTION OF THE LAW OF CONTRACT 515
To sum up, the Italic community (as we must conceive it)
had no need of the "sponsio" as a "contract-factory," because
people did not make contracts.
§ 2. The "Sponsio" as originally made in lieu of composition
for a feud. — There was, however (we believe), one contract ; and
it must have been in frequent use. This transaction was the
subject for the "sponsio."
Now the sources themselves tell us nothing directly as to the
subject of the "sponsio"; there is extant onh- one passage (as
also for the "litis contestatio ") of a grammarian, — a passage
vague and perhaps mutilated.^ But it is easy to construct an
hypothesis, — solid enough, in that it is merely a deduction from
the system of ideas now indisputably proved to have characterized
the early history of law. It is this :
The subject of the "sponsio" must have been the promise to pay a
sum of money representing the amount of a composition due to a
person for a tort (feud).
The situation was this : After committing a tort, the wrong-
doer owed a "poena"; the amount was always fixed, either by
the tariff of the law, or by a settlement with the injured party.
If payment was made, well and good. But suppose that the
wrongdoer had no money? Was the feud (which the settlement
stopped) to recommence between the two families ? Xo doubt it
did, in the earliest times. But as the wholesome effort for social
peace gained ground, in the early communes, then the mediators
("peace-makers," in the phrase of the old French custumals of
the North) — elders, or priests, or soothsayers, or kings — would
naturally seek a means of restraining that mutual destruction
which would shed the blood and deplete the strength of their
citizens. And the guilty party himself would naturally wish for
a truce (like that of the "communes jurees'' in the Middle Ages)
until he could procure the money needed. At this point, would
he not make a promise, when asked by the injured person or his
chief of family ? " Spondesne mihi centum dare ? " "Spondeo."
And here we would have the " sponsio," the earliest true contract,
and the only primitive one, — the promise to pay the pecuniary
composition to stop a feud.
This simple idea readily explains (in our view) several features :
1. In the first place, the relation between the "sponsio" and the
other two earliest transactions of Roman law — the "nexum"
1 See my article on "The Original Nature of the Litis Contestatio'*
("Nouv. revue hist, de droit fr. et etr.," 1902, XXVI, 529).
516 THINGS [Part III.
and the '* mancipatio " — is now easy to detect. The wrongdoer
who is to pay cannot obtain the money (from others than his own
family) except by one of two means, viz. by selling some property
of his own and paying his liability with the price received — in
which case he will use the "mancipatio" : or, by borrowing the
sum needed, — in which case he must use the " nexum." We may
even venture further, and assert that these two transactions would
in general be needed only when it was a tort for which the family-
chief needed this money. For what other purposes could the
money be needed? In primitive times, the other occasions for
such expense are limited ; agriculture calls for no investment of
capital. The need of money in those primitive communities is
exceptional.
2. The province of the Roman " cautio," or suretyship contract,
was at the beginning no more specific, in our opinion, than that of
the "stipulatio." The two contracts bore the same name, "spon-
sio." ^ It seems to us clear that the primitive surety-contract
served solely to guarantee the promise of a wrongdoer liable for
a composition. What other purpose it could serve is not apparent.
Not that of a sale ; for at Rome the price of a sale, primitively,
was paid in cash. Not that of a "nexum" ; for the "cautio" by
its very definition was accessory to some other obligation, and the
borrower in the "nexum" incurred no obligation, in the techni-
cal sense; moreover, the consequences of the "nexum" were posi-
tive enough not to need a surety. Looking at facts, we must
conclude that, at Rome as elsewhere, the situation of the wrong-
doer called for some mode of insuring payment to the victim ;
and to take a third person as surety was the natural expedient.
Family solidarity placed upon the relatives the burden of taking
up the feud either as attackers or defenders ; what more natural
than to bring about a peace, by either helping to pay the required
sum or by joining in the promise to pay it?
3. Furthermore, our hypothesis serves to explain how the prim-
itive subject of the "sponsio" and of its remedial action the
"legis actio per sacramentum" (leading to the "legis actio per
manus injectionem"), was a sum of money. ^ This "legis actio"
lit would not be impossible that the "sponsio" was employed at
first, as a species of "cautio," to furnish a third person's guarantee of the
obligation of a wrongdoer, and as a well-defined instance of family soli-
darity, without having the wrongdoer himself enter into a " stipulatio. "
[Compare here the Germanic use of the"wadia" = promise, noted supra,
Chap. XXV., § 2, p. 458, note 1.]
2 This fact is proved for the "manus iniectio," and probably also for
the "sacramentum."
Chap. XXVII, § 3.] EVOLUTION OF THE L.\W OF CONTRACT 517
developed, in historic times, an application to a "certa res" ; but
in its origin it probably applied only to a money-claim, i.e. the
amount of the "poena" required to settle for a wrong. The later
change would be explainable by the corresponding enlargement
in the province of the "stipulatio."
4. Finally, the innominate (generic) feature of the "sponsio"
formula, as developed in later times (like that of the " sacramen-
tum" and also of the "condictio"), would be perfectly compatible
with its primitive role. For the "sponsio" formula, "mihi cen-
tum dare" etc., mentioned no "causa," or purpose, of the obli-
gation, for the simple reason that this was needless ; there was
but one normal "causa," the purpose of settling the composition
for a feud.^ ...
§ 3. Conclusion. — Our hypothesis, then, though not as firm
as though it could be rested on specific texts, is nevertheless
plausible enough. For it squares with the conceded features of
primitive law and the important part played by the family feud
and the composition. It satisfies our natural curiosity to com-
plete the situation. The researches of those scholars who have
sought to discover the origins of the Roman law of obligations,
from the point of view of comparative archaic law, have neglected
to trace into all its consequences this casfe where the wrongdoer
or his family does not pay on the spot the composition demanded
by the victim. These authors had in their mind's eye only the
legal proceeding as replacing the private feud, and the primitive
mode of enforcement by " manus injectio." The other alternative
they did not work out, viz. the primitive contractual alternative,
in which the wrongdoer promises to pay, if the victim is willing.
This truce would suspend the legal proceeding. If this question
had been raised, those authors could not have failed to reply that
the recourse here would have been to the "stipulatio"; for by
their assumption it was from the very first a "contract-factory."
We have here tried to show that the "sponsio" had originally no
other purpose than to embody this specific kind of contract. And
this theory serves to complete our understanding of the primitive
Roman system of composition for wrongs.
^ [The author here enlarges on certain details of Roman law theory and
later history, as being not inconsistent with this hypothesis of the origin
of the "sponsio." The extension of usage to a generic form he places at
about the 5th or 6th century of Rome.]
Chapter XXVIII
SALES AND LOANS AT ROME^
1. The Tivelve Tables
The characteristics of early Roman law, as we find it, or sup-
pose it to have existed, in the Twelve Tables, are formalism and
rigidity.
All private dealings between man and man are, at this time,
governed by two juristic acts : (1) 'mancipatio' ; (2) 'nexum.'
L Mancipatio.
Mancipatio is the solemn sale of early Roman law. In the
presence of five witnesses (cives Romani puberes) a skilled weigh-
master (libripens) weighs out to the vendor a certain amount of
uncoined copper (aes, r-audus, raudusculum) which is the purchase-
money, and the purchaser, with solemn words, takes possession of
the thing purchased as being his property.
Before the Twelve Tables, when there was as yet no coined
money, the weighing out of the aes by the libripens constituted or,
at any rate, might constitute the actual payment of the purchase-
money. Mancipatio was not an 'imaginaria venditio,' but a
genuine sale. But the decemviri introduced coined money into
Rome. The first coin used was the copper ' as,' the silver denarius
not being introduced till 269 B.C. These changes, however, did not
affect the formalism of mancipatio. The libripens and the weigh-
ing still remained, in spite of the fact that the weighing out of un-
coined aes had ceased to constitute payment. For the payment
implied in the ceremonial of mancipatio was now a purely fictitious
one, and the actual payment was a matter quite independent of the
mancipatio. Hence the enactment of the Twelve Tables that no
mancipatio should be legally operative unless the price were actu-
ally paid or, at least, security given for it. Thus mancipatio con-
tinued to be a real sale, and on principle it was a sale for ready
^ [By Rudolph Sohm. Reprinted by permission from "The Institutes
of Roman Law" (Ledlie's trans.), Oxford University Press, 1392.]
518
Chap. XXVIII.] SALES AND LOANS AT ROME 519
money, a narrowly circumscribed transaction clothed in rigid
formalities and only available for a single economic purpose.
The mancipatory sale was the only valid form of sale which was
known, and was thus at the same time the only private legal trans-
action by which, at this stage of the jus civile, property could be
conveyed. Xo alienation of property, therefore, was legally valid
unless it satisfied the following conditions : it must be for valuable
consideration ; it must be done in the presence of five witnesses
and the libripens ; the thing to be alienated must be before the
parties, and only so many things can be alienated in any one
transaction as the purchaser can take hold of (manu capere) at
one and the same time. Thus if more things are to be mancipated
than the alienee can take hold of at once, the whole ceremony of
mancipatio must be repeated anew each time.^ Such was as yet
the clumsy and backward condition of the law which governed the
ordinary dealings between man and man.
2. Nexum.
Next to mancipatio we have, in the second place, the 'nexum,'
or solemn loan. In the presence of five witnesses the libripens
weighs out to the borrower the corresponding amount of raw metal,
and the lender at the same time declares in solemn words that the
borrower is now in his debt (dare damnas esto) . The borrower is
now under an obligation to repay. He is said to be 'nexus ' to his
creditor, i.e. he has directly pledged his own person for repasment
of the loan, and thus stands already in precisely the same position
as a judgment debtor. Here, again, the effect of the introduction
of coined money is that the loan, as executed in the nexum itself, is
a mere form, the actual loan being an independent matter. Never-
theless, as in the case of mancipatio, so here, the material character
of nexum as a transaction subserving one definite purpose only, re-
mains intact. For nexum cannot be employed to create any kind
of debt, but solely a debt based on a loan.^ Thus we see that the
law of contract, too, is narrow and meagre, like the whole life of this
early period.
' It appears from a document recently discovered in Pompeii that even
in the first century of our era it was necessary, in mancipating several
slaves, to repeat the whole mancipatio ceremony specially for each sepa-
rate slave. Cp. Eck, vol. 1, p. 87 (Romanist. Abt.) of the " ZS. der Sav. St."
- This follows from the legal rules about nexi liberatio. It appears,
therefore, that in nexum as well as in mancipatio the material character
of the transaction must have been brought out in the ceremonial in some
way or other, so that just as the purchaser did not acquire ownership by
the bare form of mancipatio alone, so here the debtor did not incur an obli-
gation by the bare form of the nexum alone.
520 THINGS [Part III.
We have stated that mancipatio is a ready money transaction.
It does not, as such, bind the purchaser to pay the price, but only
makes such payment a condition precedent to the passing of owner-
ship. Nexum, on the other hand, is a transaction on credit. Its
effect is to place the borrower under an obligation to repay. If he
fails, the debt will be followed by execution.
Execution proceeds directly with inexorable rigour against the
person of the debtor. He falls into the power of his creditor, who
may bind him and cast him into chains. After having thrice
publicly invited some one to come forward and release him, the
creditor may — in default of any one appearing, and after the
lapse of sixty days — regard the debtor as his slave, and may
either kill him or sell him 'trans Tiberim,' i.e. into a foreign coun-
try, say, Etruria. If several creditors have claims upon one and
the same debtor, the law allows them to cut the debtor into pieces,
and provides that a mistake in the division shall in no wise pre-
judice their rights.
The rigour of the private law finds its counterpart in the rigour of
the family power. Within his family the paterfamilias is an abso-
lute sovereign ; he has power over the life and liberty of any mem-
ber of the household. The only external checks on the exercise of
his legal rights are furnished, not by the law, but by religion and
custom.
2. The Interpretatio
The Twelve Tables had exhibited early Roman law in a form
corresponding to its tendency, the form, namely, of a popular
statute.
In the original stages of its development the law of Rome, like
that of other nations, was of the nature of customary law. The
Romans, however, looked upon customary law as an inferior kind
of law. Their innate sense of form could not rest satisfied with
a species of law which is comparatively intangible, formless, and
difficult of proof. True, there were some rules of customary origin
which possessed the full force of law (legis vicem), rules resting on
immemorial usage which the legal habits of the nation had gradu-
ally shaped into precision. But, generally speaking, it was held
that the magistrate in administering justice was not absolutely
bound by rules of mere customary law, and that in dealing with
such rules he was justified, within certain limits, in exercising his
free discretion. But a Lex (publica), i.e. a rule of law which
magistrate and people had agreed upon by means of a solemn dec-
I
Chap. XXVIII.] SALES AND LOANS AT ROME 521
laration of consensus, was a different matter.^ The authority of a
lex was irrefragably binding on the magistrate.
In the Twelve Tables, Roman law had, to a considerable extent,
received the form of a lex.^ It is to this fact that the success and
popularity of the decemviral legislation is due. So far as it was
codified, at any rate, the law was now secure from the arbitrary
powers of the magistrate who administered it.
The decemviral legislation being accomplished, the energies of
the three succeeding centuries were concentrated in the task of
thoroughly working out its contents. During the Republic,
changes by statute, in matters of private law, were exceptional,
and the function of interpreting and, at the same time, developing
the laws of the Twelve Tables was left, in the main, to the operation
of the existing legal agencies. The period of legislation was fol-
lowed by the period of interpretation.
The exigencies of commerce demanded new regulations. How to
represent these new regulations as virtually contained in, and
covered by the statutory force of, the law of the Twelve Tables, was
thus the problem to be solved. The notion of formally superseding
the law. of the Twelve Tables, which was statutory, b}^ conflicting
rules of law. which were merely customary, would, at that time,
have appeared well-nigh inconceivable to the Romans. For
1 Lex (Icelandic : lag, log ; Frisian : laga, lag, log ; Anglo-Saxon :
lagu, lah ; Saxon : lach ; English : law) means literally that which is
'laid' or 'fixed,' in other words, 'a statute.' In the language of the
Romans lex means anything which is 'laid down' or 'settled,' and which,
being proposed in a certain form by one party, is accepted by the other
(e.g. the ' lex eommissoria ') . A ' lex publiea,' then, is a covenant, or statute,
proposed by the magistrate and accepted by the people, which binds the
community in \artue of this reciprocal declaration. Cp. Mommsen,
"Rom. Staat.srecht," vol. 3, pp. 303, 309; A. Pcrnice, "Formelle Gesetze
in Romischen Recht" (Festgabe fiir Gneist), 1888.
2 Some isolated laws were made as early as the regal period. Servius
TuUius, for instance, is credited with some laws on contracts and delicts.
The 'leges regiae,' however, which were collected in the so-called 'jus
civile Papirianum' (probably a private compilation dating from the close
of the Republic), owe their name, in all probability, merely to the fact that
the regulations they contain were placed imder the immediate protection
of the kings (in precisely the same way as the name of 'royal laws' was
applied to early Attic regulations of ceremonial ritual, merely because
their administration was the official duty of the Archon Basileus ; v.
R. Scholl, pp. 88, 89 of the " Sitzxmgsberichte der Bayerischen Akademie
d. Wissenschaft," 1886). These 'leges regiae' are concerned, in the main,
with 'sacred' matters, i.e. they are essentially of a religious and moral
character, and bear clear testimony to the closeness of the original connec-
tion between law and religion. It is probable that, in substance, the ma-
jority of them actually date back to the time of the Kings. Brun.'i,
"Fontes," p. 1 ff. ; Mnmmncn. "Rom. Staatsrecht." vol. 2 (3d ed.),
p. 41 ff. ; Karlnrcn, "Rom. R. G.," vol. 1 (1885). p. 106; Vofat. "Die
leges regiae" (1876) ; P. Kriiger, "G. der Quellen u. Literatur des Rom.R."
(1888), pp. 4-8; Jors, "Rom. RW." (1888), p. 59 fif.
522 THINGS [Part III.
throughout the long period of one thousand years, extending down
to the final stage in the development of Roman law, i.e. down
to the Corpus juris civilis of Justinian, the legal force of the Twelve
Tables, as the source of all Roman law, was all along regarded as
remaining, in theory, unimpaired, in spite of the fact that, when the
end came, there was not a stone in the entire structure of the de-
cemviral laws but had long been displaced from its original position.
And this was quite in keeping with the conservatism of the Romans
and the extreme caution with which they proceeded in all matters
of law. Not one letter of the Twelve Tables was to be altered, and
yet the new spirit was to be infused into the old letter. The
decemviral legislation being complete, the time had arrived for an
' interpretatio ' which should develop and even alter the law, but
should, at the same time, leave the letter of the law intact.
The period of interpretation covers the later centuries of the
Republic. At the outset the work of interpreting the law, i.e. of
carrying on, in its initial stage, the development of the jus civile,
was performed by the pontiffs. It was regarded as the special pro-
fessional duty of the pontiffs to preserve the knowledge of the laws
of the Kings. In consequence more particularly of the knowledge
they thus possessed and also of their general scientific learning, it
became their office to assist with legal advice not only magistrates
in regard to the exercise of the jurisdiction vested in them, but also
private parties in regard to the steps to be taken in concluding con-
tracts and carrying on lawsuits. Thus it happened that the busi-
ness of interpreting the subsisting law, and thereby developing
the civil law, fell under the control of the pontiffs.
It was by means of such interpretation that the so-called ' In
Jure Cessio ' was now developed. In jure cessio was a new way of
conferring a legal title by means of a fictitious lawsuit before the
magistrate. The beginnings of in jure cessio probably date back to
a time anterior to the laws of the Twelve Tables, but its full de-
velopment belongs to a period subsequent to these laws. The
Twelve Tables provided that whenever one party to an action, at
the suit of the other, at once admitted his opponent's title in person
before the magistrate ('in jure'), no judgment should be required,
and the party confessing should be regarded as already condemned
(confessus pro judicato est). The confession before the magistrate
had the force of a judgment. Thus, in a suit about ownership, the
magistrate could at once proceed to award the thing to the plaintiff
(the 'addictio'). In other words, if a person confessed before the
magistrate that his opponent in the action was the owner, he was
Chap. XXVIII.] SALES AND LOANS AT HOME 523
divested of his ownership, -if at the moment of the confessio he was
still owner. This suggested a general method for transferring
ownership. If A desired, on any legal ground whatever, to transfer
his ownership in a thing to B, A and B would go before the magis-
trate, B (the intended transferee) would claim ownership, A (the
intended transferor) would admit his title, and the magistrate
would then pronounce his award (addictio) in favour of the trans-
feree. Thus the transferor was divested of his ownership and the
transferee was invested with it. A rule of procedure (confessus
pro judicato est) had been utilized for developing a new kind of
private juristic act, the act of transferring ownership by means of a
fictitious vindicatio (in jure cessio), and one the validity of which
could be represented as resting on the Twelve Tables. The same
process could be utilized for the purpose of establishing patria
potestas and effecting the manumission of a slave by means of a
fictitious vindicatio *in patriam potestatem' and 'in libertatem'
respectively. Thus in jure cessio became the medium through
which a whole host of new juristic acts were introduced into the
working system of Roman law.
Another juristic act was developed in a similar manner by
utilizing a penal provision of the Twelve Tables. This was the
'emancipation' of the filiusfamilias. The Twelve Tables enacted
that, if a father sold his son thrice into bondage, he should suflFer
the penalty of forfeiting his patria potestas.
The ' interpretatio ' utilized this rule. The father might sell his
son, by a purely imaginary sale, thrice repeated, into the bondage
of another who would manumit the son after each sale by means of
in jure cessio. The effect of this transaction was the 'emancipa-
tion ' of the filiusfamilias, i.e. he was discharged from the paternal
power ; for the conditions required by the Twelve Tables had been
complied with. The father had thrice sold his son into bondage,
consequently the son was now free from the paternal power. A
different adaptation of the same penal rule led to the development
of the 'datio in adoptionem.'
Of all the changes the most important was the transformation
which mancipatio underwent in the course of the century subse-
quent to the Twelve Tables. The Twelve Tables enacted : XII
Tab. ^T. I : Cum nexum faciet mancipiumque, uti lingua nun-
cupassit, ita jus esto.
That is to say, the formal juristic act was to operate in the
manner defined by the solemn oral declaration (nuncupatio).
Utilizing this rule, the interpretation changed the nature of
524 . THINGS [Part III.
mancipatio. It was tlie intention of the Twehe Tables that
mancipatio should be a genuine sale, and it was essential for its
validity that the purchase-money, as specified in the mancipatio,
should be actually paid down. But there was nothing to prevent
the parties from naming in the ceremony of mancipatio, not the
real price, but a fictitious one, and the payment of this price would
suffice to call into play the operation of mancipatio as a legal
conveyance, and thus, at the same time, to evade the rule as to the
necessity of paying the price. And this is what actually happened
at a later stage. The outcome of this device was the so-called
'mancipatio sestertio nummo uno.' In the mancipatio a declara-
tion was made that the thing was being sold for 'one sesterce,' and,
the alienee having paid his sesterce, ownership passed to him in
virtue of the Twelve Tables. So far then as mancipatio took the
form of a 'mancipatio sestertio nummo uno,' it had passed from a
genuine to a purely fictitious sale (imaginaria venditio).
The result was that mancipatio developed into a general mode of
conveying ownership as such, quite irrespective of the legal ground
on which such conveyance took effect. It could now be employed
for a variety of purposes. It was, for instance, available for the
purpose of making a gift. But there was another and a more
important use to which it could be turned : the so-called ' manci-
patio fiduciae causa ' had now become practicable. This manci-
patio fiduciae causa, or, briefl}', 'fiducia,' was a qualified mancipatio
which imposed a duty on the transferee, and it was a transaction,
the nature of which rendered it conveniently available for economic
purposes of the most multifarious kinds. Thus the change from
the old mancipatio to the new was the change from a transaction
narrow in character and circumscribed in application, to one free
from inward restrictions and capable of adaptation to an indefinite
variety of uses.
' Fiducia ' is an agreement of trust, whereby the transferee in a
mancipatio undertakes , to divest himself of the ownership which has
been conveyed to him, and more especially — in certain circum-
stances — to remancipate the thing he has received.
Suppose, for instance, that a debtor desired to give his creditor a
pledge. A transaction by which a person made his property simply
liable for an existing debt, in our sense (a 'hypothec'), was unknown
to early Roman law. But mancipatio in its new shape would meet
the necessities of the case. The debtor mancipated the thing to
the creditor 'for one sesterce,' and thus constituted him owner by
means of an imaginary sale. But the creditor held the legal owner-
Chap. XXVIII. 1 SALES AND LOANS AT ROME 525
ship subject to a 'trust' (fidei or fiduciae causa), and the fiducia
was to the effect that on payment of the debt the creditor should
reconvey ( ' remancipate ') the thing to the debtor. The creditor
thus got his security, and meanwhile he was the owner of the thing
pledged. But as soon as the debtor discharged the debt, the fiducia
or trust-clause gave him a right to claim the thing back again.
Other agreements could be concluded in the same way. In the case
of the pledge just described there was a 'fiducia cum creditore con-
tracta.' In precisely the same manner the so-called 'fiducia cum
amico contracta' could be used for the purpose of effecting a de-
positum, commodatum, or mandatum in accordance with the forms
of the civil law. Thus, whether the thing were delivered for safe
custody — as in the case of depositum — or for specific use, as in the
case of commodatum ; or, again, were delivered on terms that the
transferee should, for instance, sell it, or give it to a third party, or
(if the object were a slave) should manumit such slave — as in the
case of mandatum — in all such cases the transferor (deponens,
commodans, mandans) made the transferee (depositarius, commo-
datarius, mandatarius) formally owner of the thing delivered, but
the ownership was held subject to a trust, 'fiduciae causa' ; it was
purely formal, and involved an obligation to abide by the terms of
the agreement on which the mancipatio was based.
There was no reason why the agreement that ownership should
pass subject to a trust, should not be set forth in the formula used
in the mancipatio (the 'nuncupatio '). The existence of a fiduciary
duty was thus clearly established by the solemn act itself, but to
embody the entire agreement in the nuncupatory formula was
scarcely feasible. The mancipatio itself, therefore, said nothing
about the terms of the trust ; for these it was necessary to look to
the 'pactum conventum,' a formless collateral agreement. But,
according to early Roman law, no action can be taken on a formless
pact. Is then, a 'pactum fiduciae' actionable or not? The early
jurists argued this way. Inasmuch as the.pactum conventum as
such is not actionable, that which is promised in the pactum cannot,
as such, be enforced by an action. But the duty to deal with the
object 'in good faith' is actionable. Having been clearly set forth
in the solemn mancipatio this duty falls, of course, under the pro-
tection afforded by the rule of the Twelve Tables : 'uti lingua nuncu-
passit, ita jus esto.' The transferee thus became liable to an 'actio
fiduciae.' It is important to observe what it was precisely that the
plaintiff" in this action could require the defendant {i.e. the trans-
feree in the mancipatio) to do. He could not call upon him to do
526 THINGS [Part III.
what he had promised In the pact, because the pact had not been
'nuncupated.' But he could call upon him to do that which any
honourable and trustworthy man could be reasonably expected to
do having regard to the circumstances of the case, the most im-
portant of which was, of course, the pactum conventum itself. In
other words, what the judge had to find out was 7iot whether the
defendant had acted up to the precise terms of the pact — for the
pact being formless, its terms were still cjuite unenforceable — but
whether the defendant had conducted himself in such a way, ' ut
inter bonos bene agier oportet et sine fraudatione.' Since the
pactum conventum lay outside the solemn mancipatio, the fiducia
did not give rise to an actio stricti juris, but to a so-called 'actio
bonae fidei,' i.e. the extent of the obligation which it produced
was not fixed b}" any hard and fast line, but rather by the judge
exercising, within fairly wide limits, his free judicial discretion.
In fiducia we have the first recognized instance of a contract
different in kind from the legal transactions which had been handed
down from olden times. For the extent of the obligation en-
gendered by these transactions was rigorously determined by the
letter of the agreement ; in fiducia, on the other hand, it was equi-
tably determined in accordance with the free discretion of a * bonus
vir,' taking into account all the circumstances of the case. It was a
contract which placed the existence of a liability beyond all doubt,
but which was neither designed nor able to fix, in set terms, its
precise contents.
Thus the interpretation of the Twelve Tables, in dealing with
mancipatio, the formal, rigorous, ready-money sale of the early
law, had produced a twofold result :
(1) It had developed a formal method for conveying ownership
for any purpose whatsoever ;
(2) It had developed a whole series of transactions (negotia
bonae fidei) based upon credit, being the various cases of fiducia,
which were concluded '^e,' by performance, that is, by mancipation
(sestertio nummo uno).
With regard to Nexum, no corresponding development took
place. Nexum remained what it had been, a loan-transaction, and
was subsequently superseded as such by the formless loan called
'Mutuum.' The sole trace of the original severity of the formal
contract of loan is to be found in the fact that mutuum was a
negotium stricti juris. It was reserved for * Stipulatio ' to supply
a type for all agreements in which the solemn promise of the debtor
gives rise to a rigorously unilateral obligation quite irrespective of
Chap. XXVIII.] SALES AND LOANS AT ROME 527
the legal ground on which such obligation is based. Stipulatio was
the outcome of the ancient 'sponsio,' and resembled nexum in so
far as the underlying idea in both was originally a kind of self-
pledge ; but it differed from nexum in that the pledge implied in
stipulatio could only be enforced by the gods.^
As the mancipatio fiduciae causa supplied the foundation for the
negotia bonae fidei of a later period, so nexum is the type and basis
of the negotia stricti juris, i.e. transactions which generate a rigor-
ously unilateral obligation and leave no latitude to the discretion of
the judge.
3. The Beginnings of the Jus Gentium
From the earliest times there must, of course, have existed in
Rome, side by side with the formal juristic acts which alone enjoyed
the sanction and force of the jus civile, a countless variety of trans-
actions which were despatched without any form whatever. It
happened, as a matter of course, that many a sale was made by
simple delivery of the article and payment of the price, many a loan,
too, contracted by simple handing over of the money, and so on.
In other words, there were informal sales, loans, deliveries (with
a view to transferring ownership in things), and so forth. But
according to the early civil law all these informal proceedings were
totally devoid of legal validity. That which was effected by an
informal sale was, of course, a transaction, but not a juristic
transaction. Thus if A sold and delivered something to B which
did not belong to him, and B were evicted by the true owner, he
had no action against A. There was no question of law at all ;
the whole relationship between A and B was purely one oifact, and
might, in this respect, be compared to our position in dealing with
savage tribes. We may sell to them, and barter with them, but
no legal relations, no actionable rights, are called into existence.
1 Sponsio was the name originally given to a contract which was con-
cluded by a libation, i.e. by a formal self-denunciation, to the following
effect : — Even as this wine now flows, so may the punishing gods cause
the blood of him to flow who shall be the first to break this covenant.
(Cp. Leist, "Graco-italische Rechtsgeschichte " (1884), p. 457 ff.). The
original obligation created by such a promise was a purely moral, or reli-
gious one, partaking largely of the nature of an oath. It was not till later
that it assumed a legal character. When Cicero saj's that to 'spondere,
promittere' is to 'obligare fidem,' his words seem to point to some sur-
viving notion of a pledge of one's moral self (cp. A. Pernice, "Labeo,"
vol. i. (1873), p. 408). German law confirms the vdew that all the oldest
contracts originated in some kind of pledge (obligatio), whether of one's
person or of portions of one's property\ Cp. e.g. J. Kohler, "Shak-
speare vor dem Forum der Jurisprudenz," vol. i. (1883), p. 52 ff. : Heusler,
"Institutionen des deutsehen Privatrechts," vol. i. (1885), p. 104.
528 THINGS [Part III.
There was, however, one element which was bound, in the long
run, to secure the legal recognition of these formless transactions.
This element was the foreign trade, in so far as it was carried on
within the confines of Rome. Every alien, i.e. non-citizen, was, as
such, absolutely debarred from the use of any of the formal juristic
acts of early Roman law. Mancipatio as well as nexum was, on
principle, null and void, if one of the parties, nay, if one of the
witnesses, were without the Roman civitas. Thus, even though a
foreign merchant, i.e. one who did not enjoy the privileges of
Roman citizenship, were quite willing, in doing business in Rome,
to observe the forms, say, of mancipatio, it would have been useless,
because the mancipatio would have been none the less void. The
result was that the commercial dealings of aliens in Rome, including
therefore, the dealings of aliens with Roman citizens, were at all
times confined, without option, to the formless transactions just
referred to. For aliens these were the only juristic acts. Of course
such a system could not last. The commercial transactions of the
foreign merchants could not remain permanently outside the pale of
the law, and some method had to be devised by which they should
obtain legal validity not only if both parties were aliens, but also if
one of them were a Roman citizen. Inasmuch, moreover, as even
Roman citizens, among themselves, were making daily and habitual
use of these informal acts, it was quite obvious that their gradual
recognition by the law was a matter of pressing importance to citi-
zens and aliens alike.
At a subsequent period the law under which aliens traded in
Rome assumed a shape which served to bring out the full signifi-
cance of the process with which we are here concerned. In the
course of the first centuries of its history (down to about 250 B.C.),
the Roman community frequently concluded international and
commercial treaties with other states (as, for example, Carthage),
members of which were permitted to engage in commerce in the
Roman market. By these treaties legal protection and legal
capacity were reciprocally guaranteed to members of the communi-
ties concerned, the legal protection being secured in Rome by means
of the courts of 'recuperatores.' . . . In Rome a special judge for
foreigners, a 'praetor peregrinus,' was appointed in 242 B.C. This
marks the final victory of the movement. We have now a law
for the citizen, as such, the jus civile, and, beside it, a law for the
alien, as such, the jus gentium. Thus there sprang from the inter-
course with foreigners the second great power in the working system
of Roman law, viz. the jus gentium, and it was the very exclusion
Chap. XXYIII.] SALES AXD LOANS AT ROME 529
of aliens from the privileges of the jus civile which rendered the
birth of the new force possible. It is certain that the contents of
the jus gentium were largely determined by the example of such
laws as had come to regulate the rights of aliens in other commer-
cial centres of the age. The legal convictions of foreign nations
struck root in Rome itself and appeared in the form of the jus
gentium. In addition to this, we must not fail to bear in mind
that from this same time onwards the ancient national character of
Rome was steadily yielding to the inroads, increasingly powerful, of
foreign, more especially Greek, elements bearing within them the
whole accumulated force of Hellenic culture. The whole world
came, so to speak, to make Rome its capital, and with it came the
jus gentium, a law, not for any particular state, but universal ; a
law not merely for the citizen, but for the jjrimte jjerson as such.
The jus gentium came to fulfil its twofold vocation. It was
destined not only to shape and determine the legal rights of aliens in
Rome, but also to guide and direct the Roman civil law itself.
For by securing the legal recognition of formless transactions, i.e.
such as depend for their effect not on any form, not on something
visible, external, or tangible, but rather on the u'ill of the parties
themselves, the jus gentium was laying down the lines of a new
development for the law governing the ordinary dealings between
Roman and Roman.
In this way it gradually came to be acknowledged that legal
ownership (in res nee mancipi) could be validly acquired by means
of a formless traditio. The only c{ualification seems to have been
that such traditio, in order to pass ownership, must take place in
pursuance of a sale, and the purchaser must have actually paid the
price. For the rule of the Twelve Tables that no ownership could
pass to the vendee unless he actually paid the price or were given
credit for it by the vendor, was deemed to apply, in an equal meas-
ure, to the transfer of ownership by traditio. The principle that,
in sales, ownership could pass by traditio, was then extended from
sales to traditio in general, provided only the parties had concluded
some transaction which placed the intention to convey ownership
beyond doubt. Thus the necessity for a solemn mancipatio was, in
the end, confined to certain classes of things only, viz. those com-
prised under the collective name of 'res mancipi' in dealing with
which it seems probable that, from the oldest times, mancipatio
w'as, as a matter of fact, almost universally employed. Those
' res ' comprised all such things as constituted, properly speaking,
a farmer's stock-in-trade: his land (fundus Italicus), his slaves,
530 THINGS [Part III.
his live-stock (beasts of draught and carriage). All other things
were 'res nee mancipi,' so that simple delivery (traditio) was
sufficient for the purpose of conveying ownership. Such would
be, e.g. money, articles of dress, tools, etc., in short, all such things
as were intended not so much for permanent possession as for
commercial intercourse.
In the same way as informal traditio thus obtained the sanction
of law, so informal sales, loans, etc., gradually secured legal
recognition.
The old-fashioned formalities of the Roman jus civile found them-
selves confronted with the exigencies of a world-wide commerce.
The new demands which had thus arisen had won their first
victory towards the close of the Republic by securing the recogni-
tion of a number of formless juristic acts. The whole future
course of development was virtually involved in this recognition.
Thus the end of the Republic marks the commencement of that
process by which the local law of the city of Rome was gradually
converted into that which Roman law was destined, at a future
time, to be, viz. the general law of the civilized world.
Chapter XXIX
INTEREST 1
1. Just as in the law of things there is a right of security as
well as a right of servitude, so too in the law of obligations there
is a barter of value ("Werttausch"), that is to say, a value, a
money value being given for a money value. But as value and
value are naturally equivalent, the exchange can only take place
with a difference in time : one and the same value takes on a
diflPerent significance when present value and future value stand
opposite each other. Thus, all business that has to do only with
money values is a business that exchanges a present for a future
value.
2. In the closest relation to the use of capital stands the theory
of interest. In the life of primitive peoples, where the production
of value is generally agricultural and little free or available capital
is found, the loan is nearly always consumable in its nature : it
is given either in moments of dire need, or in moments of reckless-
ness. In this case, it is comprehensible if it is thought to be
hard if neighbors and members of the same tribe require the return
not only of the capital, but of something more as well. A man
should aid his neighbor, and not make his necessity a source of
profit; and if he abets his recklessness, the matter should be so
arranged that he suffers by it as little as possible. This is the
origin of the rule that forbids the taking of interest. The pro-
hibition accords with the times in which the use of free capital
was rare.
3. But it continued in later periods, and in this, two motives
were concerned. First, a speculative one, the idea that the
future is still a zero, and cannot be made the object of agreements ;
something that is now present should not be given for something
that thus belongs to the future. This idea has been carried out
' [Reprinted, by permission, from Josef Kohler, "Philosophy of Law "
(Albrechfs trans.), Boston Book Company, 1914 (Philosophy of Law
Series, Vol. XII).]
531
532 THINGS [Part III.
by the nations even in regard to interest ; and they have assumed,
that in this respect, trading with future values is still less admis-
sible than where physical products are concerned. For, even if
free capital brings advantages, yet these are not as tangible as
products ; they are profits that appear sometimes in one way,
sometimes in another ; profits that are difficult to separate from
the results of work and the success of speculation. Hence,
they are less the subject of agreements than are future physical
products ; and, thus, the idea of the sterility of money develops,
an idea which the Scholastics of the Middle Ages spun out to
great lengths.
4. An additional motive was the inherent impulse to increase
individual activity-, and to prevent the individual from retiring
with the proceeds of his principal. In this respect, the prohibition
of taking interest long exercised a favorable influence. Anyone
who has available capital should seek to make use of it himself,
in agriculture, industry, or trade; the division between capital
and labor that exists to-day would have been impossible at that
time. Whoever wanted to live on his capital was obliged to pay
some attention to its employment, and could not simply draw
the interest on it without considering what was being done witli
it. One kind of investment was the usufructuary pledge, the
capitalist taking a piece of land into his possession in return for
money lent. He was allowed to use the proceeds of the land, as
these were not interest but the results of the use of the land, and
for this land he had given his capital. But this method gradually
fell under suspicion, and it was difficult to refute the idea, that
the capitalist should really credit the proceeds of this land to his
capital ; and so it happened, that in time even this method of
applying capital was declared to be usury, and it was looked
upon as if interest were taken instead of merely what the land
produced.
Another transaction of this kind, was the purchase of an annuity
("Rentenkauf "), which consisted in a man's receiving for his
capital a perpetual income from a piece of land. The capitalist
might not demand the return of his money, but the debtor, on
the contrary, was allowed to redeem the sums paid as part of the
annuity. These sums were not regarded as interest, because a
capital debt (" Hauptgutschuld ") was necessary to a debt that
bore interest. That there was much disapproval of this trans-
action is easy to understand.
These two arrangements made it possible to circumvent the
Chap. XXIX.] INTEREST 533
prohibition against interest, though not entirely ; for after all, the
usufructuary pledge creditor was obliged to occupy himself with
the cultivation of the soil, and whoever lent his capital for a per-
petual annuity could not prosper unless he kept an eye on the
man who paid the annuity and the condition of his land. It was
sometimes necessary for him to provide for the further cultivation
of the land, so that he might not suffer himself. '
5. In trade, too, the capitalist had to take part in the business,
if he wanted his money to be productive. But it was possible for
him to have an associate who performed most of the active duties,
so that he was little more than a supervising spectator. This is
the form of partnership ("Kommenda-Geschaft") which developed
equally in the Orient and in the Occident, and by which a capitalist
provided a man engaged in commerce with the opportunity of
gaining money in an agreement for a division of the profits. Thus,
the partnership relation was a deviation from the rule, and it was
possible to draw proceeds from capital, even if the economic labor
was left to some one else. It was, of course, advisable for the
capitalist to exercise a certain amount of supervision and care in
the matter ; and even to-day, a man who invests his fortune in
stocks is not alive to his interests if he pays no attention whatever
to the business, and does not at least take part in the annual
meeting, or in some other way acquaint himself with the manner
in which the business is carried on.
6. This necessity of combining labor and care with capital, in
order to be able to draw income from it, is characteristic of certain
periods. With a people that has to be trained to regular occupa-
tion, it helps to develop the inclination to labor, and prevents the
individual from being overwhelmed by the tide of profit, and
working only until he can retire and live on the interest of his
capital. This is all changed as soon as the acquisitive instinct is
so far developed that even the capitalist wants to have more and
more, and seeks to heap up treasures. However much Stoic
philosophy may despise such a course, however strongly it may
be represented to the individual, that he will achieve more by
moderating his desire for acquisition, the striving for gain will
still continue, and the ambition to outdo some one else will rule.
The result will be, perhaps, feverish haste and rush, but it will
also be an impulse to use the earth's forces in all directions, and
to obtain more and more mastery over nature. The mastery of
nature is the source of acquisition ; for nature is the goddess who
pours the fruits qf industry into our laps.
534 THINGS [Part III.
7. At this point, the exchange of capital becomes of the greatest
importance ; because now the first concern is that capital should
reach the person who can do the most with it, and this exchange
of capital presupposes, of course, the charging of interest; for,
whoever dispenses with money, only to receive it back again after
a time, will find this no profitable undertaking. Philanthropy
may indeed lead to this, but philanthropy is generally a defective
spring, not to be compared to the tremendous driving power of
egoism ; hence, everything that promotes healthy egoism must
be recognized to this extent as also promotive of culture, and this
includes the charging of interest. Therefore, among all industrial
peoples, it has proved necessary to allow the taking of interest ;
and this interdiction of interest was either directly violated, or
circumvented, in every possible way; it had been outlived and
could no longer exist.
One other point of view contributed to the abolition of the
interest prohibition. The speculative assertion that money was
unfruitful was met by the statement, that when a man has to do
without his capital for a time he suffers damage ; hence, it is only
just that he should receive compensation. So it followed, that
even though interest was unjustified from the borrower's point
of view, it was yet justified from the lender's standpoint ; for he
cannot be required to do without his money, and without com-
pensation renounce the profits that it might bring him. Thus,
even the Canonists have long recognized, at least conditionally,
the admissibility of interest ; and, to-day, there is no longer any
doubt about it, even in ecclesiastical circles.
8. In the lives of nations, a system frequently develops accord-
ing to which legal rates of interest are established. This is not
an isolated phenomenon ; in a similar way, certain rates are deter-
mined for the purchase of provisions, for contracts of service, and
other things. The idea that underlies all this is, that when com-
merce does not regulate itself, it must be regulated by definite
rules ; so that no one can take advantage of another's necessitous
condition, need of provisions, or of employment, and thus intro-
duce needless contingencies into economic life. It is the same
as regards money; for, it was long before competition among
those who granted credit forced the price of credit down to a just
basis. It was not until then that a certain average current
interest arose, which of itself became a standard, and helped
would-be borrowers in acute situations and difficulties.
Such conditions in fact lasted very long; hence it is compre-
Chap. XXIX.]
INTEREST
535
liensible that the establishment of a rate of interest became wide-
spread and has continued for centuries. Nor are we concerned
here with the absurdities that have prevailed, or periods of eco-
nomic ignorance, but the definite conditions of human culture
through which the nations had to pass, and whose peculiar needs
required peculiar legal forms.
Chapter XXX
SUCCESSION
Section 1
SURVEY OF THE LAW OF SUCCESSION »
(A) In General.
1. Inheritance is based on the idea of the continuity of the
individual property after the death of its owner, through a person
who is connected with this owner in a definite way, either by reason
of family or a similar relationship, or by reason of a legally effec-
tive testamentary provision that creates a new relationship.
2. The right of inheritance, therefore, does not exist in any of
the following cases :
(a) If after the ow^ner's death the property reverts to the com-
munity. Hence when, in Rome, property fell to the "gentiles,"
or when as to-day, in the absence of heirs, it falls to the fiscus,
it is improper to designate this an inheritance. It is merely called
inheritance, because the technical juristic principles governing
inheritance law have been extended to include such cases.
(6) Neither is it inheritance if the proprietary rights of the
deceased cease, and another, unrelated to him, acquires the
property; for instance, by new investiture ("Neuverleihung").
(p) It is not inheritance if a man is a joint owner, and on his
death his share either is merged in others, or another takes his
place as a joint owner, but not by virtue of the dead person's
disposition of his property, but owing to the special principles
governing rights held jointly.
{d) It is not inheritance if the property of a juristic person,
after the dissolution of the juristic person, falls to an individual,
or another juristic person ; although this, too, is often treated
technically as an inheritance.
' [Reprinted, by permission, from Josef Kohler, "Philosophy of Law "
(^Zbrec/ii's trans.), Boston Book Company, 1914 (Philosophy of Law Series,
Vol. XII).]
536
Chap. XXX, § 1.] SUCCESSION 537
3. As inheritance rests, above all, on family relations, the
principles of family organization are mainly determinative for the
inheritance, and this in two respects : first according to the kind
of organization and then according to the degree of exclusiveness.
If we ask who stood nearest to the deceased person, the first
thing to be considered is whether the family organization conforms
to matriarchy or patriarchy ; in the one case, the nephew, in the
other the sons, will succeed. But, also, in another respect, the
family organization must be considered. If each family is dis-
tinct in itself, and sharply separated from the other, so that,
possibly, they are at odds with each other, then, the individual
must belong exclusively to one family or the other, since one could
not be, at the same time, a member of both the families A and B.
In this case, the succession conforming to matriarchy will be
exclusively matriarchal, and that conforming to patriarchy exclu-
sively patriarchal ; and in the latter case, the child will be able
to inherit only from the father and his family, not from the mother
and her relatives.
Not until families are less sharply divided from one another,
and are merged in the unity of the State to which they leave the
guiding functions of culture, and when there can no longer be any
question of struggles between families, does the time come when
a person can belong to several families as regards the right of
inheritance.
The whole development of the law of inheritance among modern
peoples is filled with this idea ; and Roman law, in particular,
labored for five centuries before it finally forsook the agnate right
of inheritance, that is to say, the right to inherit exclusively from
the paternal family, and established the right to inherit from both
the paternal and the maternal families, which is called the cognate
right of succession. The Germanic law also developed in the
same way ; largely, it is true, under the influence of Roman law.
4. The position of women, as regards the law of inheritance, is
also closely connected with the family system ; as appears, for
instance, in the treatment of daughters. Patriarchy does not in-
deed prevent both sons and daughters from inheriting from the
father, but the daughter's right of inheritance leads to an unde-
sirable result ; for if the daughter marries, her property, according
to the principles of patriarchy, is transferred to her husband, and
the property of her family is thus considerably reduced. If the
daughter of family A marries into family B, her possessions will
fall to family B, and thus be lost to family A. This idea of itself
538 THINGS [Part III,
led to the result that the daughter was deprived of her heritage
and restricted to her dowry.
From this standpoint, there could, of course, be no question of
a woman's children's inheriting from her, as by her marriage she
herself had been deprived of her property ; and, if a widow, she
became dependent on annuities and usufructuary rights.
All this was changed when the principles of patriarchy became
weakened and a woman retained her property in spite of her
marriage. No logical reason then any longer existed for excluding
daughters from the right of inheritance, although, on other grounds,
many restrictions were laid upon their inheritance rights. It
followed, that the children of a mother who, as a wife or widow,
possessed property, would inherit from her; for it was no longer
in accordance with the principles of family organization that a
woman's brothers or more distant paternal relatives should inherit
from her to the exclusion of her own children. This gave rise to
the right of children to inherit from their mother, which can be
traced in various forms in the laws of nations that were governed
by patriarchy, as, for instance, the Romans and Jews.
5. With this development, a characteristic change took place in
family life. Whereas, in the time of family property, the various
branches of the family lived, worked, and earned together, the
different brothers and their branches of the family now struck out
for themselves. This brought about a significant new formation.
Formerly, if one of the brothers died before his parents and left
children, these children inherited nothing ; the remaining brothers
inherited everything, and were, of course, obliged to care for their
dead brother's children as for their own. It would have been
considered monstrous for these children to have contended against
their uncles and claimed anything for themselves. But, when
once the fraternal branches of the family were separated, so that
even during their lifetime, the brothers with their children had
separate property, then the opposite course must have appeared
monstrous ; for it is unnatural, that if the head of the family dies,
and leaves descendants, the main line shall suddenly be erased.
If the other bearers of the family name, that is to say, the brothers,
are still alive, it may indeed long appear that because of their near
relationship to the head of the family, they have superior rights
in his property. But this idea soon conflicts with another, that
the children of a dead son stand quite as near to the head of the
family ; in fact, that the relationship of grandchildren to their
grandfather is usually an especially intimate one.
Chap. XXX, § 1.] SUCCESSION 539
Thus originates what has been called the right of representa-
tion, which in reality is nothing but the principle of trunk dis-
tribution ("Stammteilung"), as I termed it thirty years ago.
The maintenance of the opposite principle in some systems of law,
among others in that of Islam, is merely a defect in development,
and shows that these systems have, in this respect, remained
arrested.
The same applies when there are no sons living, but only grand-
sons ; in this case, the idea of treating all the grandsons equally,
without regard to the number of family branches and the number
of children in each line, is also a defect which stands in open con-
tradiction to the usual separation of the lines ; for which reason,
all the nations of the European continent have accepted the divi-
sion into family lines.
(B) Indivisible and Divisible Inheritance ("Einheits-und Mehr-
heitserbrecht").
1. The struggle between individualism and the social tenden-
cies of humanity is also seen in the law of inheritance. On the one
hand, the individual demands consideration, and, if there are
several persons of equal position, he demands the same measure
and amount of consideration as they receive. On the other hand,
social life often demands that a deviation be made, and that one
or more individuals be forced into the background.
This struggle is especially pronounced in the treatment of
children. That for a long time women were less favored than
men, that is, the daughters less than the sons, was due to the
special law governing the sexes. Yet, even among persons of the
same sex, although the individual urges equal treatment, the social
aspects of the family and of property frequently require another
course.
2. The social mission of the family often demands, in particu-
lar, that the estate remain intact, and not be divided among several
children. This may be the case for various reasons ; especially if
a division of the estate would mean that its power would be
destroyed or weakened ; the portions into which it would be
separated not having the same economic significance as the unified
whole. Religious reasons often oppose such division, when the
estate is also dedicated to the gods and to their service, and
religious observances in the family are to remain uniform.
3. This disagreement may be avoided if the estate remains
intact, and the children live together in unity ; so that the property
of the head of the familv belongs to all the children and their
540 THINGS [Paet III.
descendants, while the fact that its nianagement remains in the
hands of one person does not prevent the various members of the
family from pursuing different interests. But, from what has
already been said, we have seen that it is not possible for the
family to continue in this kind of life permanently ; for not only
do the interests of the different members clash, but also their
fundamental differences of character, and this must necessarily
break up the unity.
4. If the individual's claim to a division, and the social claim
to unity, of the estate, cannot be reconciled in this way, one of
the two claims is forced into the background. And here, it is
self-evident that the social interest must come before the individual
claim ; for under the stress of social decay, the individual also
would be ruined ; whereas if social interests are maintained, it is
still always possible for the individual to make his way, and find
his proper course. This has led to various solutions. The whole
estate may go to only one child as, for instance, in East Asia, in
China, and Japan, or at least one child may receive far the greater
part of it, and at the same time be obliged, more or less, to pro-
vide for the others. A more detailed discussion of the subject
lies within the province of legal history. It need only be said
here, that philosophically all these institutions sustain the social
endeavor to counterbalance the exaggeration of individual activity.
The special question whether the oldest or the youngest child, or
one chosen by the family, or by the father himself, is to be the
manager of the whole, cannot be generally solved, but must depend
on the conditions of life, and on national views and customs. It
may be said, however, that the right of the eldest would seem to
be the most natural and appropriate; for the eldest son is thus
placed somewhat in the position of a parent, as regards the younger
children, and this gives him a certain support. The right of the
youngest son, on the contrary, can only be justified by certain
peculiar family conditions ; as, for instance, if the older sons have
left the home, and the youngest devotes himself to the care of his
parents, and hence takes over their house and property. The
practice of permitting either the family or the father to make the
choice will lead to favorable results only if the others have so
much confidence in the one entitled to choose, and if the family
feeling is so strong, that all immediately submit to the choice made,
and also if their faithfulness to duty, and to the w^elfare of the
family, is unquestionable ; so that it need not be feared, that
those with whom the choice rests will allow^ themselves to be in-
Chap. XXX, § 1.] SUCCESSION 541
fluenced by personal motives — a proceeding that would mean
psychic ruin and the decline of the family. With us such a right
of choice has therefore been generally excluded.
(C) Disposal of Property after Death.
1. The question whether it is proper to accord to the holder of
property the capacity to determine the fate of the inheritance
after his death has occupied the nations much. The discussion
of those particular conditions that led to the introduction of
the will belongs to the history of the law. There it appears,
that quite different motives, which were partly religious, partly
of a family nature, and partly also connected with statesmanship,
led to the granting of such a right of disposition in greater or
less measure.
2. The legal philosophical significance of the will lies in the
increased importance of the individual, as opposed to the family,
and in the insistent claims of the members of the family to the
property left. The claims of the family as regards the different
portions of the property are not always equally powerful ; not
seldom, a distinction is made between property which the owner
has inherited from his family, and property which he himself has
acquired. The inherited property is regarded as an indivisible
portion of the family property ; and this view frequently brings
the efforts of the individual to naught. Of acquired property,
on the other hand, the individual has the free capacity of dis-
position, even after death. Here, too, we see the conflict between
individualism and sociality, and the question is whether the wel-
fare of society is to be expected from the triumph of the one or of
the other element.
3. The predominance of individualism to such an extent that
the holder of property has the power of disposition corresponds
to human development ; for it is promotive of culture, if property
does not always take a certain course, but may be devised by the
owner to certain purposes, and thus making it possible that great
undertakings of mankind may be considerably advanced. This
gains added significance from the fact that it also increases the
instinct of acquisition, and causes a man to strive with all his
might to obtain the means of carrying out his will, even after
death. In this way, the possibility of disposing of property after
death is a powerful incentive ; it increases the individual's devo-
tion to his work and to his business life, and this, of course, ad-
vances cultural life in a high degree.
542 THINGS [Part III.
Section 2
RELICxIOUS BASIS OF INHERITANCE '
1. Nature and Principle of the Right of Succession among the
Ancients
The right of property having been estabHshed for the accom-
pHshment of an hereditary worship, it was not possible that this
right should fail after the short life of an individual. The man
dies, the worship remains; the fire must not be extinguished, nor
the tomb abandoned. So long as the domestic religion continued,
the right of property had to continue with it.
Two things are closely allied in the creeds as well as in the laws
of the ancients — the family worship and its property. It was
therefore a rule without exception, in both Greek and Roman law,
that a property could not be acquired without the worship, or the
worship without the property, "Religion prescribes," says
Cicero, "that the property and the worship of a family shall be
inseparable, and that the care of the sacrifices shall always devolve
upon the one who receives the inheritance." ^ At Athens an orator
claims a succession in these terms : "Weigh it well, O judges, and
say whether my adversary or I ought to inherit the estate of Phi-
loctemon, and offer the sacrifices upon his tomb." ^ Could one say
more directly that the care of the worship was inseparable from
the succession ? It was the same in India : " He who inherits,
whoever he may be, is bound to make the offerings upon the tomb." "^
From this principle were derived all the rules regarding the right
of succession among the ancients. The first is that, the domestic
religion being, as we have seen, hereditary from male to male,
property is the same. As the son is the natural continuator of the
religion, he also inherits the estate. Thus the rule of inheritance
is found ; it is not the result of a simple agreement made between
men ; it is derived from their belief, from their religion, from that
which has the greatest power over their mind. It is not the per-
sonal will of the father that causes the son to inherit. The father
need not make a will ; the son inherits of full right, — ipso jure
heres existit, — says the jurisconsult. He is even a necessary
1 [By FtrsTEL de Coulanges, " The Ancient City " ; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
- Cicero, ^'De Legib.," II. 19, 20. Festus, v. ^'Everriator."
3 Is(Eus, VI. 51. Plato calls the heir StdSoxos deQv. "Laws," V. 740,
* "Laws of Manu," IX. 186.
Chap. XXX, § 2.] SUCCESSION . 543
successor — heres necessarius} He has neither to accept nor to
reject the inheritance. The continuation of the property, like
that of the worship, is for him an obHgation as well as a right.
Whether he wishes it or not, the inheritance falls to him, whatever
it may be, even with its encumbrances and its debts. The right
to inherit without the debts, and to reject an inheritance, was not
allowed to the son in Greek legislation, and was not introduced
until a later period into Roman law.
The judicial language of Rome calls the son heres suus, as if one
should say, heres sui ipsius. In fact, he inherits only of himself.
Between his father and him there is neither donation, nor legacy,
nor change of property. There is simply a continuation — morte
parentis continuatur dominium. Already, during the life of the
father, the son was co-proprietor of the field and house — vivo
quoque patre dominus existimatur}
To form an idea of inheritance among the ancients, we must not
figure to ourselves a fortune which passes from the hands of one to
those of another. The fortune is immovable, like the hearth, and
the tomb to which it is attached. It is the man who passes away.
It is the man who, as the family unrolls its generations, arrives at
his hour appointed to continue the worship, and to take care of the
domain.
2. The Son, not the Daughter, inherits
It is here that ancient laws, at first sight, appear whimsical and
unjust. We experience some surprise when we see in the Roman
law that the daughter does not inherit if she is married, and that,
according to the Greek law, she does not inherit in any case. What
concerns the collateral branches appears, at first sight, still farther
removed from nature and justice. This is because all these laws
flow, according to a very rigorous logic, from the creed and religion
that we have described above.
The rule for the worship is, that it shall be transmitted from male
to male ; the rule for the inheritance is, that it shall follow the
worship. The daughter is not qualified to continue the paternal
religion, since she may marry, and thus renounce the religion of
her father to adopt that of her husband ; she has, therefore, no
right to the inheritance. If a father should happen to leave his
property to a daughter, this property would be separated from the
worship, which would be inadmissible. The daughter could not
' " Digest," XXXVIII. tit. 16, 14.
2 "Institutes," III. 1, 3; III. 9, 7; III. 19, 2.
544 . THINGS [Part III.
even fulfil the first duty of an heir, which was to continue the series
of funeral repasts ; since she would offer the sacrifices to the an-
cestors of her husband. Religion forbade her, therefore, to in-
herit from her father.
Such is the ancient principle ; it influenced equally the legis-
lators of the Hindus and those of Greece and Rome. The three
peoples had the same laws ; not that they had borrowed from each
other, but because they had derived their laws from the same
belief.
"After the death of the father," sa^'s the Code of Manu, "let
the brothers divide the patrimony among them;" and the legis-
lator adds, that he recommends the brothers to endow their sisters,
which proves that the latter have not of themselves any right to the
paternal succession.
This was the case, too, at Athens. Demosthenes, in his orations,
often has occasion to show that daughters cannot inherit.^ He is
himself an example of the application of this rule ; for he had a
sister, and we know, from his own writings, that he was the sole heir
to the estate ; his father had reserved only the seventh part to
endow the daughter.
As to Rome, the provisions of primitive law which excluded the
daughters from the inheritance are not known to us from any
formal and precise text ; but they have left profound traces in the
laws of later ages. The Institutes of Justinian still excluded the
daughter from the number of natural heirs, if she was no longer
under the power of the father ; and she was no longer under the
power of the father after she had been married according to the
religious rites.^ From this it follows that, if the daughter before
marriage could share the inheritance with her brother, she had not
this right after marriage had attached her to another religion and
another family. And, if this was still the case in the time of Jus-
tinian, we may suppose that in primitive law, this principle was
applied in all its rigor, and that the daughter not 3^et married, but
who would one day marry, had no right to inherit the estate.
The Institutes also mention the old princi])le, then obsolete, but
not forgotten, which prescribed that an inheritance always de-
scended to the males.^ It was clearly as a vestige of this old rule,
that, according to the civil law, a woman could never be constituted
an heiress. The farther we ascend from the Institutes of Justinian
towards earlier times, the nearer we approach the rule that woman
1 Demosthenes, "in Boeotum." Isceus, X. 4. Lysias, "in Mantith.," 10.
2 "Institutes," II. 9, 2. ^ jud., III. 1, 15; III. 2, 3.
Chap. XXX, § 2.] SUCCESSION 545
could not inherit. In Cicero's time, if a father left a son and a
daughter, he could will to his daughter only one third of his fortune ;
if there was only a daughter, she could still have but half. We
must also note that, to enable this daughter to receive a third or
half of this patrimony, it was necessary that the father should make
a will in her favor ; the daughter had nothing of full right. ^ Fi-
nally, a century and a half before Cicero, Cato, wishing to revive
ancient manners, proposed and carried the Voconian law, which
forbade, — 1. INIaking a woman an heiress, even if she was an onl}'
child, married or unmarried. 2. The willing to a woman of more
than a fourth part of the patrimony.- The Voconian law merely
renewed laws of an earlier date ; for we cannot suppose it would
have been accepted by the contemporaries of the Scipios if it had
not been supported upon old principles which they still respected.
It re-established what time had changed. Let us add that it
contained nothing regarding heirship ab iniestaio, probably because
on this point the old law was still in force, and there was nothing
to repair on the subject. At Rome, as in Greece, the primitive
law excluded the daughter from the heritage ; and this was only a
natural and inevitable consequence of the principles which religion
had established.
It is true men soon found out a way of reconciling the religious
prescription which forbade the daughter to inherit with the
natural sentiment which would have her enjoy the fortune of
her father. The law decided that the daughter should marry
the heir.
Athenian legislation carried this principle to its ultimate conse-
quences. If the deceased left a son and a daughter, the son alone
inherited and endowed his sister ; if the}' were not both children of
the same mother, he had his choice to marry her or to endow her.^
If the deceased left only a daughter, his nearest of kin was his
heir ; but this relative, who was of course also a near relative of
the daughter, was required, nevertheless, to marry her. More
than this, if this daughter was already married, she was required
to abandon her husband in order to marry her father's heir.
The heir himself might be already married ; in this case, he
1 Cicero, ''De Rep.," III. 7.
"^Cicero, "in Verr.," I. 42. Livij, XLI. 4. St. Augustine, ^'Citj- of
God," III. 21.
3 Demosthenes, ^'in Eubul.," 21. Plutarch, "Themist.," 32. Isceus,
X. 4. Corn. Nepos, '''Cimon." It must be noted that the law did not
permit marrying a uterine brother, or an emancipated brother ; it could
be only a brother by the father's side, because the latter alone could in-
herit of the father.
546 THINGS [Part III.
obtained a divorce, in order to marrj' his relative.^ We see
here how completely ancient law ignored nature to conform to
religion.
The necessity of satisfying the requirements of religion, combined
with the desire of saving the interests of an only daughter, gave rise
to another subterfuge. On this point Hindu law and Athenian
law correspond marvellously. We read in the Laws of ]Manu,
" He who has no male child may require his daughter to give him
a son, who shall become his, and who may perform the funeral
ceremonies in his honor." In this case the father was required to
admonish the husband to whom he gave his daughter, by pronounc-
ing this formula : " I give you this daughter, adorned with jewels,
who has no brother ; the son born of her shall be my son, and shall
celebrate my obsequies." ^ The custom was the same at Athens;
the father could continue his descent through his daughter, by
giving her a husband on this special condition. The son who was
born of such a union was reputed the son of the wife's father ; fol-
lowed his worship ; assisted at his religious ceremonies ; and, later,
guarded his tomb.^ In Hindu law this child inherited from his
grandfather, as if he had been his son ; it was exactly the same at
Athens. When the father had married his daughter in the manner
we have described, his heir was neither his daughter nor his son-
in-law ; it was the daughter's son.^ As soon as the latter had
attained his majority, he took possession of the patrimony of
his maternal grandfather, though his father and mother were
still living.^
This singular tolerance of religion and law confirms the rule
which we have already pointed out. The daughter was not qualified
to inherit ; but, by a very natural softening of the rigor of this
principle, the only daughter was considered as an intermediary by
whom the family might be continued. She did not inherit ; but
the worship and the inheritance were transmitted through her.
^ Isceus, III. 64; X. 5. Demosthenes, "in EubuL," 41. The only
daughter was called iirLKk-npos, wrongly translated heiress; it signifies
the daughter who goes with the inheritance. In fact, the daughter was
never an heiress.
2 *'Laws of Manu," IX. 127, 136. "Vasishta," XVII. 16.
^ I sails, VII.
* He was not called the grandson ; they gave him the particular name
of dvyarpldovs.
s Isceus, VIII. 31 ; X. 12. Demosthenes, '/in Steph.," II. 20.
Chap. XXX, § 2.] SUCCESSION 547
3. Of the Collateral Succession
A man died without children; to know who the heir of his
estate was, we have only to learn who was qualified to continue
his worship.
Now, the domestic religion was transmitted by blood from male
to male. The descent in the male line alone established between
two men the religious relation which permitted one to continue the
worship of the other. What is called relationship, as we have seen
above, was nothing more than the expression of this relation. One
was a relative because he had the same worship, the same original
sacred fire, the same ancestors. But one was not a relative because
he had the same mother ; religion did not admit of kinship through
women. The children of two sisters, or of a sister and a brother,
had^no bond of kinship betw^een them, and belonged neither to the
same domestic religion nor to the same family.
These principles regulated the order of succession. If a man,
having lost his son and his daughter, left only grandchildren after
him, his son's son inherited, but not his daughter's son. In default
of descendants, he had as an heir his brother, not his sister, the son
of his brother, not the son of his sister. In default of brothers and
nephews, it was necessary to go up in the series of ascendants of
the deceased, always in the male line, until a branch of the family
was found that was detached through a male ; then to re-descend
in this branch from male to male, until a living man was found ;
this was the heir.
These rules were in force equally among the Hindus, the Greeks,
and the Romans. In India "the inheritance belongs to the nearest
sapinda; in default of a sapinda, to the samanodaca." ^ Now, we
have seen that the relationship w^hich these two words expressed
was the religious relationship, or the relationship through the males,
and corresponded to the Roman agnation.
Here, again, is the law of Athens : " If a man dies without chil-
dren, the heir is the brother of the deceased, provided he is a con-
sanguineous brother; in default of him, the son of the brother;
for the succession always passes to the males, and to the descendants
of males.'" - They still cited this old law in the time of Demos-
thenes, although it had already been modified, and they had com-
menced at this epoch to admit relationship through women.
In the same way, the Twelve Tables ordained that, if a man died
1 "Laws of Manu," IX. 186, 187.
^ Demosthenes, "in Maeart. " ; ^'in Leoeh." Isoeus, VII. 20.
548 THINGS [Part III.
without his heir, the succession belonged to the nearest agnate.
Now, we have seen that one was never an agnate through females.
The ancient Roman law also specified that the nephew inherited
from the patruus, — that is to say, from his father's brother, —
and did not inherit from the avunculus, his mother's brother.^
By returning to the table which we have traced of the family
of the Scipios, it will be seen that, Scipio iEmilianus, having died
without children, his estate could not pass either to Cornelia, his
aunt, or to C. Gracchus, who, according to our modern ideas,
was his cousin-german, but to Scipio Asiaticus, who was really
his nearest of kin.
In the time of Justinian, the legislator no longer understood these
old laws ; they appeared unjust to him, and he complained of the
excessive rigor of the laws of the Twelve Tables, "which always
accorded the preference to the masculine posterity, and excluded
from the inheritance those who were related to the deceased only
through females." ^ Unjust laws, if you will, for they made no
account of natural affection ; but singularly logical laws, for setting
o.ut from the principle that the inheritance was attached to the
worship, they excluded from the inheritance those whom this re-
ligion did not authorize to continue the worship.
4. Efeds of Emancipation and Adoption
We have already seen that emancipation and adoption produced
a change in a man's worship. The first separated him from the
paternal worship, the second initiated him into the religion of
another family. Here also the ancient law conformed to the rules
of religion. The son who had been excluded from the paternal
worship by emancipation was also excluded from the inheritance.
On the other hand, the stranger who had been associated in the
worship of a family by adoption became a son there ; he continued
its worship, and inherited the estate. In both cases ancient law
made more account of the religious tie than of the tie of birth.
As it was contrary to religion that one man should have two do-
mestic worships, so he could not inherit from two families. Besides,
the adopted son, who inherited of the adopting family, did not
inherit from his natural family. Athenian law was very explicit
on this point. The orations of Attic orators often show us men
who have been adopted into a family, and who wished to inherit
in the one in which they were born ; but the law was against them.
1 "Institutes," III. 2, 4. -' Ihid., III. 3.
Chap. XXX, § 2.] SUCCESSION 549
The adopted son could not inherit from his own family unless he
re-entered it ; he could not re-enter it except by renouncing the
adopting family; and he could leave this latter only on two con-
ditions : the one was, that he abandoned the patrimony of this
family ; the other was, that the domestic worship, for the continua-
tion of which he had been adopted, did not cease by his abandon-
ment ; and, to make this certain, it was necessary for him to leave
this family a son, who should replace him. This son took charge of
the worship, and inherited the estate ; the father could then return
to the family of his birth, and inherit its property. But this father
and son could no longer inherit from each other ; they were not of
the same family, they were not of kin.^
We can easily see what was the idea of the old legislator when he
established these precise rules. He did not suppose it possible
that two estates could fall to the same heir, because two domestic
worships could not be kept up by the same person.
5. Wills icere not known originally
The right of willing — that is to say, of disposing of one's prop-
erty after death, in order to make it pass to other than natural
heirs — was in opposition to the religious creed that was at the
foundation of the law of property and the law of succession. The
property being inherent in the worship, and the worship being
hereditary, could one think of a will ? Besides, property did not
belong to the individual, but to the family ; for man had not ac-
quired it by the right of labor, but through the domestic worship.
Attached to the family, it was transmitted from the dead to the
living, not according to the will and choice of the dead, but by
virtue of superior rules which religion had established.
The will was not known in ancient Hindu law. Athenian legisla-
tion, up to Solon's time, forbade it absolutely, and Solon himself
permitted it only to those who left no children.- Wills were for a
long time forbidden or unknown at Sparta, and were authorized
only after the Peloponnesian war.^ Aristotle speaks of a time when
the case was the same at Corinth and at Thebes.^ It is certain
that the power of transmitting one's property arbitrarily by will
was not recognized as a natural right ; the constant principle of
' Iscrus, X. Demosthenes, passim. Gains, III. 2. "Institutes," III.
1, 2. It is hardly necessary to state that these rules were modified in
the pretorian laws.
2 Plutarch, ^' Solon," 21. « Id., ^'Agis," 5.
* Aristotle, "Polit.," II. 3, 4.
550 THINGS [Part III.
the ancient ages was, that all property should remain in the family
to which religion had attached it.
Plato, in his treatise on the Laws, which is largely a commentary
on the Athenian laws, explains very clearly the thought of ancient
legislators. He supposes that a man on his death-bed demands the
power to make a will, and that he cries, "O gods, is it not very
hard that I am not able to dispose of my propert}' as I may choose,
and in favor of any one to whom I please to give it, leaving more
to this one, less to that one, according to the attachment they
have shown for me?" But the legislator replies to this man,
"Thou who canst not promise thyself a single day, thou who art
only a pilgrim here below, does it belong to thee to decide such
affairs ? Thou art the master neither of thy property nor of thy-
self : thou and thy estate, all these things, belong to thy family ;
that is to say, to thy ancestors and to thy posterity." ^
For us the ancient laws of Rome are very obscure ; they were
obscure even to Cicero. What we know reaches little farther
back than the Twelve Tables, which certainly are not the primitive
legislation of Rome ; and of these only fragments remain. This
code authorizes the will ; yet the fragment relating to the subject
is too short, and too evidently incomplete to enable us to flatter
ourselves that we know the exact provisions of the legislators in
this matter. When they granted the power of devising property,
we do not know what reserve and what conditions they placed
upon it.2 We have no legal text, earlier than the Twelve Tables,
that either forbids or permits a will ; but the language preserved
traces of a time when wills were not known ; for it called the son
the self-successor and necessary — heres suits et necessarius. This
formula, which Gains and Justinian still employed, but which
was no longer in accord with the legislation of their time, came,
without doubt, from a distant epoch, when the son could not be
disinherited or refuse the heritage. The father had not then
the free disposition of his fortune. In default of sons, and if the
deceased had only collateral relatives, the will was not absolutely
unknown, but was not easily made valid. Important formalities
were necessary. First, secrecy was not allowed to the testator
during life; the man who disinherited his family, and violated
the law that religion had established, had to do this publicly, in
broad daylight, and take upon himself, during his lifetime, all the
1 Plato, "Laws," XI.
2 " Uti legassit, ita jus esto." If we had of Solon's law only the words
diddea-dai Sttws Slv id^Xr}, we should also suppose that the will was permitted
in all possible cases ; but the law adds, a^ /x?? TraiSts cScrt.
Chap. XXX, § 2.] SUCCESSION 551
odium attached to such an act. This was not all ; it was also
necessary that the will of the testator should receive the approba-
tion of the sovereign authority — that is to say, of the people
assembled by curies, under the presidency of the pontiff.^ We
must not imagine that this was an empty formality, particularly^
in the early ages. These comitia by curies were the most solemn
assemblies of the Roman city ; and it would be puerile to say that
they convoked the people under the presidency of the religious
chief, to act simply as witnesses at the reading of a will. We may
suppose that the people voted, and we shall- see, on reflection,
that this was absolutely necessary. There was, in fact, a general
law which regulated the order of succession in a rigorous manner ;
to modify this order in any particular, another law was necessary.
This exceptional law was the will. The right of a man to devise
by will was not, therefore, fully accorded, and could not be, so
long as this society remained under the empire of the old religion.
In the belief of these ancient ages, the living man was only the
representative, for a few years, of a constant and immortal being
— the family. He held the worship and the property only in
trust ; his right to them ceased with his life.
6. The Right of Primogeniture
We must transport ourselves beyond the time of which history
has preserved the recollection, to those distant ages during which
domestic institutions were established, and social institutions were
prepared. Of this epoch there does not remain, nor can there
remain, any written monument ; but the laws which then governed
men have left some traces in the legislation of succeeding times.
In these distant days we distinguish one institution which must
have survived a long time, which had a considerable influence
upon the future constitution of societies, and without which
this constitution could not be explained. This is the right of
primogeniture.
The old religion established a difference between the older and
the younger son. "The oldest," said the ancient Aryas, "was
begotten for the accomplishment of the duty due the ancestors ;
the others are the fruit of love." In virtue of this original superior-
ity, the oldest had the privilege, after the death of the father, of
1 Ulpian, XX. 2. Gains, I, 102, 119. Aldus Gellius, XV. 27. The
testament cnlatis comitiis was doubtless the oldest in use. It was no
longer known in Cicero's time. ("De Orat.," I. 53.)
552 THINGS [Part III.
presiding at all the ceremonies of the domestic worship ; he it was
who offered the funeral repast, and pronounced the formulas of
prayer ; " for the right of pronouncing the prayers belongs to that
son who came into the world first." The oldest was, therefore,
heir to the hymns, the continuator of the worship, the religious
chief of the family. From this creed flowed a rule of law : the
oldest alone inherited property. Thus says an ancient passage,
which the last editor of the Laws of INIanu still inserted in the code :
"The oldest takes possession of the whole patrimony, and the other
brothers live under his authority as if they were under that of their
father. The oldest son performs the duties towards the ancestors ;
he ought, therefore, to have all." ^
Greek law is derived from the same religious beliefs as Hindu
law; it is not astonishing, then, to find there also the right of
primogeniture. Sparta preserved it longer than other Greek cities
because the Spartans were longer faithful to old institutions ;
among them the patrimony was indivisible, and the younger
brothers had no part of it.^ It was the same with many of the
ancient codes that Aristotle had studied. He informs us, indeed,
that the Theban code prescribed absolutely that the number of
lots of land should remain unchangeable, which certainly excluded
the division among brothers. An ancient law of Corinth also pro-
vided that the number of families should remain invariable, which
could only be the case where the right of the oldest prevented
families from becoming dismembered in each generation.^
Among the Athenians we need not expect to find this old institu-
tion in full vigor in the time of Demosthenes ; but there still
existed at this epoch what they called the privilege of the elder.^
It consisted in retaining, above his proportion, the paternal dwell-
ing — an advantage which was materially considerable, and
which was still more considerable in a religious point of view ;
for the paternal house contained the ancient hearth of the family.
While the younger sons, in the time of Demosthenes, left home to
light new fires, the oldest, the true heir, remained in possession of
the paternal hearth and of the tomb of his ancestors. He alone
also preserved the family name.^ These were the vestiges of a
time when he alone received the patrimony.
1 "Laws of Manu," IX. 105-107, 126. This ancient rule was modified
as the old religion became enfeebled. Even in the code of Manu we find
articles that authorize a division of the inheritance.
2 ^'Fragments of the Greek Historians," DidoVs Coll., t. II. p. 211.
^Aristotle, "Polit.," II. 9; II. 3.
< Yipea^da, Demosthenes, "Pro Phorm.," 34.
5 Demosthenes, "in Boeot. de nomine."
Chap. XXX, § 3.] SUCCESSION 553
We may remark, that the ineciiiahty of the law of primogeniture,
besides the fact that it did not strike the minds of the ancients, over
whom rehgion was all-powerful, was corrected by several of their
customs. Sometimes the younger son was adopted into a family,
and inherited property there ; sometimes he married an only
daughter ; sometimes, in fine, he received some extinct family's lot
of land. When all these resources failed, younger sons were sent
out to join a colony.
As to Rome, we find no law that relates to the right of primo-
geniture ; but we are not to conclude from this that the right was
unknown in ancient Italy. It might have disappeared, and even
its traces have been effaced. What leads us to believe that before
the ages known to us it was in force is, that the existence of the
Roman and Sabine gens cannot be explained without it. How
could a family reach the number of several thousand free persons,
like the Claudian family, or several hundred combatants, all
patricians, like the Fabian family, if the right of primogeniture
had not maintained its unity during a long series of generations,
and had not increased its numbers from age to age by preventing
its dismemberment ? This ancient right of primogeniture is proved
by its consequences, and, so to speak, by its works. ^
Section 3
EARLY HISTORY OF TESTAMENTARY SUCCESSION 2
It is not difficult to point out the extreme difference of the
conclusions forced on us by the historical treatment of the subject,
from those to which we are conducted when, without the help
of history, we merely strive to analyse our prima-facie impressions.
I suppose there is nobody who, starting from the popular or even
the legal conception of a Will, would not imagine that certain
qualities are necessarily attached to it. He would say, for ex-
ample, that a Will necessarily takes effect at death only — that
it is secret, not known as a matter of course to persons taking
' The old Latin language, moreover, has preserved a vestige which,
feeble as it is, deserves to be pointed out. A lot of land, the domain of a
family, was called sors; sors patrimoniiim significat, says Fentus. The
word consortes was applied then to those who had among them only a
single lot of land, and lived on the same domain. Now, the old language
designated by this word brothers, and even those quite distantly related.
This bears witness to a time when the patrimony and the family were
indivisible. (Festiis, v. "Sors." Cicero, "in Verrem," II. 323. Livy,
XLI. 27. Vdleius. I. 10. Lucretius, III. 722; VI. 1280.)
^ [By Sir Henry S. Maine. Reprinted from "Ancient Law," by per-
mission of Henry Holt and Company, New York.]
554 THINGS [Part III.
interests under its provisions — that it is revocable, i.e. always
capable of being superseded b}' a new act of testation. Yet I
shall be able to show that there was a time when none of these
characteristics belonged to a Will. The Testaments from which
our Wills are directly descended at first took effect immediately
on their execution ; they were not secret ; they were not reA'ocable.
Few legal agencies are, in fact, the fruit of more complex historical
agencies than that by which a man's written intentions control
the posthumous disposition of his goods. Testaments very
slowly and gradually gathered round them the qualities I have
mentioned ; and they did this from causes and under pressure
of events which may be called casual, or which at any rate have
no interest for us at present, except so far as they have affected
the history of law.
The conception of a Will or Testament cannot be considered
by itself. It is a member, and not the first, of a series of con-
ceptions. In itself a Will is simply the instrument by which the
intention of the testator is declared. It must be clear, I think,
that before such an instrument takes its turn for discussion, there
are several preliminary points to be examined — as for example,
what is it, what sort of right or interest, which passes from a dead
man on his decease? to whom and in what form does it pass?
and how came it that the dead were allowed to control the post-
humous disposition of their property? Thrown into technical
language, the dependence of the various conceptions which con-
tribute to the notion of a Will is thus expressed. A Will or Testa-
ment is an instrument by which the devolution of an inheritance
is prescribed. Inheritance is a form of universal succession. A
universal succession is a succession to a universitas juris, or uni-
versity of rights and duties. Inverting this order we have therefore
to inquire what is a universitas juris; what is a universal succes-
sion ; what is the form of universal succession which is called
an inheritance? And there are also two further questions in-
dependent to some extent of the points I have mooted, but de-
manding solution before the subject of Wills can be exhausted.
These are, how came an inheritance to be controlled in any case
by the testator's volition, and what is the nature of the instru-
ment by w^hich it came to be controlled ?
The first question relates to the universitas juris; that is a
university (or bundle) of rights and duties. A universitas juris
Chap. XXX, § 3.] SUCCESSION 555
is a collection of rights and duties united by the single circum-
stance of their having belonged at one time to some one person.
It is, as it were, the legal clothing of some given individual. It
is not formed by grouping together any rights and any duties. It
can only be constituted by taking all the rights and all the duties
of a particular person. The tie which so connects a number of
rights of property, rights of way, rights to legacies, duties of
specific performance, debts, obligations, to compensate wrongs —
which so connects all these legal privileges and duties together
as to constitute them a unimrsitas juris, is the fact of their having
attached to some individual capable of exercising them. Without
this /ac^ there is no university of rights and duties. The expression
universitas juris is not classical, but for the notion jurisprudence
is exclusively indebted to Roman law ; nor is it at all difficult to
seize. We must endeavour to collect under one conception the
whole set of legal relations in which each one of us stands to the
rest of the world. These, whatever be their character and com-
position, make up together a unimrsitas juris; and there is but
little danger of mistake in forming the notion, if we are only
careful to remember that duties enter into it quite as much as
rights. Our duties may overbalance our rights. A man ma}^
owe more than he is worth, and therefore if a money value is set
on his collective legal relations he may be what is called insolvent.
But for all that the entire group of rights and duties which centres
in him is not the less a *' juris universitas."
We come next to a " universal succession." A universal suc-
cession is a succession to a universitas juris. It occurs when
one man is invested with the legal clothing of another, becoming
at the same moment subject to all his liabilities and entitled to
all his rights. In order that the universal succession may be true
and perfect, the devolution must take place uno ictu, as the jurists
phrase it. It is of course possible to conceive one man acquiring
the whole of the rights and duties of another at different periods,
as for example by successive purchases ; or he might acquire them
in different capacities, part as heir, part as purchaser, part as
legatee. But though the group of rights and duties thus made up
should in fact amount to the whole legal personality of a particular
individual, the acquisition would not be a universal succession.
In order that there may be a true universal succession, the trans-
mission must be such as to pass the whole aggregate of rights and
duties at the same moment and in virtue of the same legal capacity
in the recipient. The notion of a universal succession, like that
556 THINGS [Part III.
of a " juris universitas," is permanent in jurisprudence, though
in the English legal system it is obscured bj' the great variety of
capacities in which rights are acquired, and, above all, by the
distinction between the two great provinces of English property,
"realty" and "personalty." The succession of an assignee in
bankruptcy to the entire property of the bankrupt is, however, a
universal succession, though, as the assignee only pays debts to
the extent of the assets, this is only a modified form of the primary
notion. Were it common among us for persons to take assign-
ments of all a man's property on condition of paying all his debts,
such transfers would exactly resemble the universal successions
known to the oldest Roman Law. When a Roman citizen ad-
rogated a son, i.e. took a man, not already under Patria Potestas,
as his adoptive child, he succeeded universally to the adoptive
child's estate, i.e. he took all the property and became liable for
all the obligations. Several other forms of universal succession
appear in the primitive Roman Law, but infinitely the most
important and the most durable of all was that one with which
we are more immediately concerned, Hsereditas or Inheritance.
Inheritance w^as a universal succession, occurring at a death. The
universal successor was Hseres or Heir. He stepped at once into
all the rights and all the duties of the dead man. He was instantly
clothed with his entire legal person, and I need scarcely add that
the special character of the Hseres remained the same, whether
he was named by a Will or whether he took on an intestacy. The
term Hseres is no more emphatically used of the Intestate than of
the Testamentary Heir, for the manner in which a man became
Hseres had nothing to do with the legal character he sustained.
The dead man's universal successor, however he became so, whether
by Will or by Intestacy, was his Heir. But the Heir was not
necessarily a single person. A group of persons, considered in
law as a single unit, might succeed as co-heirs to the Inheritance.
Let me now quote the usual Roman definition of an Inheritance.
The reader will be in a position to appreciate the full force of the
separate terms. Hoereditas est successio in universwn jus quod
defimctus habuit (" an inheritance is a succession to the entire
legal position of a deceased man"). The notion was that, though
the phj^sical person of the deceased had perished, his legal per-
sonality survived and descended unimpaired on his Heir or Co-
heirs, in whom his identity (so far as the law was concerned) was
continued. Our own law, in constituting the Executor or Ad-
ministrator the representative of the deceased to the extent of his
Chap. XXX, § 3.] SUCCESSION 557
personal assets, may serve as an illustration of the theory from
which it emanated, but, although it illustrates, it does not explain
it. The view of even the later Roman Law required a closeness
of correspondence between the position of the deceased and of his
Heir which is no feature of an English representation; and, in
the primitive jurisprudence everything turned on the continuity
of succession. Unless provision was made in the will for the
instant devolution of the testator's rights and duties on the Heir
or Co-heirs, the testament lost all its effect.
In modern Testamentary jurisprudence, as in the later Roman
Law, the object of first importance is the execution of the testator's
intentions. In the ancient law of Rome the subject of corre-
sponding carefulness was the bestowal of the L'niversal Succession.
One of these rules seems to our e^^es a principle dictated by common
sense, while the other looks very much like an idle crotchet. Yet
that without the second of them the first would never have come
into being, is as certain as any proposition of the kind can be.
In order to solve this apparent paradox, and to bring into greater
clearness the train of ideas which I have been endeavouring to
indicate, I must borrow the results of the inquiry which was
attempted in the earlier portion of the preceding chapter. We
saw one peculiarity invariably distinguishing the infancy of
society. Men are regarded and treated, not as individuals, but
always as members of a particular group. Everybody is first a
citizen, and then, as a citizen, he is a member of his order — of
an aristocracy or a democracy, of an order of patricians or ple-
beians ; or, in those societies which an unhappy fate has afflicted
with a special perversion in their course of development, of a
caste. Next, he is a member of a gens, house, or clan ; and lastly,
he is a member of his family. This last was the narrowest and
most personal relation in which he stood ; nor, paradoxical as it
may seem, was he ever regarded as himself, as a distinct individual.
His individuality was swallowed up in his family. I repeat the
definition of a primitive society given before. It has for its units,
not individuals, but groups of men united by the reality or the
fiction of blood-relationship.
It is in the peculiarities of an undeveloped society that we seize
the first trace of a universal succession. Contrasted with the
organisation of a modern state, the commonwealths of primitive
times may be fairly described as consisting of a number of little
despotic governments, each perfectly distinct from the rest, each
absolutely controlled by the prerogative of a single monarch.
558 THINGS [Part III.
But though the Patriarch, for we must not yet call him the Pater-
familias, had rights thus extensive, it is impossible to doubt that
he lay under an equal amplitude of obligations. If he governed
the family, it was for its behoof. If he was lord of its possessions,
he held them as trustee for his children and kindred. He had no
privilege or position distinct from that conferred on him by his
relation to the petty commonwealth which he governed. The
Family, in fact, was a Corporation ; and he was its representative
or, we might almost say, its Public officer. He enjoyed rights
and stood under duties, but the rights and duties were, in the
contemplation of his fellow-citizens and in the eye of the law,
quite as much those of the collective body as his own. Let us
consider for a moment, the effect which would be produced by
the death of such a representative. In the eye of the law, in the
view of the civil magistrate, the demise of the domestic authority
would be a perfectly immaterial event. The person representing
the collective body of the family and primarily responsible to
municipal jurisdiction would bear a different name; and that
would be all. The rights and obligations which attached to the
deceased head of the house would attach, without breach of con-
tinuity to his successor ; for, in point of fact, they would be the
rights and obligations of the family, and the family had the dis-
tinctive characteristic of a corporation — that it never died.
Creditors would have the same remedies against the new chieftain
as against the old, for the liability being that of the still existing
family would be absolutely unchanged. All rights available to
the family would be as available after the demise of the headship
as before it — except that the corporation would be obliged — if
indeed language so precise and technical can be properly used of
these early times — would be obliged to sue under a slightly
modified name.
The history of jurisprudence must be followed in its whole
course, if we are to understand how gradually and tardily society
dissolved itself into the component atoms of which it is now con-
stituted — by what insensible gradations the relation of man to
man substituted itself for the relation of the individual to his
family, and of families to each other. The point now to be at-
tended to is that even when the revolution had apparently quite
accomplished itself, even when the magistrate had in great measure
assumed the place of the Pater-familias, and the civil tribunal
substituted itself for the domestic forum, nevertheless the whole
scheme of rights and duties administered by the judicial authori-
Chap. XXX, § 3.] SUCCESSION 559
ties remained shaped by the influence of the obsolete privileges
and coloured in every part by their reflection. There seems
little question that the devolution of the Universitas Juris, so
strenuously insisted upon by the Roman Law as the first condition
of a testamentary or intestate succession, was a feature of the
older form of society which men's minds have been unable to
dissociate from the new, though with that newer phase it had no
true or proper connection. It seems, in truth, that the prolonga-
tion of a man's legal existence in his heir, or in a group of co-heirs,
is neither more nor less than a characteristic of the family trans-
ferred by a fiction to the indimdual. Succession in corporations
is necessarily universal, and the family was a corporation. Cor-
porations never die. The decease of individual members makes
no difi^erence to the collective existence of the aggregate body,
and does not in any way affect its legal incidents, its faculties or
liabilities. Now in the idea of a Roman universal succession all
these ciualities of a corporation seem to have been transferred to
the individual citizen. His physical death is allowed to exercise
no efi"ect on the legal position which he filled, apparently on the
principle that that position is to be adjusted as closely as possible
to the analogies of a family, which, in its corporate character,
was not of course liable to physical extinction.
When a Roman citizen died intestate or leaving no valid Will,
his descendants or kindred became his heirs according to a scale
which will be presently described. The person or class of persons
who succeeded did not simply represent the deceased, but, in
conformity with the theory just delineated, they continued his
civil life, his legal existence. The same results followed when
the order of succession was determined by a Will, but the theory
of the identity between the dead man and his heirs was certainly
much older than any form of Testament or phase of Testamentary
jurisprudence. This indeed is the proper moment for suggesting
a doubt which will press on us with greater force the further we
plumb the depths of this subject — whether icills would ever
have come into being at all if it had not been for these remarkable
ideas connected with universal succession. Testamentary law
is the application of a principle which may be explained on a
variety of philosophical hypotheses as plausible as they are gratui-
tous ; it is interwoven with every part of modern society, and it is
defensible on the broadest grounds of general expediency. But
560 THINGS [Part III.
the warning can never be too often repeated, that the grand
source of mistake in questions of jurisprudence is the impression
that these reasons which actuate us at the present moment, in
the maintenance of an existing institution, have necessarily anything
in common with the sentiment in which the institution originated.
It is certain that, in the old Roman Law of Inheritance, the notion
of a will or testament is inextricably mixed up, I might almost
say confounded, with the theory of a man's posthumous existence
in the person of his heir.
The conception of a universal succession, firmly as it has taken
root in jurisprudence, has not occurred spontaneously to the
framers of every body of laws. Wherever it is now found, it
may be shown to have descended from Roman law; and with
it have come down a host of legal rules on the subject of Testa-
ments and Testamentary gifts, which modern practitioners apply
without discerning their relation to the parent theory. But, in
the pure Roman jurisprudence, the principle that a man lives on
in his Heir — the elimination, if we may so speak, of the fact of
death — is too obviously for mistake the centre round which the
whole Law of Testamentary and Intestate succession is circling.
The unflinching sternness of the Roman law in enforcing com-
pliance with the governing theory would in itself suggest that the
theory grew out of something in the primitive constitution of
Roman society ; but we may push the proof a good way beyond
the presumption. It happens that several technical expressions,
dating from the earliest institution of wills at Rome, have been
accidentally preserved to us. We have in Gains the formula of
investiture by which the universal successor was created. We
have the ancient name by which the person afterwards called
Heir was at first designated. We have further the text of the
celebrated clause in the Twelve Tables by which the Testamentary
power was expressly recognised, and the clauses regulating Intes-
tate Succession have also been preserved. All these archaic
phrases have one salient peculiarity. They indicate that what
passed from the Testator to the Heir was the Family, that is,
the aggregate of rights and duties contained in the Patria Potestas
and growing out of it. The material property is in three instances
not mentioned at all ; in two others, it is visibly named as an
adjunct or appendage of the Family. The original Will or Testa-
ment was therefore an instrument, or (for it was probably not at
first in writing) a proceeding, by which the devolution of the
Family was regulated. It was a mode of declaring who was to
Chap. XXX, § 3.] SUCCESSION 561
have the chieftainship, in succession to the Testator. When
Wills are understood to have this for their original object, we see
at once how it is that they came to be connected with one of the
most curious relics of ancient religion and law, the sacra, or Family
Rites. These sacra were the Roman form of an institution which
shows itself wherever society has not wholly shaken itself free
from its primitive clothing. They are the sacrifices and cere-
monies by which the brotherhood of the family is commemorated,
the pledge and the witness of its perpetuity. Whatever be their
nature — whether it be true or not that in all cases they are the
worship of some mythical ancestor — they are everywhere em-
ployed to attest the sacredness of the family relation ; and there-
fore they acquire prominent significance and importance, when-
ever the continuous existence of the Family is endangered by a
change in the person of its chief. Accordingly, we hear most
about them in connection with demises of domestic sovereignty'.
Among the Hindoos, the right to inherit a dead man's property
is exactly co-extensive with the duty of performing his obsequies.
If the rites are not properly performed or not performed by the
proper person, no relation is considered as established between
the deceased and anybody surviving him ; the Law of Succession
does not apply, and nobody can inherit the property. Every
great event in the life of a Hindoo seems to be regarded as leading
up to and bearing upon these solemnities. If he marries, it is
to have children who may celebrate them after his death ; if he
has no children, he lies under the strongest obligation to adopt
them from another family, "with a view," writes the Hindoo
doctor, "to the. funeral cake, the water, and the solemn
sacrifice." . . .
In Hindoo law there is no such thing as a true Will. The place
filled by Wills is occupied by Adoptions. We can now see the
relation of the Testamentary Power to the Faculty of Adoption,
and the reason why the exercise of either of them could call up a
peculiar solicitude for the performance of the sacra. Both a
Will and an Adoption threaten a distortion of the ordinary course
of Family descent, but they are obviously contri\'ances for pre-
venting the descent being wholly interrupted, when there is no
succession of kindred to carry it on. Of the two expedients
Adoption, the factitious creation of blood-relationship, is the
only one which has suggested itself to the greater part of archaic
societies. The Hindoos have indeed advanced one point on
what was doubtless the antique practice, by allowing the widow
562 THINGS [Part III.
to adopt when the father has neglected to do so, and there are in
the local customs of Bengal some faint traces of the Testamentary
powers. But to the Romans belongs pre-eminently the credit of
inventing the Will, the institution which, next to the Contract,
has exercised the greatest influence in transforming human society.
We must be careful not to attribute to it in its earliest shape the
functions wdiich have attended it in more recent times. It was
at first, not a mode of distributing a dead man's goods, but one
among several ways of transferring the representation of the
household to a new chief. The goods descend no doubt to the
Heir, but that is only because the government of the family carries
with it in its devolution the power of disposing of the common
stock. We are very far as yet from that stage in the history of
Wills in which they become powerful instruments in modifying
society through the stimulus they give to the circulation of prop-
erty and the plasticity they produce in proprietary rights. No
such consequences as these appear in fact to have been associated
with the Testamentary power even by the latest Roman lawyers.
It will be found that Wills were never looked upon in the Roman
community as a contrivance for parting Property and the Family,
or for creating a variety of miscellaneous interests, but rather
as a means of making a better provision for the members of a
household than could be secured through the rules of Intestate
succession. We may suspect indeed that the associations of a
Roman with the practice of will-making were extremely different
from those familiar to us nowadays. The habit of regarding
Adoption and Testation as modes of continuing the Family cannot
but have had something to do with the singular laxity of Roman
notions as to the inheritance of sovereignty. It is impossible
not to see that the succession of the early Roman Emperors to
each other was considered reasonably regular, and that, in spite
of all that had occurred, no absurdity attached to the pretension
of such Princes as Theodosius or Justinian to style themselves
Csesar and Augustus.
When the phenomena of primitive societies emerge into light,
it seems impossible to dispute a proposition which the jurists of
the seventeenth century considered doubtful, that Intestate
Inheritance is a more ancient institution than Testamentary
Succession. As soon as this is settled, a question of much interest
suggests itself, how and under what conditions were the directions
of a will first allowed to regulate the devolution of authority over
the household, and consequently the posthumous distribution of
Chap. XXX, § 3.] SUCCESSION 563
property. The difficulty of deciding the point arises from the
rarity of Testamentary power in archaic communities. It is
doubtful whether a true power of testation was known to any
original society except the Roman. Rudimentary forms of it
occur here and there, but most of them are not exempt from the
suspicion of a Roman origin. The Athenian Will was, no doubt,
indigenous, but then, as will appear presently, it was only an
inchoate Testament. As to the Wills which are sanctioned by
the bodies of law which have descended to us as the codes of the
barbarian conquerors of imperial Rome, they are almost certainly
Roman. The most penetrating German criticism has recently
been directed to these leges Barharorum, the great object of in-
vestigation being to detach those portions of each system which
formed the customs of the tribe in its original home from the
adventitious ingredients which were borrowed from the laws of
the Romans. In the course of this process, one result has in-
variably disclosed itself, that the ancient nucleus of the code con-
tains no trace of a Will. Whatever testamentary law exists,
has been taken from Roman jurisprudence. Similarly, the rudi-
mentary Testament which (as I am informed) the Rabbinical
Jewish law provides for, has been attributed to contact with the
Romans. The only form of Testament, not belonging to a Roman
or Hellenic society, which can with any reason be supposed in-
digenous, is that recognised by the usages of the province of
Bengal ; and the Testament of Bengal, which some have even
supposed to be an invention of Anglo-Indian lawyers, is at most
only a rudimentary Will.
The evidence, however, such as it is, seems to point to the
conclusion that Testaments are at first only allowed to take effect
on failure of the persons entitled to have the inheritance by right
of blood genuine or fictitious. Thus, w^hen Athenian citizens
were empowered for the first time by the Laws of Solon to execute
Testaments, they were forbidden to disinherit their direct male
descendants. So, too, the Will of Bengal is only permitted to
govern the succession so far as it is consistent with certain over-
riding claims of the family. Again, the original institutions of
the Jews having provided nowhere for the privileges of Testator-
ship, the latter Rabbinical jurisprudence, which pretends to
supply the casus omissi of the jNIosaic law, allows the power of
Testation to attach when all the kindred entitled under the Mosaic
system to succeed have failed or are undiscoverable. The limi-
tations by which the ancient German codes hedge in the testamen-
564 THINGS [Part III.
tary jurisprudence which has been incorporated with them are
also significant, and point in the same direction. It is the peculiar-
ity of most of these German laws, in the only shape in which we
know them, that, besides the allod or domain of each household,
they recognise several subordinate kinds or orders of property,
each of which probably represents a separate transfusion of Roman
principles into the primitive body of Teutonic usage. The prim-
itive German or allodial property is strictly reserved to the
kindred. Not only is it incapable of being disposed of by testa-
ment, but it is scarcely capable of being alienated by conveyance
inter vivos. The ancient German law, like the Hindoo jurispru-
dence, makes the male children co-proprietors with their father,
and the endowment of the family cannot be parted with except
by the consent of all its members. But the other sorts of property,
of more modern origin and lower dignity than the allodial pos-
sessions, are much more easily alienated than they, and follow
much more lenient rules of devolution. Women and the descen-
dants of women succeed to them, obviously on the principle that
they lie outside the sacred precinct of the Agnatic brotherhood.
Now, it is on these last descriptions of property, and on these
only, that the Testaments borrowed from Rome were at first
allowed to operate.
These few indications may serve to lend additional plausibility
to that which in itself appears to be the most probable explanation
of an ascertained fact in the early history of Roman Wills. We
have it stated on abundant authority that Testaments, during
the primitive period of the Roman State, were executed in the
Comitia Calata, that is, in the Comitia Curiata, or Parliament
of the Patrician Burghers of Rome, when assembled for Private
Business. This mode of execution has been the source of the
assertion, handed down by one generation of civilians to another,
that every Will at one era of Roman history was a solemn legis-
lative enactment. But there is no necessity whatever for resort-
ing to an explanation which has the defect of attributing far too
much precision to the proceedings of the ancient assembly. The
proper key to the story concerning the execution of Wills in the
Comitia Calata must no doubt be sought in the oldest Roman
law of intestate succession. The canons of primitive Roman
jurisprudence regulating the inheritance of relations from each
other were, so long as they remained unmodified by the Edictal
Law of the Praetor, to the following effect : — First, the sui or
direct descendants who had never been emancipated succeeded.
Chap. XXX, § 3.] SUCCESSION 565
On the failure of the sui, the Nearest Agnate came into their
place, that is, the nearest person or class of the kindred who was
or might have been under the same Patria Potestas with the
deceased. The third and last degree came next, in which the
inheritance de\'olved on the Gentiles, that is, on the collective
members of the dead man's gens or House. The House, I have
explained already, was a fictitious extension of the family, consist-
ing of all Roman Patrician citizens who bore the same name,
and who on the ground of bearing the same name, were supposed
to be descended from a common ancestor. Now the Patrician
Assembly called the Comitia Curiata was a Legislature in which
Gentes or Houses were exclusively represented. It was a represen-
tative assembly of the Roman people, constituted on the assump-
tion that the constituent unit of the state was the Gens. This
being so, the inference seems inevitable, that the cognisance of
Wills b\^ the Comitia was connected with the rights of the Gentiles,
and was intended to secure them in their privilege of ultimate
inheritance. The whole apparent anomaly is removed, if we sup-
pose that a Testament could only be made when the Testator
had no gentiles discoverable, or when they waived their claims,
and that every Testament was submitted to the General Assembly
of the Roman Gentes, in order that those aggrieved by its dis-
positions might put their veto upon it if they pleased, or b}- allow-
ing it to pass might be presumed to have renounced their reversion.
It is possible that on the eve of the publication of the Twelve
Tables this vetoing power may have been greatly curtailed or
only occasionally and capriciously exercised. It is much easier,
however, to indicate the meaning and origin of the jurisdiction
confided to the Comitia Calata, than to trace its gradual develop-
ment or progressive decay.
The Testament to which the pedigree of all modern Wills may
be traced is not, however, the Testament executed in the Calata
Comitia, but another Testament designed to compete with it
and destined to supersede it. The historical importance of this
early Roman Will, and the light it casts on much of ancient thought,
will excuse me for describing it at some length.
When the Testamentary power first discloses itself to us in
legal history, there are signs that, like almost all the great Roman
institutions, it was the subject of contention between the Patri-
cians and the Plebeians. The effect of the political maxim, Plebs
Gentem non liahet, "a Plebeian cannot be a member of a house,"
was entirely to exclude the Plebeians from the Comitia Curiata.
566 THINGS [Part III.
Some critics have accordingly supposed that a Plebeian could
not have his Will read or recited to the Patrician Assembly, and
was thus deprived of Testamentary privileges altogether. Others
have been satisfied to point out the hardships of having to submit
a proposed Will to the unfriendly jurisdiction of an assembly in
which the Testator was not represented. Whatever be the true
view, a form of Testament came into use, which has all the char-
acteristics of a contrivance intended to evade some distasteful
obligation. The Will in question was a conveyance inter vivos,
a complete and irrevocable alienation of the Testator's family
and substance to the person whom he meant to be his heir. The
strict rules of Roman law must always have permitted such an
alienation, but when the transaction was intended to have a post-
humous effect, there may have been disputes w^hether it was valid
for Testamentary purposes without the formal assent of the
Patrician Parliament. If a difference of opinion existed on the
point between the two classes of the Roman population, it was
extinguished, with many other sources of heartburning, by the
great Decemviral compromise. The text of the Twelve Tables
is still extant which says, " Pater familias idi de yecunid tuteldve
rei Slice legdssit, ita jus esto" — a law which can hardly have had
any other object than the legitimation of the Plebeian Will.
It is well known to scholars that, centuries after the Patrician
Assembly had ceased to be the legislature of the Roman State, it
still continued to hold formal sittings for the convenience of
private business. Consequently, at a period long subsequent
to the publication of the Decemviral Law, there is reason to be-
lieve that the Comitia Calata still assembled for the validation of
Testaments. Its probable functions may be best indicated by
saying that it was a Court of Registration, with the understanding,
however, that the Wills exhibited were not enrolled, but simply
recited to the members, who were supposed to take note of their
tenor and to commit them to memory. It is very likely that
this form of Testament was never reduced to writing at all, but
at all events if the Will had been originally written, the office of
the Comitia was certainly confined to hearing it read aloud, the
document being retained afterwards in the custody of the Testator,
or deposited under the safeguard of some religious corporation.
This publicity may have been one of the incidents of the Testament
executed in the Comitia Calata which brought it into popular
disfavour. In the early years of the Empire the Comitia still
held its meeting, but they seem to have lapsed into the merest
Chap. XXX, § 3.] SUCCESSION 567
form, and few Wills, or none, were probably presented at the
periodical sitting.
It is the ancient Plebeian Will — the alternative of the Testament
just described — which in its remote effects has deeply modified
the civilisation of the modern world. It acquired at Rome all
the popularity which the Testament submitted to the Calata
Comitia appears to have lost. The key to all its characteristics
lies in its descent from the mancipium, or ancient Roman con-
veyance, a proceeding to which we may unhesitatingly assign
the parentage of two great institutions without which modern
society can scarcely be supposed capable of holding together, the
Contract and the Will. The Mancipium, or, as the world would
exhibit itself in later Latinity, the Mancipation, carries us back
by its incidents to the infancy of civil society. As it sprang
from times long anterior, if not to the invention, at all events to
the popularisation, of the art of writing, gestures, symbolical
acts, and solemn phrases take the place of documentary forms,
and a lengthy and intricate ceremonial is intended to call the
attention of the parties to the importance of the transaction,
and to impress it on the memory of the witnesses. The imper-
fection, too, of oral, as compared with written testimony necessi-
tates the multiplication of the witnesses and assistants beyond
what in later times would be reasonable or intelligible limits.
The Roman Mancipation required the presence first of all of
the parties, the vendor and vendee, or we should perhaps rather
sa}', if we are to use modern legal language, the grantor and
grantee. There were also no less than five witnesses; and an
anomalous personage, the Libripens, who brought with him a
pair of scales to weigh the uncoined copper money of ancient
Rome. The Testament we are considering — the Testament
per CBS et libram, "with the copper and the scales," as it long con-
tinued to be technically called — was an ordinary Mancipation
with no change in the form and hardly any in words. The Testator
was the grantor ; the five witnesses and the libripens were present ;
and the place of grantee was taken by a person known technically
as the familiae emptor, the Purchaser of the Family. The ordinary
ceremony of a Mancipation was then proceeded with. Certain
formal gestures were made and sentences pronounced. The
Emptor familice simulated the payment of a price bj' striking the
scales with a piece of money, and finally the Testator ratified
what had been done in a set form of words called the "Nun-
cupatio" or publication of the transaction, a phrase which, I
568 TmNGS [Part III.
need scarcely remind the lawyer, has had a long history in Testa-
mentary jurisprudence. It is necessary to attend particularly
to the character of the person called familioB emptor. There is
no doubt that at first he was the Heir himself. The Testator
conveyed to him outright his whole "familia," that is, all the
rights he enjoyed over and through the family; his property,
his slaves, and all his ancestral privileges, together, on the other
hand, with all his duties and obligations.
With these data before us, we are able to note several remark-
able points in which the Mancipatory Testament, as it may
be called, differed in its primitive form from a modern Will. As
it amounted to a conveyance out-and-out of the Testator's estate
it was not revocable. There could be no new exercise of a power
which had been exhausted.
Again, it was not secret. The Familiae Emptor, being himself
the Heir, knew exactly what his rights were, and was aware that
he was irreversibly entitled to the inheritance ; a knowledge
which the violences inseparable from the best-ordered ancient
society rendered extremely dangerous. But perhaps the most
surprising consequences of this relation of Testaments to Con-
veyances was the immediate vesting of the Inheritance in the
Heir. This has seemed so incredible to not a few civilians, that
they have spoken of the Testator's estate as vesting conditionally
on the Testator's death, or as granted to him from a time un-
certain, i.e. the death of the grantor. But down to the latest
period of Roman jurisprudence there was a certain class of trans-
actions which never admitted of being directly modified by a
condition, or of being limited to or from a point of time. In
technical language they did not admit conditio or dies. Manci-
pation was one of them, and therefore, strange as it may seem,
we are forced to conclude that the primitive Roman W'ill took
effect at once, even though the Testator survived his act of
Testation. It is indeed likely that Roman citizens originally
made their W^ills only in the article of death, and that a provision
for the continuance of the Family eftected by a man in the flower
of life would take the form rather of an Adoption than of a W^ill.
Still we must believe that, if the Testator did recover, he could
only continue to govern his household b}^ the sufferance of his
Heir.
Two or three remarks should be made before I explain how
these inconveniences were remedied, and how Testaments came
to be invested with the characteristics now universally associated
Chap. XXX, § 3.] SUCCESSION 569
with them. The Testament was not necessarily written : at
first, it seems to have been invariably oral, and, even in later
times, the instrument declaratory of the bequests was only in-
cidentally connected with the Will and formed no essential part
of it. It bore in fact exactly the same relation to the Testament
which the deed leading the uses bore to the Fines and Recoveries
of old English law, or which the charter of feoffment bore to the
feoffment itself. Previously, indeed, to the Twelve Tables, no
writing would have been of the slightest use, for the Testator
had no power of giving legacies, and the only persons who could
be advantaged by a will were the Heir or Co-heirs. But the
extreme generality of the clause in the Twelve Tables soon pro-
duced the doctrine that the heir must take the inheritance bur-
dened by any directions which the Testator might give him, or,
in other words, take it subject to legacies. Written testamentary
instruments assumed thereupon a new value, as a security against
the fraudulent refusal of the heir to satisfy the legatees ; but to the
last it was at the Testator's pleasure to rely exclusively on the
testimony of the witnesses, and to declare by word of mouth
the legacies which the familice emptor was commissioned to pay.
The terms of the expression Emptor familioB demand notice.
''Emptor" indicates that the Will was literally a sale, and the
word "familiae," when compared with the phraseology in the
Testamentary clause in the Twelve Tables, leads us to some
instructive conclusions. "Familia," in classical Latinity, means
always a man's slaves. Here, however, and generally in the
language of ancient Roman law, it includes all persons under
his Potestas, and the Testator's material property or substance
is understood to pass as an adjunct or appendage of his household.
Turning to the law of the Twelve Tables, it will be seen that it
speaks of tutela rei shop, "the guardianship of his substance," a
form of expression which is the exact reverse of the phrase just
examined. There does not therefore appear to be any mode of
escaping from the conclusion, that even at an era so comparatively
recent as that of the Decemviral compromise, terms denoting
"household" and "property" were blended in the current phrase-
ology. If a man's household had been spoken of as his property,
we might have explained the expression as pointing to the extent
of the Patria Potestas, but, as the interchange is reciprocal, we
must allow that the form of speech carries us back to the primeval
period in which property is owned by the family, and the family
is governed by the citizen, so that the members of the community
570 THINGS [Part III.
do not own their property ajid their family, but rather own their
property through their family.
At an epoch not easy to settle with precision, the Roman Praetors
fell into the habit of acting upon Testaments solemnised in closer
conformity with the spirit than the letter of the law. Casual
dispensations became insensibly the established practice, till at
length a wholly new form of Will was matured and regularly en-
grafted on the Edictal Jurisprudence. The new or Prcetorian
Testament derived the whole of its impregnability from the Jus
Honorarium or Equity of Rome. The Prsetor of some particular
year must have inserted a clause in his Inaugural Proclamation
declaratory of his intention to sustain all Testaments which
should have been executed with such and such solemnities ; and,
the reform having been found advantageous, the article relating
to it must have been again introduced by the Praetor's successor,
and repeated by the next in office, till at length it formed a recog-
nised portion of that body of jurisprudence which from these
successive incorporations was styled the Perpetual or Continuous
Edict. On examining the conditions of a valid Praetorian Will
they will be plainly seen to have been determined by the require-
ments of the Mancipatory Testament, the innovating Prsetor
having obviously prescribed to himself the retention of the old
formalities just so far as they were warrants of genuineness or
securities against fraud. At the execution of the Mancipatory
Testament seven persons had been present besides the Testator.
Seven witnesses were accordingly essential to the Praetorian Will ;
two of them corresponding to the libripens and familioe emrptor,
who were now stripped of their symbolical character, and were
merely present for the purpose of supplying their testimony. No
emblematic ceremony was gone through ; the Will was merely
recited; but then it is probable (though not absolutely certain)
that a written instrument was necessary to perpetuate the evi-
dence of the Testator's dispositions. At all events, whenever a
writing was read or exhibited as a person's last Will, we know
certainly that the Praetorian Court would not sustain it by special
intervention, unless each of the seven witnesses had severally
affixed his seal to the outside. This is the first appearance of
sealing in the history of jurisprudence, considered as a mode of
authentication. The use of seals, however, as mere fastenings, is
doubtless of much higher antiquity ; and it appears to have been
known to the Hebrews. We may observe, that the seals of the
Roman Wills, and other documents of importance, did not only
Chap. XXX, § 3.] SUCCESSION 571
serve as the index of the present or assent of the signatary, but
were also literally fastenings which had to be broken before the
writing could be inspected.
The Edictal Law would therefore enforce the dispositions of a
Testator, when, instead of being symbolised through the forms
of mancipation, they were simply evidenced by the seals of seven
witnesses. But it may be laid down as a general proposition, that
the principal qualities of Roman property were incommunicable
except through processes which were supposed to be coeval with
the origin of the Civil Law. The Praetor therefore could not
confer an Inheritance on anybody. He could not place the Heir
or Co-heirs in that very relation in which the Testator had him-
self stood to his own rights and obligations. All he could do
was to confer on the person designated as Heir the practical
enjoyment of the property bequeathed, and to give the force of
legal acquittances to his payments of the Testator's debts. Wlien
he exerted his powers to these ends, the Praetor was technically
said to communicate the Bonorum Possessio. The Heir specially
inducted under these circumstances, or Bonorum Possessor, had
every proprietary privilege of the Heir by the Civil Law. He
took the profits and he could alienate, but then, for all his remedies
for redress against wrong, he must go, as we should phrase it, not
to the Common Law, but to the Equity side of the Praetorian
Court. No great chance of error would be incurred by describing
him as having an equitable estate in the inlieritance ; but then,
to secure ourselves against being deluded by the analogy, we must
always recollect that in one year the Bonorum Possessio was
operated upon by a principle of Roman Law known as LTsucapion,
and the Possessor became Quiritarian owner of all the property
comprised in the inheritance.
We know too little of the older law of Civil Process to be able
to strike the balance of advantage and disadvantage between
the different classes of remedies supplied by the Praetorian Tribu-
nal. It is certain, however, that, in spite of its many defects,
the jMancipator}' Testament by which the universitas juris de-
volved at once and unimpaired was never entirely superseded
by the new Will ; and at a period less bigoted to antiquarian
forms, and perhaps not quite alive to their significance, all the
ingenuity of the Jurisconsults seems to have been expended on
the improvement of the more venerable instrument. At the era
of Gains, which is that of the Antonine Caesars, the great blemishes
of the Mancipatory Will had been removed. Originally, as we
572 THINGS [Part III.
have seen, the essential character of the formahties had required
that the Heir himself should be the Purchaser of the Family,
and the consequence was that he not only instantly acquired a
vested interest in the Testator's Property, but was formally made
aware of his rights. But the age of Gaius permitted some un-
concerned person to officiate as Purchaser of the Family. The
Heir, therefore, was not necessarily informed of the succession
to which he was destined ; and Wills thenceforward acquired the
property of secrecy. The substitution of a stranger for the actual
Heir in the functions of "Familise Emptor" had other ulterior
consequences. As soon as it was legalised, a Roman Testament
came to consist of two parts or stages, — a Conveyance, which
was a pure form, and a Nuncupatio, or Publication. In this
latter passage of the proceeding, the Testator either orally de-
clared to the assistants the wishes which were to be executed
after his death, or produced a written document in which his
wishes were embodied. It was not probably till attention had
been quite drawn off from the imaginary Conveyance, and con-
centrated on the Nuncupatio as the essential part of the transac-
tion, that Wills were allowed to become revocable.
PART IV
PROCEDURE
Chapter XXXI
Section 1. Survey of the Law of Procedure
By Josef Kohler
Section 2. Ancient Magistracy
By Fustel de Coulanges
Section 3. Primitive Forms op Legal Remedies
By Henry S. Maine
Section 4. The Ordeal and the Oath
By Gustave Glotz
Section 5. Ancient Formalism
By Andreas Heusler
Section 6. Ancient Semitic Procedure
By Stanley A. Cook
Section 7. Ancient Roman Procedure
By Rudolph Sohm
Section 8. Evolution of Procedure
By Gabriel Tarde
Chapter XXXI
PROCEDURE
Section 1
SURVEY OF THE LAW OF PROCEDURE i
1. Peaceable regulation is principally furthered by the wor-
ship of the divinity. The divinity is often the goddess of peace ;
she resists force and hates disputes and quarreling. So it happens
that the efforts to obtain the settlement of legal claims and dis-
putes without violence cling about divine service, and that the
law of procedure is divine and ecclesiastical, before it becomes
secular. The further exposition of this belongs to the universal
history of the law ; but here the part that worship played in the
development of procedure must be explained.
2. Already on the plane of pure legal order, the priesthood
attains great eminence ; for even the law is not a human but a
divine law. The creation of the law is a formation of the con-
ditions as they conform and are agreeable to the divinity ; and
the exercise of the law corresponds to the divine will — at least
as soon as religion has advanced to the point where many gods are
merged into one unified divine authority.
Hence it is comprehensible that even at that time the law is
made mainly by the priests, and that they endeavor to develop
the divine will in all directions.
3. But this activity will become still more pronounced when
society reaches a basis of peaceable adjustment, and when it is a
question of opposing the individual assertion of the law. Here,
of course, people will turn first to the priesthood when arbitration
courts are desired ; for they have the best knowledge of the law.
But another reason is also combined with this. The priesthood
represents the highest power ; it possesses the authority to curse
1 [Reprinted, by permission, from Josef Kohler, "Philosophy of Law"
(AlbrechCs trans.), Boston Book Company, 1914 (Philosophy of Law
Series, XII).]
575
576 PROCEDURE [Part IV.
and expel the individual who resists. This is a power that exceeds
all others, and extends into eternity. Thus, of course, the inter-
vention of the priesthood cannot be avoided, when quarrels and
disputes arise, and it will fall more and more to the lot of the
priests to solve legal questions, whether it be a matter of the
realization of justice or the establishment of the law.
4. Moreover, the people of that time believed in the constant
activity and intervention of the divinity for the individual ; they
assumed that the divine powers would never forsake the inno-
cent ; that they would not permit the wrong to triumph. Such a
man, therefore, believed that the question of right and wrong was
unconditionally solved with absolute certainty by divine inter-
vention ; so that all doubt disappeared, and man bowed to the
infallible divine decision. This of course strengthened the priestly
procedure ; for it was just the priesthood that acted as the media-
tor in the individual's relation to the divinity, and appealed to
him to reveal the celestial decision. Thus arose what is called
the judgment of god ("Gottesurteil").
5. The judgment of god is not unique. In other matters also
the priesthood acted as the medium through which the divinity
spoke ; thus, for instance, in important State affairs, when re-
sponsible decisions were to be made, enlightenment was sought of
the divinity ; and it was supposed that the divine power could
reveal to men the future. Thus arises the augury, that is, the
totality of means used to discover the mystery of the future. It
did not appear to the same extent in all the nations, but was pro-
nounced among the star-interpreting Babylonians, the Etruscans,
and consequently among the Romans ; also among the Chinese.
Just as the future was spied out in this way, so too were the
present and the past; the divinity said what was right; it an-
nounced the circumstances that were determinative for justice ;
especially who had committed an evil deed and who was guilty
of some crime was learned in this way.
6. Thus an abundance of divine judgments arose. They
were, first, those that were closely connected with the augury ;
like the judgment by lot or the seer's power, the priest believing
that in some manner he could discover the evil doer. Second,
there were the divine judgments connected with the worship of
the dead ; it being supposed that a murdered man would point
out his murderer, a belief which appears in various forms in the
life of the nations : the wounds bleed if the murderer comes near,
the bearers of the body suddenly become paralyzed at sight of
I
Chap. XXXI, § 1.] SURVEY OF THE LAW OF PROCEDURE 577
the murderer, etc. Then there were the divine judgments proper :
the accused, or sometimes the accuser, or both, were placed in
relation to some material object so that this deified object might
in some way make known their guilt or innocence ; thus, for in-
stance, there were the ordeals by fire, by water, and many others.
It is unjust to suppose that lying and deception, or even mere
chance, played a large part in these judgments. There was cer-
tainly no intentional deception until all these institutions reached
a state of decay, and the priesthood began a rapid decline. But
even the effect of chance was limited ; for frequently the elements
of reason were also involved. The consciousness of guilt or
innocence was an important factor in these tests ; they assumed
more and more the character of allowing the psychic emotions of
the suspected person to appear, when he was confronted with the
deified things of nature. Thus, for instance, the fact that the
accused trembled, or in some other way expressed inward excite-
ment, might be interpreted as arising from the consciousness of
guilt. As regards prophetic vision and the belief in the power of
the dead, it may also be assumed that the reasonable motives
that led to the conviction that one or another was guilty, so over-
came the priests and the bearers of the dead that the cultural
phenomena appeared just when consideration of the facts made
one or another seem guilty ; for it is a well-known psychic expe-
rience that such convictions affect our imaginative activity beneath
the surface of our consciousness, and often we are as if possessed
by reasonable ideas that grow up in us more or less unconsciously.
But, even if we must assume that the element of chance was
large — and this can scarcely be doubted — yet, it must be taken
into consideration that the sacrifice of the individual secured the
peace of society ; for the belief in the correctness of the divine
judgment was so great that even the innocent man believed him-
self guilty, and thought that he had been caused to murder bj^
some evil magic spell, or had attracted murderous spirits to himself.
Universal history often requires the individual to be thus
sacrificed : the iron tread of progress tramples thousands under
foot. This is a terrible phenomenon which we must moderate
and ameliorate, as far as possible, in the course of the development
of culture. But here we must simply accept the ways of Divine
Providence, in the consciousness that thus the progress of the
world is accomplished ; and we must realize that our modern
criminal procedure also demands thousands of innocent victims,
so liable to error are our methods of proof and conviction.
578 PROCEDURE [Part IV.
7. Procedure must advance beyond this stage, and become a
procedure of reason, as soon as humanity ceases to believe in the
basis of the earher procedure ; that is, as soon as men no longer
assume that the divinity intervenes in the government of the
world for every individual, and gives him a good or bad testimonial.
When once this belief has ceased, procedure must be along entirely
different lines : the essential thing is, not that it should actually
lead to objectively right results, but that society should recognize
the dominion of the law in the administration of justice. Hence,
as long as people believe in a divine procedure, it can be retained ;
but when once this belief is shaken, procedure must be built up
on another foundation.
This cannot be done, however, until education has advanced
so far that it is possible to obtain fairly sound results with the pro-
cedure of reason ; and this is only possible if judges possess a
certain degree of insight, if the impartiality of those who find the
judgment is beyond doubt, and also if the conditions of life are
such that it is possible, in the main, to reach a reasonable estab-
lishment of the necessary facts.
Until man has reached this point, the religious method of proof
will continue to live in certain offshoots. It does not die easily,
and can still be traced even today in certain institutions.
8. One of its outgrowths, for instance, is the oath, which
means in reality that a man curses himself in the expectation of
drawing down upon himself the curse of the divinity should he be
in the wrong. This institution can maintain itself for a long
time ; for even if men no longer believe that the curse of God can
be brought down upon us by the will and power of men, yet the
belief that it is possible for a man, by appealing to the divinity,
to place himself under the divine power of vengeance, is not so
remote even from the man of today. In addition, compurgators
were called ; originally they were relatives ; later, any persons of
untarnished reputation.
The institution of divine judgment had one very evil result —
the torture — one of the worst institutions that the erring human
mind ever devised. The original idea w^as that, just as the divine
judgment leaves the innocent persons untouched, so too they will
be able to bear torture without succumbing. But even after this
idea had gradually declined, torture still remained as a means of
extorting testimony which was considered necessary, whether it
was to extract a confession, or a statement, or to discover where a
treasure was buried or the identity of accessories and confederates.
Chap. XXXI, § 1.] SURVEY OF THE L.\W OF PROCEDURE 579
Also this institution, eating like a canker into mankind, had to be
overcome before modern procedure could arise.
9. In the procedure of today, however, we have first of all the
far-reaching division between civil and criminal procedure. In
earlier times there was no conception of this difference. Anyone
with a grievance simply presented himself before the judge, whether
he demanded the punishment of another, desired to have his
property returned, or was anxious in one way or another to have
some disagreement settled. Only gradually, after the State had
properly grasped the criminal idea, was the great difference per-
ceived in the activity' of the State, whether it prosecuted an evil
doer in the name of society, or whether it made it possible for the
individual to establish and realize his rights.
10. Courts were originally either priestly courts, popular courts,
or chieftains' courts. The priestly courts made an effort in favor
of scientific form, and it is not by chance that the science of the
law was first developed mainly in religious colleges. Sometimes
the chieftains' courts imitated the priestly courts, and possibly
competed with them as regards legal education. The popular
courts, on the other hand, always maintained a certain degree of
informality, and their administration of the law was more or less
simple and naive, proceeding from the midst of the population
that practised the law, without careful working out, and more un-
consciously than on the basis of principle. Nevertheless, such
courts sometimes rose to considerable eminence under the influ-
ence of certain unusually learned persons : take, for instance the
office of "law-man" in the Scandinavian law. Sometimes, too,
the popular court developed into a court composed of persons
from among the people who were considered to have special
knowledge of the laws; and thus the popular court became an
assessors' court (" SchSff engericht ") .
11. With the growth of the priestly and chieftains' courts, in
contrast to the popular courts, a law as understood by jurists
(" Juristenrecht") was developed as against the popular law
(" Volksrecht"). Both belonged to customary law (" Gewohn-
heitsrecht "), but the juristic law grasped the matter with a logically
trained understanding, the popular law with an instinctive general
view of life ("Weltanschauung").
12. As the development of the law is partly teleological, partly
logical, no one kind of court will be the only right one ; the proper
court can only be formed by a combination of the popular court
and the technical court. Both can contribute to the advance of
580 PROCEDURE [Part IV.
the administration of justice. Technical law has an easily under-
stood tendency toward exaggerated logic, unwholesome elabora-
tion, sophistry, and quibbling. Popular law, on the contrary, is
inclined to lose its balance, and to be so dominated by practical
considerations that it goes to pieces. It is also in danger of losing
itself in circumstantials, and since in it a firm core is lacking, to
become the shuttlecock of momentary moods and passions.
Section 2
ANCIENT MAGISTRACY!
The union of the political authority and the priesthood in the
same person did not cease with royalty. The revolution which
established the republican regime, did not separate functions whose
connection appeared natural, and was then the fundamental law
of human society. The magistrate who replaced the king was,
like him, a priest, and at the same time a political chief.
Sometimes this annual magistrate bore the sacred title of king.^
In other places the title of prytane,^ which he retained, indicated
his principal function. In other cities the title of archon prevailed.
At Thebes, for example, the first magistrate was called by this
name ; but what Plutarch says of this office shows that it diftered
little from the priesthood. This archon, during his term of office,
was required to wear a crown,'* as became a priest ; religion forbade
him to let his hair grow, or to carry any iron object upon his person
— a regulation which made him resemble the Roman flamen.
The city of Platsea also had an archon, and the religion of this
city required that, during his whole term of office, he should be
clothed in white ^ — that is to say, in the sacred color.
The Athenian archons, when entering upon their duty, ascended
the Acropolis, their heads crowned with myrtle, and offered a
sacrifice to the divinity of the city.^ It was also a custom for them,
in the exercise of their duty, to wear a crown of leaves upon their
heads.^ Now, it is certain that the crown, which in the course of
time became, and has remained, the symbol of power, was then
' [By FusTEL DE CoTTLANGEs, " The Ancient City " ; translated by
Willard Small; 11th ed., Lothrop, Lee, and Shepard Co., Boston; re-
printed by permission.]
2 At Megara, at Samothrace. Livy, XLV. 5. Boeckh, "Corp. Inscr.,"
1052.
^ Pindar, ''Nem.," XI.
« Plutarch, "Rom. Quest.," 40. » jf^^d^ "Aristides," 21.
^ Thnrydides, VIII. 70. Apollodorus, "Fragment," 21 (coll. Didot).
^ Demosthenes, "in Meidiam," 33. /Eschines, "in Timarch.," 19.
Chap. XXXI, § 2.] ANCIENT MAGISTRACY 581
only a religious emblem, an exterior sign, v/hich accompanied
pra^'er and sacrifice.^ Among the nine archons the one called king
was especially a religious chief ; but each of his colleagues had some
sacerdotal function to fulfil, some sacrifice to offer to the gods.^
The Greeks had a general expression to designate magistrates;
the}^ said ol iv reXei, — which signified, literally, those who are to
accomplish the sacrifice ; ^ an old expression, indicating the idea
that was entertained of the magistrate in early times. Pindar says
of these personages that, by the offerings which they make to the
sacred fire, they assure the safety of the city.
At Rome the first act of the consul was to offer a sacrifice in the
forum. Mctims were brought to the public square; when the
pontiff had declared them worthy of being offered, the consul
immolated them with his own hand, while a herald enjoined a reli-
gious silence upon the multitude, and a flute-player sounded the
sacred air.^ A few days later, the consul repaired to Lavinium,
whence the Roman penates had come, and offered another sacrifice.
When we examine the character of the magistrate among the
ancients with a little attention, we see how slightly he resembles
the chief of state of modern societies. Priesthood, justice, and
command are confounded in his person. He represents the city,
which is a religious association, as much, at least, as a political
one. He has in his hands the auspices, the rites, prayer, the
protection of the gods. A consul is something more than a
man ; he is a mediator between man and the divinity. To his
fortune is attached the public fortune ; he is, as it were, the tute-
lary genius of the city. The death of a consul is calamitous to
the republic.^ When the consul Claudius Nero left his army to
fly to the succor of his colleague, Livy shows us into how great
alarm Rome was thrown for the fate of this army ; this was be-
cause, deprived of its chief, the army was at the same time de-
prived of its celestial protection; with the consul, the auspices
have gone — that is to say, religion and the gods.
The other Roman magistracies, which were, in a certain sense,
members successiveh' detached from the consulship, like that office,
united sacerdotal and political attributes. We have seen the
censor, on certain days, with a crown upon his head, offering a
• Plutarch, "Nicias," 3; "Phocion," 37. Cicero, ''in Verr.," IV. 50.
'^ Pollux, VIII. ch. IX. Lycurgus (coll. Didot), t. II. p. 362.
'> Thucydides, I. 10; II. 10; HI. 36; IV. 65. Comp. Herodotus, I.
133; III. 18; ^schylus, ''Pers.," 204; ^'Agam.," 1202; Euripides,
"Traeh. " 238.
' Cicero, "De Lege Agr.," II. 34. Livy, XXI. 63. Macrobius, III. 3.
^ Livy, XXVII. 40.
582 PROCEDURE [Part IV.
sacrifice in the name of the city, and striking down a victim with
his own hand. The pretors and the curule ediles presided at re-
ligious festivals.^ There was no magistrate who had not some
sacred act to perform; for, in the minds of the ancients, all au-
thority ought to have some connection with religion. The
tribunes of the people were the only ones who had no sacrifice to
offer; but they were not counted among the real magistrates.
We shall see, farther along, that their authority was of an entirely
exceptional nature.
The sacerdotal character belonging to the magistrate is shown
above all, in the manner of his election. In the eyes of the ancients,
the votes of men were not sufficient to establish the ruler of a city.
So long as the primitive royalty lasted, it appeared natural that
this ruler should be designated by birth, by virtue of the religious
law which prescribed that the son should succeed the father in
every priestly office ; birth seemed sufficiently to reveal the will of
the gods. When revolutions had ever}n;v'here suppressed this
royalty, men appear to have sought, in the place of birth, a mode
of election which the gods might not have to disavow. The
Athenians, like many Greek peoples, saw no better way than to
draw lots ; but we must not form a wrong idea of this procedure,
which has been made a subject of reproach against the Athenian
democracy ; and for this reason it is necessary that we attempt to
penetrate the view of the ancients on this point. For them the
lot was not chance ; it was the revelation of the divine will. Just
as they had recourse to it in the temples to discover the secrets
of the gods, so the city had recourse to it for the choice of its
magistrate. It was believed that the gods designated the most
worthy by making his name leap out of the urn. This was the
opinion of Plato himself, who says, "He on whom the lot falls is
the ruler, and is dear to the gods ; and this we affirm to be quite
just. The officers of the temple shall be appointed by lot ; in this
way their election will be committed to God, w^ho will do what is
agreeable to him." The city believed that in this manner it
received its magistrates from the gods.^
1 Varro, "L. L.," VI. 54. Athencexis, XIV. 79.
^ Plato, ^'Laws," III. 090; VI. 759. Comp. Demetrius Phalereus,
"Fragm.," 4. It is surprising that modern historians represent the
drawing of lots as an invention of the Athenian democracy. It was, on the
contrary, in full rigor under the rule of the aristocracy (Plutarch, "Per-
icles," 9), and appears to have been as old as the arehonship itself. Nor
is it a democratic procedure : we know, indeed, that even in the time of
Lysias and of Demosthenes, the names of all the citizens were not put in
the urn (Lysias, "Orat., de Invalido," c. 13; "in Andocidem," c. 4):
Chap. XXXI, § 2.] ANCIENT MAGISTRACY 583
Affairs are substantially the same at Rome. The designation
of a consul did not belong to men. The will or the caprice of the
people could not legitimately create a magistrate. This, therefore,
was the manner in which the consul was chosen. A magistrate in
charge — that is to say, a man already in possession of the sacred
character and of the auspices — indicated among the dies fasti
the one on which the consul ought to be named. During the night
which preceded this day, he watched in the open air, his eyes fixed
upon the heavens, observing the signs which the gods sent, whilst
he pronounced mentally the name of some candidate for the
magistracy.^ If the presages were favorable, it was because the
gods accepted the candidate. The next day the people assembled
in the Campus Martins; the same one who had consulted the gods
presided at the assembly. He pronounced in a loud voice the
names of the candidates concerning whom he had taken the
auspices. If among those who sought the consulship there was
one for whom the auspices had not been favorable, his name was
omitted.- The people voted upon those names only which had
been pronounced by the president.^ If the president named but
two candidates, the people necessarily voted for them ; if he
named three, they chose two of them. The assembly never
had the right to vote for other men than those whom the
president had designated ; for the auspices had been for those
only, and for those only had the consent of the gods been
assured.
This mode of election, which was scrupulously followed in the
first ages of the republic, explains some peculiarities of Roman
history which at first surprise us. We see, for example, that quite
frequently the people are unanimous for two men for the consul-
ship, and still they are not elected. This is because the president
has not taken the auspices concerning these two men, or the
auspices have not been favorable. On the other hand, we have
for a still stronger reason was this true when the Eupatrids only, or the
Pentakosiomedimni could be archons. Passages of Plato show clearly
what idea the ancients had of the drawing of lots ; the thought which
caused it to be employed for magistrate-priests like the archons, or for
senators charged with holy duties like the prj^tanes, was a religious idea,
and not a notion of equality. It is worthy of remark, that when the
democracy gained the upper hand, it reserved the selection by lot for the
choice of archons, to whom it left no real power, and gave it up in the
choice of strategi, who then had the true authority. So that there was
drawing of lots for magistracies which dated from the aristocratic age,
and election for those that dated from the age of the democracy.
' Valerius Maximns, I. 1, 3. Plutarch, "Marcellus," 5.
2 Livy, XXXIX. 39. Velleius, II. 92. Valerius Maximns, III. 8, 3.
3 Dionysius, IV. 84 ; V. 19 ; V. 72 ; V. 77 ; VI. 49.
584 PROCEDURE [Part IV.
seen the people elect to the consulship men whom they detested.^
This was because the president pronounced only these two names.
It was absolutely necessary to vote for them, for the vote was not
expressed by "yes" or "no " ; every vote was required to contain
two names, and none could be written except those that had been
designated. The people, when candidates were presented who
were odious to them, could indeed show their displeasure by retir-
ing without a vote ; but there always remained in the enclosure
citizens enough to make up a quorum.
Here we see how great was the power of the president of the
comitia, and we no longer wonder at the expression, Great consules,
which referred not to the people, but to the president of the comitia.
It was of him, indeed, rather than of the people, that it might be
said, "He creates the consuls ;" for he was the one who discovered
the wull of the gods. If he did not create the consuls, it was at
least through him that the gods created them. The power of the
people went no farther than to ratify the election, or, at most, to
select among three or four names, if the auspices had been equally
favorable to three or four candidates.
Doubtless this method of procedure was very advantageous to
the Roman aristocracy ; but we should deceive ourselves if we
saw in all this merely a ruse invented by them. Such a ruse was
never thought of in the ages when they believed in this religion.
Politically it was useless in the first ages, since at that time the
patricians had a majority in voting. It might even have turned
against them, by investing a single man with exorbitant power.
The only explanation that can be given of this custom, or, rather,
of these rites of election, is, that every one then sincerely believed
that the choice of the magistrates belonged, not to the people, but
to the gods. The man in whose hands the religion and the fortune
of the city were to be placed, ought to be revealed by the divine
voice.
The first rule for the election of a magistrate is the one given
by Cicero: "That he be named according to the rites." If,
several months afterwards, the senate was told that some rite
had been neglected, or badly performed, it ordered the consuls to
abdicate, and they obeyed. The examples are very numerous;
and if, in case of two or three of them, we may believe that the
senate was very glad to be rid of an ill-qualified or ill-intentioned
consul, the greater part of the time, on the contrary, we cannot
impute other motives to them than religious scruples.
^Lwj, II. 42; II. 43.
Chap. XXXI, § 2.] ANCIENT MAGISTRACY 585
When the lot or the auspices had designated an archon or a
consul, there was, it is true, a sort of proof by which the merits
of the newly-elected officer were examined. But even this will
show us what the city wished to find in its magistrate ; and we
shaJl see that it sought not the most courageous warrior, not the
ablest and most upright man in peace, but the one best loved by
the gods. Indeed, the Athenian senate inquired of the magistrate
elect if he had any bodily defect, if he possessed a domestic god,
if his family had always been faithful to his worsliip, if he himself
had always fulfilled his duties towards the dead.^ Why these
questions ? Because a bodily defect — a sign of the anger of the
gods — rendered a man unfit to fill any priestly office, and conse-
quently to exercise any magistracy ; because he who had no family
worship ought not to have a national worship, and was not qualified
to offer the sacrifices in the name of the city ; because, if his family
had not always been faithful to his worship, — that is to say, if
one of his ancestors had committed one of those acts which affect
religion, — the hearth was forever contaminated, and the de-
scendants were detested by the gods ; finally, because, if he him-
self had neglected the tomb of his dead, he was exposed to their
dangerous anger, and was pursued by invisible enemies. The
city would have been very daring to have confided its fortunes
to such a man. These are the principal questions "that were ad-
dressed to one who was about to become a magistrate. It ap-
peared that men did not trouble themselves about his character
or his knowledge. They tried especially to assure themselves that
he was qualified for the priestly office, and that the religion of the
city would not be compromised in his hands.
This sort of examination was also in use at Rome. We have
not, it is true, any information as to the questions which the consul
was required to answer. But it is enough to know that this ex-
amination was made by the pontiffs."
1 Plato, "Laws," VI. Xenophon, ^'Mem.," II. Pollux, VIII. 85,
86, 95.
2 Dionysius, II. 73.
, -T^,^.^^^ ,^
586 PROCEDURE [Part IV.
Section 3
THE PRIMITIVE FORMS OF LEGAL REMEDIES i
I
The value of the precious discovery made by Niebuhr, when he
disinterred in 1816 the manuscript of Gaius, does not solely arise
from the new light which was at once thrown on the beginnings
of the legal system which is the fountain of the greatest part of
civilised jurisprudence. There are portions of the treatise then
restored to the world which afford us glimpses of something older
than law itself, and which enable us to connect with law the prac-
tices dictated to barbarous men by impulses which it has become
the prime office of all law to control. At the head of the passages
in the work of Gaius which allow the mind's eye to penetrate some
little way into the chaos out of which social order sprang, I place
the fragmentary and imperfect account, given near the com-
mencement of the Fourth Book, of the old Legis Actiones,^ which
in the age of Gaius himself had ceased to have more than an his-
torical and antiquarian interest.
Legis Actio, of which the exact meaning does not seem to have been
known to Gaius, may be conjectured to have been the substantive
form of the verbal expression, legem or lege agere, and to have been
equivalent to what we now call Procedure. It has been several
times observed that among the Legis Actiones are included several
proceedings which are not of the nature of Actions or Suits, but are
rather modes of executing decrees. The fact seems to be that, by
a course of change which may be traced in the history of Roman
law, one portion, 'Actio,' of the venerable phrase 'Legis Actio'
has been gradually disjoined from the rest, and has come to denote
that stage of the administration of justice which is directly con-
ducted by the Court, together, in some judicial systems, with the
stage immediately preceding it. I suppose that originally lex,
used of the assumed written basis of Roman law, and legis actio,
corresponded roughly to what many centuries afterwards were
called Substantive and Adjective Law, the law declaring rights and
duties and the rules according to which the law declaring rights
1 [By Sir Henry S. Maine. Reprinted from "Early History of Insti-
tutions," by permission of Henry Holt and Company, New York.]
^ [This passage is given in Vol. I of this Series ('' Sources of Ancient and
Primitive Law"), Part IV, Chap. XXIII, Sec. 4, No. 1.]
Chap. XXXI, § 3.] PEIMITIVE LEGAL REMEDIES 587
and duties is administered. ... As a fact, it is only in the most
recent times or in the most highly developed legal systems that
remedies have lost importance in comparison with rights and have
ceased to affect them deeply and variously.
The first and in many respects the most interesting of these an-
cient modes of proceeding is the Legis Actio Sacramenti, the un-
doubted parent of all the Roman Actions, and consequently of
most of the civil remedies now in use in the world. Several years
ago I pointed out (' Ancient Law '), that the technical formalities
appeared plainly, upon inspection, to be a dramatisation of the
Origin of Justice. 'Two armed men,' I said, 'are wrangling
about some disputed property. The Prsetor, vir yietate gravis,
happens to be going by and interposes to stop the contest. The
disputants state their case to him, and agree that he shall arbitrate
between them, it being arranged that the loser, besides resigning
the subject of the quarrel, shall pay a sum of money to the umpire
as remuneration for his trouble and loss of time.' 'This inter-
pretation,' I then added, 'would be less plausible than it is, were
it not that, by a surprising coincidence, the ceremony described
by Gains as the imperative course of proceeding in a Legis Actio
is substantially the same with one of the two subjects which the
God Hephaestus is described by Homer as moulding into the First
Compartment of the Shield of Achilles.' Since these passages were
wTitten, the labours of more recent enquirers enable us to class this
judicial picture of the origin of one great institution, Civil Justice,
with other pictorial or dramatic representations of forgotten prac-
tices which, in various parts of the world, survive in the forms at-
tending institutions of at least equal importance. It may be
seen, for example, from Mr. McLennan 's work on 'Primitive j\Iar-
riage,' that a large part of mankind still simulate in their marriage
ceremonies the carrying off the bride by violence, and thus pre-
serve the memory of the reign of force which, at all events as be-
tween tribe and tribe, preceded everywhere the reign of law. It is
not at the same time to be supposed that these long-descended
dramas imply or ever implied any disrespect for the institutions
with which they are associated. In all probability they intention-
ally commemorate not the evil but the remedy for the evil : and,
until they degenerate into meaningless usages, they are enacted,
not in honour of brute force, but in honour of the institutions
which superseded it, ]\Iarriage and Civil Justice.
Almost every gesture and almost every set of formal words in
the Legis Actio Sacramenti symbolise something which, in some
588 PROCEDURE [Part IV.
part of the world or another, in some Aryan society or another, has
developed into an important institution. The claimant places
his hand on the slave or other subject of dispute, and this grasp
of the thing claimed, which is reproduced in the corresponding
procedure of the ancient Germans and which, from them, was con-
tinued in various modified forms far down into the ^Middle Ages,
is an early example of that Demand before action on which all
civilised systems of law insist. The wand, which the claimant
held in his hand, is stated by Gains to have represented a spear,
and the spear, the emblem of the strong man armed, served as the
symbol of property held absolutely and against the world, not only
in the Roman but in several other Western societies. The pro-
ceedings included a series of assertions and reassertions of right by
the parties, and this formal dialogue was the parent of the Art of
Pleading. The quarrel between plaintiff and defendant, which
was a mere pretence among the Romans, long remained a reality
in other societies, and, though its theory was altered, it survived
in the Wager of Battle which, as an English institution, was only
finally abolished in our fathers' day. The interposition of the
Prsetor and the acceptance of his mediation expanded into the Ad-
ministration of Justice in the Roman State, one of the most power-
ful of instrumentalities in the historical transformation of the
civilised world. The disputants staked a sum of money — the
Sacramentum, from which the proceedings took their name — on
the merits of their quarrel, and the stake went into the public
exchequer. The money thus wagered, which appears in a singu-
larly large number of archaic legal systems, is the earliest repre-
sentative of those Court-fees which have been a more considerable
power in legal history than historians of law are altogether inclined
to admit. The very spirit in which a Legis Actio was conducted
was that which, in the eyes of laymen, has been most character-
istic of lawyers in all historical times. If, says Gains, you sued by
Legis Actio for injury to your vines, and called them vines, you
would fail ; you must call them trees, because the text of the
Twelve Tables spoke only of trees. The ancient collection of
Teutonic legal formulas, known as the IMalberg Gloss, contains
provisions of precisely the same character. If you sue for a bull,
you will miscarry if you describe him as a bull ; you must give him
his ancient juridical designation of 'leader of the herd.' You
must call the forefinger the ' arrow '-finger, the goat the 'browser
upon leeks.' There are lawyers alive who can recollect when the
English system of Special Pleading, now just expiring, was applied
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 589
upon principles not remotely akin to these and historically de-
scended from them.
The description given by Gains of the Legis Actio Sacramenti is
followed by a lacuna in the manuscript. . . . The text of the treat-
ise begins again with a description of the Condictio, which is said
by Gains to have been created, but which is believed to have been
only regulated, by two Roman statutes of the sixth century before
Christ — the Lex Silia and the Lex Calpurnia. The Condictio,
which afterwards developed into one of the most useful of the
Roman actions, originally derived its name from a notice which
the plaintiff gave the defendant to appear before the Prsetor in
thirty days, in order that a Judex or referee might be nominated ;
and immediately (as I myself think) on this notice being given,
the parties entered into a 'sponsio' and 'restipulatio,' that is, they
laid a formal wager (distinct from the stake called Sacramentum)
on the justice of their respective contentions. The sum thus
staked, which was always equal to a third of the amount in dispute,
W'Cnt in the end to the successful litigant, and not, like the Sacra-
mentum, to the State. Lawyers wondered. Gains tells us, that
such an action should be needed when property could have been
recovered by the older and unmodified procedure. Many technical
answers to this question have been given by modern commentators
on Roman law, but we will see whether a better explanation of it
cannot be obtained by approaching it from another side.
Gains, leaving the Condictio, proceeds to discuss two of the
Legis Actiones, the Manns Injectio and the Pignoris Capio,
which cannot be made to square in any way with oftr modern con-
ception of an action. The Manus Injectio is expressly stated to
have been originally the Roman mode of execution against the
person of a judgment debtor. It has considerable historical in-
terest, for it was undoubtedly the instrument of the cruelties prac-
tised by the Roman aristocracy on their defaulting plebeian debtors,
and thus it gave the first impetus to a series of popular movements
which affected the whole history of the Roman Commonwealth.
The Pignoris Capio also possibly under a slightly altered name,
was a mode of execution in later times against property after
decree ; but this was not its original purpose as a Legis Actio. It
was at first a wholly extra-judicial proceeding. The person who
proceeded by it seized in certain cases the goods of a fellow-citizen,
against whom he had a claim, but against whom he had not insti-
tuted a suit. The power of seizure could be exercised by soldiers
against public officers bound to supply them with pay, horse, or
590 PROCEDURE [Part IV.
forage ; and it could also be resorted to by the seller of a beast for
sacrifice against a defaulting purchaser. It was thus confined to
claims of great urgency or of highly sacred obligation ; but it was
afterwards extended to demands for overdue arrears of public
revenue. I am indebted to Mr. Poste for the observation that the
ideal institutions of Plato's Laws include something strongly re-
sembling the Roman Pignoris Capio ; and here again it is a remedy
for breach of public duties connected with military service or reli-
gious observance.
I take the Pignoris Capio as the immediate starting-point of all
which I am about to say on the subject of Ancient Civil Procedure.
First of all let us ask whether Gains himself gives us any hint of its
meaning and significance in the primitive Roman system. The
clue is slender, but it seems to me sufficiently traceable in the
statement that the Pignoris Capio could be resorted to in the ab-
sence of the Prsetor and generally in that of the person under lia-
bility, and also that it might be carried out even when the Courts
were not sitting.
Let us go back for a moment to the parent Legis Actio — the
L. A. Sacramenti. Its venerable forms presuppose a quarrel and
celebrate the mode of settling it. It is a passing arbitrator whose
interposition is simulated by the Prsetor. But suppose there is
no arbitrator at hand. What expedient for averting bloodshed
remains, and is any such expedient reflected in that ancient pro-
cedure which, by the fact of its existence, implies that the shedding
of blood has somehow been prevented ?
I dare say I shall at the outset appear to be making a trivial
remark when I say that one method of gaining the object is to lay
a wager. Even now this is one of the commonest ways of postpon-
ing a dispute as to a matter of fact, and the truth is that the ten-
dency to bet upon results lies extremely deep in human nature, and
has grown up with it from its remote infancy. It is not everybody
who, when his blood is hot, will submit to have "a quarrel referred
to a third person present, much less to a third person absent ; but
he will constantly do so, if he lays a wager on it, and if, besides
being found in the right, he has a chance of receiving the amount
staked. And this I suppose — differing, I own, from several high
authorities — to be the true significance of the Sponsio and
Restipulatio, which we know to have been of the essence of the
ancient Roman Condictio, and of the agreement to appear before
the Prsetor in thirty days. The Legis Actio Sacramenti assumes
that the quarrel is at once referred to a present arbitrator ; the Con-
Chap. XXXI, §3.] PRIMITIVE LEGAL REMEDIES 591
dictio that the reference is to the decision of an arbitrator after
thirty days' interval, but meantime the parties have entered into
a separate wager on the merits of their dispute. We know that the
liabihty to an independent penalty attached to the suitor by Con-
dictio even when it had become one of the most important Roman
actions, and that it was still exacted in the age of Cicero.
There is yet another primitive contrivance by which, in the
absence of a present arbitrator, a quarrel may be prevented from
issuing in bloodshed. The claimant willing to go to arbitration
may, in the absence of his adversary, or if he be the stronger, in
his presence, take forcible possession of his moveable property and
detain it till he too submits. I believe this to have been the true
primitive office of the Pignoris Capio, though the full evidence of
my opinion will not be before you till I have tracked the same
institution through the twilight of other legal systems. Among
the Romans, even at the date of the Twelve Tables, it had become
(to employ Mr. Tylor's phrase) a mere survival, confined to cases
when the denial of justice was condemned by superstition or by a
sense of the sternest public emergency; and this was a conse-
quence of the exceptionally rapid development of Roman law and
procedure, and of the exceptionally early date at which the Roman
tribunals became the organs of the national sovereignty. You
will see hereafter how much reason there is for thinking that the
progress of most societies towards a complete administration of
justice was slow and gradual, and that the Commonwealth at first
interfered through its various organs rather to keep order and see
fair play in quarrels than took them, as it now does always and
everywhere, into its own hands. To this period, long forgotten
among the Romans, those peculiar rules pointed back which sur-
vived along with the Pignoris Capio, and which provided for its
exercise out of court and during the judicial vacation.
I turn to the Teutonic societies for vestiges of a practice similar
to that which the Romans called Pignoris Capio. They seem to
be quite unmistakeable in that portion of our own English law
which is concerned with the power of Distraint or Distress and
with the connected legal remedy known as Replevin. The exam-
ples of the right to distrain another man's property which are most
familiar to you are, I dare say, the landlord's right to seize the
goods of his tenant for unpaid rent, and the right of the lawful
possessor of land to take and impound stray beasts which are dam-
aging his crops or soil. The process by which the latter right is
made effectual retains far more of the ancient institution than does
592 PROCEDURE [Part IV.
distress for rent. For the peculiar power of the landlord to dis-
train for rent, while it remains an extrajudicial remedy, has been
converted into a complete remedy of its kind by a series of statutes
comparatively modern. It has always, however, been the theory
of the most learned English lawyers that distress is in principle an
incomplete remedy ; its primary object is to compel the person
against whom it is properly employed to make satisfaction. But
goods distrained for rent are nowadays not merely held as a secur-
ity for the landlord's claim; they are ultimately put up for sale
with certain prescribed formalities, the landlord is paid out of the
proceeds, and the overplus is returned to the tenant. Thus the
proceeding has become merely a special method by which payment
of rent, and certain other payments which are placed on the same
footing, are enforced without the help of a Court of Justice. But
the distraint of cattle for damage still retains a variety of archaic
features. It is not a complete remedy. The taker merely keeps
the cattle until satisfaction is made to him for the injury, or till
they are returned by him on an engagement to contest the right to
distrain in an action of Replevin.
The practice of Distress — of taking nams, a word preserved in
the once famous law-term withernam — is attested by records con-
siderably older than the Conquest. There is reason to believe that
anciently it was resorted to in many more cases than our oldest
Common-Law authorities recognise ; but about the reign of Henry
the Third, when it was confined to certain specific claims and
wrongs, the course of the proceeding was as follows : The person
assuming himself to be aggrieved seized the goods (which anciently
were almost always the cattle) of the person whom he believed to
have injured him or failed in duty towards him. He drove the
beasts to a pound, an enclosed piece of land reserved for the pur-
pose, and generally open to the sky. Let me observe in passing
that there is no more ancient institution in the country than the
Village-Pound. It is far older than the King's Bench, and prob-
ably older than the Kingdom. While the cattle were on their way
to the pound the owner had a limited right of rescue which the law
recognised, but which he ran great risk in exercising. Once
lodged within the enclosure, the impounded beasts, when the
pound was uncovered, had to be fed by the owner and not by the
distrainor ; nor was the rule altered till the present reign. The
distrainor's part in the proceedings ended in fact with the im-
pounding ; and we have to consider what courses were thereupon
open to the person whose cattle had been seized. Of course he
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 593
might submit and discharge the demand. Or he might tender
security for its acquittah Or again he might remain obstinate and
leave his beasts in the pound. It might happen, however, that he
altogether denied the distrainor's right to distrain, or that the
latter, on security being tendered to him for the adjustment of his
claim, refused to release the cattle. In either of these cases the
cattle-owner (at least at the time of which we are speaking) might
either apply to the King's Chancery for a writ commanding the
Sheriff to 'make replevin,' or he might verbally complain himself
to the Sheriff, who would then proceed at once to 'replevy.' The
process denoted by this ancient phrase consisted of several stages.
The Sheriff first of all demanded a view of the impounded cattle ;
if this were refused, he treated the distrainor as ha\'ing committed
a violent breach of the King's peace, and raised the hue and cry
after him. If the cattle (as doubtless constantly was the case)
had been driven to a distance and out of his jurisdiction, the Sheriff
sought for cattle of the distrainor and seized them to double the
value of the beasts which were not forthcoming — the ' taking in
withernam ' of old English law. In more peaceable times, however,
and among law-abiding people, the deputy of the Crown was al-
lowed to see the cattle, which he immediately returned to their
original owner on a pledge to abide by the decision of a Court of
Justice. A day was then appointed for the trial, which took place
with the proceeding well known to lawyers as the Action of Re-
plevin. A great deal of technical learning has clustered round it,
but for our purposes it is enough to say that the plaintiff in the
action was the owner of the distrained cattle and the defendant
was the distrainor.
The comparative antiquity of the various steps in the procedure
are not, I think, difficult to detect. Nothing can be more archaic
than the picture presented by its more venerable details. The
seizure of the cattle, the rescue and the counter-seizure, belong
to the oldest practices of mankind. We were carried back, by the
Legis Actio Sacramenti of the Romans, to a sudden fight over dis-
puted property barely stopped by a casual passer-by. Here, not
in a city-community, but among the ancient legal forms of a half-
pastoral, half-agricultural people, we come upon plain traces of a
foray. But the foray which survives in the old Law of Distress
is not, like the combat of the ancient Roman Action, a mere dra-
matic representation. Up to a certain point it is a reality, and the
most probable account of its origin is that it is a genuinely disor-
derly proceeding which the law steps in to regulate. You will see
594 PROCEDURE [Part IV.
presently that there are other independent reasons for thinking
that some of the earhest interferences of the power which we call
the Law, the State, or the King, with high-handed violence con-
sisted, neither in wholly forbidding it nor in assuming active juris-
diction over the quarrel which provoked it, but in limiting it, pre-
scribing forms for it, or turning it to new purposes. Thus the next
series of incidents in the practice of distraint — the impounding,
the stress laid upon pledge or security, and the acknowledgment
of continuing ownership which is implied in the liability of the per-
son distrained upon to feed the cattle, and in the rule that the dis-
trainor shall not work them — belong to a newer range of ideas
which dictate the first attempts to moderate reprisals and regulate
revenge for wrong. Distress now becomes a semi-orderly contriv-
ance for extorting satisfaction. Many vestiges of this ancient
function remain. It has been observed by Blackstone and others
that the modified exemption of certain classes of goods from dis-
traint — plough-oxen, for example, and tools of trade — was not
in its origin the least intended as a kindness to the owner. It was
entailed by the very nature of the whole proceeding, since without
the instruments of tillage or handicraft the debtor could never
pay his debt. A passage in the 'Dialogus de Scaccario' (ii. 14),
prescribing the order in which the goods of the King's debtors are
to be sold, strongly bears out this view.
Latest in the order of proceeding, and latest probably in date,
came the direct interposition of the State. The King steps in,
first, in what we should now call his administrative capacity. His
administrative deputy, the Sheriff, on complaint made by their
owner, follows up the cattle, demands a sight of them, raises the
hue and cry if it be refused, and seizes twice their number if the
beasts have been driven away. Even when he obtains his view,
he can do nothing unless the cattle-owner, denying the right of
his adversary to distrain, is prepared with security that he will
try the question between them in a Court of Justice. Thus tardily
does that power make its appearance which according to our no-
tions should long since have appeared on the scene, the judicial
poAver of the Commonwealth. Its jurisdiction is obviously ac-
quired through the act of the Sheriff in restoring the cattle upon
pledge given. The distrainor has lost his material security, the
cattle. The owner of the cattle has become personally bound.
And thus both are placed under a compulsion which drives them
in the end to a judicial arbitration.
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 595
The information furnished to us respecting this primitive pro-
cedure by the various bodies of Continental Teutonic law known
collectively as the Leges Barbarorum is of a very interesting kind.
Almost all of them contain references to Pignoratio or distraint of
goods. The Visigothic law expressly prohibits it ; and, at the
other end of the scale, the Lombardic law has a trace of that licence
of distress which has survived in the English Common-Law and
permits it after simple demand of payment. But the Salic law,
which the most learned Germans now believe to have been drawn
up at some period between the time at which Tacitus wrote and
the time at which the Franks broke into the Empire, contains a
series of very peculiar and instructive provisions on the subject,
which have been for the first time fully interpreted by Sohm.
LTnder this system. Distress is not yet a judicial remedy ; it is still
an extrajudicial mode of redress, but it has been incorporated with
a regular and highly complex procedure. A succession of notices
have to be given in solemn form by the complainant to the person
of whom he complains, and whose property he proposes to seize.
Nor can he proceed to seizure until he has summoned this person
before the Popular Court, and until the Popular Officer of the
Court, the Thunginus, has pronounced a formula licensing dis-
traint. Then, and not till then, he can make what we should call
a distress upon his adversary. It seems quite clear that, before the
Conquest, attempts were made in England to narrow the liberty
of distraint by the same class of restrictions which we find in the
Salic Law and the allied Teutonic bodies of usage. These provi-
sions have their close counterpart in the ordinance of Canute that
no man is to take nams unless he has demanded right three times
in the Hundred ; if he obtain no justice the third time, he is to go
to the Shire-gemot ; the shire is to appoint him a fourth time, and,
if that fails, he may take the distress.
It is to be remarked that the process of the Salic Law which an-
swers to our distress is especially a remedy in certain cases of breach
of contract. Distraint, the seizing of nams, was certainly employed
to enforce a similar class of demands under old English law before
the Conquest; and the practice seems to have been known in
Bracton's day, though the brevity of his notice does not permit us
to understand fully its course and character. In this respect the
Pignoration of the Continental Teutonic law is more archaic than
the distress with which we are familiar in England, since the frag-
ment of the system which has survived in our Common-law (and
it is to this that it probably owes its survival) was from the first pre-
59G PROCEDURE [Part IV.
eminently a remedy by which the lord compelled his tenants to
render him their services. But on the other hand it is interesting
to observe that our English distress is in some particulars of a
more archaic character than the corresponding compulsory process
of the Leges Barbarorum. Thus notice of the intention to distrain
was never in England essential to the legality of distress (Trent v.
Hunt, 9 Exch. Rep. 20), although statute-law renders it necessary
to make a sale of the distrained property legal ; and again, in the
oldest ascertainable state of our Common-law, though distraint
sometimes followed a proceeding in the lord's Court, yet it did not
necessarily presuppose or require it.
It should be understood that the Frankish procedure was com-
pletely at the disposal of the complainant. It is not a strictly
judicial procedure, but rather a procedure regulating extrajudicial
redress. If the complainant observes the proper forms, the part
of the Court in licensing seizure is purely passive. Even after the
exhaustive examination which this part of the Salic Law has under-
gone from Professor Sohm, it is very difficult to say whether at
any point of the procedure the defendant had the opportunity of
putting in a substantial defence ; but it seems certain that, when-
ever he could do this, he appeared virtually as a plaintiff like the
distrainee in our Action of Replevin, and there is no doubt that,
if he submitted or was unsuccessful in attacking the proceedings
of the other side, he paid not only the original debt but various
additional penalties entailed by neglect to comply with previous
notices to discharge it. Such a procedure seems to us founded on
the now monstrous assumption that plaintiffs are always in the
right and defendants always in the wrong. Yet the assumption
would not perhaps have struck the earliest authors of legal improve-
ment as altogether monstrous, nor could they have quite compre-
hended the modern principle which compels the complainant to
establish at all events a lyrima facie case. With them, the man
most likely to be in the right would appear to be the man who faced
the manifold risks attending the effort to obtain redress, the man
who complained to the Popular Assembly, the man who cried for
justice to the King sitting in the gate. It is only when violent
wrong has ceased to be rife, when the dangers of contesting the
oppressions of powerful men have become insignificant, when the
law has been long and regularly administered according to technical
procedure, that unjust claims are seen to be at least as common
as unjust refusals to satisfy them. In one particular case, the com-
plaint of the King, the old assumption that complainants are pre-
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 597
sumably in the right was kept long alive among us, and had much
to do with the obstinate dislike of law^'ers to allowing prisoners
to be defended by Counsel.
Gains, speaking of the Leges Actiones generally, observes that
'they fell into discredit, because through the excessive subtlety
of the ancient lawyers, things came to such a pass that he w^ho
committed the smallest error failed altogether.'
Blackstone, many centuries afterwards, has the following remark
on the English Law of Distress : ' The many particulars which at-
tend the taking of a distress used formerly to make it a hazardous
kind of proceedings; for, if any one irregularity was committed,
it vitiated the whole.'
I quote these passages, not only on account of the curious simi-
larity of language between two writers of whom the later could not
possibly have read the earlier, but because the excessive techni-
cality of ancient law which they both notice goes some way to
explain the severity and onesidedness of the old Teutonic procedure.
The power of seizing a man's property extrajudicially in satisfac-
tion of your demand was, as Professor Sohm justly remarks, a
sort of two-edged sword. You might bring your adversary to the
ground by it, but you were extremely likely to injure yourself.
For, unless the complainant who sought to distrain went through all
the acts and words required by the law with the most rigorous accu-
racy, he in his turn, besides failing in his object, incurred a variety
of penalties, which could be just as harshly exacted as his own origi-
nal demand. The difficulty of putting the procedure into op-
eration thus at once made disputants cautious in resorting to it,
and seemed to men in general to compensate for its inherent in-
equitableness. This consideration, however, though it explains
in part how the harsh ancient law reconciled itself to the sense
of right, is not by itself sufficient to account for the form which it
assumed in the Teutonic Codes, or for the vitality of a portion of
it amid our own institutions.
I cannot doubt that the practice which I have called by the
general name of Distress kept its place in ancient Teutonic law
partly as a mere ' survival. ' I have already insisted that one great
characteristic of the primitive ages was the fewness of human
ideas. Societies, just emerging from the savage state, had been
used to associate redress of wrong with the seizure of a wrong-
doer's goods, and they were unable mentally quite to disconnect
the two even when they began to regulate the practice. They
did not, therefore, supersede distress by a wholly new system,
598 PROCEDURE [Part IV.
but engrafted it on a later procedure, which occasionally took the
form so curiously preserved in its main features to our own day
by the English Common-law, but which at a relatively later date
and more generally may be believed to have shaped itself on the
model of the rules observed by the Salian Franks.
It is not possible to explain all survivals by some convenience
which they incidentally serve. Some have undoubtedly been con-
tinued by superstition, some by mere habit. But those relics of
ancient thought and conduct which have been kept alive longest
have generally had an usefulness of their ow^n. Here the private
redress of wTong, taken into the legal procedure, served to compel
the appearance of the defendant and his submission to jurisdiction
at a time when judicial authority was yet in its infancy, and when
Courts of Justice could not as yet completely and regularly com-
mand the aid of sovereign power. Gradually, as the public force,
the arm of the State, w^as more and more placed at the disposal
of tribunals, they were able more and more to dispense with extra-
judicial assistance. In the state of Teutonic law^ represented by
the Frankish Code, we find a specific class of cases tried through-
out judicially (in our modern sense of the word) from the initial
stage to the judgment ; but the judgment is not by its own force
operative. If the defendant has expressly promised to obey it,
the Count or royal deputy, on being properly summoned, will exe-
cute it ; but if no such promise has been made, the plaintiff has
no remedy except an application to the King in person. No long
time, however, after the Franks have been settled within the
Empire, we find that another step has been taken towards the ad-
ministration of justice on modern principles, and now the royal
deputy will execute the judgment even though there has been no
promise to submit to it. At this point Distress is wholly taken
out of the hands of private litigants and extrajudicial seizure be-
comes judicial seizure. The change is obviously a result of the
growing vigour of Courts, greatly due in our own country to the
development of royal justice at the expense of popular justice.
Still English judicial proceedings long savoured of the old practices.
Every student of our ancient English forms of proceeding will
recollect on what small apparent provocation the King constantly
took the lands of the defendant into his hands or seized his goods,
simply to compel or perfect his submission to the royal jurisdic-
tion. . . .
The comparison of the various Teutonic bodies of law suggests
then to my mind, as regards those systems, the following conclu-
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 599
sions respecting the historical development of the remedies which
grew out of the savage practice of violently seizing property in
redress for supposed wrong. Two alternative expedients were
adopted by nascent law. One of these consisted in tolerating
distraint up to a certain point ; it was connived at so far as it served
to compel the submission of defendants to the jurisdiction of Courts,
but in all other cases it was treated as wilful breach of the peace.
The other was the incorporation of distraint with a regular proced-
ure. The complainant must observe a great number of forms at
his peril ; but if he observes them he can distrain in the end. In a
still more advanced condition of legal ideas, the tribunals take the
seizure of land or goods into their own hands, using it freely to
coerce defendants into submission. Finally, Courts of Justice
resort to coercion before judgment only on the rarest occasions,
sure as they at last are of the effectiveness of their process, and of
the power which they hold in deposit from the Sovereign Common-
wealth.
II
I pass from the early law of procedure in the Roman and
Teutonic societies to the corresponding branch of another ancient
legal system which has been only just revealed to us, and which,
so far as its existence was suspected, was supposed until lately to
be separated by peculiarly sharp distinctions from all Germanic
bodies of usage.
Rather more than half of the Senchus ]Mor is taken up with the
Law of Distress. The Senchus Mor pretends to be a Code of Irish
law, and indeed to be that very Code which was prepared under the
influence of St. Patrick upon the introduction of Christianity into
Ireland. In the present state of our knowledge, no theory can be
very confidently advanced as to the date of this Brehon compen-
dium. It may be that some such revision of the pre-Christian law
did take place ; it may be that the Brehon lawyers only conjec-
tured that it must have taken place ; it may be that a tract of un-
usual dimensions and proportionately valued by the Brehon law-
school which happened to possess it, came gradually to be asso-
ciated with a name held in pre-eminent honour or pre-eminently
sacred, a process of which there are believed to be several examples
in the history of Eastern jurisprudence. These doubts, however,
as to the true date of the Senchus ]\Ior do not take away from the
significance and instructiveness of the fact that in a volume of great
antiquity, of undoubted genuineness, and evidently thought by
600 PROCEDURE [Part IV
its possessors to contain all that was important in the law, the
Law of Distress, now an extremely subordinate branch of our
legal system, occupies a space so extraordinarily large.
I borrow from the Editor of the First Volume of ' Ancient Laws
of Ireland,' the following epitome of the old Irish law of distress
as laid down in the Senchus Mor : —
'The plaintiff or creditor, having first given the proper notice,
proceeded, in the case of a defendant or debtor, not of chieftain
grade, to distrain. If the defendant or debtor were a person of
chieftain grade, it was necessary not only to give notice, but also
to "fast upon him." The fasting upon him consisted in going
to his residence and waiting there for a certain time without food.
If the plaintiff did not within a certain time receive satisfaction
for his claim, or a pledge therefor, he forthwith, accompanied by a
law-agent, witnesses, and others, seized his distress. The distress,
when seized, was in certain cases liable to a Stay, which was a period
varying according to fixed rules, during which the debtor received
back the distress, and retained it in his own keeping, the creditor
having a lien upon it. Such a distress is a "distress with time";
but under certain circumstances and in particular cases an "im-
mediate distress" was made, the peculiarity of which was that
during the fixed period of the Stay the distress was not allowed
to remain in the debtor's possession, but in that of the creditor,
or in one of the recognised greens or pounds.
'If the debt was not paid by the end of the Stay, the creditor
took away the distress, and put it in a pound. He then served
notice of the distress on the debtor whom he had distrained, letting
him know where what was distrained was impounded. The dis-
tress remained in the pound a certain period, fixed according to its
nature {dithini, translated "delay in pound," is the name of this
period). At the end of the delay in pound, the Forfeiting Time
began to run, during which the distress became forfeited at the rate
of three "seds" per day, until entirely forfeited. If the entire
value of the distress thus forfeited was exactly equal to the original
debt and the subsequent expenses, the debt was liquidated ; if it
was less than this, a second distress was taken for the difference ;
and, if more, the overplus was returned. All this proceeding was
managed by the party himself, or his law-agent, with the several
witnesses of the various steps, and other necessary parties.
'But if, instead of allowing his cattle to go to pound, the debtor
gave a sufficient pledge, e.g., his son, or some article of value, to the
creditor, that he would within a certain time try the right to the
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 601
distress by law, the creditor was bound to receive such pledge.
If he did not go to law, as he so undertook, the pledge became for-
feited for the original debt. At any time, up to the end of the
"dithim," the debtor could recover his cattle by paying the debt
and such expenses as had been incurred. But, if he neglected
to redeem them until the "ditim" had expired, then he could only
redeem such as were still unforfeited.'
The very existence in ancient Ireland of the law thus sum-
marised is almost enough by itself to destroy those reckless theories
of race which assert an original, inherent difference of idea and
usage between Teuton and Celt. The Irish system of Distress is
obviously, in all essential features, the Germanic system. It
wears, on its face, a very strong general resemblance to the corre-
sponding branch of our Common Law ; and I have seen some very
ingenious attempts to account for the differences between the two
by suggestions that the primitive contour of the English law of
Distress has been impaired. The object of such speculations is
to argue for the direct derivation of the English set of rules from the
Celtic ; but it does not appear to me necessary to resort to a sup-
position which has great and special difficulties of its own. The
virtual identity of the Irish law of Distress with the Teutonic law
is best brought out by comparing it with the Teutonic systems of
procedure collectively. Thus the Distress of the Senchus jNIor
is not, like the Distress of the English Common Law, a remedy con-
fined in the main to demands of the lord on his tenants ; as in the
Salic and other Continental Germanic Codes, it extends to breaches
of contract, and indeed, so far as the Brehon law is already known,
it would appear to be the univei^al method of prosecuting claims
of all kinds. The Notice again to the person whose goods are to
be distrained which it strenuously insists upon, though not found
in the surviving English Common Law, fills an important place,
as I stated, in other Teutonic collections of rules. So too the
attendance of witnesses is required by the Continental Codes ;
and, though the presence of the Brehon law agent is peculiar to the
Irish system and very characteristic of it, certain persons having
much the same duties are required by some of the Teutonic systems
to be present during the process of distraint. Further, the Stay
of proceedings, which has been compared to an Attachment, seems
to me better explained by certain provisions of the 'Leges Bar-
"barorum.' Under some of them when a person's property
is about to be seized he makes a mimic resistance ; under the Salic
law, he protests against the injustice of the attempt ; under the
602 PROCEDURE [Part IV.
Ripuarlan law, he goes through the expressive formahty of standing
at his door with a drawn sword. Thereupon, the seizure is in-
terrupted and an opportunity is given for enquiring into the regu-
larity of the proceedings and, probably also, into the justice of
the claim. The Lien or charge upon the distrained property, which
the Irish law confers on the creditor during the currency of the
Stay, is not found in the Continental Teutonic law in this exact
shape; but, at a particular stage of the Salic proceedings, the
creditor has the power of interdicting the debtor from selling or
mortgaging any part of his property until the debt has been satis-
fied. On the other hand, several features of the Irish system,
which are wholly absent from the Continental Teutonic procedure,
or very faintly marked in it, belong conspicuously to the English
law. Among these may be placed the impounding, and the ' taking
in withernam,' but the great resemblance of all, and the common
point of dissimilarity from the most ancient of the Leges Barba-
rorum, lies in the fact that the Irish procedure, like the English,
requires neither assistance nor permission from any Court of Jus-
tice. In all the Teutonic bodies of custom except the English
and the Lombardic, even when the greatest latitude of seizure is
allowed to litigants out of Court, some judicial person or body
must be applied to before they proceed to extremities. With us,
however, the entire seizure is completed before authority is called
in ; and the Irish law has exactly the same peculiarity. Not only
so, but the Irish law corresponds to the English law of Distress in
a very advanced stage of development. It does not employ the
seizure of cattle merely as a method of extorting satisfaction. It
provides, as you have seen, for their forfeiture in discharge of the
demand for which they were taken ; and thus is distinguished by
an improvement which was only added to the English law by
statute after the lapse of several centuries.
The true difficulty in estimating the place of this Irish procedure
in the historical development of law arises from doubts as to the
part really played by the legal proceeding in which it terminated.
The English process of Distress, wherever it was felt to be unjust,
led up to, and ended in, the action of Replevin, and the Court,
which ultimately tried the action, practically acquired its jurisdic-
tion through the interposition of the Sheriff in restoring the cattle
upon security given. No such interference with a high hand as
that of the Sheriff appears to be contemplated by the Irish law ; but
the Brehon lawyer who ought properly to accompany the distrainor
is expressly stated by the Senchus Mor to aid him ' until the deci-
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 603
sion of a Court.' ('Ancient Laws of Ireland,' i. 85.) ^Miat was
the proceeding thus referred to? \Miat authority had the Irish
Courts at any time at which the Brehon law was held in respect?
What were these Courts? To what extent did they command
the public force of the sovereign State ? Was there any sovereign
power at any time established in any part of Ireland which could
give operative jurisdiction to Courts of Justice and operative force
to the law ? All these questions — of which the last are in truth
the great problems of ancient Irish history — must in some degree
be answered before we can have anything like a confident opinion
on the actual working of the Law of Distress set forth at such length
in the Senchus Mor.
Tlie learned Editors of the various Introductions prefixed to the
official publications of Ancient Irish Law are plainly of opinion that
such jurisdiction as any Irish Courts possessed was, to use the
technical phrase, voluntary. The Law of Distress, in this view,
was clearly enough conceived by the Brehon lawyers, but it de- --i
pended for the practical obedience which it obtained on the aid of
public opinion and of popular respect for a professional caste. Its
object was to force disputants to submit to what was rather an
arbitration than an action, before a Brehon selected by themselves,
or at most before some recognised tribunal advised by a Brehon.
At the same time, it would seem that there are ancient Irish tracts
or fragments of tracts in existence which describe the ancient Irish
as having had a most elaborate public organisation, judicial as well
as legislative. . . . There are analogies to many of the tribunals ^, "
described among the rudimentary institutions of several communi-
ties. Such tribunals might further be highly developed and yet
their jurisdiction might be only voluntary. Sohm appears to me
to have proved that the Prankish Popular Courts did not execute
their owai decrees ; if the defendant had promised to submit to an
award, the local deputy of the King might be required to enforce
it, but, if there had been no such promise, the plaintiff was forced
to petition the King in person. There is much reason in fact for
thinking that, in the earliest times and before the full development
of that kingly authority which has lent so much vigour to the arm
of the law in most Aryan communities, but which was virtually
denied to the Irish, Courts of Justice existed less for the purpose
of doing right universally than for the purpose of supplying an al-
ternative to the violent redress of wrong. Even then if we suppose
that the Ireland which is said to have enjoyed an elaborate judicial
organisation was greatly ruder and wilder than Irish patriots
604 PROCEDURE [Part IV.
would probably allow it to have been, there is no such inconsist-
ency between the prevalence of disorder and the frequency of
litigation as would make them exclude one another. The Norse
literature, which Mr. Dasent has popularised among us, shows
that perpetual fighting and perpetual ligitation may go on side
by side, and that a highly technical procedure may be scrupulously
followed at a time when homicide is an everyday occurrence. The
fact seems to be that contention in Court takes the place of conten-
tion in arms, but only gradually takes its place ; and it is a tenable
theory that many of the strange peculiarities of ancient law, the
technical snares, traps, and pitfalls with which it abounds, really
represent and carry on the feints, stratagems, and ambuscades
of actual armed strife between man and man, between tribe and
tribe. . . . The simple explanation is that the same natural im-
pulse is gratified in a new way ; hasty appeals to a judge succeed
hurried quarrels, and hereditary law-suits take the place of ancestral
blood-feuds. If the transition from one state of society to another
in modern India were not sudden but gradual and slow, as it uni-
versally was in the old Aryan world, we should see the battle with
technicalities going on in Court at the same time that the battle
was waged out of Court with sword and matchlock.
When, however, we are considering the place in legal history
of the old Irish Law of Distress, the point to which we have to at-
tend is not so much the mere existence of Courts of Justice as the
effectiveness of their process, or in other words the degree in
which they command the public force of the Commonwealth. I
think I have shown it to be probable that, in proportion as Courts
grow stronger, they first take under their control the bar-
barous practice of making reprisals on a wrongdoer by seizing
his property, and ultimately they absorb it into their own proced-
ure. Now, the Irish Law of Distress belongs in one respect to a
very early stage in this course of development, since it is even more
completely extrajudicial than is that fragment of the primitive
barbarous remedy which has survived among ourselves. On the
other hand, there are several particulars in which it is not more
but distinctly less archaic than the English Common Law. The
'Notice' to the defendant, for which it provides — the 'Stay,'
or temporary retention of the goods by the owner, subject to a lien
— the witnesses who have to be present, and the skilled legal ad-
viser who has to attend throughout the proceedings — belong to
a range of ideas greatly more advanced than that under which all
these precautions are dispensed with. Even stronger evidence
I
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 605
of maturity is furnished by the almost inconceivable multitude of
rules and distinctions which the Senchus Mor applies to every part
of the proceedings ; and our own experience shows that the most
remarkable feature of the old Irish law, the forfeiture of the prop-
erty taken in distress when the original debt and the expenses of
custody come up to its full value, has its place among the latest
improvements in jurisprudence.
Among the writers who have recognised the strong affinities
connecting the English and Irish Law of Distress, I find it difficult
to distinguish between those who believe in the direct derivation of
the English law from pre-existing Celtic customs common to Britain
and Ireland, and those who see a sufficient explanation of the re-
semblances between the two sets of rules in their common parent-
age. . . . The true rival of all these theories of the derivation of
one body of custom from another is, of course, the theory of the com-
mon descent of all from an original basis of usage which we must,
provisionally at all events, call Aryan. Confining ourselves to the
practice which we have been investigating, the remedy for sup-
posed wrong by distress, if there could be a doubt of its being a
legacy from the primitive Aryan usages, it would be removed by
the remarkable detail which connects the Irish with the Hindoo
law. The Irish rules of distraint very strongly resemble the Eng-
lish rules, less strongly- resemble the Continental Teutonic rules,
but they include one rule not found in any Teutonic Code, almost
unintelligible in the Irish system, but known to govern conduct
even at this hour all over the East, where its meaning is perfectly
clear. This is the rule that a creditor who requires payment from
a debtor of higher rank than himself shall 'fast upon him.' What
possible explanation will cover all the fact except that the primitive
Aryans bequeathed the remedy of distress to the communities
which sprang from them, and that varieties of detail have been
produced by what Dr. Sullivan, in his Introduction, has happily
called dynamical influences ?
Here is the leading provision of the Senchus jNIor on the subject
(i.^ll3)_:-
' Notice precedes every distress in the case of the inferior grades
except it be by persons of distinction or upon persons of distinction.
Fasting precedes distress in their case. He who does not give a
pledge to fasting is an evader of all ; he who disregards all things
shall not be paid by God or man*'
>^v
606 PROCEDURE [Part IV.
Mr. Whitley Stokes was the first, I believe, to point out that tlie
institution here referred to was identical with a practice diffused
over the whole East, and called by the Hindoos 'sitting dharna.'
. . , Butperhapsthe most striking examples of the ancient custom
are to be found at this day in Persia, where (lam told) a man intend-
ing to enforce payment of a demand by fasting begins by sowing
some barley at his debtor's door and sitting down in the middle.
The symbolism is plain enough. The creditor means that he will
stay where he is without food, either until he is paid or until the
barley-seed grows up and gives him bread to eat.
The corresponding Indian practice is known, I before stated, as
'sitting dharna' — dharna, according to the better opinion, being
exactly equivalent to the Roman 'capio,' and meaning 'detention'
or 'arrest.' Among the methods of enforcing payment of a debt
described in the collection of rules attributed to the semi-divine
legislator, Manu (viii. 49), is one which Sir William Jones renders
'the mediation of friends ;' but more recent Sanscrit scholars assert
that the expression of the original text signifies 'hdarna.' And
in the ' Vj'avahara Mayukha,' a Brahminical law-book of much
authority, Brihaspiti, a juridical writer sometimes classed with
Manu, is cited as enumerating, among the lawful modes of compul-
sion by which the debtor can be made to pay, ' confining his wife,
his son, or his cattle, or watching constantly at his door.' This
remarkable passage not only connects Hindoo law with Irish law
through the reference to 'watching constantly at the door,' but
it connects it also with the Teutonic, and among them with the
English bodies of custom, by speaking of the distraint of cattle
as a method of enforcing a demand. We have not in the Western
world, so far as I am aware, any example of so strong a form of dis-
tress as seizing a man's wife or children, but it is somewhat curious
that we have evidence of its having been common in ancient Ire-
land to give a son as a pledge to the creditor for the purpose of re-
leasing the distrained property.
Lord Teignmouth has left us a description (in Forbes' 'Oriental
Memoirs,' ii. 25) of the form which the 'watching constantly at the
door ' of Brihaspiti had assumed in British India before the end of
of the last century: 'The inviolability of the Brahmin is a fixed
principle with the Hindoos, and to deprive him of fife, either by
direct violence or by causing his death in any mode, is a crime which
admits of no expiation. To this principle may be traced the prac-
tice called dharna, which may be translated caption or arrest. It
is used by the Brahmins to gaiim a point which cannot be accom-
Chap. XXXI, § 3.] PRIMITIVE LEGAL REMEDIES 607
plished by any other means, and the process Is as follows : The
Brahmin who adopts this expedient for the purpose mentioned
proceeds to the door or house of the person against whom it is
directed, or wherever he may most conveniently arrest him ; he
then sits down in dharna with poison or a poignard or some other
instrument of suicide in his hand, and threatening to use it if his
adversary should attempt to molest or pass him, he thus completely
arrests him. In this situation the Brahmin fasts, and by the
rigour of the etiquette the unfortunate object of his arrest ought to
fast also, and thus they both remain till the institutor of the
dharna obtains satisfaction. In this, as he seldom makes the at-
tempt without the resolution to persevere, he rarely fails; for if
the party thus arrested were to suffer the Brahmin sitting in
dharna to perish by hunger, the sin would for ever lie upon his
head. This practice has been less frequent of late years, since the
institution of the Court of Justice at Benares in 1793 ; but the inter-
ference of the Court and even of the Resident has occasionally
proved insufficient to check it.'
You will observe that the old Brahminical writer merely speaks
of confining a man to his house by ' watching constantly at the door '
as one among several modes of extorting satisfaction. He classes
it with forms of distraint more intelligible to us — the seizure of
the debtor's cattle, of his wife, or of his child. Though the an-
cient rule has not descended to us along with its original context,
we need not doubt that even in the earliest times it was enforced
by a supernatural sanction, since every violation of the Brahmini-
cal Code was regarded by its authors not only as a civil offence
but as a sin. Thus a Brahmin might quite well be conceived as
saying with the writer in the Senchus ]\Ior, 'He who does not give
a pledge to fasting is an evader of all ; he who disregards all things
shall not be paid by God or man.' Many centuries then elapse,
which it would be vain to calculate, and almost in our own day
we find the ancient usage practised in India, but with modifica-
tions corresponding to a great deal of change which is suspected
to have occurred in Hindoo theology. The indefinite supernatural
penalty has become the definite supernatural penalty incurred by
destroying life, and particularly human life. The creditor not
only 'watches at the door,' but kills himself by poison or dagger
if the arrest is broken, or by starvation if payment is too long de-
layed. Finally, we have the practice described by Lord Teign-
mouth as one peculiarly or exclusively resorted to by Brahmins.
The sanctity of Brahminical Ufe lfe,s now in fact pretty much taken,
608 PROCEDURE [Part IV.
in Hindoo idea, the place once occupied by the sanctity of human
Hfe, and 'sitting dharna,' when the Enghsh law first endeavoured
to suppress it, was understood to bC ty special mode of oppression
practised by Brahmins for a consideration in money. . . .
It seems to me that a reasonable explanation may be given of
the origin of these practices which now seem so strange. Let us
not forget that all forms of Distress, the seizure of wife, child, or
cattle, even when wholly unregulated by law, were improvements
on older custom. The primitive proceeding w^as undoubtedly
the unceremonious, unannounced, attack of the tribe or the man
stung by injury on the tribe or the man who had inflicted it. Any
expedient by which sudden plunder or slaughter was adjourned
or prevented was an advantage even to barbarous society. Thus,
it was a gain to mankind as a whole when its priests and leaders
began to encourage the seizure of property or family, not for the
purpose of permanent appropriation, but with a view to what we
should now not hesitate to call extortion. Similarly, it was a step
forwards when men learned to pause before attacking instead of
attacking at once. We are told, in the ' Compendium of Kafir
Laws and Customs ' ^ published by Mr. Dugmore and other mis-
sionaries (p. 38), that the regular procedure of a Kafir law-suit
simulates an expedition in force of the plaintiff and his friends
against the village to which the defendant belongs. 'On their
arrival they sit down together in some conspicuous position and
aw^ait quietly the result of their presence. This ... is the signal
for mustering all the adult male residents that are forthcoming.
These accordingly assemble and also sit down w^ithin conversing
distance.' After long silence a conversation ensues, and the pro-
ceeding, which is a perfectly peaceable one, is continued by a long
series of technical formalities and intricate pleadings. This silent
pause of the attacking party is an early form of Notice, in itself
one of the most valuable of institutions ; and with it is connected
another primitive contrivance, shutting a man up in his house till
he gives satisfaction, instead of setting on him at once. A very
striking illustration of it is found in a law of Alfred, familiar to
historical scholars (Kemble, 'Saxons,' i. 272; Thorpe, 'Ancient
Laws,' i. 91) : —
'Let the man who knows his foe to be home-sitting fight not
1 [See Vol. I. Chapter XI (" Sourceaof Ancient and Primitive Law ") for
this report.] •
Chap. XXXI, § 4.] THE ORDEAL AXD THE OATH 609
before he have demanded justice of him. If he have power to beset
his foe and besiege him in his house, let him keep him there for
seven days but not attack him if he will remain indoors. If then,
after seven days, he be willing to surrender and give up his weapons,
let him be kept safe for thirty days, and let notice be given to his
kinsmen and friends. But if the plaintifif have not power of his
own, let him ride to the Ealdorman, and, if the Ealdorman will
not aid him, let him ride to the King before he fights.' The pas-
sage ends with a provision of which the spirit, strange to say,
survives in the modern Code making the loudest claim to civilised
principle, the Code Napoleon {Code Penal, s. 324), to the effect
that if the man who is homesitting be really shut up in his house
with the complainant's wife, daughter, or sister, he maj' be
attacked and killed without ceremony.
The object of the Law of Alfred is plainly the same with that
aimed at by the ancient rule of Brihaspiti. The man who, if
nature had her way, would be slain at once, is shut up in his house
but left otherwise unharmed till he or his kinsmen pay the debt
or compound for the money. The English rule is to be enforced
by the civil power, the Ealdorman or the King ; the Hindoo Brah-
minical rule by the fear of punishment is another world. The Irish
law-tract retains the Brahminical rule as an alternative in certain
cases to Notice. But an institution which was perfectly intelligible
in a society which included an order of lawyers who were also
priests has lost all meaning when this society has been introduced
by Christianity to a wholly new set of religious ideas.
Section 4
THE ORDEAL AND THE OATHi
I. The Ordeal
§ 1. Universality of the Decision of God. The Ordeal in Primi-
tive Greek Legend. The ordeal, or decision of God — the deci-
sion, preeminently — is one of those institutions which have an
attraction, not only for the legal historian, but also for historians
in general and for every one who is interested in studying the
1 [This extract is Chapters II and III (in part) of "Etudes soeiales et
juridiques sur I'antiquite grecque," by Gustave Glotz (1906, Librairie
Hachette et C®, Paris). M. Glotz is professor of history at the Lyceum
of Louis le Grand, Paris, and is widely known also for other works on
Greek manners and customs, notablv "La solidarite de la famille dans le
droit criminel en Grece." The translation is by John H. Wigmore.]
610 PROCEDURE [Part IV.
germinal Ideas of civilization in primitive peoples. Ordinarily
the ordeal is associa-ted by us especially with the medieval prac-
tices of Christian peoples. But fov the thorough understanding
of its spirit, a^ well as of its later forms, we shall do well to study
it in a period and an environment further removed from our own
beliefs. Some effort is required, of course, to enter into a type of
thought so alien to our own developed notions. But it is worth
our while ; for this custom of the ordeal is one of those which had
a potent" injQuence in primitive societies and have contributed
largely to the first fruition of legal ideas, ;^ — customs destined to
perpetuate themselves in fertile variety by continual differentia-
tions.
^~ From France to Polynesia, from Scandinavia to farthermost
Africa, there is perhaps no country in the world which has not made
use of some test of mortal import, imposed upon him who would
enforce his claim or demonstrate his innocence. Trial by boiling
water or by cold water, trial by fire or by poison, — whatever the
method and w^hatever the era, the belief is always found, at a cer-
tain stage of a people's social and religious growth, that the best
mode of ending a controversy is to place one (at least) of the
/ disputants in some position of serious peril, and thus to force the
l^^ivine beings to take sides for the sake of doing justice.
The idea inspiring this procedure — at once religious and
awful — may be clearly seen in the preliminarj' ceremony. At
the crucial moment, the petitioner for divine intervention —
generally the one whose body is to undergo the trial — utters a
prayer, a direct and formal appeal to Divine Providence. In
communities where the priesthood forms a caste, the professional
man of God is the one who comes forward to make the solemn
invocation. This utterance, for example, of the Hindu priest,
was as follows : ^ " O Fire ! thou seest, even as a witness, into
each human being's heart. Thou alone knowest that which
mortals cannot know. The accused man stands before Thee,
seeking exoneration. Let him escape the harm which impends in
the test now to be applied to him." Or, again, the Christian
priest, approaching the stream into which the accused was to
plunge, spoke thus : " I adjure Thee, Water of trial, in the name
of God, that Thou give no good reception to this man, if he be
guilty in aught."
1 A number of these formulas may be found collected in Kovalewsky's
"Coutume contemporaine et loi ancienne," pp. 397-398. [For a collection
of Germanic formulas see Vol. I, Ch. i^XIII, No. 5.]
IS
a\
er
Chap. XXXI, § 4.] Tml^RDEAL AND THE OATH 611
In communities where no priesthood obtained, the party him-
self uttered the appropriate formula. At Rome, for example,
the vestal virgin sentenced to submit either to death or to safety
by a miracle, prayed : " O Vesta ! guardian of Rome's city, if I
have fulfill©^ towards thee for nearl}' thirty years all my religious
duties witt strictness, if my soul is pure and my body spotless,
appear TVJW and help me ; let not thy priestess perish in dishonor.
If I have acted sinfully, punish me, and let my death atone for '
the c<y." ^
And so, whether it be Hindus, Romans, or medieval Christians '^'^
vand among other peoples the same is true) , they all exhibit the firm
conviction that God himself will pronounce the truth either by
letting the party perish or by saving him from an otherwise certain '
destruction. ' ^^
And yet this conception of a justice made visible upon earth by '
a divinity, master of fates, is in fact the conception of a relatively
advanced epoch. It presupposes that the primitive human hordesv
have already' formed social groups of governed communal life'
before they can have attained a belief in superior deities whc' ,
watch over those common interests and dispense justice. Thi
conception, which is an advanced one, has been applied to a crudt ..
and earlier procedure ; it did not create that procedure. And so, ,
wte ask, what were those more primitive ideas which themselve.
gave rise to the ordeal? -^--j^-
To answer this question, we must go far behind the period of
E'tten laws and codified systems. It is a safe general canon that
ry custom has undergone important changes before it comes
)e reduced to a formal document. And the primary significance
of.'.the ordeal must ordinarily be expected to appear only in the
customs of those tribes which are still more or less uncivilized and
are known only to the occasional explorer of distant lands. And
yetl, on the other hand, it is full of risk, after all, to base our infer-
enqes on a comparison of peoples differing not only in their stages
of ci^'i]ization but also in their social habits. Some scholars, and
sou^id ones, have declined to trace the evolution of a trait by shift-
ing from one country to another ; they insist on a stricter method.
If one could point to two successive conceptions of the ordeal in
the same community, there need be no hesitation in deeming that
th0 phenomenon in question exhibited a genuine principle of
evolution.
Such an instari 2e can be found. We have it in Greece. Enough
1 Deais of Halicarnassus, H, 68.
612 PROCEDURE .v^W".... [Part IV
^.
data are there extant to exhibit to us both the (decision of God in
its classical mode, and the ordeal in its primitive conception.
The Greeks of the advanced period had not forgotten the use
of ordeals. In Sophocles' "Antigone," the guards set to watch
the body of Polynices, denying neglect of their dut^-, con\erse
thus : " We were ready to take up the red-hot iron, to » aJk through
the flames, and to make oath before the gods that we we>e neither
guilty nor privy to it." ^ Again, in Sicily, where there werecraters
of boiling liquid, emitting poisonous gases, and consecrated to
the gods Palici, it was customary on the brink of these craters to
take oaths which would bring death to perjurers; for the godt.
spared the innocent and destroyed the guilty.^ . . .
We need not be surprised at the abundance of evidence of or-
deals in pre-historic times in Greece. That country teemed with
legends. Scholars were long accustomed to explain these myths
as the dramatic imagination of reasons for natural phenomena.
3ut to-day we do not concede that entire communities, especially
n the crude childhood of humanity, were so absorbed in the con-
emplation of sun and moon, storm and lightning, as to know no
m • . . .
..^.ther themes for their recitals. These stories are in truth history,
,— the history of real men, who loved and hated, triumphed anc!-
suffered, lived and died. These fantastic shadows of drvine
•ippets, viewed close at hand, become beings of flesh and blood,
who breathe and move. Even in Nature's forces the primitive
man saw manifestations of beings like himself. He explained the
relations of the elements by the same relations, hostile or friendl.V/'
which he saw among other men around him. Thus, even in those
myths which are open to a naturistic interpretation, we see re-
vealed the minds of those who invented them, as well as the
phenomena which they were meant to explain. But, in the cafee
of an infinite number of myths, they were certainly not meant *to
mask cosmic forces or divine beings in a human guise. They are
merely the ingenuous memorials of early beliefs and primitive
customs. They served to transmit the law and the religion* of
a rudimentary social condition. |
If, then, we cull from them the details added by later generati(yis,
they become indisputable evidence and rank as historical sour^s.
The collections of the Greek myth-writers contain virtually^ a
custumal of primitive law. Among the institutions therein de-
picted, the ordeal is prominent.
1 "Antigone," 264-266.
2 Polevion, in Macrobius, "Saturnalia," V, 1 ), 15 fif.
Chap. XXXI, § 4.] THE ORDEAL AXD THE OATH 613
§ 2. The Ordeal in the Genos. Its principal Uses. Its Effects.^
The communities in which the ordeal appeared had not yet
become city-states. They were the " genoi." or fa mik^-gfoaps.
clans, or patriarchal families. In these small groups, the later
distinctions growing out of a complex social life were not yet
known. Civil and criminal law, public law — all these divisions
formed but a single subject ; and law was as yet undistinguisbed
from religion. Even religion was not yet imbued with that
ethical spirit which was later to dominate as the community grew
more numerous and extensive. The gods were not dispensers of
justice. They are beings who wield the supreme forces of the
world. They are hostile and malevolent to all who do not belong
to the group protected by the gods ; and they are the ever-readj'
champions of all who share their own blood or race.
Amidst such beliefs, when quarrels arise, it is not a question of
deciding which party has the law on his side. It is not even a
question of finding the moral truth or the justice of the case, as
between the disputants. To settle it, what is wanted and whav
suffices is that the party shall be able to invoke some magical power
and thus to overcome the dangers which in the natural course of
things would subject him to destruction. This power he cgv get
from the gods ; it belongs only to the race of the gods. His
blood-connection is what vindicates his high lineage and thus hi.?
innocence ; for the gods will implacably destroy the worthless
creature who invokes them without any claim to be of their blood.
Who, then, were the persons who could thus vindicate them-
selves when in peril of life or limb? Here we must remember,
that the sturdy warrior supported by a following of other warriors
had no need to demonstrate his lineage with the gods ; for this
was apparent to all men. But the humble being who existed in
obscurity on the fringe of the community, — he it was who needed
this help, and could save his life and his honor only by the posses-
sion of some secret talisman. Who were these, the discarded
class in primitive society? They were the aliens, the outsiders,
and particularly also the women and the children. ^Although the
ordeal was used in an innumerable variety of cases, it was pre-
eminently the weak who were liable to be called upon to furnish
this proof of worthy origin, of a right to life and to safet^ We
can even say that the weaker class, instead of being sometimes
complainants and sometimes defendants, were always put upon the
„'[^nsive. The use of the ordeal has this general feature running
'" it.
G14 PROCEDURE [Part IV.
A typical case was that of the woman whose dehvery or preg-
nancy of a child revealed her misconduct. She was culpable, if
she had introduced into the group of relatives a being not of their
blood. She was not guilty, if she had been intimate with a scion
of the gods ; for the blood of the child would be that of the gods.
Often and often, in the legends, the woman excuses herself by
aL^erting that she had been visited by a celestial being. But this
she must prove ; and the proof would be that, on subjecting her
to the risk of death, the god would reveal his interest and would
save her. Danae's legend is the most typical case.^ Her father
Acrisius had immured this maiden in a cave, that she might never
become a mother. After several years, he heard the cry of a
child, in the hollow of the earth. He brought her out, with the
boy, placed her before the altar, and demanded that she name the
father. "Zeus," she replied. But Acrisius believed her not.
What proof should he require? He subjected the unfortunate
girl to a dreadful test, and set her afloat on the sea. This same
idea, in legends almost identical, reappears in all parts of Greece
and even in Rome. The Vestal virgin, Rhea Silvia, when she
gave birth to Romulus and Remus, named Mars as their father,
and the infants were set afloat in a cradle. In all of these legends,
when the social group grants to the virgin-mother her life without
dishonor, it concedes thereby that her lover was a man of pure
race, a scion of the gods. This helps us to understand how it is
that in the mythologies so much is said about the gods having to
do with the daughters of mortals. . . .
This mode of treating the woman herself was applied, naturally,
to her child also. Perseus was subjected to the test with his
mother Danae ; Telephus with Auge ; Dionysus with Semele.
But sometimes, too, the child alone is exposed to the ordeal, while
the erring mother is kept alive in the clan, reserved for dis-
honor and a harsh fate. Numerous are the heroes who entered
upon life through the test of exposure to death ; the legends
abound in them. Almost always the circumstances point unmis-
takably to an ordeal as the interpretation. In most of the in-
stances, the test was that_of water. The story of Romulus and
Remus is familiar; it runs the~"^aiile"as the story of the twins
Neleus and Peleus, in Greece ; of INIoses, among the Hebrews ;
of Sargon of Agade, king of Chaldea. Was all this nothing more
1 Id the narration of Pherekydes, preserved by the scholiast Apollon "* ^
of Rhodes, IV, 1091 ("Fragmenta historicorum graecorum," I o
frag. 26). . . if. ^
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 615
than an imaginative fable, transmitted from country to country?
On the contrary ; it reveals a custom of primitive peoples, reap-
pearing everywhere, from age to age. Proof enough of this fea-
ture is found in the fact that it appears also among the primitive
Celtic and Germanic peoples, at the close of the Roman empire ;
for the emperor Julian, and many others, report that the married
women of those tribes, when the}' bore a child of suspected adul-
terous origin, were sent afloat on the surface of the Rhine ; if the
child drowned, the woman was deemed guilty ; if it survived, it
was deemed legitimate and the mother innocent. ^
The ordeal, then, in primitive times, served to decide, not only
questions of guilt, but also questions of personal status. HenQ
it was well suited for deciding competing claims to a succession ;
that is (inasmuch as a system of collective and undivided prop-
erty could hardly give rise to a property succession in the modern
sense), when competitors claimed the succession to the chieftain-
ship and the inheritable priesthood. The chief must be a scion
of the god {Aioyevr]';). Hence the true claimant must be able to
prove his origin, and to demonstrate his potency, so that none
could doubt his superhuman traits. This would be a case of the
ordeal applied to persons of high degree. Both parties might be
subjected to it, but its import was the same. It signified the tri-
umph of the one who was acceptable to the gods, and his invest-
ment with the chieftain's insignia, as being of divine race.
. In the primitive ordeal, it remains to note, the consequences
wxre decisive. The method was simple (or complex, according to
the point of view). But whether the party offers his own body
for the test ; or whether he accepts an adversary's challenge ; or
whether he is summoned to it by a third person; the dispute is
terminated by the ordeal. If the subject of it survives, he is vic-
torious ; if he dies, then this simply shows that the evil influences
have been more potent than the talismans. The essential prin-
ciple is that the event of the ordeal serves both as a proof and
and as a judgment without recourse. In place of_j ^ judgm ent
pronounceable by men, we have a judgment accorded by the gods.
And better than a human judgment* the gods execute their judg-
ment in pronouncing it. It is all one act. They are both judges
ancf executioners. TKeX'" vincficate the innocent by saving his
Jife, and they condemn the guilty in killing him.
And so in the primitive ordeal, the proof is not yet distinguished
. P,vv2,i»^ ""ulinn. "Letters," XVI; "Discourses," II; Claudian, "Against
"^ IS," II (V), 112 ; "Palatine Anthology," IX, 125.
G16 PROCEDURE [Part IV.
from the judgment, nor even from t he penalty. In one aspect it
is procedure ; in another aspect punishment ; its notion is that by
placing the subject of it at the discretion of the gods, he is given
a chance, more or less likely, of survival. From the most painless
test to the capital penalty, from safety to almost certain death,
the various ordeals form a series of finely graded risks and suffer-
ings. In short, the ordeal of primitive peoples forms by itself a
whole system of penal law and procedure, in spite of its lack of
any of the categories which at a later day the human mind was
destined to evolve.
§ 3. Relation of the Ordeals to Religious Beliefs. The Ordeals
by Sea. The Mouths of Hell. Coincident Variances in Ordeals and
Beliefs. The Greek legends reveal to us, not only the legal
side of the primitive ordeal, but also, and strikingly, its essential
relation to religious ideas. It can be shown that the Greeks,
in their usual ordeals, while adhering to practices and beliefs
common to primitive humanity, nevertheless gave to these beliefs
an expression more modern, more national, and more original.
In all primitive peoples, the subject of the ordeal is required to
make visible to the observers his ability to approach in safety the
all powerful Beings or to take them into his own body — to face
and oppose their terrible presence or to absorb their power of
destruction, to send safely the death-bearing fluid over his body
or into his body. Thus the ordeals might be applied either ex-
ternally or internally. The subject might immerse himself in
cold water, or thrust his hand into boiling water, or walk through
a fire or over glowing coals, or hold out red-hot irons. Or he might
partake of those foods or liquids which were reserved in popular
belief for the gods and were thus indued with magical qualities,
— substances both sacred and accursed, able to give immortality
or death ; for to the primitive mind it was the god's presence
which alike accounted for the lethal and the benignant powers.
All these forms of ordeals were known to the Greeks, even in
the classic age. . . . But their choice ran to others. Ordeals
had naturally showed marks of the popular beliefs as to the future
fate of the wrongdoer ; for th'e ordeal was to demonstrate whether
the man was stronger than death. He was placed between life
and death, at the very boundary between the world of men and
the world of spirits, so that he would naturally be forced into the
latter, and yet by the magic of a divine birth or by the protection
of a god he could be retained on earth. Thus the method and
the place of the test varied according to the local conception of
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 617
a future life. In primitive communities, the ordeals reveal some-
times a whole eschatology.
(^The Greeks, then, being born sailors, and susceptible alike to
the fascination and the terror of the sea, pictured the country of
the dead as lying :.far away, beyond the countries of the living,
on the other side of the great river Ocean, where the sun sank from
sight beneath the waves. ' And so, to put a human being in the
presence of death, it was enough to set him afloat on that sea
which led to the fateful Ocean. One of two issues there must
be ; the subject was borne off to the coasts whence no mortal
returned ; or he was saved by the waves, vindicated and conse-
crated by a miracle.
Such is the explanation of all those legends in which the hero
is shut up in a coffer and cast into the sea. Sargon, in Chaldea,
was placed in a chest coated with tar ; Moses, in the Hebrews, is
placed in a basket ; Romulus and Remus in a cradle ; among the
Celts, the infants of doubtful paternity were set afloat on a shield ;
and so the god who decides, in all these instances, is the river.
In Greece, the subject was usually placed in a Xcipva^, or box with
a lid, and committed to the decision of Poseidon.
The same beliefs explain the leap into the sea, a variant from the
usual form of the cold-water ordeal. The subject was taken out
to the deep in a boat, and was then to plunge into the waves. A
valuable instance is revealed in the recently discovered poem of
Bacchylides. The hero of the ordeal is Theseus. He has em-
barked on the ship taking the youths and maidens to be sacrificed
at Crete to the Minotaur ; and as the tragic voyage approaches its
end, king Minos attempts to embrace the beautiful maiden Eriboia.
Theseus, running up, interferes to save her, and justifies his attack
on the king, the son of Zeus, by proclaiming his own sonship to
Poseidon ; and to prove his divine origin he proposes a duel by
miracle. "Let us display our powers, and the god shall determine
the result" (ra O'eiriovra Saificov Kpivel). jNIinos accepts ; and be-
gins by asking Zeus for an emphatic sign of recognition ; Zeus answers
with a clap of thunder. Then it is Theseus' turn to show that he
is protected by his father. Minos tosses a ring into the sea ; let
Theseus go and recover it from the depths of his father's home.
He falters not, utters not even a prayer, leaps in, and the waves
cover him. Straight passes the hero into the palace of Poseidon ;
there he finds Amphitrite, who clothes him in purple and places
her own crown on his head. Now he can return to the surface
of the waters ; for he holds proof which will confound those who
618 PROCEDURE [Part IV.
believed him an impostor. ^ Except for the ending, which the
poet ideahzed, this legend is replete with reality. . , .
Another variant of this form was the leap from a cliff. The
Greeks believed that the border of the land of the dead was
marked by a lofty cliff, the white or Leucadian Cliff,- — the cliff
already bathed in the pale light that envelops the souls of the dead.
A cliff' of that name could be found on almost any part of the
Greek coasts. Wherever some unfortunate one had sought death
by leaping from the cliff into the vortex, this was enough to make
one more Leucadian Cliff. The leap might have been taken in
expiation, or it might have been done as an ordeal. All along the
Mediterranean one can trace the cult of Ino-Leucothea, the erring
wife who leaped into the sea and became the White Goddess ; or
the cult of Britomartis-Dictynna, the virtuous maiden who cast
herself into the sea to save her innocence from the wicked pursuer,
and became the "maiden of the net," the maiden of safety. In
that whole region these two heroines typify and consecrate the
leap from the white cliff, the leap into death, the leap to punish-
ment or glorification. Before it dwindled to a mere religious
ceremony on the island of Leucadia, the Leucadian leap had this
broad relation to a proceeding which involved both law and religion.
Thus the impression produced on the Hellenic mind by the or-
deals of the sea was deep and enduring. That mystic notion in
their geography — the Ocean leads to^the realm of the dead^^
came^alscLtolmport the ethical idea : There is a Justice of the sea.
From Thetis to Themis is not a long step ; in forms more or less
variant, the two goddesses are frequently brought together in the
legends. The primitive superstition was in time transmuted into
a dogma. The miracles of justice ascribed to the sea never lacked
believers in Greece. Long after the popular courts had ceased to
employ these terrible ordeals, popular opinion still looked upon
the safe return from a sea-voyage as a strong presumption of
innocence ; towards the end of the 5th century fe.c, an accused
person (it is recorded), arguing before the Athenian judges upon
''the best and most credible tests," appealed to the signs given
by the gods, and urged in proof that he had many times traversed
the sea without shipwreck.^ . . .
And so, in the variety of their ordeals, as well as in their pre-
dilection for the justice of the sea, the Greeks of the primitive age
reveal to us the most striking features of their legal, social, and even
1 BaechyUdes, XVII. ^ Odyssey, XXIV, 11.
3 Antiphon, "On the Murder of Herodes," 81-83.
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 619
economic life, .s well as their rooted beliefs in the life after death.
And these same sources enable us to perceive how the methods of
the ordeal could and must alter in accordance with the beliefs
as to the hereafter. Among_almost all the peoples who have left___-
behind_them_dQCum.entary sources, the ordeal by cold water is
deemed f avora ble to the accused when he sinks to the bottom, a^-
but cond emnatory when he floats on the surface; archbishop
Hincmar of Rheims, for example, a Frank of the 9th Qewinvy, .j^
says of it (as also did the Hindu law of INIanu) : " Innoxii submer- ^^
guntur aqua, culpabiles supernatant." ^ And yet at Babylon,
by the Code of Hammurabi, it is the guilty one who is retained
bel ow by the god of the river, while the innocent is restored to the \
surface.^ Whence this contrariety? Is it due to the mere caprice
of chance? Or does it mark some distinctive trait of two races, |
the Indo-Europeans and the Semites? Neither. A resort to
Greek annals demonstrates that we have here, not a difference
between racial traits, but merely a difference in the stages of
civilization. For a long period they left it to the divine forces
to determine whether the subject of the ordeal should be released
unto life or retained for death. This was the primitive solution,
simple and realistic ; it attributed the disappearance to death, ^
"l^and the death to dishonor. King ]Minos and the judge Themison ^
make their decision in the same way as does the Code of Ham-
murabi. But later, in the period made known to us in the newer
-__parts of the Odyssey, when the idea had developed that the gods
^_\\'ould keep among themselves the worthiest men, to bestow upon
Jthem a share in their own deathless happiness, the Greeks liked - "
-^to believe that, in the ordeal by immersion, the god of the water ^
_kept to himself those who were dear to him and repudiated the —
others. This solution, more idealized and more refined in its
moral element, was also that of i\Ianu. In Greece, it finally served
as a principle for divination, and was found in all consultations
of the oracles.^ The change is significant. This simple detail of
the procedure, altering beneath our eyes, is not an arbitrary and
purposeless change in the rule of the game. It reveals the soul of
a people in its deepest beliefs, — its conception of the other world.
^Hincmar, "De divortio Lotharii et Tetbergae," 6 {Migne, "Patro-
logia," vol. CXXV, col. 665).
2 "Code of Hammurabi," col. V, 1. 33.
^Scholia of Euripides, "Hippolytus," 1200; Apollodorus, III, 15,
8, 3 ; Herodotus. IV, 154.
•• At Epidaurus Limera. they threw cakes into a pool (as formerly they
threw the erring woniMi), and if the cakes floated, it was a sign of mis-
fortune {Pausanias, III, 23, 8).
620 PROCEDURE [Part IV.
§ 4. Changes of the Ordeals in Historic Times. Death Penalty,
Oath, and Torture. These ordeals, with their variety of uses, —
what became of them in the historic period of Greece ? If we
concede that this custom of law and religion took its origin in a
time when law and religion w^ere one, and when the State was
still restricted to the narrow^ circle of the family, we shall not be
surprised to find that as justice, religion, and government become
more and more separate, they preserve the primitive customs while
adapting them to uses more and more distinct.
When the State's justice attained authority enough to formu-
late judgments and to give them effect, the proof and the penalty
would no longer be merged. And so the ordeal in its primitive
form is not found in the annals of Greek courts. So far as we find
it still used, in the classic period and up to the end of the Greek
era, its persistence is explained simply by the circumstance that
the parties to a dispute — even in a criminal case — could always
settle it without recourse to the courts. But in the courts them-
selves, the ordeals had ceased to be both proof and penalty in
one, and had become either a proof or a penalty. The most
formidable — those which imported death, unless a miracle
interposed — now served as capital punishments ; for in Greece,
as in Rome, the party condemned to death was cast into the sea
in a sack (if his crime had been specially atrocious) or hurled into
an abyss (for an ordinary crime). As a proof, it had degenerated,
for the most part, into a mere form, or even a symbolic utterance ;
the oath had replaced the ordeal, and preserved its memory in
the terrible imprecation which it contained ; it was merely an
ordeal in words. Nevertheless those persons — the " capite
minores" — who were not permitted to take oath, were still
subjected to an actual ordeal. This w^as the inquisitorial torture.
How did it come to pass, in the history of so many peoples, and
not only among the Greeks, that we find everywhere, in the be-
ginnings of probative procedure, the compulsory alternative of
oath and torture? The only logical bond between these two
methods is the imprecation. Their common origin, the source
of their lethal potency, is none other than the primitive ordeal. . . .
II. The Oath
§ llj'he Oath in General.^ [T]ie oath_( o/a/co?) is, in Greek
traditional etymoTogy, a ^oral__llh "-4«mt«;g freedom of a
• v^dyssey, ^^
1 [This first section is summari/ 5* Herodes," Stlior's text.]
^
<>
^4
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 621
man's words and actions. Over this barrier the gods keep watch.
By invoking the gods in an oath, a man binds himself to another
before witnesses {ixaprvpot, Xarope<i), the gods. Each people, each
town, had its appropriate gods to invoke ; and different purposes
and different men might have different gods by whom to swear.
The form also varied^ A sacred stone usually marked the appro-
priate spot. In the Areopagus there were the stones "of crime"
and "of accusation." And the place ordinarily must be a sacred
one, — a temple in general, or some special templet
The oath-taker stood erect, his hands stretched towards heaven,
his eyes looking upwards. Sometimes one hand was placed
on the altar, — as if touching the god. And generally a sacrifice
must be performed. Probably the dramatic sacrifices of the Greeks
originated in the Orient. In the most solemn ones, the oath-taker
stood upon the dismembered victims ; this was the custom pre-
served at Athens in the antique proceeding for homicide ; here the
sacrifice must be a triple one, — not less than a boar, a ram, and
a bull. For the sacrifice, sometimes, might be substituted some
other ceremony ; the Phocians cast a mass of iron into the sea ;
the parties to a treaty grasped hands.
The oath-formula was not complete without an imprecation
{apd) ; this was the sanction which made it binding. The simplest
was : " If faithful, may much good come unto me ; if false, may evil
come in place of good." A grandiloquent form in Crete ran thus :
"For those who swear in good faith and keep their oath, may
children bring joy, may the earth produce in plenty, may the herds
be fruitful, and may all other blessings descend on them and their
children. For the false, may neither lands nor herds be fruitful ;
may they perish miserably, they and their whole tribe."
^Innumerable were the occasions for which oaths were use^. Citi-
zens, soldiers, officials, took the oath in all important undertakings.
The Athenians, before entering on the political and judicial duties
of the assembly of the Heliasts, took a special oath. The archons
swore to govern justly and according to the laws. The citizen
pleading an excuse for not assuming a public duty must verify it
by an oath {i^cofxoa-ia, swearing off). And the citizen who gave
notice of- a prosecution against a member of the assembly for
introducing an illegal proposal must pledge his faith to this by
taking oath in the assembly (vTroofxoaLa), and this oath of itself
served as a veto suspending proceedings on the bill,]
In judicial proceedings, we distinguish the oath of the judges,
the oath of the parties, and the oath of the witnesses^
622 PROCEDURE [Part IV.
§ 2. The Judges' Oath\ The right of pronouncing upon the hfe
and property of other men was regarded by the Greeks as a func-
tion of divine origin. It must be delegated from the gods. The
judge must swear to be responsible before their sight for the use
made of the right.^ /Even in the imaginative tale of Atlantis,
Plato depicts the ancient kings, assembled in a court of justice,
taking oath at a table which bears, together with the laws, a for-
mula of oath and imprecation.
This need for giving to the judge's decision some superhuman
support is seen in two distinct aspects. At the beginning, the
judge is merely an arbitrator, even when the king is the judge.
He directs the proceeding, and proposes some settlement. But
only when the proceeding leads to nothing and the parties reject
all compromise, — only then does he pronounce a judgment sanc-
tified by an oath. And the oath has only a limited effect ; it
avails only for the particular case, i But in later times, when
community-justice has come to have a solid position, the judges
who embody it in their office receive their general power from the
gods by an oath taken at their installation. That they may be-
come once for all invested with judicial authority, they take
the oath once for all. And this oath gives validity to all their
(^ judgments to come ; it is an oath of investiture, unlimited in its
effects. Plato draws this precise distinction between the special
oath, to be administered to the judge " at the moment when he is
about to render judgment," and the general oath which he takes
for all purposes, promising to obey the laws.*
In the heroic age, Aristotle tells us,^ " the kings judged some-
times without an oath, sometimes with one." That is, in the
former case, they followed the procedure conformable to primitive
custom ; in the latter case, they attested the source and the
bindingness of their decision as inspired by Zeus.
This early practice appears in the laws of Gortyn. The judge
is to render his decision (StKciSBev) according to the witnesses'
testimony or the parties' oaths, in the cases for which that mode
was specified ; in other cases, he is to decide upon his oath {ofivvvra
KpCveLv), that is, he is to furnish proof and corroborate his deci-
sion by his oath. Even in those cases where the ordinary modes
^ Perrot, "Essai sur le droit public d'Athenes," pp. 293, 294: "The
oath was a solemn and religious act, establishing a strict bond between
gods and man ; thus it was necessary for the judge. It raised him out
of the crowd and above it, and gave him prestige. It compelled even the
malcontents to accord to his decisions an involuntary respect."
2 Plato, "Critias," p. 119 E ; "Laws," XII, p. 948 E.
^Aristotle, "Politics," III, ix, 7.
Chap. XXXI, § 4.] THE ORDEAL AXD THE OATH 623
of proof were preferred, yet if they were lacking or were insuffi-
cient, the judge could supply their place by his oath. The fore-
going instances throw a clear light on the oath of the " diaetetes,"
or arbitrators, at Athens. The public arbitrators, Aristotle tells
us explicitly, took an oath before pronouncing their decision ; thus
not differing on this point from private arbitrators. Both classes,
in other words, at the moment of rendering a formal judgment,
needed the oath to give it executory force ; the public arbitrators
must take oath upon the city's "oath-stone," while the private
arbitrators could take it at any altar. But an essential differ-
ence was that the oath of the public arbitrators was no obstacle
to an appeal to a higher court ; while the oath of the private arbi-
trators (selected by the parties) settled the case beyond appeal.
The latter method is clearly exemplified in a clause in some con-
tracts found at Delphi ; " the decision which they shall render
on their oaths shall be supreme" (on Be Ka ovtol KpLvcovn 'o/u,6-
aavTe<i, tovto Kvptov ecrrco).
By the classic period, the oath taken by the regular judges is
the oath of investiture of office. That of the heliasts is well
known. If we may believe the orators, it was thought to have a
real influence on the conscience ; for the pleaders are continually
referring to it to show that the judges have a personal interest in
demonstrating their respect for the gods, in deciding according to
justice and honor, and in escaping the fate that will torture them
for a broken oath. Whenever, in Athenian history, special tri-
bunals were constituted, the members took the same oath as the
heliasts. After Cylon's insurrection, the three hundred Eupa-
trids, who were to pronounce the fate of tlie murderers, were
placed under oath. And when a committee of fifteen was em-
powered (about 332 B.C.) to fix by judicial decision the boun-
daries of the land sacred to Eleusis, they swore " to vote without
favor and without malice, in all justice and honor."
Throughout Greece, the exercise of judicial functions carried
the same requirement. The judges of Egina swore "to vote
according to the laws." The assembly of Eresos, when it resolved
itself into a court of eight hundred and eighty-three persons to
sit in judgment on the tyrants, took this oath : " I will judge this
charge, so far as the law has provided, according to the laws;
and in other respects I will strive to judge as well and as justly
as I am capable. If I convict, I will allot a penalty that is right
and just: So will I perform, by Zeus and by Helios." And the
Amphictyons of Delphi, before judging a dispute, were to bind
624 PROCEDURE [Part IV.
themselves in these terms : " Called to decide upon the goods and
estate of Apollo, I will judge the whole case, so far as possible,
according to the truth, without favor and without malice, and in
no way will I judge falsely ; if I condemn, I will cause the fines to
be paid as fully and as speedily as I can, and will place them
honestly to the god's account. I will accept no presents, either
directly or indirectly ; I will neither give nor take from the sacred
treasures. So will I perform. And if I keep my oath, may I
receive all kinds of blessings ! If I break it, may Themis, the
Pythian Apollo, Lato, and Artemis, Hestia, and external fire, and
all the gods and goddesses send me to a miserable death and with-
hold all salvation ! May they leave me no happiness, neither of
children, nor of seed-time nor harvest, nor of prosperity, neither
to me nor my descendants ! May they deprive me of all that I
possess, if I forsw^ear myself!"^
- The oath of the judges, as a security for their impartiality, was
deemed so important by the suitors that pleaders whose conscience
was not entirely at ease would manoeuvre to induce the inad-
vertent omission of the most formidable phrases of the oath, or
would erase the names of the judges from the pillar w^here the oath
was inscribed. The orators several times mention these attempts ;
e.g. that of INIidias, with the judges of the choregi, and that of
Euboulides' followers, with the judges of a ward court.
§ 3. The Parties' Oath. At the outset of the proceeding, the
two parties must take oath, / This w^as known as the contradic-
tory oath, "antomosia" or "diomosia" (avrcofioaia, Stco/j^oa-io).
It was obligatory, without exception on either side ; no other course
would have been thought possible. But^t was by no means a
promissory oath, with a moral purpose.! It was a declaratory
oath, analogous to the Roman "litis contestatio," — a sort of
declaration of legal war. In this oath the adversaries join in
the struggle. They define, irrevocably, the subject of the dispute,
not only to bind themselves as against each other and as against
the judge, but also to bind the judge in relation to them..
The early form of this oath is explained by the trial scene de-
picted in the Iliad on Achilles' shield. The demandant declares
before the people that he has not received the composition price
for a blood-feud, the opponent declares that he has paid it, and
they agree to lay the dispute before the arbiter. Complete these
* declarations by an oath, and w^e have the "antomosia." Far
1 " Bulletin de correspondance hellenique," XXVII (1903), p. 107,
B, 1. 10-16.
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 625
from being a restraint on the perjurer, or from showing (as some
German scholar has suggested) that the Athenian people were
not a "Rechtsvolk" ; far from being a purely religious institution
(as others have believed), destined to substitute ultimately the
justice of the gods for the fallible justice of men ; and far from
being a mere degenerate relic of the decisory oath, — this intro-
ductory oath, on the contrary, is merely a remnant of primitive
procedure, sharply defined in its own special field of legal ideas,
and distinct in the very beginning from the decisory oath tendered
by way of proof. " When the State's justice was as yet in its first
stages, a dispute at law had necessarily to be preceded by a bi-
lateral agreement, an agreement to arbitrate, confirmed by an
oath. Later, this part of the proceeding no longer answered that
actual need ; but it continued to serve as an acknowledgment of
the authority of the judge or to create the authority of the arbi-
trator, and at the same time to define the position taken by each
of the parties. . . .
At Athens the "^antomosia" was indispensable in every lawsuit ;
it gave its name to the document containing the claims of the
parties, and it was required even in controversies where there was
strictly neither plaintiff nor defendant. It signified that each
pleader was required to state in advance, under oath, how he
presents his case and in what sense he understands the proceeding.
Only one formula of the "antomosia" is extant; it occurs in the
law of Gortyn concerning unlawful distraint. Before suit begun,
this oath must be taken : " The seizure was made without wrong-
ful intent and lawfully, but without touching the person against
whom it was directed." . . .
But in addition to this introductory oath, primitive procedure
used an oath also as a means of proof. This probative and
"decisory" oath originated in the ordeal, the "decision of God."
The ordeal was an oath in action ; the oath, an ordeal in words:
The Hellenes had certainly once employed the decision of God ;
but so primitive a mode of proof came to be early repugnant to
them. In place of the moral concept that a god would protect
the right, they developed by preference the legal concept of the
oath of purgation. In its later stage, this oath could be tendered
to a party by his opponent ; but at the outset it was required of
him by the "themis" of the gods, the judge being their mouth-
piece. Such was the oath imposed by Rhadamanthus, which
"ends all, quickly and rightly." ^ In the Iliad, ]Menelaus, the
^ Plato, "Laws," XII, p. 948, B, C.
626 PROCEDURE [Part IV.
king, tenders the oath to Antilochus ; but his defiance is uttered,
not as party, but as king and judge; and Antilochus takes the
oath as a defendant.
Such are the two primitive ideas in the oath-procedure. They
appear in use, from time to time, throughout a long period, and
in criminal as well as in civil actions. In the Homeric Hymns,
the bold thief of the bullocks, Hermes, seeks to extricate himself
by proposing, first to Apollo, who threatens him, and then to
Zeus who is chosen as arbiter, to take "the great oath." In a
famous painting of Polygnotus, Ajax, under accusation by Cas-
sandra, and summoned by the Fates to exonerate himself by
oath, is advancing to the altar, to save himself by a perjury. The
poet Theognis records his indignation against those who invoke
the name of the gods to repudiate a debt. Herodotus recounts at
great length the story of the Spartan Glaucus who was tempted
by the treasures left in his charge and went to ask the oracle of
Delphi whether he might appropriate them and escape by a false
oath.
In almost all these well-known instances, the accused perjures
himself cynically ; and, in all, the defeated accuser remains con-
vinced of his own righteous claim. An unfortunate and fruitless
proceeding, one might say. And to remedy that shortcoming,
means were sought by the law-makers to determine which of the
parties ought to have the exclusive right to make oath ; or, if both
were to take it, which should have the prior right to take it and be
credited.
The best illustration of this stage of the development is found
in the law of Gortyn. The judge's decision must be determined
by the party's oath in certain classes of cases, viz. when the ordi-
nary method of proof by witnesses is inapplicable or inadequate.
Sometimes only one of the parties is obliged or allowed to take the
decisory oath ; sometimes both are allowed, but one of them is
deemed legally more credible {6pKi(OT€po<i) . Usually, the defendant
alone makes oath or has the right of superior credibility. The
judge may tender this exculpatory oath {cnrofj-ocrat) to a woman
divorced, on a charge of sequestration of property or any other
claim and to a merchant denying a debt to a co-merchant. The
plaintiff, on the other hand, is the one to take the decisory oath
(o/xocraL) when he seeks to renew an instrument of defendant
after the death of the debtor, or when he sues an adulterer and
rebuts the plea of collusion. The defendant, again, has the righ+
of superior credibility, when a woman is charged with having faile '
Ik
Chap. XXXI, § 4.] THE ORDEAL AXD THE OATH 627
to make formal declaration of a child born after divorce, or when
a judge is charged with exceeding the lawful term for a judgment.
The demandant, on the other hand, has the right of superior
credibility when a female slave complains of rape by her master,
or when the owner of an animal killed or maimed claims damages
after demand made on the opponent. _But the general rule, apart
from such special cases, was for the defendant to make the decisory
oath. ]\Ioreover, in that case, the exculpatory oath of itself
sufficed ; whereas the plaintiff's oath always, and the defendant's
when he was merely privileged as the more credible, must be
supported by the oath of compurgators or of the attesting wit-
nesses to a document (the only exception here was that of the fe-
male slave complaining against her master, but then obviously
there could be no compurgators nor documentary witnesses). —
All these rules are reminiscent of the earlier spirit ; but the sign
of the future was the rule that, in suits between co-merchants the
exculpatory oath was tendered to the defendant by the plaintiff.
In this transitional stage belong also other documents (none of
which are x^thenian). One of them tells us that certain followers
of Pythagoras had only to take oath, to escape a fine, i.e. as de-
fendants they were to take the exculpatory oath. Again, a law
of Halicarnassus, passed in the 5th century B.C., after some civic
disturbances, allowed a period of eighteen months for the exiled
citizens to reclaim their landed property; pending this period,
they were still presumed owners, and thus the disseisor would
virtually be demandant, though nominally the exile-claimant took
that role ; hence the privilege given him by this law of taking the
decisory oath, confirming it by a declaration of the record-clerks,
was an exception to the general rule ; but after the expiration of
the term, the possessor of the land became the presumptive owner,
and so was entitled, in case of claim by the exile, to take oath as
defendant, on the usual principle, and this oath (to be exacted by
the judges, in the opponent's presence, immediately upon receiv-
ing their fees) was of itself decisory. Again, the documents of
Ptolemy Philadelphus, dealing with fiscal affairs, reveal to us the
officials of the oil department called upon to defend certain official
conduct by making oath.
In the law between nations and between private associations,
we find again the party's oath, recalling the primitive methods.
'A treaty between Athens and Lacedsemon provides that all dif-
'erences that may rise shall be settled "by way of law and oaths"
\Kaiw Kal opKoa). ^Yhen the Argives demanded of Epidaurus
628 PROCEDURE [Part IV.
a sacrifice Avhich the latter deemed not due, it was agreed that the
oath should be tendered first to the respondent city, and if it de-
clined, then to the claimant city. And again, in the regulations
of the Labyads at Delphi, any member of the fraternity who dis-
puted the lawfulness of a fine imposed upon him was to go quit, if
he exonerated himself by formal oath ; the ordinance tlnis ])hrasing
the rule for exculpation : 'e^o/ji6aa<; rorj vofjufxov opicov XeXvaOto.
The Athenian laws show us the last stage in the parties' deci-
sory oath ; for Solon no longer gave it a place in his legislative
reforms. Only in total lack of witnesses or documents was there
to be any recourse to the parties' oaths ; and even then, neither
party was obliged to take oath ; either was at liberty to do so, and
the judges were to weigh their respective credibility (TroVe/oo?
euopKei) according to the circumstances of each case. This
advanced stage (which may be contrasted with that of the Roman
"legis actio sacramenti") is a long remove from the oath com-
pulsorily tendered and made decisive. The decision here is made,
not by the party's performance of the oath, but by the judge's
persuasion. The party tenders or refuses the oath, when called
upon, at his own risk of the inferences therefrom. It might even
happen that one party would ask for the opponent's oath and also
tender his own oath, thus either forcing the opponent to refuse, or
at least getting the benefit of the contrasting oaths. And the two
oaths might thus leave the case no better than before. The
pleaders developed to perfection the various inferences to be
drawn from one party's offering his own or demanding the oppo-
nent's oath, and from the acceptance or refusal of this challenge
by the opponent. In general (it would seem) one could without
losing one's cause decline the oath when demanded by the other
party ; but, as in such a case the refusal was equivalent to a
confession, the refusing party would have to restore the balance
by challenging the first party to take the oath himself. Sometimes
the oath-taker must deposit security. But on the whole the law
gave entire liberty of conduct to the parties and entire liberty of
decision to the judges.
There were, to be sure, one or two classes of cases in which the
party's oath was actually decisory, because any other rule would
have been plainly unfair. In these exceptional cases the oath-
ceremony was of special solemnity, and the opponent, who phrased
the formula, watched carefully to detect any evasion. Such a
case was that of a claim for the restoration of goods informally
bailed or of an ordinary loan made without writing ; all the Greek
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 629
systems of law here preserved the rule. ^ But the Athenian law,
when in such cases it provided for putting the defendant to his
oath, did not oblige the plaintiff to rely solely on the divine pun-
ishment for perjury ; for it allowed the plaintiff a special exit, by
way of rebuttal {hUr] 7rapaKaTa6^Kr)<;) ; - e.g., where the heir
was sued for his ancestor's liabilities, and no other proof was avail-
able, the heir might exonerate himself by an oath of ignorance ;
yet the claimant was entitled to refuse to consent to this oath,
provided he was willing to risk the inferences. Thus, even in these
exceptional cases,^ the Athenian law remained faithful to its gen-
eral spirit, viz. to concede as little importance as possible to the
parties' oath. And Solon allowed it to remain in form only ; for
he desired not to break too roughly with inherited institutions,
nor to sliock too rudely the customs of Athenian life. . . .
§ 4. riie Witness' Oath. — In primitive law, the oaths of parties
and witnesses are not distinguished. The witnesses take sides
with the parties. They do not testify to their knowledge ; they
merely express their favor for one side or the other ; and they are
to do this publicly and forma]lyp(^n other words, they are rela-
tives and friends who act as sworn partisans, i.e. co-swearers,
compurgators.'^ This custom was found in early Greece as well
as among the Germanic tribe^ It represents the transitional
period in procedureAvhen the private clan-feud has passed away,
but the method of proof by disinterested witnesses has not yet
arrived ; in this interim stage the members of the respective families
and clans support their relative by appearing with him in court.
The compurgation procedure was in vogue in the Homeric
period.^ And Aristotle mentions the existence at Kyme, in .Eolis,
1 Under similar eireumstanees the exculpatory oath appears naturally
in Egypt under the rule of the Greek Ptolemies. Here is a complaint
deciphered from the papyri of Magdola : "To king Ptolemy, hail! I,
Theonides, of the village of Apollonias, am wronged by Seuthes, of the
same village. I had lent him without writing five measures of barley,
and he had promised to repay them when the harvest was gathered ;
that time has passed, and he has not repaid me, though often demanded.
Therefore I ask you, oh king, if it seems proper, to order the judge Dio-
phanes to write to the bailiff Agathocles to send Seuthes to him, and if I
speak truth, to have Diophanes make him pay me what is due ; and if he
sivears that he oioes tne nothing, to discharge him; so that I suffer no wrong,
but obtain justice by resorting to you, oh king, benefactor of all. J^are-
well." ("Bulletin de correspondance hellenique," XXVII, 1903, p. 178.)
- Isocrates composed the "Oration against Euthynos" and the "Tra-
peziticus" for cases of this sort.
' Which were so restricted that e.g. a wife was allowed to swear as
witness to the paternity of her children but not as party to prove her own
marriage.
* Although no one passage clearly exhibits it ; the court scene in the
Iliad, for example, mentions the helpers (dptoyol) for each pleader; but
630 PROCEDURE [Part IV.
of a law "of antique simplicity" by which a person charged with
homicide is declared guilty if the accuser produces from among
his relatives a certain number of witnesses. And an ancient
law of Athens, sanctioned by Draco, reveals the same feature ;
on the trial of a homicide, the chief accuser is to be joined by his
farthest relatives and the members of his phratry, the relatives
making oath of their status. At Kyme as at Athens, these rela-
tives, of course, were originally co-swearers, party- witnesses.
As time passed, they took on the special character either of ordi-
nary witnesses {/xdpTvpe<;) , as at Kyme, or as joint party-com-
plainants {(TwhioiKeLv) as at Athens. Their original technical name
is disclosed to us in some fragments of private law found at Crete :
'opKco/xorat, and perhaps also 'o/xcofioTat (co-swearers) ; their duty
was to " come up together and swear the case " (a-vveKcro/jioa-aa-OOai).
Again, the law of Gortyn required that the party should in certain
cases appear with co-swearers in number proportioned to the
penalty involved (virtually, according to the rank of accuser and
accused). In a charge of adultery, if the defendant, taken in the
act, pleaded a collusive trick of the husband as his defence, the
husband took oath affirming the detection in the act and denying
any trick, and this oath he took "five-handed" (i.e. with four
others) if he belonged to a brotherhood, or "three-handed," if
a free man of inferior rank, or two-handed, if a serf ; the oath
(including the imprecation) being the same for the co-swearers
as for the parties. So, too, in the treaty between Chaleion and
Q^anthe, we read of co-swearers (eVco/LioTat) who are to attend the
resident aliens, — fifteen or nine, according to the amount in-
volved. And in all of these instances, there was no question of
weighing the testimony, but merely of counting the witnesses ;
at Gortyn, for example, the law expressly says that "the party
who wins is he for whom the greater number make oath" {viKev
S'oTepd KOi irXle^ ofioaovri).
The development of co-swearing into ordinary witness-proof
naturally and gradually lessened the importance of the oath
itself. The change can be seen in two features especially ; (1) the
oath follows, instead of preceding, the witness' statement, and
(2) it becomes optional, not obligatory.
(1) In the ancient town of Ascra (Hesiod's birthplace), the
witness is recorded as beginning with the oath. And in the
they are not compurgators ; they mix with the crowd, and are kept
back by the heralds ; they do not take part in the proceedings, and the
judges do not act upon their oaths.
Chap. XXXI, § 4.] THE ORDEAL AND THE OATH 631
antique homicide proceeding surviving at Athens, the oath is
required first of all from the witnesses; and the name itself, "co-
oath" (Bico/jLocria) reveals the trace of a period when witnesses were
mere partisans. At Gortyn, on the other hand, the oath is no
longer promissory in form, and the witnesses take oath after their
testimony is given ; the oath is still the important thing, but it is
merely declaratory of the truth of the testimony already given.
(2) At Gortyn, furthermore, we find a transition stage between
required compurgation and optional testimony. The oath is
required only for special classes of cases ; but in these the witnesses,
though no longer strictly co-swearers, are either attesters of a
document or other required witnesses who make oath ivith the
party. Thus, when a creditor sues to revive an instrument of
debt, the judge and the record clerk are called to prove the docu-
ment ; to certify that the owner of an animal killed or maimed has
performed all the formalities, two documentary witnesses must
be produced ; to prove that the child of a divorced woman has
been presented for acknowledgment to the husband, documentary
witnesses must be produced (varying in number with the woman's
status). In all these cases the witnesses make oath icith the plain-
tiff (or, in the woman's case, with her relatives or guardian).
Thus the law of Gortyn, like that of Draco, preserved the compul-
sory oath, but in limited cases only. And both of them exhibit
the transition from compurgation to optional witnesses.
But the last stage of this development was to be seen at Athens,
in the procedure of the popular courts. There the witness' oath
had become merely a warranty of the testimony, optional and
supplementary, or perhaps a special proof accepted by the parties.
Usually the oath was administered, on the preliminary hearing,
after taking the depositions, by the witnesses on one side, on demand
by the other side. Sometimes it was taken at the trial, after read-
ing the depositions. Sometimes the witnesses themselves offered
to confirm their testimony by their oath, — as when they were
directly interested in the case or related to the parties. The
judge's discretion was theoretically free ; yet in some cases the
oaths practically carried the decision with it, — as where the parties
had by contract made it decisory, but this would have an extra-
judicial basis. In essence, the witness-oath was optional.
But how often was it employed, in practice? As late as the
5th century B.C., testimony and oath were still inseparable. But
by the 4th century this was so no longer. In the ordinary
trials of that period at Athens, the witness' confirmatory oath was
Y'
632 PROCEDURE [Part IV.
reduced to a minimum, — mostly, a mere signature at the bottom
of a deposition. Athens had gone, in its system of proof, almcst
to the end of the road leading from partisan compurgation to a
purely rational probative testimony, freed from all religious ele-
ment. The procedure of the Areopagus Senate had stopped with
the oath as compulsory and promissory ; the procedure of Gortyn
had gone as far as the oath declaratory but still compulsory ;
the Helisea made the oath bo^h declaratory and optional.^ . . .
§ 5. The Contract-Oath. {The Greeks employed the oath, in
innumerable ways, in the affairs of private life. The phratries
and other associations made use of it for admitting their members ;
a father, for example, presenting his child to a phratry (a form
equivalent to our registration of civil status) must make oath
"that the child here presented was born in lawful marriage of
himself and a citizeness." And, notably, oaths of peace and alli-
ance between individuals common enough in primitive and legen-
dary times (for example, between Achilles and Agamemnon)
developed the promissory or contract-oath.] . . . This served to give
authenticity and validity to ordinary contracts, and was widely
used in Greece, as well as in Assyria and Egypt. This contract-
oath might confirm a promise of marriage, or a partition of an
estate, a bailment, a loan, or a lease. At Thebes, the custodian
receiving in charge an abandoned child took oath formally to bring
it up. In Egypt, under the Greek Ptolemies, the farmers and their
sureties bound themselves to the treasury-official by a "royal
oath"; as did also the shipmasters who contracted to deliver
their cargo at destination.^
"The contract of sale and purchase," said Theophrastus, in
his lost treatise on Greek law, " is complete, as regards the buyer,
when the price is paid and the lawful formalities performed, . . .
such as the oath." It does not appear that this practice obtained
at Athens ; . . . but it is recorded at Halicarnassus ; for there the
purchaser of goods sold by a temple w^ould take a covenant of
perpetual possession, not merely from the gods as guarantors, but
also from the temple officials, who took oath as co-warrantors
with the gods. At ^^Enos, to prevent impersonation of the vendor
and to give publicity to the transfer, the vendee of the land must
offer a sacrifice (proportionate to the value of the estate), and must
^ [The author then describes three exceptional eases where the com-
pulsory oath was preserved, viz., women-witnesses, in certain cases;
witnesses who are unable to appear at the trial to confirm their deposi-
tions ; and witnesses alleging an excuse for not testifying.]
- Kenyon, "Papyrus of the British Museum," II, No. 301.
Chap. XXXI, § 4.] THE ORDEAL AXD THE OA.TH 633
take oath, before the altar, in the presence of a recording official
and three residents, as follows : " I am buying this lawfully, with-
out collusion, or trick, or fraud of any sort ;" and the vendor must
swear, "I am selling without fraud." Without this formality the
officer must refuse to record the sale, and his oath of office imposed
on him this duty. This explains why the Cnidians termed their
record-office "the record of oaths" {to ypacjjelov rcov op/ccov). . . .
In contracts for public works, the contract-oath played a large
part. When the Athenians set about repairing their Long Walls,
the successful bidders for the undertaking were obliged by the
terms to take oath before the Council. In an inscription of Eretria,
a contract for draining the marsh is accompanied by an ordinance
fixing the procedure and the formulas for the oaths ; all the citi-
zens and youths bound themselves to the contractor and his heirs
by this oath, to be pronounced after the ofiicers : " I swear, by
Apollo, Lato, and Artemis, to leave to Chairephanes the possession
of the lands gained from the marsh, on the terms assented to by
the city ; if any one tries to violate the contract made with Chaire-
phanes, I will oppose him with all my power, in accordance with
our common oath ; if I keep my oath, may much good fortune
come to me ; if I break it, may I be destroyed, I and my property."
And the contractor, on his part, was to give sureties who should
make oath that the work would be performed.
The oath served also to warrant a recital of fact inserted in a
contract. For example, in a contract of lease, the lessee must
affirm on oath before the lessors that he had spread on the lands the
agreed quantity of manure. This application of the oath, while
unusual in Greece itself, was frequent in the later Greco-Egyptian
contracts. Under Ptolemy Philadelphus, the farmers who sold
their oil-crop to the government made oath, in their contract of
sale, how much seed they had put in ; in the duplicate contract
between the tax-officers of the vineyards and the vine-dressers,
both parties' recitals must be confirmed by the " royal oath" ; and
the statements made upon the recording of a transfer must be
verified by oath, the documentary recital of the oath serving to
give validity to the transaction.
§ 6. False Oath. Habitual oath-taking leads soon to per-
jury. And the Greek, only too often, behaved as if (in a phrase
proverbial in his country) "the old gods had been supplanted
by new gods." The Romans, we know, were scandalized by
" Greek honor." Was this vice a feature of their decadent period ?
By no means. As early as the Odyssey, we learn that it was
634 PROCEDURE Part IV.
esteemed meritorious to be skilful in profiting as much fron>ttom
oath as from a theft. And Sophocles dramatizes a fal&mcst
without a word of censure.^ The rhetoricians and the s(to a
served as a manual of perjury, at the service of litigants. . ele-
Nevertheless, the practice did not come entirely easy, 'th
had to deceive one's conscience. One must use the gods as gently
as might be. The object was to observe the letter of the oath
while evading its spirit. Nowhere more than in Greece has
wider use been made of the oath of double sense, or sophistical oath.
A sly fellow (one anecdote runs) refuses to restore a sum of
money left in trust ; he hides it in the hollow of his staff ; at the
moment of taking the oath of exculpation, he hands the staff to
the plaintiff to hold ; thus he truly swears that he has delivered
to the plaintiff what is due him ; and yet he can keep it all, — even
the favor of the gods.- Or, again, a rascal who has stolen a fish in
the market slips it deftly into another's basket ; now he can swear
with a safe conscience that he has it not, nor knows of any other
person who took it. And Chillon, faithful strictly to his oath as
judge, cast his own vote for the death penalty against a friend of
his on trial — but persuaded his two colleagues to vote for ac-
quittal. . . .
These hypocritical practices led to a reaction. The distinction
between the letter and the spirit came to be emphasized. But this
itself gave rise to quibbles equally dangerous. Euripides, the
master of Greek casuistr}^ expressed the principle in the cele-
brated line: ^ "The tongue has sworn, but not the mind." And
some of the moral philosophers discussed the conditions requisite
for the bindingness of oaths, in manner of the jurists concerning
contracts. . . .
The Athenians, to be sure, imagined themselves to be notably
superior to the other Greeks, in their strict adherence to their
pledged word; they boasted of "Attic honor." They were
piqued with Euripides for having turned an epigram on the excuse
of false swearers, even though he did make the hero Hippolytus
perish as a victim of his own perjury. In private affairs, they
conceded (with Pericles) that a man should stand by his friends
"up to the very foot of the altar"; while in public affairs they
maintained that they were bound, even as are heirs by the oaths
of their ancestors. The Spartans they accused of a deplorable
1 Odyssey, XIX, 395; Sophocles, "Eleetra," 47.
2 [This anecdote may be found again in ."Don Quixote,'! e. LXXVII.l
* "Hippolytus," 612.
Chap. XX^I- § 4] THE ORDEAL AND THE OATH 635
take oa-it for perjury. . . . The Thessalians likewise they re-
and th as perjurers. As for the Cretans, their reputation as liars
out eong been made. . . .
swear-iinst this abuse of the oath, the highminded Greeks, and the
offir.ers of philosophy, sought to devise a remedy. ^Nlany persons,
moved by religious scruple or by more practical considefrations,
adopted the custom of substituting for the invocation of the deity
some expletive which signified nothing. Rhadamanthus, accord-
ing to the legend, had recommended to swear by some animal or
plant; and accordingly we hear of Lampon, the priest, swearing
"by the goose"; of Zeno, the philosopher of Citium, "by the
caper"; of others, "by the cabbage." When Socrates swore
"by the dog" and "by the plane-tree," he was not showing con-
tempt for the national religion (as his enemies asserted) ; on
the contrary, he showed his real respect for the gods.
Such protests are found at a much earlier period, as early as
the 6th century B.C. Xenophanes (570-480?), founder of the
Eleatic sect, rejected entirely the oath as a means of proof, because
it was in partnership with impiety. Pythagoras (582-500?)
argued against the practice of oaths, even in the most weighty
cases ; and his followers professed that they would rather lose
a lawsuit than gain it by taking an oath. "Swear not at all " was
the motto of this school. And the principle spread to others.
Eschylus, the dramatist (525-456), in the trial scene of Orestes,
represented the tribunal as rejecting proof by oath, as a travesty
of justice, too often insuring the triumph of injustice ; and he put
these words into the mouth of one of his characters : " The oath
does not warrant the man, but the man the oath." Choirilos
and Menander, the poets, invented or repeated the proverb,
"Swear not, for a good cause any more than for a bad one."
And so Plato was not a pioneer, but only a timid imitator, when
he proposed to banish from his Republic the whole oath-procedure,
and to reserve the oath only for situations involving no direct
and temporal advantage. In Plato's view, the oath-procedure
was something too fine for the men of his own times. He regarded
it as practicable only in the days long past, in a primitive com-
munity, still moulded by morality and religion. Rhadamanthus,
he said, had been convinced that the power of doing justice must
be entrusted, not to human judges, but to the gods ; whence the
^Aristotle, "Rhetoric," I, 15; lamhlichus, "Life of Pythagoras," 47,
144, 1.50; Sosiades, in Stohec, "Florilege," III, SO; ^.schyliis, "Eumem-
des," 426 and fragm. 369 ; Choirilos, in Slobee, ib. XLII, 414 ; Menander,
fragm. 441.
636 PROCEDURE [Part IV.
simplicity and promptness of his decisions ; for he merely ten-
dered an oath to the parties, "and so it is all settled ciuickly and
rightly." But this excellent method of settling disputes pre-
supposed necessarily a deep and universal religious belief.
"And to-day," continued Plato, "when men either do not beUeve that
the gods exist or believe that the gods do not interfere in human affairs,
or, most of all and worst of all, believe that the gods, on receiving petty
sacrifices and flatteries, will become their aecompUces in chicanery and
will save them from punishment, — no, for the men of to-day the method
of Rhadamanthus is no longer suitatjle. And so, since^ien's beliefs
about the gods have altered, the law too must be altered/-<To-day, when
a suit is begun, the law, if intelligently framed, shoujd^ifot J?'equire an oath
from either party. It should merely require the accTfser to put the points
of his charge in writing and the defendant to do likewise, without allowing
either of them, on filing the documents, to make oath. And indeed, when
we think of the multitude of lawsuits in our State, we cannot for a moment
doubt that perhaps a half of our citizens are perjurers, who nevertheless
do not hesitate to sit at table with the rest nor to associate with them in
public assembly and in private homes." i
But the philosophers' utterances had little effect. Without
the help of the law they could do nothing ; and the law gave
no help. Some writers have supposed that there was a criminal
action for perjury ('ypa(pri eTrtopKia';), with infamy as a penalty.
But no document mentions it, either at Athens or elsewhere.
There is no question, to be sure, that discovered perjury was visited
with disgrace. . . . But the only punishment of the perjurer was
that which the gods might have in reserve.
And this belief in the gods' enmity for the false swearer never
weakened in the soul of the Greeks. Centuries apart, we find it
expressed with equal validity. Two instances of this will serve
to bring us to an end.
Herodotus tells us (not without a suppressed horror) of what
happened to Glaucus the Spartan. This man had reached the
highest position in his town, by force of his many virtues and
particularly his uprightness, when Fate subjected him to a bale-
ful test. A rich Milesian sought him out and left with him a large
sum of money in trust. Years passed. One fine day there came
to Glaucus the sons of the Milesian, showed their tokens from him,
and asked for the return of the treasure. Glaucus could not
resist the temptation. He replied that he remembered nothing
about it ; would look for it ; and told them to return in four
months. Meanwhile he sought to get the gods on his side. Be-
taking himself to Delphi, he asked the oracle if he might appro-
priate the deposit by making oath. The reply of the priestess of
i"Laws," XII, 948.
Chap. XXXI. § 4.] THE ORDEAL AND THE OATH 637
Apollo was like a thunderbolt : " Glaucus, son of Epik ydes, yes !
For the time, thou may'st gain thy suit and secure the treasure,
by taking the oath. Take it, then ! Death indeed awaits some
day all mortals, alike those who keep and who break their oaths.
But Horkos, the god of oaths, has a nameless son, who, having
nor hands nor feet, will none the less pursue relentlessly until he
has destroyed thee and thy whole family, root and branch. But
the honest man will leave after him a posterity more and more
prosperous." The wretched Glaucus, stunned by his doom,
begged for mercy. But the implacable priestess replied that to
solicit the god to assist his crime was as great a fault as the crime
itself. In vain was it for Glaucus to send for the jMilesians and
restore the money. In due time there remained not a scion of
the house of Glaucus, not the least trace of his place among men ;
root and branch, his race had disappeared. The god was
avenged.^
With this story of Herodotus may be compared the evidence of
an inscription which was found in a temple at Delos. Five cen-
turies had passed since Glaucus' day, yet the beliefs as to the pun-
ishment of a faithless trustee had not altered. The inscription
reveals to us a humble slave, Theogenes by name, who had
entrusted to a certain woman the money saved by him for the
purchase of his freedom. The faithless trustee kept it all, and
swore that she had received nothing. For the unfortunate victim
of her wickedness there was no human recourse, — no resort but
to divine justice ; and he carved on a stone this accusation, which
he committed to the care of the gods : " Theogenes, with uplifted
hands, implores the aid of the Sun and the Maiden Goddess against
. She had made oath not to wrong or deceive me about my
treasure which she received to keep in trust for me, nor to deprive
me of it. And I, confiding in the ]\Iaiden Goddess, believed in
that oath, nor did I do her any wrong. But she, after receiving
in trust the money destined to purchase my freedom, now has
despoiled me of it. ^lay she not escape the power of the goddess !
I ask and pray all the votaries of this temple to declare against
her the curses of religion." "
And so, throughout the whole epoch, the gods who are invoked
in false oaths see to it that vengeance follows the insult to their
name and the wrong done to the immutable order of things.
1 Herodotus, VI, 86.
2 "Bulletin de correspondanee hellenique," VI, 1882, p. 500, No. 24.
1/
638 PROCEDURE [Part IV.
Section 5
ANCIENT FORMALISM 1
I. The Stages of Internal Evolution of the Law
1. . . . The legal activities of every civilized people show a
movement through three stages of development. One might
denominate them as the divinatory, formalistic, and intellectual
stages, in the sense about to be explained. In order to operate
effectively and to accomplish their mission, all three stages must
be supported by the belief that the law is of divine origin and of a
higher power, realized in a worldly existence ; and that it is not a
human product to be mastered by the will. In purest form, this
belief is found in the earliest childhood of a race ; for, the more that
reason enters into the law, the less pronounced this belief becomes.
It cannot, however, disappear entirely ; except that the law itself
should fall into a decrepit triflmg with dead ideas.
A people and a productive law first come into being with an
emergence from the condition which may be called the patriarchate.
By no means, however, must it be thought that the purely patri-
archal condition of society is one wholly devoid of legal ideas.
The statement is made, constantly, that so long as the patriarch,
the head of the family, determines everything within the family,
and that his will is supreme, there is no law, and only might. It
is said, also, that the members of the house are subject to the
house-father but not by virtue of legal rule; that the house-
father is in no way obligated to his dependents, or bound to them
by legal compulsion ; that when he decides a quarrel in the house-
hold he does not utter the sentence of law, but acts according to
convenience in the plenitude of his power, granting to one what
under the same circumstances he denies to another ; and that
while the house-father embodies within himself all law, he also
displaces all law. True, but it is still the idea of law which main-
tains order in the extensive domestic concerns of the patriarch,
and which restrains the servants and bondmen from asserting their
superior strength and rising up in rebellion. Nevertheless, the
legal idea here is still restricted ; it manifests itself only in a passive
relation, and is not yet active and productive. It first becomes
active in the tribe, from that moment when the relations of the
1 [By Dr. Andreas Hetjsler, translated by Albert Kocourek from "In-
stitutionen des deutsehen Privatrechts" (Systpmatisehes Handbuch der
deutschen Rechtswissenschaft, herausgegeben von Dr. Karl Binding),
Erster Band, Leipzig, Duncker & Humblot, 1885.]
Chap. XXXI, § 5.] ANCIENT FORMALISM 639
tribal associates among themselves are no longer subject to the
arbitrary will of an over-lord, but are regulated in a definite way by
an arrangement established by the will of law and for the purpose
of its realization ; even though this arrangement involves also the
harsh despotism of a chieftain.
During this early period, a people enters a healthy state of things
in which arbitrary despotism does not repress all sense of legality
through a solemn dread of law, but allows it free scope to grow and
thrive, that is to say, to reveal itself in the consciousness of the
people. The people is the judge, but it does not legislate ; and,
as judge, it does not know that its mission is not only to declare the
law, but rather to aw^aken among litigants a consciousness of law,
which itself approves or condemns. As the apostle, Paul, says
(Romans, ii, 14, 15), "for when the gentiles, which have not the
law, do by nature the things contained in the law, these, having
not the law, are a law unto themselves. \Miich show the work of
the law written in their hearts, their conscience also bearing wit-
ness, and their thoughts the meanwhile accusing or else excusing
one another." The law exists, but it is brought into consciousness
by the fact of strife, wherein the defeated party goes awa}" feeling
his own self-condemnation. This is the way the Cadi of an Orien-
tal nomadic tribe proceeds, whose administration of justice, on
superficial view, appears to exliaust its jest, in that he sets a trap
by which the guilty party ensnares himself, and by which he shows
that he is more acute than the culprit who has been circumvented.
Deeper comprehension of these anecdotes, however, compels the
belief, that the judge desires to avoid giving a decision as the
product of his own reasoning, but rather seeks to have the law
express and realize itself through its own form and irresistible
influence on the parties themselves ; he merely opens the way
whereby the law may manifest itself to the consciousness of the
litigants — a species of divine judgment of the greatest purity,
the most ideal instance of which is the judgment of Solomon.
All that the judge in such cases has to do with the matter is to
discover the ways and means by which the law, foreshadowed to
him and recognized by divination, may be declared ; and he sub-
ordinates his own augury to a method of confirmation through an
aroused sense of legality in the minds of the parties. In this
sense, we speak here of the divinatory attitude of the law.
2. The next phase of evolution is legal formalism. The human
mind strives to attain definite knowledge of the idea of legality,
it seeks forms in which the law manifests itself and declares its
640 PROCEDURE [Part IV.
existence ; it does not any longer rely on divination as a test of
conscience, but attempts to make legality obvious by an external
appearance. In its earliest manifestation, it has an inflexible
quality, but the very fact of its unbending rigidity gives to formal-
ism the appearance of a divine institution which is not subject to
the manipulation of human will. This is the age when the law
appears as a constituent part of religion ; the priesthood unites
I the application of law^ and judicial judgments with the forms of
' — divine worship. The law precedes formalism in the same way that
It preceded divination. The task of both is to permit it to come to
consciousness and be realized. In the words of Pomponius (Dig.,
de orlg. juris, 2, 1, 2, 6), "omnium tamen legum et interpretandi
scientia et actiones apud collegium pontificum erant." That also
among the Germans the law was sustained in its earliest form by a
priesthood is less clearly shown by Tacitus than by isolated tokens
elsewhere.
The rigid form in which the law is clothed protects it against
arbitrary manipulation ; and the formalism which surrounds the
law is like a sheltering wall, in an age when the intellectual power
of the people has not yet sufficiently developed to permit It to
understand the internal value of the law. Objective things are
comprehensible, but the abstract is not intelligible. The law is
unified with precisely circumscribed sensible phenomena, and is
therefore protected from arbitrary perversion and demoralization.
Fixed legal concepts are first expressed in formalism, and thej^ are
progressively understood and developed, in the abstract, as they
separate from their original forms.
3. The course just mentioned characterizes the third phase of
legal development in which an Intellectual domination of the ab-
stract materials of the law is brought to function. This Is the
period of true jurisprudence whether as manifested in the activity
of courts or by juristic efforts. But this activity is limited by a
constantly regenerating perception of legality implanted in the
people and in the national spirit. Of itself, it cannot generate
law, and every activity in legislation or legal science which dis-
regards this limitation fails to produce a true legal development,
but results in legal aberration. In such case, it either remains
impotent by the side of the true idea of law, when the legal con-
sciousness of the people is still strong enough to maintain its legal
concepts ; or It breaks down the integrity and soundness of legal
life, if the vital force of the spirit of legality among the people
is unable to resist the assault.
Chap. XXXI, § 5.] AXCIENT FORMALISM • 641
The transition from one stage of legal development to another
is not sudden and abrupt. For this reason, the ordeal in its his-
torically transmitted form, as well as the institution of the oath,
which in their deepest meaning and nature belong to the first
stage, are suited to the second phase of development, legal formal-
ism. The extent to whi^h legal formalism is still a part of the
stage of intellectual development of law needs no mention.
Nevertheless, the transition time is always a critical moment.
It may well be said, that Germanic law ran aground in its evolu-
tion from legal formalism to an intellectual conception of law ; and
that on this account the reception of Roman law to so great an
extent became possible. Rigid formalism ruled Germanic law
far into the Middle Ages ; but since the capacity for abstract
juristic construction had not yet evolved, when form no longer
sufficed, it resulted that formalism either was entirely abandoned
before there was a workable substitute therefor, or it became de-
graded to the point of caricature. Both consequences led to
insecurity in the legal situation, whereupon Roman law presented
itself as a deliverance.
II. Scope of Legal Formalism
In accordance with the foregoing explanation, I shall discuss the
term legal formalism as that phase of legal development where
objective perception is the sole or preponderant generative force of
the law, and where internal processes of a spiritual nature such as
mental dispositions, will, reason, etc., are either excluded or are
subordinate. This wide sense is not the customary usage. Legal
formalism is rather taken to mean the principle according to
which acts and transactions become valid as legal acts or legal
transactions — a prescribed legal form of words, or acts foreign to
the usages of ordinary life. This external formalism is only half of
what is here under consideration ; the other half, we may say, is
internal formalism which has the function of measuring, according
to a pattern established by the law, the material operation, the
internal processes of legal life. We thus speak of a formal and
material theory of proof, when in connection with formal proof the
rule is established that a single witness is not sufficient for com-
plete proof, but that two competent witnesses are necessary.
Wherein is the formalism ? The rule has nothing to do with form
in the narrow sense. The formalism lies in this, that based on
many hundreds of years of experience with the unreliability of
642 PROCEDURE [Part IV.
witnesses an average rule is made which deprives the judge of a free
hand, which easily becomes arbitrary, in the valuation of testi-
mony, and prevents, by an external standard, the giving of an
often false credit to the veracity and character of men. We may
therefore speak of legal formalism as indicating that plan of the
law which excludes consideration of internal character, motives,
processes of the will, and the like, and which is based on the ex-
ternal phenomena of legal regulation. One of the leading aspects
of this formalism is the subordination of all particulars to a general
rule, the establishment of an iron roadway upon which everything
which concerns the law must move, and across which, or alongside of
which, there is no other path. The individuality of the particular
case must give way to an average ; and a substantial valuation of
the details of a special instance, especially personal qualities, in-
ternal processes of the will, and the like, is excluded ; and the
emphasis is placed upon what is objectively perceptible, upon the
external phenomenon, and therefore upon a formal foundation.
A contract does not bind a twenty-year-old person, because he is
a minor. That, in spite of this he may be an astute business
man, does not come into consideration. This is formal law.
Law cannot be thought of as entirely divested of such formalism ;
all time limitations are formal law, and are indispensable in any
system of law. Germanic law began with pronounced internal
and external formalism, and this quality still held the upper hand,
even in the classical period of the Middle Ages, although at that
time it was already on the defensive against more liberal views.
This situation was not peculiar to Germanic law. No early law
could make shift without this characteristic ; not so much because
juristic technic was too little developed, as because it was sought
to avoid the necessary peril of arbitrariness and the demoralization
of all fixed legal values resulting from an individualization of
cases. In the words of Jhering, "form is the sworn enemy of un-
limited discretion, and the twin sister of freedom" ; not, indeed, so
much in the sense intended by Jhering, that it provides the
counterbalance against the temptation to lead freedom to the
limits of license, as that it establishes an unchanging and con-
trollable standard by which the degree and force of the law may
be accurately measured; and, especially, in that it deprives the
judge, also, of discretionary power, Wlien one stops to look more
closely into modem legislation where the meaning of entire chap-
ters is left to a free judicial discretion, one can hardly resist the
feeling that we are no longer ruled by fixed law, but are subject
Chap. XXXI, § 5.] ANCIENT FORMALISM 643
to the will of the judges ; and one might almost wish to see a
system of formal law. There is no doubt, that our forefathers
would not submit to a kind of law which rested on the will of the
judge. Tliey desired to be able, themselves, to measure accu-
rately their expectations before going into court ; they desired to
know all the factors out of which judicial decision was to be con-
structed, in order that a trial might not be, as to-day, a lottery
where one has an equal chance to win or lose.
Agreeably to this requirement, the most cursory glance at the
Folk-laws shows, from the point of view of modern legislation,
a striking, and likewise avoidable characteristic — the extraordi-
nary minuteness and detail of crimes and their amercements.
In our modern criminal codes a few paragraphs dispose of cor-
poral injuries ; still briefer is the treatment of property damage.
A pair of large rubrics is quickly done away with, and the judge
may impose a sentence of one day in jail or ten years in a peniten-
tiary, at discretion. We may compare with this the long catalogue
of crimes and penalties in the Folk-laws. The German who had a
splinter of bone knocked out of his cranium wanted to know the
result before he went into a law-suit, and the Folk-law told him
exactly what he would get, if the splinter made a sound thrown
against a shield at a distance of twelve feet. There was no room
here for judicial aberration or discretion. The degree of liability
also was much more simple and external than in Roman law and in
modern law with its modifications of culpa.
A law of procedure set in motion by the parties themselves, and
maintained by formalism of procedural steps must, if possible,
substitute for the exclusion of judicial discretion a system of
criminal law rich in the detail of delicts, and with the greatest
possible external criteria of Hability. Ancient Germanic procedure,
in a manner entirely foreign to the practice of the present day, was
dominated by the parties. When a man submitted his rights to the
verdict of his fellows, he wanted to know precisely how this verdict
was to be obtained, and what share he was to have in the construc-
tion of the foundations of the decision. Just as when he took up
the feud, where he considered and employed every means by which
he could wage his fight, so also in the battle of law, he desired to
struggle on his own account ; not, of course, by independent meas-
ures, but as prescribed by the law ; but he wanted to know all the
conditions of the struggle, and he would not be deprived of meas-
ures proper for him, or permit his antagonist to have any others.
He wanted to fight his own legal battles — should it not rather be
644 PROCEDURE [Part IV.
said that he must? Is not this personal representation in pro-
cedure rather a heavy duty and burden than a right? It is not
here in question that one conditions the other; that right and
duty are coordinate. One must ahvays be the starting-point, the
principal and Hmiting factor, and the other the accessory and
limited element. We moderns, without doubt, would regard the
duty as the chief thing, and the right as only a badly disguised
adulterant which we would gladly renounce if the duty were
only done away with. But the ancient German thought other-
wise ; for him the right was the first consideration. Whoever
"nihil neque publico neque privatfe rei nisi armatus agit," who-
ever is prepared each day and each hour to draw the sword, and
to give his life for revenge of injuries, — such a man is possessed
by an intensity of spirit, which would lead him to the greatest
exertion of his mental forces in a struggle before a court. For him
a trial is not a thing to be delegated to an attorney, but is a matter
where success in the assertion of rights secures the honor and
esteem of his fellows, and where defeat would bring shame and
disdain. Therefore he desired to understand as thoroughly the
weapons of procedure as the method of the sword.
The formalism of Germanic law, therefore, fully emphasized
party participation, and confined it according to definite models.
The summons was sent by the plaintiff to the defendant. The
various steps of procedure and even the decision itself were pro-
voked in a formal manner by a ritual of question and answer of
the parties. The decision was in the highest degree a formal
verdict upon the weight of the evidence. The oath and if need be
the most formal method which could be conceived, the ordeal, were
the sources of proof. The hostility of the German to the innova-
tions introduced by a s^^stem of royal justice, and also to those
attempted in Folk courts, may be comprehended ; since he would
not tolerate the method of inquisitorial proof, and preferred to
absent himself from the court, and suffer the consequences of
contumacy, rather than submit voluntarily to a procedure which
permitted free scope to the judge in a valuation of the evidence.
It may also be understood how the ancient German fought against
a method of proof by documents ; since that he could neither read
nor write, he saw here a factor, opposed to him, upon which he
could not calculate.
Our special task is to deal with the formalism of private law.
For this purpose, we separate the two divisions which above were
denominated as internal and external formalism; but inas-
Chap. XXXI, § 5.] AXCIEMT FORMALISM 645
much as these terms are not suitable for technical purposes, we
may substitute therefor the terms "legal forms" and "legal
plastics." ...
III. Legal Forms
a. Limitations of Time
All legal limitations of time have a profound and indispensable
connection with legal formalism. That a person attains his
majority with his twenty-first year at the midnight hour, and that
the validity of a juristic act depends on whether it was done one
minute before or after the hour ; and that a claim may be asserted
up to a definite day, and after that day may not be urged — this is
formal law. No legal system, not even one the farthest removed in
abstraction from external 'concerns, can avoid this legal formalism.
Limitations fixing the time of majority, actionability of claims,
etc., cannot ever be dispensed with in the law\ It frequently
happens, though, that the law makes it possible to overcome the
rigidity and want of consideration of a temporal limitation, where
the individuality of the circumstances is such that it appears
desirable. Thus a minor may, if he is Capable of diligent manage-
ment of his own proprietary affairs, be vested with the capacity of
a person of full age. But curiously, so strong is the inclination to
formal law, that a new form is easily imposed, in that while one
form is put aside, the concession in favor of venia setatis is itself
made dependent on a new age limitation.^ Such is the difficulty
of the law in ridding itself of formalism. . . .
b. The Value of Word and Act as against the Will
Strictly formal law recognizes no opposition between will and
word, and no possibility of their being inconsistent. For the will
can only be known by the word which has given it expression.
Therefore, the word is the measure of the legal content of intention.
A man is not held liable beyond the scope of his word, but, however,
he is held remorselessly to it.
This is completely in accord with the ideas of Germanic law,
where the word is plastic law — neither more, nor less, than what is
1 [Thus B. G. B. — "a person is incapable of disposing who has not
completed his seventh year of age" (Sec. 104) ; "a minor who has com-
pleted his seventh year of age is limited in disposing capacity," etc.
(See. 106) ; " a minor requires for a declaration of intention whereby he
does not merely acquire a legal advantage, the approval of his statutory
agent" (Sec. 107). — Trans, of Chung Hui Wang.]
646 PROCEDURE [Part IV.
uttered — absolves or binds. This explains the minute exactness
with which obligations are paraphrased, especially in relation to
their transfer to the heirs, whether of the debtor or creditor.
How painfully tiresome it seems to read in a code of the tenth
century : ^ " quod si Johannes vel eius filiis et eredes omnia mihi
vel ad meis eredibus noluerit adimplere, tunc hobligavit se et suis
filiis et eredes ad componendum mihi vel ad meis eredibus," etc.
But the creditor found it necessary, or at least expedient, to secure
to his heirs the right of asserting the claim without objection, by
express agreement, in order that nothing might be overlooked in
their favor. Even the Longobard edict (Aliistulph 16) mentions
as a particular requisite of a convention effective for or against the
heirs, that the contracting parties "heredes vel successoribus suis
conlingaverint." Since, on the one hand, the law does not add
anything to the spoken word, on the other hand, it takes nothing
away. The word is inflexible, and in a period of formal law, it is
unthinkable that a definite expression of intention upon which a
legal transaction is based, could still not be willed ; and that the
act might be attacked on account of a conflict between the actual
will and the word of one of the parties. The will is embodied in the
word. Upon this maxim are based the legal proverbs — " the
man, the word," "the word stands," and "words make trade," etc.
A necessary consequence is that error in contractual relations
hardly comes under consideration. " Whoever closes his eyes opens
his purse"; "Whoever buys foolishly must pay wisely"; and
"Whoever buys damaged goods, let him keep them." Not
error, but only fraud of a party, especially in sale, gives freedom
from the obligation of an agreement. The sources show this
clearly, especially with reference to the commercial action for
defects in goods sold. Apparent defects do not relieve the buyer
under any circumstances ; latent defects relieve him only when the
seller cannot affirm under oath that they were not within his
knowledge. In the course of trade particularly in horses and cattle
this burden on the buyer was found to be too heavy in the case of
latent defects ; but a remedy was not given at once through a full
and free individualization of cases. Relief came by a formal
process of thought which singled out certain principal defects,
which when they existed, relieved the buyer without anything
further, from the obligations of the contract of sale.
4c :): :ic H: ^ N' 4i
' "Codex diplomaticus Canensis," ed. Morcaldi, etc. II, No. 213, p. 4.
Chap. XXXI, § 5.] AXCIENT FOKMALISM 647
The formal character of the law is still more decisively shown in
its disregard of the factors of the will in the consequences of acts
in private law. Everything that a man does was judged by ex-
ternal appearance and economic effect and not according to internal
motive. The law made no allowance either for bona fides or for
guilt when it sought to determine the legal operation of an act.
^Vhoever acted so as to disturb a legal relation was made fully
accountable. The law recognized only rights and wrongs, and
the civil consequences of that which appeared as a wrong were laid
against the person acting.
The two chief applications of this rigidity were that a person
was liable for damages to person or property even though of defec-
tive mental capacity or even though acting in self-defense, and
that liability in case of things deposited or owed in a contractual
relation, was absolute, and was not annulled even though an acci-
dent intervened. In the field of obligations there is no such thing
as excusable error; every error is regarded as " negligentia." In
Longobard law the terms " negligent " and " voluntary " appear
to furnish the same contrast and to be identical with " per
errorem" and "asto animo." It is the contrast between " bona"
and " mala fides " ; " ignoranter " or " per errorem " means lack
of knowledge of wrong ; " asto," on the contrary, means knowledge
of illegality. But even the lack of knowledge of a wrong does not
relieve from civil liability for damages ; and the opposite has signifi-
cance only in criminal law where ignorantia cannot be penalized.
In the same sense that "ignoranter" is employed in the Longo-
bard edict, the Sachsenspiegel uses the word "unwetene" which
means without knowledge of wrong; thus, "whoever cultivates
* unwetene' the land of another, shall still lose his labor." . . .
c. Damages
]\Iodern law has given free rein to the judge especially in the
field of damages, and in order that this liberty may prosper has
made use of the civil jury. Ancient Germanic law did not indi-
vidualize in this department, but fixed absolute standards which
regulated the greatest and the least of culpable acts which resulted
in damage. We frequently read in the Folk-laws, of the capital
which the criminal must pay in addition to a compositio. This
means in general the value of the thing stolen or damaged, — the
compensation. But, how is this ascertained? Was it not left to
the judicial judgment? If we gather from Lex Salica G6 that the
648 PROCEDURE [Part IV.
solidus is measured by cattle and grain, then we may retrace our
steps and conclude that every object had its fixed price which
excluded individual valuation. This was in truth an average
valuation which might not in certain cases, cover the actual
damage, but the person injured received in addition a penalty
which abundantly outweighed any difference. ...
IV. Legal Plastics
a. Modes of Legal Thought
It is characteristic among all peoples in the beginnings of the law,
that the law and legal rules should be thought out and expressed
plastically ; that is to say, in such manner, that out of concrete,
objective forms and appearances, an original image is created
which remains graven in the memory. This method finds its
greatest enemy in a writing down of the law; it thrives only in
naive Folk-life and with the transfer of the law from mouth to
mouth, where abstract rules, which are at once forgotten, cannot be
employed. Even the first efforts to reduce law to writing are far
more lacking in spirit, and more directed to the understanding,
than primitive law which is the direct expression of the Folk-soul.
We would have no notion of the plastic method of thought peculiar
to ancient Germanic law if we were restricted to the Folk-laws,
the law-books, and the provincial and municipal codes, and if we
did not have in the precedents of the peasantry and in the legal
proverbs one of the most valuable treasures of ancient law. For
the Folk-laws are already the product of reflection. As the
prologue of Lex Salica says, the causes of strife were considered
by men skilled in the law, and suitable provision was made for
decisions. The Folk-laws are no longer the pure, unconscious
product of customary law ; this is found in objective form only in
the legal rules contained, often in fragments, in the sayings of the
peasantry [such as have been collected by Jacob Grimm].
One will hardly venture to be content to explain these methods
of thought and expression (which are objective and generally sensi-
ble and rarely cumbrous), solely as the product of a naive Folk-soul,
and to base them exclusively on the practical consideration that
something thought of in a vigorous image is better retained by the
memory than an abstract principle. Thus, for example, that the
throw of a hammer to fix the limits of a farmstead, or that a spear
laid square across a saddle to mark the width of road, could be more
easily remembered, than a plain measure in numbers. Just such
Chap. XXXI, § 5.] ANCIENT FORMALISM 649
acts, which are intended to take the place of a plain measuring in
paces or feet, are often complicated enough to confuse the memory.
Such, perhaps, is the measure for finding the limits in which
chickens may range on the land of a neighbor ; where the peasant,
standing on the ridge of the roof, holding his ear with his right
hand, threw a sickle held by the point with his left hand, behind
him, under the right arm. Even an appeal to humor and poetry,
here, does not suffice. Grimm has already pointed out that the
throwing of a hammer has a religious meaning, the consecration
of boundaries. A religious connection may also be aflSrmed with
more or less certainty regarding the shooting of an arrow, and
other acts. We may therefore assume, in general, a deeper ex-
planation for all these phenomena, which frequently is of a reli-
gious character ; since the forms in which the law appears were
originally religious forms. Law was a parcel of religion, and its
protection was given over to religion in the same way that there v/as
committed to it the manifestations of God. Apart from a religious
connection it was still necessary to distinguish legal acts as such
from other acts of no legal significance, and to express their im-
portance by an external force. The act of throwing a sickle,
which, for us, approaches tomfoolery, is, in its transmitted form,
perhaps an already ridiculous distortion of what was originally a
very solemn performance, which not only expressed the legal
significance of the transaction, but also protected the neighbor
against a vexatious and improper extension of a power. When
legal consequences were in ciuestion, the manner in which the sickle
was to be thrown was not a matter of discretion. . . .
6. Solemnities and Symbols
The plastics of ideas and expressions and the plastics of legal
acts and transactions are inseparably connected. Germanic law
in its external appearance is uncommonly plastic, that is , to say
clothed in forms which in the highest degree accurately denote the
objective sense of its materials. Every species of formalism, how-
ever, is not plastic. The requirement that certain contracts shall
be in writing is an example of the exception. In this instance the
content and essence of the contract are in no manner externally
represented ; on the other hand, the form is the same for the most
dissimilar contracts. The greatest monument of modern formal-
ism, the bill of exchange, and especially its more important form.
650 PROCEDUKE [Part IV.
the draft, cloaks in its external appearance, substantive law;
for one does not gather from reading the document itself that the
drawer becomes liable to the payee or the indorser. One must
jfirst know the law to understand the form. The form indicates
nothing ; it is the converse of plastics, because it will lead everyone
astray, w^ho without understanding the nature of a bill signs a bill
believing from the form that he is giving a direction, and not that
he is subscribing an obligation.
In contrast to this modern formalism which in its legal founda-
tions is an independent product of artificial legal development,
we may turn to the legal formalism of early law which is character-
ized by an objective representation of its processes in which
solemnities and symbols play the leading part. Solemnity
potentializes the form of ordinary life. Instead of the freely
chosen words of current speech, certain prescribed words, or entire
formulas must be uttered; and instead of an inconspicuous act,
a ceremonial must be performed. Symbols come into being when
there is no place for a natural form, or when a natural form is
impossible. An emblematic form, therefore, is created in order
to bring the abstract process to expression.
The origin of solemnities and symbols has often been ascribed
to an innate, unconscious impulse of a people toward imagery, and
it has been supposed that primitive Folk customs have developed
without design or purpose ; in other words, that they have not been
made, but that they have grown. It would be unprofitable to
quarrel with this view, but yet the opposite notion seems to me
more likely. All formalism of this kind is created by deliberate
reflection by the priesthood which in the infancy of the law is the
guardian of the law. Only that which is bound up with law and
religion is under the dominion of this formalism. There solemnity
prevails while here symbolism preponderates. The latter especially
(and in large past also the former) is never naive, the result of a
free impulse of the people, but is always reflected and artificially
thought out. In this connection, we may refer to the rich sym-
bolism of the Mosaic legislation and worship, where each precious
stone in the robe of the high-priest and each part of the priestly
vestments had a symbolical meaning. The spirit of the people
does not generate it ; it is discovered by the priestly leadership ;
but yet it fits in accurately with the feelings of the people in order
that it may become acceptable. The original purpose was not
directly to make the people dependent on the priesthood, or to
secure to themselves power and influence through the possession of
Chap. XXXI, § 5.] ANCIENT FORMALISM 651
strongly fortified secrets ; although in later times formalism may
have been employed with this end in view. Rather, formalism
sprang from the effort to make law and religion holy to the people.
Law and religion were permeated with ceremonial acts and sym-
bols ; in fact, thej^ were completely embodied in solemnities and
symbols, in order that there might be instilled into the people a
holy respect and honor for them ; that the easily susceptible na-
ture of a young people might be favorably disposed by them ; and
that they might be made receptive to the law at a time when the
mind did not grasp its meaning and was unable to understand its
necessity. Without formalism, the law would have been a hidden
treasure to the people. Therefore according to the nature of the
form it is itself the law ; and the form is employed for its own sake
because the people see the law only in the form.
Inasmuch as we cannot carry ourselves back to this stage of
mental development, the unyielding dominion of form may too
easily appear as an insufferable hindrance to a free expression of
will ; but, in its flourishing time, it is not, however, regarded as
such in any sense. For, on one hand, there is more earnestness in
the law than at the present day, and legal transactions are entered
into with an increased spirit comparable to the devotional ardor of
religious worship ; and, on the other hand, the feeling of security
and stability of law guaranteed by formalism which requires fore-
sight, attention, and the striving for certainty is too strong not to
make the exactions of formalism acceptable to all persons who
undertake the concerns of the law. One, perhaps, may say, that
formalism is not even regarded as formalism ; for without it there
is no law, and all law is known and exerted solely through formal-
ism. The strict formalism of the bill of exchange does not op-
press and limit us, for precisely the same reason, that by it the law
of bills of exchange is first of all maintained.
If the interrogation is put whether Germanic law required for
legal transactions the use of definite words or formulas, one, on
first impression, would be inclined to answer in the negative. A
verborum obHgatio, like the stipulatio of classical Roman law,
never as much as existed ; there was no form by which the law
prescribed a fixed phrasing for the creation of a legal relation.
Therefore, in Germanic law, there was no formal contract whereby
any agreement could be clothed in words formally uttered, whereby
thenceforth by virtue of the force of the words used, and without
reference to the content of the agreement, its validity was estab-
lished. Still it may be accepted that in the finishing of a legal
Go2 PROCEDURE [Part IV.
transaction, the content could be expressed by the parties in a
definite ceremonial manner by a solemn, fixed formula. This is
shown by the Cartularium Langobardicum, This collection sets out
the formula which was to be employed on the occasion of com-
pleting a legal transaction concerning the execution of a document.
The thing which, heretofore, has diverted attention from this
side of the question is chiefly the circumstance that nearly all
juristic acts, at any rate those especially characteristic in Ger-
manic law, to which the leading interest has attached, are sur-
rounded by a great luxuriance of solemn and symbolical acts.
The importance of the form of words has not been observed, al-
though it is to be admitted, at the outset, that solemn and symboli-
cal acts naturally are also connected with solemn words.
Solemnity and symbolism, and solemn and symbolical acts, are
not mutually exclusive. Frequently, symbols are used for solemn
precautions ; in fact, symbolical acts are generally also solemn,
although not necessarily. Thus, the shield, symbol of judicial
power, and its suspension on the tree of the court, preserves the
necessary solemnity of the tribunal. Or when the vendee of land
is led around the boundaries of the land, or grasps the portals of
the house, or when the vendor hands over to the vendee a broken
twig or a clod of earth — all these acts are at once symbolical and
solemn.
A symbol is a concretely sensible perception, an objective realiza-
tion of an idea or concept. A symbolical act, therefore, is one
which embodies in an external act a process which is not objec-
tively perceptible. The twig and clod of earth in the examples
given are not symbols, because they do not externalize any idea,
but represent the land. They represent property, but the transfer
of a twig and a clod of earth may be used as a symbolical act in that
they objectify the transfer of possession (Gewere), with all its
legal incidents, to the new owner. This, in fact, is the essence
of a symbolical a2t, — that an abstract process is visualized ; for
example, when the transfer of ownership is represented by handing
over a glove which is put on by the new owner. Feigned acts,
therefore, are not to be regarded as symbolical acts. The transfer
of an arrha is not symbolical payment ; a hanging in effigy is not
a symbolical execution. The reason is, that payment and hanging
are not abstract, but highly concrete and perceptible processes,
the ideas of which are incapable of being symbolized. ... A
Chap. XXXI, § 5.] ANCIENT FORMALISM 653
seller is not paid with an arrha, nor is a criminal executed by a
hanging in efBgy ; but the delivery of a twig is sufficient to transfer
possession. Solemnities, finally, are precautions which legal acts
alone are unable to represent, and which are designed only to
provide an act with a special ceremonial and value, with the result
that the act becomes legally valid only through the observance of
its solemnity. Examples of this are the calling in of solemn wit-
nesses, the tweaking of the ears of witnesses, and the like. As
already observed, symbolical acts (and likewise colorable acts)
are frequently also solemn, as the act of investiture by delivery of a
twig and a clod of earth before witnesses m a ceremonial perform-
ance. There ceremonials answer the purpose of the dignity of the
symbol, but are not, however, indispensable.
Solemnities and symbols are so frequently encountered in Ger-
manic law, that a detailed examination of the matter must be
passed over. Grimm has done the most to collect them. I draw
attention only to the great number of applications where the calling
upon solemn witnesses, "testes " in contrast with " adstantes," was
necessary. Reference may be made only to the two titles 46 and
50 of Lex Salica, according to which for the single transaction of
Affatpmie three witnesses are three times required in three different
acts to set it in motion, and the transaction is completed by a series
of purely solemn acts with witnesses. That these witnesses are
also proof witnesses does not change the solemn character of the
proceeding.
Symbols, however much they may differ, always objectify the
concept of dominion and power, and symbolical acts make the
admission of this dominion externally perceptible. Thus, assist-
ance, in the institution of commendation, is symbolized by the
vassal laying his folded hands into the open palms of the lord,
indicating submission to the feudal tie ; in Saxon law the dipping
and snapping of a finger indicates the cession of every claim to a
parcel of land conveyed (" digitis incurvatis abnegationem
facere ") ; the offer of a twig and turf signifies the induction into
possession of land ; the touching of an altar-cloth or the bell-rope
declares the taking possession of a chapel ; the laying down of the
house-keys or a mantle upon the bier or grave of a husband ex-
presses relinquishment of the matrimonial property to the creditor
of the late husband ; the cutting oflF of the beard and hair means
surrender to a servile condition ; the giving up of a hat or a glove,
a transfer of ownership ; and the bestowal of a staff, sceptre, spear,
or small military flag, feudal service.
654 PROCEDURE [Part IV.
The flourishing-time of this symbohsm was the Prankish period.
In this age, every symbol still had spirit and life, and this was
chiefly made evident by the fact that it was not a benumbed and
dead form, but had a living connection with the spoken word.
As all things are created by the word (John i, 3) so also the form,
the symbol, receives its vitality through the word, in order that,
in turn, it may give to the abstract word an objective meaning.
Both are equally essential for the foundation of the right, and both
are of service in giving stability e.g. to the legal transaction of
manumission, "ut rata haberi posset libertas," which Paulus
Diaconus (I, 13) designates as the symbol of the delivery of an
arrow, but adds, " immurmurantes nihilominus ob rei firmitatem
quaedam patria verba." This is not mere ornamentation, not
even in the transfer of lands where symbolical acts are conspicuous
by their number. How careful the Cartularium Langobardicum is
to remind that when the vendor is a Frank there should not be for-
gotten the knife, staff, clod, twig, and glove ; when he is an Aleman,
the hand ligature; while when he is a Burgundian or Bavarian,
the knife may be omitted. In the period of the law-books this
symbolism had already become a ruin.
Section 6
ANCIENT SEMITIC PROCEDURE i
Babylonians and primitive Semites — Tribal custom the foundation of
law — Blood-revenge — Judicial authorities — Institution of judges in
Israel — Centralisation of justice — Divine decisions — Resort to a
deity — Oaths of piu-gation "before God" — Semitic ordeals — Pro-
cedure in Babylonia — Laws relating to judges and witnesses.
The existence of a lengthy code, which, as we have seen in
chap, i,^ covered a great variety of legal topics, is sufficient proof
that in Hammurabi's age law and justice had reached an extremely
advanced stage of development. It presupposes regularly in-
stituted courts of law with duly qualified judges, and it requires
us to conclude, further, that this stage had long been in existence,
and that the Code was intended to fix once and for all certain
judicial decisions which, if not new, at least required the authority
of royal approval to make them general.
i'[By Stanley A. Cook. Reprinted by permission from "The Laws of
Moses and the Code of Hammurabi," Adam and Charles Black, London,
1903. See list of abbreviations at the end of this section, p. 667.]
- [Not reprinted.]
Chap. XXXI, § 6.] AXCIEXT SEMITIC PROCEDURE 655
The Babylonian Semites and the Semites of the desert lived
under entirely different conditions, and whilst the latter, particu-
larly in districts removed from the regular trade-routes, have re-
mained throughout all ages practically untouched by the influence
of the surrounding seats of culture, Babylonian society in the
time of Hammurabi was a fusion of Semitic and pre-Semitic stocks
of obscure origin.^ ^Miat Robertson Smith has said of the religious
ideas of Babylonia in their relation to those of the primitive
Semites " may be applied to its laws. The fusion of races in
Babylonia leads to the expectation that the principles of law and
justice were an artificial combination of the most diverse elements,
and it is therefore obvious that our inquiry must start with the
less complicated types from the other regions of the Semitic world.
Here we are at once brought face to face with the fact that
among primitive Semitic communities there is, properly speaking,
no law and no law-givers. But it would be a mistake to infer that
there was lawlessness.^ Tribal custom — and with it is involved
religious custom — is the strongest of laws. A thing is lawful
because it has always been considered lawful; things that are
unlawful are things that are not wont or ought not to be done.^
Within the tribe all men are on a footing of equality, and under a
communistic system petty offences are unreasonable. Serious
misdemeanour is punished by expulsion ; the offender is excluded
from the protection of his kinsmen, and the penalty is sufBciently
severe to prevent its being a common occurrence. The man who
is wronged must take the first step in gaining redress, and when it
happens that the whole tribe is aroused by the perpetration of
any exceptionally serious crime, the offence is fundamentally
regarded as a violation of the tribe's honour, rather than as a
personal grievance on the part of the family of the sufferer. Courts,
as in Babylonia, for the adequate punishment of offences and legally
ordained punishments are not yet in existence. This essential
distinction between primitive Semitic and Babylonian procedure
comes out most clearly in the case of blood-revenge.
The familiar Semitic conception of the sacredness of blood —
^ That the so-called Accadians or Sumerians were not Semites seems
to be conclusivelj^ proved, but of their nationality and life there is little
certain information. Under these circumstances it is scarcely necessary
to attempt to discover in what respects the Code is indebted to non-
Semitic legislation.
2"Rel. Sem."(2) p 13 ^^
3 Cp. Benzitiger in EBi. "Law and Justice," § I, "Government," § 9.
* Gen. XX, 9, xxix, 26 (a reference to local custom) ; cp. Gen. xxxiv,
7 ; 2 Sam. xiii, 12.
656 PROCEDURE [Part IV.
whether human or animal — must have long been forgotten among
the Babylonians, whose code is characterised by the frequent
application of the death penalty. It is unnecessary to point out
in detail how the Semites have been influenced by this conception.
The inviolable nature of the blood-tie which makes kinsmen
brothers, and the responsibility attached to the shedding of blood,
lie at the very root of the almost ineradicable system of blood-
revenge. If a man has killed one of his own group, he has com-
mitted an offence for which he cannot expect to obtain protection
from the members of his tribe. He may be solemnly put to death,
and this was primarily effected without the spilling of blood, or
he may be formally expelled, in which case he becomes an outlaw.^
In any case the community must be purged of the presence of the
impious member. On the other hand, when the slayer and the
slain are of distinct groups, the principle of the sacredness of
blood reacts in a different manner. The group of the slain, on the
one side, are bound in point of honour not to leave their kins-
man's death unavenged ; the slayer's group, on the other, so far
from being under an obligation to surrender the guilty one, regard
it as equally a point of honour to unite to protect him. There is
blood-feud between the two groups. Any member of the aggrieved
group may retaliate upon any of the slayer's group, and until
satisfaction is obtained this state of feud continues. Naturally,
under the circumstances, there may be indiscriminate slaughter,
and the blood-feud is prolonged indefinitely. So deeply rooted is
the practice that blood-revenge holds good among the wilder
Bedouin tribes of to-day. Certain modifications, however, were
gradually introduced, with the object of preventing the fierce
internecine fights and the insecurity of life which the feud entailed.
Blood-wit was offered and accepted, the responsibility for murder
was confined within limits, and retaliation restricted to the guilty
party and immediate relations." The development of the system
in Israel will require separate consideration later, where we shall
find that as late as the seventh century the murderer is solemnly
' Cp. Gen. iv, 12. In ancient Arabia the formula varied : we pro-
nounced so-and-so to be a hall', "God ..put away tMs man," or "We are
clean (innocent) of him" CProcksch, "tjber die Blutrache bei den vor-
islamischen Arabern," p. 31 sq.). For the principles of blood-revenge,
see Robertson Smith, "Kinship and Marriage,"(^) pp. 25-27; cp. also
W. M. Patton, "Blood-revenge in Arabia and Israel," "American Journal
of Theology," October 1901, pp. 703-731.
^ Jaussen ("Revue Biblique," 1903, p. 253) mentions the story of a
.modern Bedouin who, to protect his kin from blood-feud and to confine
a quarrel to his ad^'ersary and himself, solemnly repudiated his family.
Henceforth he alone became responsible for what followed.
Chap. XXXI, § 6.] AXCIEXT SEMITIC PROCEDURE 657
delivered over into the hands of the slain man's nearest kinsman,
"that he may die," and that in other cases where the death
penalty has to be enforced it is carried out by the community in
general. Even the responsibility of judicial blood-shedding must
needs be borne by as many as possible.^
It is characteristic of primitive Semitic organisations that
there are no specified officials to pronounce or carry out legal
decrees. In every tribe there were, and are, certain leading
families, often hereditary, whose heads enjoyed certain privileges,^
in return for which they performed particular duties — the enter-
taining of guests, the protection of widows and orphans, etc. —
but except when the tribe is organized for defence or offence, the
office is one of dignity rather than authority. The sheikh may be
called upon to settle differences within the tribe, or, if he be of
repute, men from outside may appeal to his decision. But he has
no judicial powers, and if either of the parties is dissatisfied he
cannot enforce obedience. Much less can he himself inflict punish-
ment even upon the poorest man of the tribe. He is not supported
by subordinate officers appointed to carry out his decrees; his
weapon is persuasion rather than compulsion.^
Such tribes, held together by the bond of blood, in course of
time united with their neighbours, and became knit together by
common interests and practical necessity, and when the occasion
arose for joint action, the leading sheikhs of each community
consulted together and took the reins of these half-developed states.
These steps on the road to kingship * were trodden by the Israelites,
whose conditions, in the earliest periods of their history, can
scarcely have been very different from the pre-Islamic Arabs and
modern Bedouin. How utterly removed they were from the ad-
vanced organisation of Hammurabi's age needs no demonstration.
On entering Canaan, the Israelites found themselves in the
presence of a culture superior to their o\sti, through whose in-
fluence their primitive tribal constitution in course of time became
entirely lost. But the superior culture of the Canaanites rested
solely in the fact that they were a settled people, who lived in
towTis and were familiar with agriculture, and the excavations in
1 "Rel. Sem."(2) pp. 284 sq., 304 sq., 417 sqq.
2 Thus the sheikh, in ancient Arabia also called sayyid, "counsellor",
(cp. Heb. sod), receives one-fourth of all booty.
3 See Robertson Smith, "Prophets," p. 381, "Kinship," (2) p. 68;
Doughty, "Arabia Deserta," i, 145 (and passim); Procksch, op. cit. pp. 7
sqq.: Lady Anne Blunt, "Bedouin Tribes of the Euphi-ates," ii, 231 sqq.
■* "Rel. Sem."(2) p. 33 sq.; Blunt, op. cit. p. 235 sq.
658 PROCEDURE [Part IV.
Southern Palestine, at all events, do not lead us to infer that the
stage of civilisation which they had reached was as high as the
presumed influence of Babylonia would have led us to expect.
The Canaanite communities consisted of cities around which w^ere
grouped "daughters," villages which stood in a subordinate rela-
tion to them. We are as ignorant of the details of their constitu-
tion as we are of that of their northern neighbours, the Phoenicians,
although several considerations tend to make it probable that
their government was in the hands of an aristocracy, the princes
(sdrim), elders (zekenim), or lords {he dlwi) of the Book of Judges,^
who controlled all matters affecting the interests of the city
(Judg. viii sq.). That they held legislative powers is doubtless
true, in so far as might makes right. Professional judges were
not known in the earlier period of Israelite history; even in
Egypt it is questionable whether they existed before the New
Kingdom.^ Of the Hebrew terms for "judges," the soter is pri-
marily a military official, and it is not until post-exilic literature
that it is applied to one with judicial powers.^ The mehokek is a
commander or ruler, and the same appears to be true of the kdsin
(the familiar Arabic kdcli) ^ The mphetim in the Book of Judges
are the champions or deliverers of Israel ; the term is synonymous
with melek, "king,"inHos.vii, 7, Ps. ii, 10, and as an official title of
the chief magistrate or consul in Phoenician cities is interpreted
"king" by the Greeks.'' A noteworthy exception to these terms
is the specific designation dayydn (Heb. and Aram.), correspond-
ing to the Babylonian rfa-a-ww, c?a-ia-???/; it is, however, extremely
rare, and appears only in Ps. Ixviii, 5 (6) and 1 Sam. xxiv, 15 (16) ;
even in the latter passage it is questionable whether it belongs to
the original text.^
That a professional class of judges did not exist is also borne
out by the fact that we find no mention of them in the oldest
1 Cp. Meyer, EBi. " Phoenicia," § 16.
^ Spiegelberg, "Studien und Materialien zum RecMswesen des Pha-
raonenreiches " (Hanover, 1892), p. 63.
3 See Driver's note, "Deut." p. 17.
* From Judg. v, 14, Sayce ("Early History of the Hebrews," p. 121
sq.) wi'ongly argues that there were lawgivers in the oldest period of
the Hebrew settlement. There would be no object in lawgivers corning
to a military assembly. The kasln is a petty ruler ; cp. Is. iii, 6 sq., xxii, 3
(in Mic. iii, 1, 9, parallel with "head," ros).
^ Meyer, EBi. "Phoenicia," § 16; Moore, ib. "Judges," § 1.
^ The LXX. reads, "May the Lord be a judge and arbiter," and
Budde {Samuel, ad loc.) rightly suspects that dayydn is an adchtion.
For the sake of completeness mention must also be made of pillel, to
mediate, arbitrate ; cp. pelllah, an umpire's work, Is. xvi, 3, in late
Hebrew, a matter for judgment {i.q. Hebr. pellll).
Chap. XXXI, § 6.] AXCIEXT SEMITIC PROCEDURE 659
Israel law-book, the Book of the Covenant (Exod. xxi-xxiii)/ and
the story of Nabotli (1 Kings xxi) shows that in the middle of the
eighth century judicial functions still lay in the hands of the
aristocracy and elders. Appeal could be made to the head of
the state, and the readiness with which a complainant could gain
the king's ear is illustrated by the story of the woman of Tekoa (2
Sam. xiv, 4 sqq.), and the judgment of Solomon (1 Ki. iii, 16-28).^
But as long as judicial powers continued to be exercised by the
nobles and highest of the land, there was no higher authority to
whom to appeal against injustice, and the passionate outcry of
the prophets against the unjust dealings of the royal families of
the land (Is. i, 23, Jer. xxi, 11 sq. Mi. iii, 9) stands, in unpleasant
contrast with Babylonia, where Hammurabi, as his letters show
us, investigated the suits of his poorest subjects, and did not
hesitate to reverse the decisions of his governors.
The system of electing subordinate judges under the control of
a supreme central authority was an innovation in Israel. Tra-
dition itself realised that it was not part of the desert heritage,
and ascribed its initiation to the Midianite Jethro, the father-in-
law of Moses (Ex. xviii), or to Moses himself (Deut. i, 9 sqq.).
The system is practically one adapted for administrative purposes,^
and whereas, according to the Elohist in the former passage,
Moses chooses the officers, the Deuteronomist leaves the choice
to the people, and Moses only charges them with their duties.
The practice of referring difficult or contested cases to a supreme
head is similar to that which the Chronicler ascribes to Jehoshaphat
(2 Chron. xix), and it is upheld by the Deuteronomist, who em-
phatically insists upon the sanctity of the priests' decisions (Deut.
x\'i, 18-20 ; xvii, 8—13) . The actual date of its introduction is uncer-
tain. At all events, the "elders" (zekenim) had been in possession
of a certain amount of judicial authority, which they still partly
retain in the time of the Deuteronomist (Deut. xix, 12 ; xxii, 15 sq).
It is about the period of Josiah's reformation, or a little later, that
1 In Ex. xxi, 22 the text is corrupt. The judges do not appear in
t). 30, where some reference to them would certainly be expected. 1 Sam.
vii, 16 sq., viii cannot be taken as e\ddence for judicial authorities in
early times ; the passages are late.
^ Cp. also 2 Sam. xv, 2 sqq., 2 Ki. xv, 5. In the Amarna Tablets
XXV, .30-34, 45) the king of Alasia (Cyprus) uses his good offices for the
return of the property of one of his citizens who had died in Egypt.
^ The traces of a parallel account in Nu. xi are too obscure to
build upon ^vith certainty. The diAasions into thousands, hundreds,
fifties, and tens scarcely originated in Babj^Ionia, where the unit Avas
sixty ; AssjTian texts, however, according to Sayce, speak of captains
of fifty and hen ("Early History of the Hebrews," p. 191).
660 PROCEDURE [Part IV.
the priests, who are the natural intermediaries whenever a divine
decision is required, begin to receive greater powers. In Deu-
teronomy they investigate legal cases, and the evident attempt to
place them upon equal footing with the judges (xix, 1 7 ^g.), together
with the emphasis laid upon the inviolability of their decrees
(xvii, 9b, 10a, 116), and the consequent weakening of the authority
of the elders, suggest that a change in Israelite legal procedure is
introduced, which is not. improbably foreign to the original scope
of that law-book.^
In Babylonia, in addition to the judges, it would appear that
daw could be dispensed by the civil governors and the priests, and
Sayce remarks that in certain cases, where foreigners were in-
volved, "the elders" of the city take their place among their
judges.- x4.ccording to the same authority, the judges probably
went on circuit, but this appears to be only an assumption from
the allusion to Samuel's activity in 1 Sam. vii, 16, and the "royal
judges" of Persia; in Egypt, however, the circuit system appears
to be vouched for in Ptolemaic times, and Moret finds indications
of this early attempt to centralise justice as early as the twelfth
dynasty.^
Difficult cases are referred to a divine authority. The god is a
"giver of decisions."^ The Arabs of different clans sank all
differences, and accepted Mohammed's decisions by reason of his
divine authority ; in Israelite tradition, the Hebrews of the twelve
tribes came to Moses for the statutes and laws of God ; and when
written laws are introduced, they receive their authority by being
ascribed to an Ea, the god of culture, or a Samas, the god of law
and justice. In Babylonia, from the earliest times, we find that
the "gate" was the place where justice was administered. One
contract-tablet speaks of litigant parties repairing to the judges,
who bring them to the gate {bcib) of the goddess Nin-marki, where
they duly give evidence ; elsewhere the scene is the gate of the
god Nun-gal, the house of Samas or the gate of Samas, and the
house of Marduk.^ The sanctuary is specifically an appropriate
place, since the solemn oath, taken in doubtful cases or for the
1 See "The Hexateuch" (ed. Carpenter and Harford-Battersby), vol. 2,
notes on Deut. xvii, 8 ; xix, 17 sq.; xxi, 2, 5. ■
2 "Babylonians and AssjTians," p. 198 sq. On the sibutu {KB iv, 23,
1. 25, 1. 2.3).
2 Maspero, "Rec. de Travaux," new series, i, 44—49 (1895). According
to Erman ("Life in Ancient Egypt," p. 87), the administration of justice
was thus centralised even under the Old Empire.
* "Rel. Sem." O p. 70; cp. n. 2.
* Meissncr, op. cit. (below), nos. 43, 78 sq., 100, 110.
Chap. XXXI, § 6.] AXCIEXT SEMITIC PROCEDURE G61
confirmation of the evidence, is made before the deity or his repre-
sentative.^ Similarly in Israel the place of resort for judgment
might be a sacred site — the three places visited by Samuel had
the reputation of sanctity (1 Sam. vii, 16, cp. LXX.) — but in ordi-
nary cases the presence of witnesses was all that was required,
and the city gate, then as now the scene of business activity,
served the purpose of a law-court (Job xxix, 7 sqq.). It was not
difficult to collect ten men of repute and standing to act as wit-
nesses (Ruth iv, 2), and legal contracts were unnecessary. It
strikes one as quite in accordance with the business instincts of
the Babylonians that out of the primitive system of administer-
ing justice at the gates in the presence of witnesses, the evidence
being attested by an oath, they should have developed the practice
of building temples at these places, in order that the oath might
be taken under the most sacred surroundings. The primitive
Bedouin of to-day considers a solemn attestation sufficient in ordi-
nary disputes — mercantile pursuits, one imagines, had seriously
corrupted the inherited simplicity of the Babylonians.
The Code of Hammurabi is quite in touch with early Semitic
custom when, under certain' circumstances where independent
evidence is not available, it lays down that a man must appear
"before God" (mahar ilim), or undergo an ordeal. To be more
specific, the solemn attestation applies to a man who has been
robbed and the thief remains at large (§ 23), to a shipowner whose
ship is lost (§ 240), to a merchant who would regain the price he
paid for slaves (§ 281), to depositors whose deposits have been
lost whilst in the keeping of another (§§ 120, 126). In every case
the man who would recover his property (money or goods) must
assess his loss "before God." A similar procedure is to be ob-
served when a man would clear himself of a charge. Thus, a man
from whom a fugitive slave has escaped (§ 20), an agent who is
robbed of his merchant's goods (§ 103), the herdsman who has
hired an ox, which dies by a "stroke of God" whilst under his
care (§ 249), the wife who is falsely accused of adultery (§ 131) —
these may protest their innocence and go free. Analogous to the
above are the cases where an agent who accuses a merchant of
1 So, in CH, § 9, where stolen propertj^ is found in the hands of an-
other, the ■\\itnesses for the accuser (who know the lost property) and
for the accused (who testify that the article was bought in their presence)
say out "before God" what they know, and the judge gives his decision.
The disputed object is usually brought and deposited "with the god {Mciss-
ner, "Beitr. z. altbab. Privatrecht," p. 5). For illustrations of modern
procedure among the Bedouin, see Palmer, "Desert of the Exodus,"
i, 87 (1871) ; Jaussen, "Revue Biblique," 1903, pp. 252 sq., 259 sqq.
662 PROCEDURE [Part IV.
wronging him puts him to account "before God and witnesses"
(§ 106 sq.), and wdiere the shepherd, w^hose sheep are killed by a
"stroke of God" or a Hon, "declares his innocence (or purges him-
self) before God" (§ 266). Here also may be mentioned the two
instances where the man who has wounded another, or the brander
who has made an indelible mark upon a slave, may swear that the
act was not done "wittingly" ^ (§§ 206, 227).
In early Hebrew law, in the Book of Covenant, we may
also distinguish two methods. Tlie man from whose keeping a
neighbour's deposit is stolen can resort "to God" (eldhlm) to clear
himself (Ex. xxii, 7 sq.), and in like manner a suspected herdsman
can take the "oath of Yah we" {sebuath Yahive) that he has not
put his hands to his neighbour's goods, and go free (Ex. xxii, 10 sq.).
These correspond to the second series in the CH (cp. especially
§§ 120, 266), and are evidently different from the law in Ex. xxii, 9,
which is couched in the most general terms, and possibly does
not refer to deposit, but to stolen property. Here, it is not the
accused alone who comes to Elohim to clear himself of suspicion,
but the passage deals with a dispute between two parties whose
case is brought to the "god of decisions" for his judgment (cp.
1 Sam. ii, 25a). It is the procedure w^hich underlies the ordeal.
In the old contract-tablets the depositions are made before
(mahar) witnesses, and the parties to the suit sw^ear by (nis) the
principal deities and the reigning sovereign.^ In Egypt, a similar
oath by the name of the Pharaoh w^as frequent. A man swore,
"by Amon, by the prince whose spirits are dead, by Pharaoh my
lord," and the "king's oath," as it was called, was usually fol-
lowed by an imprecation. "May I have a hundred strokes, or
give me over to the crocodile," maiming, and exile to the mines
of Ethiopia, figure among the oaths sworn by Egyptian suspects.'
The old Hebrew methods of oath-taking are too well known to
need repeating.^ At the present day, point may be given to an
^ ina i-du-u, "with knowledge"; cp. bi-bell da'ath, Deut. iv, 42, etc.
(the later equivalent being vi-segagah).
^ E.g., by Nannar, Marduk, and Hammurabi {KB iv, 21), or even by
the king alone (ib. iv, 25). Acco^rding to Meissner ("Beitr. z. altbab.
Privatreeht," p. 5) the oath is taken by the name of the tutelary deity
of the city, the principal deity of the land, and other gods, sometimes
even by the name of the native city of the contracting parties. The
practice is found as late as the time of Darius.
^ Spiegelberg, "Studien u. Materialien z. Rechtswesen d. Pharaonen-
reiches" (Hanover, 1892), pp. 70-77 (p. 75, "To him was the king's oath
given to say no lies, he [said] Ethiopia") ; "Arbeiter und Arbeiterbewe-
gung im Pharaonen-reich unter den Ramessiden" (Strassburg, 1895),
p. 20.
* See EBi. art. "Oath." The later post-biblical usages are illustrated
Chap. XXXI, § 6.] AXCIEXT SEMITIC PROCEDURE 663
oath by the addition of such a wish as, "He who hes may none
be born to him." ^
The oath of purgation, which thus allows the accused to clear
himself of an imputed crime by swearing that the charge is false,
is regarded as entirely efficacious, since the deity in whose presence
it is taken is confidently expected to avenge himself upon the
perjurer.- Primarily the ceremony is performed in a holy place
before the god himself, or it may be in the presence of the priest,
the authorised intermediary of the god. The practice recorded
by a writer of the Deuteronomic age, in accordance with which
a man could swear his innocence before Yahwe's altar at Jerusalem
(1 Kings viii, 31 sq.), in earlier days, before the institution of the
central sanctuary, must have been customary at every shrine or
holy place. To take the name of Yahwe falsely, therefore, was
to perjure one's self. Under the Deuteronomic reformation the
oath of purgation would be taken before the authorised officials
(Deut. xix, 17), even as among the Bedouins of the present day it
may be made before the sheikh.^ From this oath we must of
course distinguish the curse which the victim of a theft calls down
upon the thief, or the adjuration, equally based upon a belief in the
efficacy of the curse, which solemnly calls upon any man who
has knowledge of the offence to say all that he knows.
The belief that the deity punishes the guilty one who swears
that a charge is false is intimately connected with the theory of
the ordeal where it is left to him to indicate in some recognisable
manner whether a man is guilty or not. Instead of the oath of
purgation a test is employed. The Code of Hammurabi uses it
only in two cases, and on each occasion it is by water. The river-
god (ilu Nam) has to decide whether a man upon whom a spell
has been cast has suffered unjustly (§ 2), and whether a wife who
in the Mishnah (tract. Shebuoth), where some of the formulae are given.
An accused protests his innocence. The accuser says, "I adjure thee."
If the man repHes "Amen," and is proved guilty, he is culpable. "Amen"
is thus the legal term with which the accused expresses his readiness to
accept the adjuration {cp. Hogg, "Jewish Quarterly Re\'iew," 1896,
p. 17).
1 Swing, PEFQ, 189.5, p. 172 sq.
2 "Rel. Sem." p. 480; cp. Jaussen, "Rev. Biblique," 190.3, p. 259 (a
guilty Bedouin agrees to take an oath [halifa] at a holy tomb, but on his
way, fearing the possible consequences, is filled with terror and confesses).
' An interesting development of the oath taken in a holy place is re-
corded bv Baldensperger, wiiere two parties arranged to settle a dispute
and agreed to swear by St. George {PEFQ, 1897, p. 131). To avoid the
trouble of dressing in festival clothes and repairing to his shrine, it was
decided to make a mark on the ground to represent the saint's abode
("He is over against us but can be present just as well").
664 PROCEDURE [Part IV.
has fallen under the suspicion of unchastity is innocent (§ 132).
The victim must plunge into the sacred element, which overpowers
the guilty and saves the innocent.^ The revenge taken upon the
impious finds analogies in the waters of the Asbamsean lake, the
springs near Tyana, and the Stygian waters in the Syrian desert
— not to speak of the striking parallel of the "waters of Jealousy "
in Israel — which harmed only the perjured." But the river-god,
instead of punishing the wicked, may repudiate them, on the
principle that impurity and guilt must not come in contact with
sacred things. So in Arabia, those who were suspected of witch-
craft — not their victims, as in Babylonia — were thrown to the
water, and since the god would only receive the innocent, the
guilty ones were those who floated : the procedure that has pre-
vailed in dealing with suspected witches down to modern times.^
Arguing from the same point of view, the Laws of Manu allowed
a man to justify his oath of purgation by remaining under water
a certain length of time (viii, 114 sq.), and — to go still further away
from the Semitic world — in Burmah the parties to a suit keep
their heads under water, and the one who emerges first is reckoned
guilty.''
Although the laws in CH relating to judges and witnesses are
few, the contract-tablets reveal, as might be expected, a very
advanced system of procedure.^ Evidence was drawn up in legal
form and written upon tablets,^ and each case was examined with
commendable thoroughness (cp. CH, § 9). The general principle
not to pervert judgment, accept bribes, or to show favouritism —
and the frequency with which these exliortations appear in the
Old Testament is an indication of the prevalence of injustice in
Israel ^ — if not expressed in so many words, at all events lies at
the bottom of CH, § 5. Here, if a judge has judged a judgment
{sum-ma da-a-a-num di-nam i-di-in), has decided a decision {pu-ru-
uz-za-am ip-ru-us), and delivered a sealed sentence (ku-nu-uk-kam) ,
and subsequently his judgment is annulled {di'^n-su i-te-m,i), he is
' Dareste ("Journal des Savants," 1902, p. 519, n. 1) notes the same
principle in the old German custom of testing the legitimacy of children
by throwing them into the water ; one may compare also the Sicilian
oracle, where the tablet bearing the oath of the accused floated if true and
sank if false (Pseudo- Aristotle, " Mir. Ausc." 57).
'' " Rel. Sem." C) p. 179 sq.
8 Cp. Wellhausen, "Arab. Held." (J) p. 160 (on p. 189, however, those
unjustly suspected of wtcheraft float).
* Frazer, "Pausanias," iii, 388 (other water-oaths and tests, iv, 253 sq.).
^ Cp. Sayce, "Babylonians and Assyrians," chap. 9.
* Written evidence appears to be unknown in Israel until the time of
the book of Job (xiii, 26; xxxi, 35).
' Ex. xxiii, 3, 6-8; Deut. .xvi, 19, xxiv, 17, xxvii, 19; Lev. xix, 15, etc.
Chap. XXXI, § 6.] ANCIENT SEMITIC PROCEDUKE G65
ordered to pay twelve times the penalty he had ordained in his
decision, and is openly (properly, "in the assembly," puhru)
thrust from the bench ; he cannot be reinstated, and is not allowed
to sit in judgment with the judges. There are two disputed
phrases in the law as it stands. In the first place, the judgment
is presumably annulled by an appeal, either to a fresh court or to
the king himself. In the contemporary letters of Hammurabi
and his dj-nasty, the king is frequently appealed to either directly
or after a case had been tried at the local courts. In one instance
the litigants, having failed for two years to obtain justice at Sippar,
apply to the king, who gives orders for the defendant and the
"witnesses who have knowledge of his case" to be brought to him
at Babylon for judgment. In another we find Hammurabi in-
vestigating a charge of bribery against one of his officials ; he
confiscates "the money or whatsoever was offered as the bribe,"
and commands the men who had taken it and the witnesses to
be sent to him for trial. ^ On the other hand, Scheil and Johns
render, "if . . .he has annulled (altered) his judgment," which
seems hardly natural, since the judge, however much of a partisan,
would scarcely go back from his written verdict. It is possible
that the law refers to judicial error, but the penalty and subsequent
punishment would be excessively severe.^ In the second place,
the "twelve-fold" (a-du 12 su) penalty has been disputed, and
Winckler, in his edition of the Code, understands it to mean that
the penalty consists of the sum (in the judgment) together with
^f , that is to say, an additional 20 per cent. The addition of a
fifth — as in late Israelite law (Lev. vi, 5, xx\'ii, 15-19 ; Num. v, 7) —
is suggestive, but there are serious objections against this view.^
Next, attempts to intimidate the witnesses, or the giving of
evidence which cannot be proved, is severely punished, and if it
be a life or death case {di-in na-hi-is-iim) , the offender is killed
(§ 3). Bribery is rigorously discountenanced, and the man who
has offered corn or money is punished by being made to bear the
penalty of the judgment (a-ra-an di-nim, § 4). In Israel, false
witness, prohibited among the additions to the Book of the Cove-
nant (Ex. xxiii, 3) and in the Decalogue, is punished under the Deu-
teronomic code in the same manner as in CH : " You shall do unto
him as he purposed to do to his brother" (Deut. xix, 19) ; but one
^ King, "Letters of Hammurabi," iii, 21 sq., 136.
2 In the ease of a judge who has not acted in good faith, later Jewish
law required a sacrifice ("Mishnah," "Horaioth." i, 5, etc.).
3 See Joh. Jeremias, "Moses und Hammurabi," p. 25, n. 2; Orelli,
"Gesetz Hammurabis," p. 47.
666 PROCEDUKE [Part IV.
can scarcely conclude that the law which Is aimed at repressing
false accusations (denounced in general terms in Ex. xxiii, 1) owed
its origin to Babylonia. The same ruling held good in Egypt,
and, indeed, the principle of the talio has prevailed in all primitive
judicial systems. The Deuteronomic law is preceded by one in
accordance with which serious crimes required the concurrent
evidence of "two or three" witnesses as proof of guilt {v. 15),
particularly in all capital cases (cj). Num. xxxv, 30; Deut. xvii, 6).
The procedure is frequently referred to in the New Testament
(Matt, xviii, 16, xxvi, 60; 2 Cor. xiii, 1 ; 1 Tim. v, 19), and must
have been general, since it finds a place in the Syro-Roman law-book
of the fifth century, which actually preserves the same loose word-
ing, "two or three." ^ In the last-mentioned collection of laws,
the penalty for unjust accusation is, as is to be expected, based
upon the talio: "As he (the accuser) would do unto his com-
panion, so shall it be done unto him." ^
Legal disqualifications of certain persons to act either as judges
or witnesses, and the more minute details of judicial procedure,
do not appear to be codified before the time of the Mishnah.^
The Syrian law-book requires witnesses to be freedmen and
trustworthy, not slaves, men who have never been convicted of
misdeeds — theft, robbery, sorcery (Syr. harrasuthd), and the like
— "who have not been guilty of objuration" (? i^a)fio<;ia), and
are not relations, friends, or business associates of the parties.
In Babylonia witnesses appear to have formed an official class ; ^
since every act of business, legal or otherwise, had to be set down
in contracts, reputed and qualified men were doubtless in frequent
demand as witnesses.
The Babylonian system of judicial procedure, it would appear,
did not leave its stamp upon early Israelite institutions. Both
share, it is true, the sacred oath and the ordeal, but these are
common Semitic property, and are by no means confined to the
Semitic field. The denunciation of false witness does not become
1 Bruns and Sachau, " Syriseh-Romisehes Rechtsbueh aus dem fiinften
Jahrhundert" (Leipsie, 1880), p. 106.
^ Op. cil. p. 70 (no. 75). Examples of the minuteness of the post-
biblieal Jewish rules relating to false evidence may be seen in the "Jewish
EncyelopjTedia," i, 394 a.
' Cp. also the fulness of detail in the Mohammedan systems (abstract
by Kohler, " Rechtsvergleich. Stud." pp. 149-161). According to Josephus
("Ant." IV, viii, 15), there must be three or at least two ^vitnesses, reliable
men ; neither women nor slaves are admitted.
*^lbu{ti), "witness" (abstract slbutu), properly the elders or "gi'ey-
beards" (cp. Heb. se6a/i?), corresponding to the sheikhs or z^fcenim (above) ;
cp. Joh. Jeremias, "Moses u. Hammurabi," p. 29; Meissner, "Beitr. z.
altbab. Privatr." pp. 5, sq., 95).
Chap. XXXI, § 6.] ANCIENT SEMITIC PROCEDURE 667
codified until the time of Deuteronomy, at a period when the
administration of justice was reconstructed and centraHsed. On
the other hand, the precautionary rule that "two or three" wit-
nesses are required in criminal cases, although fairly widespread,
does not find a place in Babylonian law.
Procedure, as we learn from the legal documents of the great
law-suit under Rameses IX. (twelfth century B.C.), was no less
developed in Egypt. Officers, appointed Jj^tke gm^^mment, sat
in judgment daily, and received their salary from the fees paid
by litigants. The evidence, as in Babylonia, was in writing, and
could be extracted from unwilling lips by torture — a method
apparently unknown in Babylonia.^ Under the New Empire the
courts of justice differ in name and constitution from those of the
Old. The judges were largely priests, supported by permanent
officials, including a scribe, but the composition of the court
varied considerably.- The contrast between the methods that pre-
vailed in Egypt and Babylonia and the simple primitive "courts"
of the early Arabians and Israelites is thus sufficiently striking.^
^ Torture is rarely practised among the Bedouin of the desert (cp.,
however, Doughty, "Ar. Des.," i., 14).
2 Erman, "Life in Ancient Egypt, pp. 130 sqq.
' List of Abbreviations.
"Encyclopaedia Biblica," I-IV (London, 1899-1903) = EBi.
Robertson Smith, " The Old Testament in the Jewish Church " (second edi-
tion ; London, 1892).
"The Prophets of Israel" (second edition ; London, 1895).
"Lectures on the Religion of the Semite" (second edition; London,
1894) = Rel. Sem.C).
"Kinship and Marriage in Early Arabia" (second edition; London,
1903) = "Kinship "(2).
" Keilinschriftliehe Bibliothek " (ed. Schroder, Yo\. IV — Assyrian texts ;
ed. Peiser (Berlin, 1896) — Legal and business texts) = KB.
Wellhausen, " Die Ehe bei den Arabern " (Nachrichten v. d. kgl. Gesellsch.
d. Wissensehaft, Gdttingen, 1893; No. xi).
" Reste Arabischen Heideutums " (second edition ; Berlin, 1897).
" Palestine Exploration Fund, Quarterly Statements " (London, 1869 — )
= PEFQ.
"Zeitschrift des deutsehen Palastina^-Vereins " (1878- ) = ZDPV.
" Zeitschrift der deutsehen morgenlandischen Gesellschaft " (1846- ) =
ZDMG.
Bruns and Sachau, " Syrisch-Romisches Reehtsbuch aus dem fiinften
Jahrhundert" (Leipzig, 1880).
J. Kohler, " Rechtsvergbeichende Studien iiber islamitisches Recht," etc.
(Berlin, 1889).
J. Estlin Carpenter and G. Harjord-Battershy. " The Hexateueh . . .
arranged in its constituent documents . . . vdX\\ introduction, notes,
marginal references and synoptical tables." Two vols. (O.xford, 1900).
JE. The oldest Hebrew documents ascribed to the Jahwist and Elohist
schools respectively.
P. The \\Titings of the Priestly school.
Oode of Hammurabi = CH.
668 PROCEDURE [Past IV.
Section 7
ANCIENT ROMAN PROCEDURE i
1. Roman Civil Procedure
The fundamental characteristic of Roman civil procedure in the
classical period is the division of all judicial proceedings into two
sharply distinguished sections, the proceedings 'in jure,' and the
proceedings 'in judicio.'
The proceedings ' in jure ' are the proceedings before the magis-
trate, that is to say, before a judicial officer, the organ and repre-
sentative of the sovereign power of the state. And since the intro-
duction of the praetorship the ' m.agistrate ' means, as a rule, the
praetor. The object of the proceedings in jure is, firstly, to ascer-
tain, whether the plaintift's claim is admissible at all, i.e. whether
there is any form of civil procedure by which it is enforceable;
secondly, to determine the nature of such claim, and, at the same
time, to fix the conditions subject to which it can be asserted. In
the absence of a ' confessio in jure' the proceedings in jure culminate
in, and terminate with, the so-called 'litis contestatio,' i.e. the
formulating of the legal issue, the object of which is to supply a
foundation for the 'judicium' and thus to obtain a final decision
of the issue. The name litis contestatio is due to the original
practice of coupling with this stage of the proceedings a solemn
appeal addressed by each party to his witnesses. The granting
of the litis contestatio by the magistrate is tantamount to a deci-
sion (decretum) on his part, that the plaintiff's claim is admissible
in itself and must be enforced, subject to such limitations as result
from the contents of the litis contestatio.
The proceedings in jure however can never lead to a ' s ententia ,'
i.e. a judgment, in the legal sense of the term. The issue having
been formulated and declared prima facie admissible by means of
the litis contestatio, it is necessary, for the purpose of obtaining
judgment, that the proceedings should pass out of the hands of
the magistrate into those of a private individua l, or, in some cases,
of several private individuals HTJfu^cating as a collegiate body.^
1 [Bj^ Rudolph Sohm. Reprinted by permission from "The Institutes
of Roman Law" {Ledlie's trans.), Oxford University Press, 1892.]
^ All actions touching the liberty of a person were, during the republic,
tried by a standing college of ten sworn judges (decemviri stlitibus judi-
candis). Actions concerning vindications, especially the hereditatis
Adndicatio, were referred to the college of centumviri consisting of 105,
and later of 180 members, who were grouped in several committees (con-
Chap. XXXI, § 7.] ANCIENT RO^L^.N PROCEDURE 669
A sententia, in other words, a judgment, In the legal sense, can onh^
be pronounced by a private person who cannot exercise any
sovereign discretion, because he in no way represents the absolute
power of the state, but is bound, by the oath under which he is
acting, to adjudicate in strict conformity to the law as already
established. ^iThus no one but a private person can be a judex
in the true sense of the term, i.e. an organ of the positiv e lawj
For ever}' decision of a magistrate is formalK' (even in civil cases)
an assertion of his sovereign imperium (a decretum or interdictum).
It is, legally speaking, not a verdict, but an imperative order. ^ On
the other hand, the decision of a judex, i.e. of a private person
acting under oath and under an authority based, not on imperium,
but on ofEcium, — such a decision, and it alone, is a judgment,
a verdict, a ' sententia,' and not an order, an imperative command.
And this is the reason why the law of civil procedure in Rome
required that the magistrate should abstain from deciding the legal
issue, and should refer such decision to a private person who
is thereby appointed judex for purposes of the action. The
silia). If the praetor wished to have a matter speedily decided, he was
able, by \drtue of his imperium, to appoint an extra.ordinary college of,
usually, three or five ' reeuperatores ' who were directed to find a verdict
within a specified time. Such cases of urgencj^ arose especially in actions
concerning personal libert}' (vindieatio in libertatem), ^\^th the result that
the jurisdiction of the decem\4ri was de facto displaced by the court of
reeuperatores — a circumstance which explains why, since Augustus, the
decemviri ceased to act in this capacity. Reeuperatores were also ap-
pointed in actions to which aliens were parties. — Like the single judges,
the reeuperatores (who were always appointed for the nonce) and the
centumviri were, as such, private persons. Although three eentumviri
were selected from each of the thirty-five tribes, there is nothing to show
that they were chosen by the comitia tributa. The decemviri however
had, towards the close of the republic, to be elected by the comitia tributa,
so that formally they belonged to the magistratus (minores) populi
Romani, a fact which however did not alter their position as against
the litigant parties. All sworn judges whatsoever, including the decem-
viri, stand to the parties solely in the position of private individuals
(judex privatus), and not in the position of magistrates equipped with
compulsory powers ; v. Pernice, " ZS. der Sav. St." vol. v. p. 48.
' This is the reason why a magisterial decision, even in civil matters,
could be annulled bj' the intercession of a coordinate or a superior magis-
trate, i.e. by means of a counter-order of equal imperati^'e force (im-
perium). One order simply annulled the other. It was this fact that
gave rise to the system of appeal as developed in the older Roman law,
one magistrate being 'appealed to' to intercede against the other. The
practice of appealing to the emperor, who was authorized to withdraw
anj^ suit in the empire from the ordinary courts for the purpose of bring-
ing it before his own court, led, during the principatus, to the develop-
ment of the modern system of appeals, under which (as in the old 'provo-
catio') the courts are ranged in a series of higher and lower instance, a
higher court trying the case o^'er again with a view to pronouncing a
neiv judgment. Cp. J. Merkel. '''Abhandlungen aus dem Gebiete des
romischen Rechts," Heft 2 : "Uber die Geschichte der classischen Appel-
lation" (1883).
G70 PROCEDURE [Pakt IV.
principle of the division of all civil procedure into the two stages
of proceedings in jure and proceedings in judicio is the elimination
of the magisterial power from the domain of private law.
The issue, then, having been admitted and formulated in jure
(litis contestatio), the next step is to pass it on for trial to a private
judge, or judges, acting under oath. The proceedings before^he
judex are called the proceedings 'in judicio.' The object of these
proceedings is, as we have already stated, to obtain a decision of
the legal issue by means of the judgment (sententia) of the judex.
The judge's first business will be to ascertain the facts of the case
and receive such evidence as he deems necessary ; after which he
will proceed, according to the best of his knowledge and good
faith (ex animi sententia), to pronounce judgment, i.e. to give his
verdict on the legal relationship submitted to him.
While the procedure in judicio did not, as far as we can see,
undergo any material alteration from the time of the Twelve Tables
down to the end of the classical epoch, an important reform had
been effected in the procedure in jure towards the close of the
republic. The system of legis actiones was superseded by the
formulary procedure.
2. The Legis Actio
The litis contestatio, with which the proceedings in jure ter-
minated, was, in the earl}' Roman procedure, a solemn act of the
parties. When the arguments before the magistrate had concluded
and the latter was about to grant a judicium, both parties, having
solemnly called upon witnesses to testify to the issue between them,
proceeded, in the presence of these witnesses, to formulate the issue
in an unequivocal manner by means of their own formal act, using
for this purpose, certain fixed traditional terms (litis contestatio).
The formulae to be pronounced were determined either by the
wording of a popular statute, the statute namely on which the
action was based, or by old traditional custom which was regarded
as possessing the same force as a law (lex). Hence it was that the
act of performing the litis contestatio, nay, even the entire pro-
cedure of which the litis contestatio was the centre and pivot, was
called a 'legis actio,' i.e. a proceeding according to the law. And
by an action, in the true, the normal, the proper sense of the term,
was understood a proceeding which led to a litis contestatio of this
Idnd, and, through it, to a judicium and the judgment of a sworn
judge, as opposed to the decision of a magistrate. But there was
yet another sense in which such a procedure could be called a
Chap. XXXI, § 7.] ANCIENT ROMAN PROCEDURE 671
'legis actio,' in the sense namely that not only the form of the litis
contestatio, but the very right of the party to claim a judicium in
any such case on the ground of the litis contestatio, was determined
by the lex, or custom having the force of lex. The Roman actio,
in other words, represents a right of the plaintiff not only as against
the defendant, but also as against the magistrate, a right, namely,
to ha^'e a judicium, i.e. a right to have the judicial, as opposed to
the administrative machinery, placed at his disposal, in a word, a
right to have a private individual appointed for the purpose of
deciding by his judgment the question at issue between him and his
adversary. This title to a judicium, i.e. the actio, rests in early
times on lex, or custom with the force of lex. And for this reason
it was called legis actio.
Of legis actiones we have five — (1) the L. A. sacramento, (2)
the L. A. per judicis postulationem, (3) the L. A. per condictionem,
(4) the L. A. per manus injectionem, (5) the L. A. per pignoris
capionem.
I. The Legis Actio sacramento.
The ordinary and most important form of the legis actio pro-
cedure was the so-called 'legis actio sacramento.' Both parties,
with a view to the litis contestatio, solemnly affirm their legal
claim. The plaintiff declares: 'a jo hanc rem meam esse ex jure
Quiritium,' &c., and the defendant answers wdth the same formula.
Thereupon both deposit a sum by way of wager, the so-called
'sacramentum,' which amounted, according to the matter in dis-
pute, either to 50 or 500 asses, and which each party declares shall be
forfeited, if his contention proves to be false. This wager supplied
the formal basis for the judicium, i.e. the formulating of the issue,
and, when once entered upon, may be presumed to have, at the
same time, formally estabUshed, as regards the magistrate, the
right to a judicium (i.e. the actio). If a man challenged another
to a wager (sacramentum) in reference to some legal claim prima
facie possible, he was thereby enabled not only to compel his
opponent to lay a counter-wager, but also to require the magistrate
to appoint a judex. This legis actio was thus, in the truest sense,
a legis actio sacramento, for the judicial wager was the basis both
of the decision of the judicium and of the formal title to the
judicium. The private right secured its actio by means of the
sacramentum.^
1 It is probable that the compulsory force of the sacramentum as against
the magistrate is based on the fact that, originally, it was not merely
a matter of money laid against monej', but oath against oath (i.e. sacra-
mentum, in the ordinary sense of the word). The person tendering the
672 ' PROCEDURE [Part IV.
II. Legis Actio per judicis postulationem.
There were, however, some particular cases where the law
annexed to the existence of certain facts, facts, namely, constitut-
ing contracts and delicts of a specified kind, an immediate actio or
right to a judicium. There was no need to lay a wager (sacramen-
tum) and incur the consequent perils of a law-suit. In order to
compel the magistrate to direct a judicium, all that was required
was that the plaintiff should affirm in jure the existence of the
particular facts, whether a contract or a delict, and should, on the
ground of such facts, in solemn words claim to have a judex ap-
pointed. But it was indispensable that the facts of the case should
tally pr ecisely with those indicated by the verba legis, and that
therefore, in setting forth these facts, the ex^ct verba legis should
be employed. Inasmuch then as, in these cases, the application
for a judex immediately bound the magistrate to grant the judicium,
this legis actio was called the L. A. per judicis piistulationem.^
oath pledges, for the truth of his oath, either his own person (i.e. he
consecrates himself to the gods), or he only pledges some portion of his
property which he thereby consecrates to the gods, which he, in other
words, agrees shall be forfeited to the gods, if the decision goes against
him. In civil proceedings, the latter kind of oath, where a man merely
stakes some portion of his property (the 'Vieh-Eid' of German law), is
sufficient. Even it, moreover, was enough to raise a question which
required to be decided by an objective judgment ; in other words, was
enough to deprive the magistrate of all power to reserve the matter for
his own decision (decretum), and to compel him to appoint a sworn judge
(judex), or a college of sworn judges (e.g. the centumviri), to decide it
by means of a verdict, or sententia. The oath, in a word, establishes
the actio, i.e. the claim to a judicium. Subsequently the oath was
dropped, and the consecrated sum. of money, (saeramentum, in this sense)
alone remained, though, as a matter of fact, the actual depositing was,
in later times, dispensed with, the money being merely promised. Schultze
("Priv. R.," etc. p. 455) regards the saeramentum as a judgment given by
the party on his oath. Of course it is a judgment in the logical sense of
the term, but scarcely a judgment in the sense of civil procedure, i.e. in
the sense of deciding the question at issue.
1 In my opinion the 'legis actio de arboribus suecisis,' instanced by
Gajus, bk. iv. § 11, refers to this legis actio per judicis postulationem.
There seems to be no doubt that the original action, as based on the
Twelve Tables, really only lay for cutting trees and nothing else. The
extension of the action to other cases, especially to the case of vites suc-
cisae, was due to the interpretatio of a later time ; but even when thus
applied, the words used in the litis contestatio had still to be those pre-
scribed by the statute, viz., 'de arboribus suecisis.' This was the source
of the formalism of which Gajus speaks. For it is of course out of the
question that, in speaking 'de arboribus suecisis,' the Twelve Tables
intended, from the outset, to include also vites. The rule then that an
action should only lie de arboribus suecisis, meant originally that an actio
should lie on facts precisely corresponding to the words of the statute
and no other. In the course of the subsequent development this rule,
though really abandoned by the admission of the actio de vitibus suecisis,
was nevertheless maintained by a fiction, the. action being still formally
taken de arboribus suecisis only. The absurdities of the formalism noted
in Gajus must, therefore, be considered the result of a subsequent devel-
Chap. XXXI, § 7.] ANCIENT ROMAN PROCEDURE 673
III. Legis Actio per condictionem.
The L. A. per judicis postulationem had been designed for the
enforcement of claims in personam. Actions for the enforcement
of such claims received a further development by means of the
L. A. per condictionem, which was first introduced by the lex Silia
for the recovery of a fixed sum of money (certa pecunia), and after-
wards extended by the lex Calpurnia to claims for a certa res.^
Wherever the plaintiff in an action in personam undertook to fix
his claim against the defendant precisely at some liquidated amount
(certam pecuniam dare), or to specify a particular object ownership
in which should be conveyed to him (certam rem dare), he could,
as in the L. A. per judicis postulationem, claim from the magistrate
the immediate appointment of a judex. This condictio had its
danger as well as its advantage. Its danger was that the plaintiff,
though entitled to something, was nevertheless cast in his suit, if he
had not claimed the precise amount due to him. Its advantage
lay in this that it applied also to such cases the facts of which did
not in themselves entitle a person to the judicis postulatio ; nay
even to cases where, possibly, there was no indisputable legal claim
at all, as, for example, when the only feature of the case was that
A had been enriched at the expense of B. In the L. A. per judicis
postulationem the litis contestatio merely formulated the facts of
the case without in any way indicating the nature of the claim
deduced therefrom (legis actio in factum concepta), and, conversely
in the L. A. per condictionem the litis contestatio merely formu-
lated the legal claim wdthout mentioning the facts from which it
was deduced (legis actio in jus concepta). It was an abstract ac-
tion where the concrete facts, on which the claim rested, were not
referred to in the solemn act of formulating the issue (litis con-
testatio).
For cases falling under this second legis actio, the law required
that the judicis postulatio should be made in a manner dift'ering
from the practice traditionally observed in the case of the L. A.
per judicis postulationem. For in this latter action, the magistrate,
in accordance with ancient usage, appointed the judex at once.
The L. A. per condictionem had this characteristic of the later
procedure — a characteristic which was connected with the general
arrangements of a later period for the appointment of judges —
opment. The legis actio fiduciae supplies another example of the L. A.
per judicis postulationem (sup. p. 36, note 11). For further cases, v.
Voigt, "Die zwolf Tafeln," vol. i, p. 580 ff. On the L. A. per judicis
postulationem, cp. A. Schmidt, "ZS. der Sav. St." vol. ii. (1881), p. 155 ff.
1 Gaj. iv. §§ 18-20.
674 PROCEDURE [Part IV.
that, instead of a judex being appointed at once, the parties agreed
to reappear in jure before the praetor in thirty days for the purpose
of selecting and appointing a judex (ad judicem capessendum) .
The plaintiff at the same time gave the defendant formal notice to
reappear within thirty days before the magisterial tribunal for the
purpose of appointing the judicium. This notice was called
'condictio,' which means literally an 'agreement' or 'convention,'
and hence the name legis actio per condictionem. It is to be ob-
served, that the force of the qualifying words ' per condictionem ' is
precisely analogous to that of the words 'per judicis postulationem'
in the other legis actio. In either case the plaintiff's application
for a judex is directly binding on the magistrate.
IV. Legis Actio per manus injectionem.
In certain extraordinary cases the actio arises from a completed
act of execution, in the same way as, in the L. A. sacramento, it
arises from an act of affirmation.
The normal form of execution is judicial execution, i.e. the act
of laying hands on one's adversary in iure_ in the presence of the
magistrate (manus injectio).^ It means the attachment of the
defendant for the purpose of making him the bondsman of his
creditor. The party attached is disqualified from making any
defence himself, because the effect of the manus injectio is to place
him ipso juje in the position of a slave (servi loco).^ A third
party, however, may intervene as a vindex and counteract the
1 Extra-judicial manus injectio is never a real act of execution. It
means either the taking possession of an xiixf4:ee ^lersion (as, in Livy iii.
44, Claudius applies the manus injectio to Vii-ginia, with a view to taking
her to his home as a slave), or it is an act of summons. If the defendant
disregarded the in jus voeatio, i.e. the solemn oral summons addressed
to him by the plaintiff, the latter could always lay hands on him (manus
injectio), with a view to bringing him before the Court (Twelve Tables,
i. 2). In some cases the plaintiff could proceed to manus injectio at once
without any previous in jus voeatio. He could thus arrest, e.g. a judg-
ment debtor (judicatus), in order to take him before the praetor for the
purpose of there earrying out the judicial manus injectio ; or again a
'fur manifestus,' or other person who had committed a delict partaking of
a criminal nature (Demelius, " ZS. fiir RG." vol. i. p. 362 ff.). But extra-
judicial manus injectio of this kind, though it serves the purpose of intro-
ducing legal proceedings, is, in itself, totally immaterial as far as the course
of procedure itself is concerned ; it is always merely preliminary to, never
productive of, an action at law. Judicial manus injectio, and it alone, can
beget an action. Thus, though there are several forms of manus injectio
— judicial or extra-judicial manus injectio, and of the latter again several
kinds — there is nevertheless but one legis actio per manus injectionem,
that actio namely which springs from the judicial manus injectio or act
of execution.
2 The fact that the manus injectio ipso jure debarred the person at-
tached from making anj^ defence confirms the supposition that, in the
early law, the efficacy of manus injectio was independent of any addietio
on the part of the praetor ; cp. Jhering, 'I'Geist des Rom. R.," vol. i. p. 152.
Chap. XXXI, § 7.] AXCIEXT ROMAN PROCEDURE 675
effect of the 'manum injicere' by means of 'manum depellere.'
The maniim depellere operates to annul the preceding manus
injectio, in other words, the debtor is free once more and cannot be
attached again for the same cause. But, on the other hand, the
vindex is now bound to indemnify the creditor whose act of execu-
tion he has nullified. He must give immediate satisfaction for the
debt to recover which manus injectio had been resorted to. If,
however, he refuses to pay the debt on the ground that he challenges
the legality of the manus injectio, the law-suit commences and the
vindex, if defeated, is cast in double damages. The suit has to
be decided b}' the ordinary procedure, a judex being appointed for
the purpose. It is in this sense that manus injectio begets an
actio, xiz. the L. A. per manus injectionem. Judicial manus in-
jectio {i.e. the act of execution) implies a right to have any issue
that may arise in the event of the claim being contested, tried by a
judicium.
Judicial manus injectio can only be used in the case of a liqui-
dated money claim. The regular instance of this kind is the
judgment-debt, i.e. a fixed sum which a person has been condemned
to pay by the sententia of a sworn judge ('in judicio')- An 'aeris
confessus,' i.e. a person who had admitted a money-debt in jure
before the magistrate, was regarded as occupying the same position
as a judgment-debtor, and was thus liable to 'manus injectio pro
judicato.' It is probable that originally a debt incurred by nexum,
i.e. the formal obligation of the early civil law was treated in the
same way as a judgment-debt. Se^•eral later statutes assimilated
other debts to judgment-debts, the harsh effects of the manus
injectio, however, being in most cases mitigated in such a manner
as to allow the debtor to be his own vindex, to 'manum sibi de-
pellere' himself, so that he (the debtor) became the defendant in
the resulting action, if any, and was himself liable in duplum in
case of condemnation. Thus there were two species of this form
of actio, firstly, the L. A. per manus injectionem pro judicato
(where the debtor could only defend himself through a vindex), and,
secondly, the L. A. per manus injectionem pura (where the debtor
might defend himself in person). But in any case the manus
injectio which had been carried out in jure remained the formal
subject of the law-suit as well as of the decision, because in point of
form the actio (i.e. the claim to a judicium) did not spring directly
from the private law, but from the manus injectio.
V. Legis Actio per pignoris capionem.
Pignoris capio is a process akin to manus injectio. The law
6/6 PROCEDURE '-e^ y^ [Part IV.
invested debts of a particular kind with special privileges by allow-
ing the creditor to obtain satisfaction for them by an e::tra-judicial
seizure of portions of the debtor's property. Every such author-
ized pignoris capio was characterized by the use of certain pre-
scribed words (certa verba) which had to accompany its execution.
The distrainee was bound to redeem the property seized within a
prescribed interval, with the addition, probably, of a penalty ; in
default of which we may presume that the ownership in the goods
distrained passed to the distrainor. The latter generally exercised
his right of ownership by destroying the things (pignora caedere),
because the primary object of the distraint was not to satisfy the
creditor, but to punish the refractory debtor.
The distrainee must have had the right, in some form or other
^ of protesting before the magistrate in jure against the distraint
which had taken place. Just as, in the preceding instances, the
proffering of an oath (sacramentum) by one party, compelled the
other to tender a counter-oath, and the manum injicere by one
compelled the other to manum depellere, so here the pignoris capio
compelled the distrainee, if he wished to make any defence, to
enter a protest. Here, then, was another special issue which the
magistrate had no power to reserve for his own decision, but was
bound to send for trial before a judex. It was in this way that
pignoris capio begot an action, mz. the L. A. per pignoris
capionem.
The cases in which pignoris capio was available, were not, as far
as we can see, sufficient in themselves to give rise to ordinary civil
proceedings. They were partly claims of a public nature, e.g. a
soldier's claim for his pay, for mone}' to buy a horse, or for barley to
feed his horse, or again the claims of farmers of the public revenue
for arrears of taxes due to the state; partly they were cases of
a private law liability, which we may describe as not having given
rise to any legal obligation in the early times. Thus if a victim
had been sold for sacrificial purposes b}^ means of an informal
contract of sale, or again, if a beast of burden had been let out
under an informal contract of letting with a view to investing the
consideration money in the purchase of a lamb to sacrifice to Jupiter,
the guardian deity of harvests — in neither case did the purchaser
or hirer respectively incur any legal liability. It is possible also
that pignoris capio was resorted to in the case of ' damnum infec-
tum ' ; that is to say, where a man's property was in danger of being
injured, though not yet actually injured, by the state of his neigh-
bour's property {e.g. by the dilapidated condition of his house), he
Chap. XXXI, § 7] ANCIENT ROMAN PROCEDURE ' 677
was perhajDs allowed to seize some of the neighbour's land by way
of pignoris capio.
In none of these cases was there any action at law. Xor was the
legis actio sacramento available, because the sacramentum had to
aflSrm a dare or facere oportere, in other words, the existence of
a liability full}' enforceable at civil law. But by the circuitous
method of pignoris capio the creditor's claim was either satisfied in
such a wa}' as to put a penalty on the distrainee, if he submitted to
the pignoris capio, or else was brought to trial (actio), if he (the
distrainee) protested.
The right of pignoris capio was said to have 'instar actionis,'
i.e. to grant a right of distraint was virtually to grant a right of
action.
VI. Recapitulation.
To sum up. Private law grants a legis actio either directly (L. A.
per judicis postulationem, per condictionem), or indirectly. The
means by which a private right, which is not directh' enforceable
by the ordinary civil procedure, can nevertheless secure a trial or
actio, are either a solemn affirmation (sacramentum) or a solemn
act of execution, vvhich latter can be either personal (manus
injectio) or real (pignoris capio).
The legis actio sacramento is the general form of action ; the
remaining legis actiones are restricted to such cases as are deter-
mined by statute (lex) or ancient custom with statutory force.
These special legis actiones are, each and all, modes of enforcing
obligatory rights ; in other words, they are forms of so-called ' per-
sonal' actions. Thus we have an abundance of actions whose
object it is to protect the rights of creditors. A creditor, however,
may also proceed by legis actio sacramento, not only when his
claim is for a 'certum,' but also where it is for an 'incertum ' {e.g.
pro fure damnum decidere oportere), provided only the existence
of his claim was disputed, and the peculiar form of trial by wager,
which required two mutually exclusive allegations, thereby
became practically applicable. But whenever the claim was not
personal, but real, i.e. whenever it sprang from some relation of
power, whether a power over things (ownership, inheritance, servi-
tude) or over persons (marital, paternal, tutelary power), in all
such cases the legis actio sacramento was the sole form available.
Having seized the object in dispute,^ both parties had solemnly to
1 Corresponding to the 'anefang' in the German form of vindieatio.
Cp. Gajus, iv. 16. The seizing of the object was coupled with the cere-
mony of festucam imponere, the staff being the symbol of power.
678 . PROCEDURE [Part IV.
affirm their title to it sacramento (vindicatio and contravindicatio).^
In this way the litis contestatio was arrived at and the foundation
for the judicium laid. Pending the judicium, the praetor, acting
on his own discretion, regulated the interim possession (vindicias
dare).
We have thus, on the one hand, only one form for actions of
ownership, in fact, only one form for real actions of any kind ; on
the other, a profusion of actions for the enforcement of obligations.
From the very outset the productive genius of the Roman law of
procedure, like that of other departments of Roman law, character-
istically exhibits itself within the sphere of the law of obligations.^
3. The Formulary Procedure
The solemn act by which the parties themselves, at the con-
clusion of the proceedings in jure, formulate the legal issue (litis
contestatio), constitutes the pith and climax of the legis actio pro-
1 The sacramento provoeare, i.e. the affirming of one's own word, in-
volved the impeachment of the other party's word (injuria vindicavisti),
which Avas thereby, legally speaking, annulled, the party himself being
thus compelled to make his reply by means of a counter-saeramentum.
(Compare the precisely similar effect which resulted in German law from
the fact that one party, by his deed or oath, impeached the deed or oath
of his adversary.)
2 From an historical point of view, the legis actiones are diAaded into
two groups, those of an older and those of a later type. The legis actiones
of the first group, which are antique in character, are marked by the
prominence in their procedure of the element of private force, which is the
source and fountain-head of all actions whatever. To this class belong
the L. A. per manus injectionem and the L! A. per pignoris capionem.
The ancient civil procedure both of the Romans and Germans is nothing
more than a form of self-help sanctioned by the law. And even the
vindicatio sacramento bears clear traces of a similar character. In the
proceedings in jure both parties are seen exercising force ; they are strug-
gling for the possession of the object in dispute, they both lay hands on it.
At this moment the judge steps in and commands peace : mittite ambo
hominem ! Both parties must let go the object {e.g. the slave who is
'vindicated'). The judge alone has now power to deal -with it; he is
free to act as he pleases in awarding possession (vindicias dare). A wager
is then laid with regard to the preceding act of force, and the judge is
required to decide which of the parties was acting in the exercise of legiti-
mate force, of justifiable self-help. The second gi'oup of actiones, on the
other hand, the L. A. per judicis postulationem and the L. A. per con-
dietionem, bear the impress of a later age. Everything is done peace-
fully. The parties merely ask to have a judex. The action is no longer
a mere disguise thinly veiling what is really a bold exercise of self-help ;
the state itself dominates the legal system and the execution of the law,
and the whole proceedings in jure merely represent an application by the
parties for judicial proceedings. Cii. Bekker, "Actionen," vol. i. p. 18 ff.
and Bechmann's recent "Studie im Gebiet der legis actio saeramenti"
("Festschrift f. Windscheid"), 1888; Gradewitz, " Zwangsvollstreckung u.
Urteilssicherung" ("Berliner Festsclu-ift f. Gneist "), 1888; Matthiass,
"Die Entwickelung des romischen Sehiedsgerichts " (" Rostocker Festgabe
f. Windscheid"), 1888, pp. 5-18.
Chap. XXXI, § 7.] A^X'IENT ROMAN PROCEDURE 679
cedure which we have just described. The oral formula of the
parties, framed in strict adherence to, and operating by virtue of,
the letter of the law, begets the 'actio,' i.e. the concrete, formal
right to a judicium, and, at the same time, supplies the foundation
upon which the judicium proceeds.
This solemn act of procedure cannot be repeated.^ It necessarily
follows, therefore, in the first instance, that the solemn litis con-
testatio of the legis actio procedure operates ipso jure to destroy
the right of action. That is to say, in the same moment when the
litis contestatio gives birth to the actio. in the formal sense of the
term (i.e. to the r ight to claim a judex for the dispute in question),
in the very same moment the actio in its material sense {i.e. the
right to the litis contestatio) is annihilated. The litis contestatio
can only be carried out once and no more. Its effect is to consume
the rig^t of action.
It follows, moreover, in the second pl^ace, from the same rule that,
if a mist ake has been made in the formul a, there is no way of
correcting it and saying the formula over again in an amended
form. A faulty formula entails the loss of the action, for the oral
formula admits neither of repetition nor amendment. The reason
why the use of the formula is attended with the risks incident to an
action is because it is itself an act which operates to consume a
right of action.
It was however ine\'itable that the oral formula shoiJd soon
prove inadequate for the purpose for which it was designed, the
purpose namely of formjulating the dispute for the decision of the
judex. The oral formulae were immutable, because the wording of
the statutes on which they were founded was immutable. But the
law which was developing on the basis of these words was none
the less changeable. True, the letter of the law frequently received,
in practice, a sufficiently liberal interpretation. On the strength of ^^,,,
a section of the Twelve Tables dealing ' de arboi ibii^ succisis/ tlig ^"^"^
practice of the courts subsequently admitted an action 'de vitibu s/^*^^
succisis.' But the wording of the Twelve Tables, and conse-
cjuently also the wording of the spoken formula, remained the same.
The vrords of the litis contestatio had to be de arboribus succisis,
even when, as a matter of fact, the plaintiff" intended to sue de
^ Precisely the same idea is to be found in the old German procedure
where the rule ' a man a word' was applied, i.e. every man has only one
word which, once uttered, can neither be retracted nor repeated nor
amended. I might suggest that this rule, itself an expression of the for-
malism which dominates all early procedure, supplies the desired explana-
tion (v. Wlassak, "Litis cont.," p. 57, note 1) of the 'consuming' effect
incident to the old solemn act of litis contestatio.
CSO PROCEDURE [Paht IV.
vitibus succisis. But how was the judex to find out the real mean-
ing of the parties from a Htis contestatio framed in that manner?
The result, inevitable in such circumstances, was, that the litis
contestatio became a mere mask for covering a variety of cases of
a widely different character. Thus it happened, often enough,
that the formulating of the legal issue, as carried out in the litis
contestatio was a mere pretence. In order therefore to pierce the
mask and discover the true nature of the issue before him, the
judge had to resort to other expedients.
To all this must be added one other circumstance. The legis
actio procedure was, so to speak, cut down and restricted to a
definite number of statutable claims. It was a difficult matter (as
we see in the case of the arbores and vites) to force a new law into
the old moulds. But from about the middle of the third century
B.C. onwards, as the inroads of the jus gentium became stronger
and stronger, a large number of fresh claims arose, such as the
bonae fidei judicia, the claims on informal sales, letting and hiring,
and others, not based on, nor recognized by, any Roman statute,
and lacking therefore the necessary credentials without which the
procedure by legis actio remained closed to them. A new law for
which there was no room within the narrow confines of the old
legis actio was pushing its way into the Roman sj'stem. New skins
were needed for the new wine.
And so it happened that at the same time when the forms of legal
redress supplied by the legis actio began to fall short of the material
requirements of the law, the necessity for a reform in Roman civil
procedure (the legis actio procedure) became more pronounced.
It is characteristic of th e tendency which marks the development
r>f "RrmTaj]^ law fliflt a rpmprly by means ot legislative e nactment
wasno t^resorted to. It was time enough to invoke the interference"
of soTiielastic an agency, when the aim and method of the desired
reform had been clearly ascertained. Meanwhile the judicature
was left to its own resources. The task of reforming RomaA law
The praetor was enabled to act the part of a reformer by means
of his imperium, i.e. by means of that regal power — formally
unrestricted and subject only to the intercession of a magistrate
of equal or superior authority — which he wielded during his
year of office. It was in the exercise of his imperium that he
appointed a private person judex, i.e. compelled him by his order
to decide a legal dispute. Where the conditions of a legis actio
existed, the praetor appointed the judex in accordance with the
Chap. XXXI, § 7.] ANCIENT ROHAN PROCEDURE GSl
law, and in such cases the plaintiff had even a statutory right to
the appointment. But the praetor had also the power to appoint
a judex apart from the law, 'sine lege,' ^ simply in virtue of his
sovereign imperative power (judicium imperio continens). And
this power he exercised in all those cases where there was no legis
actio, no statutable claim, but where the claim preferred was,
nevertheless, such as to be, in his opinion, deserving of legal pro-
tection. The praetor, taking the responsibility on his own official
authorit}^, ordered the appointed judex, under certain conditions,
to condemn or acquit, as the case might be. And since, in such
cases, a legis actio, a formulating of the issue by solemn act of the
parties, was quite foreign to the matter in hand, the task of formu-
lating the issue, and in this respect of fulfilling the functions of the
legis actio, was performed by the praetor himself in the written
decree which he drew up in appointing the judex. This decree
was called 'formula,' because it soon became the practice to frame
it after the model of certain 'forms' or 'formulae' set out in the
praetorian album. Thus two different kinds of procedure came to
be opposed to one another : the legis actio procedure and the
formulary procedure, the essence of the latter being that, under
it, the issue was formulated for the judex, and the groundwork and
purpose of his functions as a judex were marked out, not by the
legis actio {i.e. by the oral formula delivered by the parties), but
by the decree of appointment {i.e. by the written formula delivered
by the magistrate).
Of course the praetor would not use his imperium in this fashion
unless, and as far as, there was occasion for him to do so, i.e.
only where the exigencies of legal progress drove him to such a
course. And tliis was precisely what occurred when the recognition
of the j u^ gentium became a matter of imperative necessity. At
the outset the formulary procedure was nothing more than a new
form of procedure according to the jus honorarium, and was de-
signed above all things to s upply a method h\ which claims resting
on the ju s gentium could be realized . In this way the jus hono-
rarium aiid the jus gentium, mutually cooperating with one an-
other, advanced, as it were, hand in hand.
If this view of the case be correct, it may be presumed that the
praetor peregrinus was the first to find occasion to proceed by
means of the formulary procedure. Whenever a peregrinus pos-
1 Cp. Cicero, "de Off." iii. 15, 61 : sine lege judicia, in quibus additur
e.x fide bona ; *'pro Q. Roscio," v. 15 : arbitria honoraria ; "proFIaeco,"
21, 50: judicium leqe non erat {Scil. in the pi'ovince). Cp. Eisele, "Ab-
handluugen," pp. 88, 17.
682 PROCEDURE [Part IV.
sessed the Roman jus commercii, he stood under no disabiUty
either in regard to Roman private law or in regard to the Roman
law of procedure, and in such cases therefore there was nothing to
prevent the use of the legis actio even in the court of the praetor
peregrinus . But the establishment of the foreign praetorship
coincides precisely with the time when, as a matter of fact, the jus
gentium had already become the law properly applicable to tl
"great majority of aliens. 2__The legis actio, however, was juris civilis,
not juris gentium. A new form of procedure was thus urgently
demanded by the requirements of such non-privileged aliens. It
was to satisfy this want that the formulary procedure was emplo\^eiLl i
But in the court of the praetor urbanus the development of-iile"
law was rapidly leading to an identical result. His jurisdiction
was confined to cases where^botlj parties were Ro maiL ci tizens .
But Roman citizens as well as aliens acknowledged tlie jus gen-
tium, and the existence of legal liabilities arising from sale, hire, and
other such transactions. Thus exactly the same agencies were at
work pressing the praetor urbanus to develop the formulary in
addition to the legis actio procedure. Whenever the claim which it
was sought to enforce in his court admitted of legis actio, the legis
actio procedure appliedj in all other cases the formulary procedure
was resorted to.
There is, however, no doubt that the formulary procedure
steadily gained ground, and soon even began to dislodge the older
procedure from its own peculiar domain. In the first instance the
formulary procedure had only been resorted to juris civilis sup-
plendi gratia, but it was not long before it proceeded a step further
and boldly asserted its power to correct the civil or legis actio pro-
cedure. We have already pointed out that in many instances the
mode in which the issue was formulated in the legis actio was
inadequate and in no way indicative of the real facts of the case.
In addition to this, the legis actio never got beyond an oral joinder
of issue. And yet a single mistake in a single wo rd entailed the loss
of the w;Jiole suit. It is most probable that in a great many cases
the evidence supplied by the mere statements of witnesses in regard
to the words spoken in jure was felt to be obviously inadequate.
All such inconveniences would be obviated, if the formula, the force
and value of which the people had not been slow to appreciate,
were used even in cases which, in themselves, admitted of the
procedure by legis actio. The legis actio of the parties was tied to
the verba legis and was thereby, in many cases, reduced to absolute
unreality and hollowness.. The magisterial formula, on the other
Chap. XXXI, § 7.] ANCIENT ROMAN PROCEDURE 683
hand, was unfettered ; it contained the real matter at issue and
not a mere empty form beneath which the truth lay concealed.
Accordingly, whenever the praetor addressed a icritten order to the
judex, there could be no doubt whatever, as far as the judex was
concerned, as to the precise question upon which liis verdict was
required, and all the risks attending the use of a wrong word were,
at the same time, avoided. Thus even where the procedure by
legis actio was really available, there were sound practical reasons
why the praetor should exercise his right to nominate a judge with
a view to binding his nominee to act on the instructions (on the
formula, namely) which he (the praetor) gave him.
Whether in such circumstances the formula and legis actio were
used concurrently, or, as is more probable, the formula was sub-
stituted for the legis actio, in either case there was a distinct conflict
between the civil law (which required legis actio) and the praeto-
rian law (which gave the formula), a conflict, the sharpness of which
must have been all the more noticeable, because at that time the
praetorian power was as yet in the earliest stages of its development,
and the legis actio was associated with the powerful influence of
the pontifices. It was the pontifices who created, developed and
interpreted the legis actio. To assail the legis actio was to assail
the influence which the pontifical jurisprudence exercised over civil
procedure and consequently over the interpretation of the civil
law itself. By giving preference to the formula, the praetor thus
came into collision with that influential college which till then had
been the sole depositary of the civil law. It was at this moment
that interference by legislative enactment became necessary.
The popular enactment which struck in at this point was the
lex Aebutia (about 150 B.C.). Two other laws (the leges Juliae)
followed at a later date, probably not till Augustus. The lex
Aebutia was confined to legal proceedings before the praetor
urbanus, i.e. to those cases where a judicium was appointed to try
a cause between Roman citizens within the first milestone from
Rome, in short, to those very proceedings to which the legis actio
was most strictly applicable. It provided that a judicium could
be instituted in the city court {i.e. in the court of the praetor
urbanus) 2cithout legis actio, merel}' by means of the formula or
praetorian decree of appointment. The great controversj'^ was
thereby settled. Within the court of the praetor urbanus the
formulary procedure had been declared a civil laic modus agendi.
Formula and le^is actio were thus, as far as the civil law was
concerned, placed on a footing of equality. In the city court the
684 PROCEDURE [Part IV.
formulary procedure was now likewise a procedure *ex lege,' and
the judicium, which the praetor urbanus directed by means of his
formula only, was now converted into a judicium legitimum.
Henceforth the term judicia imperio continentia (judicia quae
imperio continentur) was applied exclusively to the judicia ap-
pointed by the praetor peregrinus or to those which were held out-
side Rome. With regard to these no change cf procedure took
place. The magisterial imperium did not need any assistance
from popular legislation, because its authority in these courts was
unquestioned. The city court of the praetor urbanus, on the other
hand, was, so to speak, the stronghold of the civil law and the legis
actio, that peculiarly Roman form of civil procedure. The power
of the praetor urbanus was, in truth, unequal to the task of ousting
the legis actio from its strongest position. The assistance of the
legislature was needed, and the method emploj'ed was to depreciate
the legis actio — at once the product, and the source of power of,
the pontifical jurisprudence — by investing the formula, for pur-
poses of the city court, with a legal character* Thus the formulary
procedure became legally available even in civil law causes. The
legis actio procedure was not yet actually abolished. An option
was left to the parties whether they would proceed by legis actio
after the old fashion, or would avail themselves of the formula
after the new method. The formula had, however, secured free
scope for itself. It had now an opportunity of putting forth
all its inherent capabilities. And in the competition between
the two forms of procedure, there was, from the outset, no doubt
which would win. In the legis actio procedure the formulating of
the issue was an act full of pitfalls for the parties, inelastic and rig-
idly formal ; in the formulary procedure the same act, stripped as
it was of all the old formalism, had acquired glaalicitx^ a capability
of indefinite expansion, and a ready adim tabijj tv to claims of all
kinds. Everything, in short, was in favour of the formula. The
natural result was that, in the practice of the courts, the formulary
procedure came, by universal consent, to be substituted for the
legis actio procedure in the vast majority of cases. The culminat-
ing point w^as marked by the two leges Juliae which, like the lex
Aebutia, were concerned with the procedure of the court of the
praetor urbanus, and provided that henceforth the appointment of
sworn judges should only be effected by means of a formula, and
not on the ground of a preceding legis actio. The effect was,
practically, and with a few exceptions presently to be mentioned,
to abolish the legis actio. The formulary procedure had now
Chap. XXXI, § 7.] AXCIEXT ROMAN PROCEDURE 685
become the civil procedure of Roman law. The object of the
proceedings in jure had been definitely changed, the place of the
old litis contestatio being taken by the grant of the formula, which
now constituted the principal and also the concluding act of these
proceedings. Henceforth it was the question contained in the
formula and no other which the judex was required to decide in
judicio.
The so-called 'introduction' of the formulary procedure by
means of the above-mentioned enactments was, if our view be the
true one, a process of the kind we have just detailed. It was not,
as we see, a sudden reform, a revolution, but merely the consum-
mation of what had been gradually preparing itself. These laws
were not the first to introduce the magisterial formula ; what they
did was merely to emphasize the final victory of this formula over
the oral formula of the parties, which had long existed side by side
with it, a victory which itself was due to the logical necessities of
the progressive evolution of the law.
There are two further facts which tend to corroborate and, at the
same time, to illustrate our view of the character of that develop-
ment of the formulary procedure which we have just endeavoured
to render plausible.
The first of these facts is this, that whenever an action was to be
decided in judicio by the judges of the so-called 'centumviral court,'
a magisterial formula was not used, the proceedings being con-
ducted in accordance with the forms of the ancient legis actio pro-
cedure (L. A. Sacramento) — a practice which continued without
break throughout the whole classical period of the empire at least as
late as Diocletian. Actions concerning inheritances therefore,
which in later times were certainly the most important subject-
matter for the jurisdiction of the centumviral court, were still con-
ducted according to the old traditional forms of the legis actio
Sacramento. And the reason was simply this, that the centumviral
court already constituted a standing college of judges which did
not require to be called into existence in each separate instance by
the written decree of the praetor. In such cases there was accord-
ingly no possibility of instituting a judicium, because a competent
judicium, riz. the centumviral judicium, was already forthcom-
ing. And inasmuch as this judicium was not called into existence
by the decree of appointment (the imperium), the praetor was un-
able to bind the centumviri by instructions as to the conditions
under which they were to condemn or acquit respecti\ely. The
absence of the praetorian decree of appointment thus explains
686 PROCEDURE [Part IV.
everything ; it explains why, in these cases, the formula did not
come into use concurrently with the legis actio, and why the ancient
litis contestatio was preserved ; why, in short, in causes coming
before the centumviral court the legis actio (sacramento) was not
superseded by the formulary procedure. In the judicia privata,
where a private individual had each time to be appointed judex for
the nonce, the ancient ceremony of litis contestatio had found a
rival in the praetorian decree of appointment ; no such rivalry
could spring up where there was no judex to appoint.^
The second fact has reference to the so-called 'voluntary juris-
diction,' i.e. that kind of judicial procedure which serves the pur-
pose, not of determining rights which are in dispute, but of estab-
lishing new rights. An example of this jurisdiction occurs in the
case of in jure cessio, i.e. the transfer of a right by means of a con-
fessio in jure. Inasmuch as, in this case, the allegation of title
put forward by the fictitious plaintiff (the transferee of the right) is
immediately followed in jure, before the magistrate, by the jural
confession of the fictitious defendant (the transferor), no neces-
sity, of course, arises for proceeding to a judicium, simply because
there is no legal issue to decide. For the very same reason there
is also no occasion for a formula, because there is no judex to ap-
point. The result was that in jure cessio, as long as it existed (i.e.
throughout the whole classical period and even longer), retained
the forms of the legis actio procedure, the particular legis actio
employed being again the L. A. sacramento.
Both these facts signify one and the same thing, namely that
where there is no occasion for instituting a judicium in any particu-
lar case by means of a decree of appointment, in every such case
there is neither formula nor formulary precedure, and the ancient
legis actio procedure holds its own.
The lex Aebutia and the leges Juliae did not simply abolish the
legis actio procedure and substitute the formulary procedure in its
place. Wliat they did was rather this : wherever, as a matter of
fact, the formulary procedure was already in practical use, in other
words, wherever, as a matter of fact, the sententia of the judex
already proceeded on the basis, not of the old litis contestatio, but
^ The decemviral court was dissolved by Augustus ; otherwise it is
certain (as is very happily pointed out by Mommsen, ^'Staatsr.," vol. ii.
p. 592, note 1) that the old legis actio sacramento would have been pre-
served in cases coming before it (actions relating to personal freedom).
Of course there was no more occasion for the use of a formula or decree of
appointment for the decemviral court than there was for the centumviral
court.
Chap. XXXI, § 7.] ANCIENT ROMAN PROCEDURE 687
of the magisterial formiila, in those cases alone (and they formed, it
is true, the great majority) the above-mentioned laws confirmed the
formulary procedure, and at the same time swept away the fossil-
ized relics of the concurrent legis actio procedure. But where the
formulary procedure was not in use — as in the cases falling under
the jurisdiction of the centumviral court and the cases of 'volun-
tary jurisdiction,' and damnum infectum — the laws referred to did
not introduce the formulary procedure.
Thus in matters coming before the centumviral court the old legis
actio Sacramento remained, but in all cases of judicia privata the
formulary procedure henceforth prevailed. The change meant
simply this, that henceforward the judex, in order to find an
authoritative statement of the issue upon which he was to deliver
his sententia, would have to look to the magisterial decree of ap-
pointment, i.e. the communication which the praetor conveyed to
him in reference to the legal issue submitted to his decision. In
other respects everything remained as before. The severance of
jus and judicium remained, nor was the old rule altered that the
magistrate's functions were restricted to introducing, allowing and
formulating the issue, the final decision being reserved for the ver-
dict of the judex. Nothing was changed except that the formal
foundation of the judicium had been shifted. In effecting such a
reform by means of the lex Aebutia and the leges Juliae, it is quite
possible that men merely imagined they were ridding themselves
of some futile and antiquated formalities, and perhaps also (at the
time of the lex Aebutia) of the predominant influence of the pon-
tifices over the legal procedure of the cit}' of Rome. The reform,
such as it was, was probably not regarded as possessing any unusual
significance, and it is hardly to be supposed that the Romans were
conscious of having accomplished anything great, more especially
as the idea of a fundamental reform of civil procedure never oc-
curred to their minds, as we see from the manner in which they
treated matters appertaining to the centumviral court.
In real truth, however, the reform which had thus been carried to
its conclusion, was one of the utmost importance in its far-reaching
practical results.
4. The Formula
The granting of the formula, i.e. the decree by which the judex,
or the several recuperatores, were appointed, had now become the
medium by which the litis contestatio was carried out. In other
words, it formulated the legal issue for the purpose of a decision in
688 PROCEDURE [Part IV.
judicio.^ The written formula of the magistrate superseded the
oral formula of the parties.
In point of legal force this new kind of litis contestatio was
theoretically inferior to the solemn act of the parties in the legis
ffctio procedure. An act of writing was, in the eye of the early
law, an informal act devoid of all solemnity, and was therefore, in
the legal sense of the jus civile, really no actio at all, i.e. it was not
an act by which a person's statutable right of action was, at the
same time, exercised and exliausted. As far as its nature and
the law were concerned, the formula could, ipso jure civili, be
retracted, repeated, or amended, if the decree of the praetor so
directed. For the civil law it had simply no existence, since it was
a mere creation of the jus honorarium ; at civil law therefore it was
not a litis contestatio at all, so that there was legally speaking (ipso
jure) nothing to prevent the identical claim being brought before the
praetor by action and carried on to the judicium twice over. The
lex Aebutia and the two leges Juliae made the formulary procedure
as applied in the judicium legitimum the only exception. In this
particular instance the civil law had given its recognition to the
formulary procedure. If a suit were commenced in the judicium
legitimum with an actio in personam and an intentio juris civilis,
the effect was ipso jure to consume the right of action and
render any repetition of the proceedings impossible, just as had
been the case with the old legis actio. In all other cases however
— and they formed the great majority — the praetor was obliged,
in each separate instance, to insert an explicit instruction, in the
shape of an express 'exceptio rei judicatae vel in judicium de-
ductae,' in order to prevent a cause which, under the formulary
procedure, had already led to the institution of a judicium, or
perhaps even been carried to the final judgment, from passing
through every stage of the action a second time. From this it
appears that it was not the action as such (neither the institution
of the judicium nor the sententia of the judex) which operated
to consume the right of action in the early law of procedure,
but solely that solemn legal act by means of which the party
himself brought about the appointment of a judex, in other
words, the legis actio in the strict sense of the term, the old
formal litis contestatio. And this very act had been dropped
in the formulary procedure. In contemplation of law, the
operative force of the granting of the formula was — apart from
1 The formula granted by the praetor was either handed to, or occasion-
ally dictated to, the defendant by the plaintiff.
Chap. XXXI, § 7.] ANCIENT RO^L^N PROCEDURE 6S9
the exception adverted to — inferior to that of the old htis
contestatio.
Nevertheless this modest formula, this written notice so bald and
succinct, which the praetor con^•eyed to the judex, contained
potentially the entire future development not only of the law of
Roman civil procedure, but also of Roman private law and, with it,
of Roman law in general.
The ancient legis actio procedure, with its litis contestatio tied to
set traditional words, offered but an extremely limited choice of
ways in which to formulate the legal issue. If none of these
traditional forms was strictly appropriate, the only remedy sup-
plied by the civil law was to have recourse to the so-called 'pro-
cedure by sponsio' (agere per sponsionem). A made a formal
promise (sponsio) to his opponent B that, if the allegation of fact
or law put forward by B were true, he (A) would pay a sum of
money. This sponsio could be enforced by a legis actio Sacra-
mento in personam, and the judicium on the sponsio would
involve a judicium and sententia on the question of law or
fact which formed the basis of the promise. The amount of
the sponsio was never actually paid, because a sponsio of this
kind (a so-called 'sponsio praejudicialis ') was not designed for
the recovery of a sum of money, but was merely intended to
bring on an action ; to serve, so to speak, as a device for forcing
on legal proceedings.^
On the other hand, there was no tradition to fetter the formula of
the praetor. In the old litis contestatio the issue was formulated
in narrowly prescribed terms ; in the new formula the terms used
were informal and freely chosen by the magistrate. The formula
was thus well adapted as a means for directly submitting to the
decision of a judex in judicio an}' question, or complex of questions,
which the praetor deemed actionable. The praetor himself was
now in a position, while formulating the legal issue, to give the
judex at the same time direct instructions in reference to the deci-
sion of such issue. For whether the judge condemned or acquitted
depended now solely on the manner in which the praetor formu-
lated the question in dispute.
The formula was bound to become, and did in fact become, the
'It was different with the so-called 'sponsio poenalis,' which was a
sponsio on the result of an action, the parties themselves contemplating
the payment of the money. On the defendant tenderinga sponsio poenahs,
the plaintiff had to reply with a 'repromissio,' i.e. a promise to pay the
same amount if defeated in the action. No repromissio was required in
the case of the sponsio praejudicialis. Gaj. iv. §§ 13, 94, 171 ; Bekker,
" Aetionen," vol. i. p. 240 ff.
G90 PROCEDURE [Part IV.
instrument by means of which not only the wording, but also the
decision of the legal issue was emancipated from the trammels of
the ancient statute-law and the exclusive influence of the civil law.
The formula, in a word, was the weapon by which the praetor and
his jus honorarium were enabled to assert their dominant influence
over the whole development of Roman law.
The legis actio and everything connected with its development
and interpretation was in the hands, not of the praetor, but of the
pontifices. In the legis actio procedure the judex was indepen-
dent of praetorian instructions. Officially he was only bound to
abide by such instructions regarding his judicium as were contained
in the solemn litis contestatio of the parties, and in giving his deci-
sion on the issue thus joined, he was obliged to act in accordance
with the civil law, and more especially in accordance with the pon-
tifical interpretatio. In jure the magisterial power was paramount,
in judicio, however, the old civil law, preserved and handed down
by statute and pontifical tradition, and operating through the judex
as its organ, held absolute sway. But now the relation between
the jus praetorium and jus civile was altered. The praetorian
decree of appointment (formula) had come to be binding even in
civil law matters. That is to say, even in civil law cases, it was
now not enough that the judex should simply decide in accord-
ance w^ith the civil law ; he was obliged, in the first instance, to
decide on the basis of the praetorian formula, having regard always
to such limitations and instructions as were conveyed in that
formula. Thus within the domain of the civil as well as the
praetorian law the judex became dependent on the praetor. He
was bound by the instructions (formula) of the praetor to acquit
the defendant even where, according to the civil law, he ought
to have condemned him. In other cases he was bound con-
versely, in virtue of the praetor's instructions again, to condemn
the defendant where the civil law would have required his
acquittal. With one stroke the judex had been converted from
an organ of the civil law into an organ, in the first instance,
of the praetorian law.
Through the medium of the formula the praetor was now master
of the whole legal procedure, including the procedure in ci^dl law
causes, and the edict began henceforth to dominate the practice and
development of the law. Apart from the centumviral causes, the
enforcement, in the courts, of the civil law was now entirely subject
to the limitatibns which the praetor in his edict thought fit to im-
pose on it. . . .
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE 691
The judex ceases to be, even for the jus civile, an independent
private individual, bound b}' nothing but the positive law. He
becomes an organ of the magisterial power and is already beginning
to assume the character of a subordinate official. Thus the develop-
ment of the formulary procedure was a decisive element in paving
the way for the subsequent elimination of the distinction between
jus and judicium. And while thus securing full control over
the judex, the praetor at the same time definitely appropriated to
himself a predominant influence over the whole evolution of Roman
law. The formulary' procedure marks the beginning of that vigor-
ous development of the jus honorarium, so momentous in its con-
sequences, which resulted in the metamorphosis of the jus civile and
the birth of classical Roman law. A reform of procedure was
followed by a reform of the law itself.
Section 8
EVOLUTION OP PROCEDURE 1
Procedure, criminal and civil, exliibits to us a full crop of inter-
esting similarities between the different historic systems.
§ 1. Methods of Proof. — In criminal procedure, we naturally
find proof by witnesses and by confession universally employed,
though with prodigious variety of importance. One might be
surprised, however, to discover that every primitive or barbarous
people has made use of that mystical expert testimony known
as the ordeal, in which hiunan life seems almost like the stake
in a game of chance or skill. Still more surprising is it, however,
to find that the forms of the ordeal apparently vary little from
people to people. The judicial duel, or wager of battle, it is true,
was not everywhere practised ; it could only develop spontaneously
in a pugnacious tribe; no pacific-minded people (and there are
many such, even among so-called savages) could have devised it.
Neither in the Brahmanic codes nor in the Avesta is it found ; but
we meet it in the tribes of America, Australia, and Oceanica, as
well as in the Old World. The ordeals by boiling water and by
red-hot iron were widespread ; they appear in India, Persia,
' [By Gabriel Tarde. Translated by Jnhyi H. Wigmnre from eh. II of
that author's "Les transformations du droit, etude s()C'ioh)frique " (1st
ed. 1893, 7th ed. 1912, Paris), %vith the consent of ]\Ini(>. Tarde. M.
Tarde, famous alike as jurist, soeiolofz;ist, and psyeholopfist, died in 1909;
an account of his career will be found in the Preface to the translation of
his "Penal Philosophy" (1913, Modern Criminal Science Series)].
692 PROCEDURE [Part IV.
Georgia, Bohemia, Poland, Serbia, Sweden, Norway, Denmark,
Germam, and elsewhere. Plainl;\' this extension was due to
imitation induced by contact. But what motive accounts for
such a popularity? We must infer that wherever this supersti-
tious resort to divine intervention was acclimatized from without,
it served as a substitute for even more irrational or cruel practices
which had preceded it.
As a general truth, there appears to have been a certain logical
and irreversible order (not Jiowever a constant one) in the his-
torical succession of the ordeals, at least wherever the judicial
duel was employed. They seem to have followed each other with
gradual mollification, — illustrating that general principle of
minimum effort which dominates changes in industries, as well
as in rituals, phonetics, and grammars. The inclination of our
modern courts to treat the penal law from the point of view of
correction and reform is an example of the same general tendency.
Thus the judicial duel — the most senseless and bloody of the
ordeals, and the one least capable of popularization — gave place
usually to the ordeals of water and of fire, — practices more
humane than one might imagine, and more capable of evasion.
And finally they are all supplanted by the oath, which may be
regarded (as INI. Dareste well says) as a "milder and simplified
form" of the judicial duel.^ The oath usually preceded all the
others, and invariably survived them. As far back as we go,
and even where no trace of the judicial duel is found, nor of any
other ordeal, the primary proof is the oath.
In the Sutras, the earliest Brahmanic codes, the only proofs
are those of water and of fire ; as yet the parties' oaths do not
appear ; but we see the witness' oath beginning to be used, and
it tends to predominate. In the code of Manu, later than the
Sutras, which marked a new epoch in the Brahmanic system,
proof was made by witnesses, and w^hen necessary, by the party's
oath. The Ossetes of the Caucasus (where many archaisms of
law survive) make use to-day of only the oath and the usual sorts
of proof; but there is evidence that the judicial duel and the other
ordeals were formerly in use, and traces of them remain. In all
the peoples of Germanic race, the judicial duel was the earliest
procedure ; those countries were the cradle of the method, and
in them originated the various changes which it underwent, down
1 From the oath of Merovingian times to our present-day oath, partic-
ularly to the parties' "decisor.y" oath and to the wdtness-oath, is but a
single step, and the transition is easy to trace. Our oath is itself, there-
fore (though only one form) a reUc of the ''decision of God."
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE 693
to the neo-chivalric absurdities of the modern dueh Since the time
of Tacitus they practised a divinatory duel, of which the judicial
duel was the natural product. That they used (in the early
period) the ordeal by boiling water, is doubtful ; for Tacitus does
not mention it ; but it appears by the time of the Salic code, as
also the oath of the party and his compurgators. In Sweden,
Norway, and Denmark, the judicial duel was abolished about
A.D. 1000, under Christian influences, and the ordeal of red-hot
iron replaced it. In the 1200 s the latter was in its turn sup-
pressed (but not without popular opposition). With this elimina-
tion of the "decision of God," there remained only the proof by
oath of the party and his compurgators.^
In Iceland also the duel w^as abolished, a.d. 1011, under the
influence of Christian ideas; then the ordeal of red-hot iron pre-
vailed ; and finally the oath, not taken by the party, but by a
group of neighbors not unlike the ^Merovingian compurgators.
In Ireland, the abolition of the judicial duel goes back to St.
Patrick, in the 400 s ; it was supplanted by the ordeal of boiling
water, mentioned in the Senchus Mor; then by the oath of the
party and his compurgators.
Among all the Slavic peoples — Czechs, Russians, Poles, etc.
— the judicial duel was the primitive custom. With the Czechs
it was specially applicable to homicide, — a murderous proceeding
suitable for a charge of murder. But in certain cases, the oath
was substituted, viz. where the party was incapable of a combat ;
and this exception became the rule, — gradually, no doubt. If a
house was attacked by night, the accused could exonerate himself
by taking oath, with two fingers resting on a red-hot iron, — an
original combination of two modes of proof. But in case of in-
jury to a crop, the accused exonerated himself by an oath cor-
roborated by witnesses, and these witnesses, we are told, took
the place of the boiling water formerly used. In Poland, the
judicial duel had been usual ; but if the accused proved that he
was not fit to fight, they resorted to the ordeal of red-hot iron.
The oath was also allowed, but was required only for wrongs of
minor importance ; these being the more numerous, it was natural
that the oath should become finally the normal method ; and m
the statute of Wislica (1300 s and 1400 s), which abrogated many
old customs, we read that neither ordeal nor judicial duel are any
1 Plainly this parallelism in the order of succession in these three king-
doms, as well as among the Ossetes and the others, has nothing surprising
in it ; the same historic cause, viz. the preaching of the Gospel, naturally
had the same effects.
694 PROCEDURE [Part IV.
longer employed ; the oath still plays a prominent role ; and some-
times compurgators are required. The Lithuanian code, like
the Polish code, which influenced it, provided for proof by the
complainant's oath, in case of homicide, or wounding. In Russia,
in the 900 s, the judicial duel was widespread ; whether the ordeals
by fire or by Avater were used does not appear. But the dominant
proof was the complainant's oath, together with circumstantial
presumptions. In Dalmatia, in the 1200 s, the oath was the most
esteemed proof, — taken by the complainant, if he had witnesses,
otherwise by the accused ; when compurgators were required,
and the required number were lacking, the party could make up
the deficiency by repeating his own oath to the required number
of times. In Hungary, the judicial duel is exceptionally found
to survive the ordeal of the red-hot iron, which in the 1200 s was
used for deciding nine-tenths of the cases. But the duel, in its
later persistence, was much modified and had no mortal features ;
and while the ordeal was in favor, the clergy were allowed to sub-
stitute the oath for it. Finally, we note that, in the Serbian code
of the 1300 s, the favorite mode of proof was not the oath (as in
the neighboring peoples), but the decision of God by boiling water
and by red-hot iron.^
This rapid survey will suffice for allowing us to interpret the
true nature of the similitudes observable between peoples most of
whom have been in relations of successive contact with one another.
Note, first, that the formulas of invocation used for the ordeals
of fire and of water were the same throughout Christendom. This
little circumstance reveals plainly the important role played by
Imitation in this point. And note also, as corroborative evidence,
that among the Chinese and the Japanese there is no trace of
ordeals ; and that the acquaintance with them in Cambodia and
Thibet, countries subject in all epochs to the influence of enlighten-
ment from India and its imitative influence, the ordeal there used
was that of boiling oil, and probably of Hindu origin. In Mada-
gascar, among the Hovas, and here and there throughout Africa,
the usual ordeal is that of a poisoned drink.
Note furthermore that though, in America and in Australia, as
well as in the Old World, the judicial duel and some ordeals were
practised, yet in the former the oath was not used ; and that indeed
the judicial oath is unknown among almost all wild tribes,^ while
it is known among some peaceful and agricultural tribes. Here is
1 The foregoing data are taken from M. Dareste's book.
2 Letourneau, " Evolution juridique," p. 43.
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE G95
a difference which has its meaning, and which, taken with others,
serves to restrict within their proper hmits the simihtudes already
observed. We have noticed that among certain Slavic peoples
the complaint could be proved by the plaintiff or accuser, — an
exception to the ordinary rule among primitive peoples.^ In both
cases alike, to be sure — whether the accuser or the accused be
allowed to settle the case by his oath — we see the strength of the
feeling of honor and of the holy horror attaching to the idea of
perjury ; but we certainly could not assert that the distinction
betvreen one party or the other taking the oath had no significance.
The right of making proof by oath was regarded as a substantial
advantage; and that is why, in all primitive legal systems, the
"onus probandi" (nowadays become a "burden," but then a
privilege) fell upon the accused or defendant. The truth is that
the "burden of proof" was at one period generally on the defendant
or accused, and afterwards in a later period passed to the complain-
ant, until this latter principle, in our day, has become an undisputed
axiom. No one has discovered, so far as I am aware, an instance
of the opposite transition, i.e. of the evolution of the duty of mak-
ing proof from the complainant to the defendant.^ And this
illustrates what I have above termed an irreversible process. And
these instances of irreversibility, I confess, have to my mind much
more value than the similitudes whose first impression is more
striking ; for they exhibit the working of the social logic.^
Take another rule of proof, the rule "testis unus, testis nullus,"
wdiich was universally in force in the European ^Middle Ages, and
even in our daj- is still preserved in some of the United States.
^ I pass over minor differences. Among the Aborigines of India, the
judicial oath is taken on the skin of a tiger or a lizard ; in Sumatra, on
the grave of an ancestor; among the Germans, originally, on a sword
consecrated to the gods, and after their conversion to Christianity, on
the relics of a saint, as elsewhere upon the Gospel or the Koran. The
women of Germany took oath "by their breasts." Insignificant as these
details may seem, they reveal none the less essential divergences of con-
ceptions as to the order of sanctity in the objects of their reverence.
2 The causes for disqualifying witnesses exhibit an analogous inversion.
Among the Arabs {Seignctte, loc. cit.), by the Musulman code, the wtness'
relationship to the complainant, hut not to the accused, authorizes the
rejection of his testimony, — just the opposite of our own rule. This
ditTerence is due to the accusatory system ; and as the growth of inter-
course and the extension of the social group led ine\'itablj' to the system
of official prosecution replacing that of private complaint, one may infer
here also that the transition from the Arab principle of disqualification of
witnesses to our own principle is an irreversible process. — In our own law,
even yet, when the injured party brings a civil suit — the last relic of
the accusatory system — he cannot testify to the facts of his injur3^
' [For the author's theory of "social logic" in evolution, see the other
passage from his book, translated ante, in the Introduction, section III,
§ 1, par. XL]
696 PROCEDURE [Part IV.
One might suppose that this rule had its origin in human nature,
and that its (relative) universality would be thus explained. But
this rule requiring two "witnesses is founded ^ on the passage in St.
John's Gospel : " In lege vestra scriptum est quod duorum hom-
inum testimonium verum est" ; and from that Gospel passage the
Hebrew command spread over two worlds. Probably, also, this
Jewish custom accounts for the Arab custom also requiring two
witnesses.-
Take further the idea of compurgation. The Berbers of North
Africa have always had compurgators ; if fifty persons swear that
he is innocent, he is acquitted. Is that an imitation of our analo-
gous European institution ? Perhaps, rather, it is a survival from
a common body of tradition. Besides, the most natural expedient
that would spontaneously occur to a man of the populace accused
of a misdeed would be (if he lacked proof by witnesses or otherwise)
to call upon his neighbors, relatives, and friends to bear witness
formally to his good conduct and repute, his virtue and truthful-
ness. This idea is so natural that it must have given rise — in
mam' countries simultaneously, and without any imitation — to
an expedient analogous to our compurgation. Its almost universal
use is easy to understand. Indeed, it can be said not to have
wholly disappeared ; for after the oath of compurgation had been
abolished, the custom remained down into the 1700 s for the ac-
cused to be escorted to the courthouse by a long train of relatives
and friends, whose mere presence was a silent and formal indorse-
ment of his honorable character. And in our own day, the instinct
to invoke such a popular indorsement is so strong that in most of
the correctional tribunals and jury trials the accused parties get
their counsel to read certificates of character fortified by inter-
minable lists of names. And still more notably, when a popular
personage happens to be publicly charged with misconduct re-
flecting upon his honor, and he happens thereafter to be a candidate
for election to some office, do we not all believe (a few philosophers
excepted) that his election by the majority is a sort of acquittal
by the "vox populi," which passes always for the "vox Dei"?
His electors are just so many compurgators. And we must admit
that this proceeding, interpreted in its general principle, would
take us straight back to primitive times. . . .
Let me now point out a general truth in the so-called evolution
of law, applicable to the foregoing data, and illustrating the im-
^ Viollet, "Histoire du droit frangais," p. 26.
* But with this modification, viz. two men, or one man and two women.
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE 697
portant part played by imitation.* If we take a juridical invention
all by itself — e.g. the judicial duel, the judicial oath, the ordeal
by fire, the jury, proof by torture, or extradition, or for that matter,
in other fields, adoption, lease on shares, etc. — and trace its course
in history, nothing seems to show more clearly a process of
Evolution ; and the same is true when we trace a specific word-
root or a myth or a machine or a method of art, through its travels
in space and time. But the moment we take several juridical in-
ventions together (even related ones) — such as the group of differ-
ent ordeals or of different actions at law or forms of civil proced-
ure, or of systems of relationship or succession, etc. — the
moment we do this and attempt to describe as an "evolution"
the gradual replacement of one by another, we then find that nothing
is more obscure than this new sense of the word, — quite distinct
from the former sense. And its obscurity is not due to the greater
complexity of details (for they are not always more complex), but
to something contradictor}- which makes itself felt, viz. a positive
discontinuity and accidentality, concealed under that deceptive
semblance of necessary continuity (or continuous necessity) which
is inherent in the very notion of Evolution. Why, then, do we
find this difference ? Because, in the former of the two methods of
study, the changes observed consist principally in two things :
1st, in the greater or less imitative propagation which has fallen
to the lot of some juridical idea which was somewhere once in-
vented by some ingenious brain (thanks to special circumstances)
and spread gradually into new groups and was used for new pur-
poses ; 2d, in the greater or less belief in its efficacy which attended
this imitative diffusion. These two phenomena are indeed con-
tinuous; and they constitute a genuine Evolution, — an ascending
or a descending one, a development or a decline, according as they
fulfil themselves in an increase or a decrease of imitation and of
faith in their efficacy.
As an example, take the judicial duel. Once this idea was
born - — in some corner of Gaul or Germany — of making the
1 [For this author's exposition of his theory of Imitation as the basis
of most so-called Evolution, see the Introduction to the present volume,
section III, § 1.]
2 It was suggested by a much older idea, mentioned by Tacitus, viz.
that of making a warrior of their own army fight with a prisoner taken
from the enemy, so as to divine the issue of the general battle from the
issue of this particular one. Thus the divinatory duel gave rise to the
judicial duel. Yet they are two separate inventions; for the latter re-
quired a new mental combination, viz. the appHeation of the idea of
consulting the divinity, by means of a single combat, not to the issue of
a battle of two armies, but to the issue of a lawsuit of two men.
698 PROCEDURE [Part IV.
parties fight, to find out which one was in the right, it spread, — •
first to the surrounding peoples ; then, within each, from one social
stratum to the other, from the great to the humble. And, natu-
rally it spread with an increasing faith in its efficacy, in proportion
as their bloody expedient was seen to be extending among others ;
for the Burgundian Code of king Gondebad ^ and the fulmina-
tions of the Christian councils - show us what a frenzy of favor
this procedure enjoyed in the Merovingian epoch. And finally
we see its credit exhausted and its desuetude proceeding by degrees,
from the 1300 s, the time of king St. Louis.
Now this progress followed by this decline — this wave of faith
and desire which rises and then falls, exliibiting first an extension
and then a restriction in its imitation — is a phenomenon so gen-
eral that it might be termed universal and therefore necessary.
But this would be none the less an error. There are some juridical
ideas — e.g. the will and the mortgage — w^hose success, once
they are somewhere introduced, maintains itself indefinitely.^
And there are others — e.g. divorce and adoption — whose credit
is subject to fluctuations, and then to revivals after a discredit
of a short period or even of centuries. And there are exceptional
cases in which, in place of steady movement, the variations of
faith in them and of imitation of them proceed in inverse ratio,
— the jury, for example, which still continues to spread over the
world with its acquired momentum, though the confidence in
its verdicts is everywhere at its lowest. And furthermore, if
one examined carefully, it would be found that the spread or the
desuetude of a juridical invention (as well as of a word, a cere-
mony, an artistic form, a moral precept, or an industrial tool)
is due to special circumstances — mostly accidental — which have
favored or opposed it. However this may be, and leaving causes
out of consideration, the truth remains that the variations of
imitation and of faith form a natural sequence, like those of any
quantity in matter; and that, like these, they lend themselves
to the idea of a rational connection, formulable in a kind of theo-
rems. And some day these formulas will be discovered by the
science of statistics, — the transcendental mathematics of society.
1 [About 500 A.D.]
2 [For the opposition to the judicial duel, see a summary account in
§ 120 of Brissaud's "History of French Public Law" (Continental Legal
History Series, 1914).]
' "Indefinitely" is too strong a word. Here too there are exceptions.
Mahomet abolished the will, which before his time obtained in pre-
Islamitic customs (teste M. Seignette, who offers strong evidence in support
of his view).
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE 699
But how could we ever hope to formulate (at least with analo-
gous precision) the law (if there were one) of a totally different
phenomenon, viz. of a change in qualities substituted successively
for each other, and not of the same quantity in variable degrees ?
When the praetor's formulary- actions at Rome replaced the
"actio sacramenti" and all other forms of action — when torture
in the 1200 s replaced the judicial duel, and then, a century ago,
the jury replaced torture — are such facts capable of comparison
with the variations which we have above surveyed? It would
be useless to argue that the substitution was gradual, that the
beginning of the later institution joined on directly to the end of
the earlier one, — as one passes gradually from one color to the
other in a rainbow. For the obstinate fact remains that, at a
certain time and place, a new germ icas implanted, — more or
less fortuitous and unforeseen, and even impossible to foresee
though explainable after we see it, — just as nothing could pos-
sibly have enabled us to predict that the yellow in the rainbow
would come next to the blue and the red next to the yellow, if
we did not know those colors.
All this is meant to make clear that there are two senses of the
term Evolution, profoundly distinct, when applied to society, and
that the error or the unconscious and insidious method of the
evolutionists consists in confusing them : 1st, Evolution, in the
most precise sense, signifies "imitative propagation, more or less
extensive, from an example supplied by a first inventor"; 2d,
Evolution, in a sense much more confused, signifies, "a meta-
morphosis in the style of Proteus, a series of different initiatives,
more or less imperfectly connected." And this ambiguity leads
to another. For when they tell us of an evolution which is uni-
form for all societies, the "uniformity" thus meant includes two
things, {a) uniformity whose cause is an imitation of the same model,
thus the transmission of the same tradition; and {h) uniformity
whose cause is the identity (to a certain degree) of the human or-
ganism and the human mind, producing a coincidence in certain
principal inventions, independently of each other, but under the
same needs, and producing them successively in an order often
nearly alike, by virtue of logical laws.
§ 2. Procedure and Courts in general. In many primitive sys-
tems of procedure, it may be conceded — even in that of Athens
— the proceedings begin, as did the "actio sacramenti" of the
early Romans, by the parties' deposit of a sum of money, required
before any other formality, to insure the payment of the expenses
700 PKOCEDURE [Part IV.
of justice.^ Sir Henry Maine has pointed out - the striking
analogies between the forms of the primitive Roman "pignoris
capio" and of the distraining of cattle so important in early Eng-
lish law. . . . One may easily concede that the analogy re-
marked by Maine is probably attributable to that common fund
of common traditions and institutions which we know to have
been the heritage of all Indo-European peoples.'^ In other words,
its cause is the imitation of the father by the son. Another
analogy noted by the same author is explainable in the same way,
viz., the practice of "sitting dharna," used by the Hindus, and
that of "fasting on a person," once practised in Ireland, In
both practices, the creditor, to compel payment from a debtor,
places himself before the latter's doorway, there to remain fast-
ing indefinitely, until the debt is paid ; ^ the expected payment
seldom was delayed, for public opinion would have wreaked
itself upon the debtor who allowed his creditor to become
exhausted or to die of starvation before the door. I will only
note that this method of compulsion illustrates the depth of the
sentiment of compassion among primitive peoples, and in no
way gives support to the insensibility commonly attributed to
them. ...
1 It is unpleasant to have to note that, from earliest beginnings, justice
appears everywhere as essentially something that costs. I am tempted
to add that many of the numerous fatal technicalities devised in codes of
civil procedure recall nothing more strongly than the Polj^nesian islanders'
taboo. I do not dare to speak jocosely on so lamentable a subject ; but
one example from a thousand I cannot refrain from giving. Some j^ears
ago, a farmer in my neighborhood, well-to-do and reputable, D. by name,
sued one of his neighbors, and after a summary proceeding not permitting
an appeal, obtained a judgment for fr. 700 against his opponent. In
entering the judgment, the error was made of failing to record that the
witnesses had been sworn. Observe that they had indeed been duly
sworn, as everybody well knew, but the record failed to mention the per-
formance of this archaic ceremony. The losing party, taking advantage
of this mandatory rule, appealed. The upper coiu-t set aside the judg-
ment and remanded the case to another eoirrt. While awaiting this
trial, the opponent filed a claim against D. for the costs of the appeal,
some fr. 1800. The astonished and indignant D. was levied upon ; his
farm, which was his sole subsistence, was sold at an absm-dly low price,
scarcely enough to pay the claim for costs. Here was a man ruined by
winning a lawsuit, — by winning it twice, indeed ; for after the sale the
second trial again resulted in his favor. D., overwhelmed by his mis-
fortune, is tlu"eatened with mental derangement. And no wonder!
2 [See, in this volume, p. 586 seq., and p. 591 seq.]
3 And even of many others ; for the item of race is here very secondary.
The Semites show surprising resemblances to the Aryans in primitive
legal ideas.
* Among the Hebrews, and thus in a different race, M. Dareste finds
a trace of this procedure; the creditor cannot enter the debtor's house
to make a seizure; "thou shalt remain without," says Deuteronomy,
"and he shall give thee what he has."
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE 701
But, seeking fot generalizations, let us now ask whether it is
indeed proved : 1st, That procedure and courts have had, as a
like point of departure, one and the same embryonic condition;
2d, Whether, though perhaps starting from different conditions,
they have everj-^vhere in their development passed through a
like order of successive phases ; 3d, Whether, though by different
roads, they tend to converge towards the same ideal perfection.
1. In the first place, where do we see any evidence of this
initial resemblance, which some have so readilj- conceded ? What
reason have we to believe that the resemblance is anything but
that illusive simplification, that effacement of contours and
colors, which is produced by distance in time and space, and forms
the mirage of philosophic historians? The further we proceed
into the desert of the past, the further recedes this picture of
primitive life as one and uniform, glittering before our eyes in
the deceptive distance. It is a common error to conceive of the
single, the homogeneous, the undifferentiated, as located at the
beginning and bottom of things. Yet wherever we take the
trouble to dig down for this supposed homogeneous, we come
upon a swarming progeny of characteristic differences. We have
only to observe the wild tribes still extant. In some of them, e.g.
the Kabyles, the judicial function is exercised by the entire village ;
in others, it centers in the chief, a patriarch or a despot ; in others,
it is shared between the chief and the assembly; and perhaps
we should discover some tribe which called in a stranger to be
the impartial judge for their quarrels, like the "podesta" of the
medieval Italian cities. . . .
Let us beware of hasty generalizations. IMaine himself was here
too hasty. Because the old Roman "actiones legis," like other
early systems observed by him in India, consisted in symboUc
combats disputing over some article, he drew the inference that
this "juristic drama" must have been the universal primitive
type in procedure. And Letourneau makes the same inference ;
"all this mimicry was evidently meant to avoid a violent struggle
while calling it to mind; and the forms of a creditor's levy are
drawn from the primitive foray of violence, while serving to re-
place it." This sounds very plausible. For symbolism in pro-
cedure is common enough — in primitive penalties, for example,
where the rule of "an eye for an eye" and personal revenge mu-
tually explain each other. A sort of natural symmetry of opposites
leads often to one thing reflecting the image of another. And the
symbol may be drawn from precisely that other thing which it
702 PROCEDURE [Part IV.
opposes and replaces.^ But to universalize this feature (which
of course would be confined to imaginative peoples) is to make a
cardinal mistake, — the mistake of the philologians who seek to
explain the origin of all languages by onomatopoeia, that is, by
vocal mimicry.^ It w^ould be as unreasonable to generalize the
universal beginnings of criminal procedure (which must have come
before civil procedure) as a sort of lynch-law ; for this summary
proceeding ife found among many peoples ; ^ but nobody would
go so far as to infer that therefore all primitive peoples began by
hnching. The conclusion is that the greatest diversity must
have reigned in primitive procedures, as in primitive languages.
2. In the second place, I do not find — any more than in the
first item — any great similitude in the succession of phases
through which the various procedures and judicial systems passed
in their development, — unless it be such similitude as is attrib-
utable to imitation, direct or indirect. Direct imitation is
found, as where the institutions of an alien people are copied. In-
direct imitation is where, without copying, but through the gen-
eral diffusion and exchange of examples — tribes becoming cities,
cities becoming kingdoms or empires or great nations, and thus
more civilized, i.e. complex — this gradual enlargement and
gradual complexity has forced the procedure and the judicial
system to adapt itself thereto. The successive forms of this
adaptation, to some extent vague, present a certain analogy. For
example, wdien the city became larger, of course, a king's justice
replaced that of the family tribunals for certain kinds of offences
or claims. So, too, this gradual enlargement of the social group
explains why (in almost all legal systems) the original rule, forbid-
ding the suitor to plead by attorney and requiring him to attend
in person, ended finally in not only permitting the use of an attor-
ney but in requiring it. So, too, in the very small democratic
' For what could be more opposed than reconeihation and revenge ? And
yet the ceremony of reconciliation among the Bohemians, in the 1300 s, as
described to us in the Moravian custumals {Dnreste, p. 166), is a symbolic
vendetta. And what could be more opposed to war than a sport? And
yet the games of cards and of chess, to name no others, are symbolic
combats.
2 This hypothesis, much too simpUficative, and rejected moreover by
most scholars, is applicable only to those phrases invented by exceptional
persons belonging to what M. Ribot and other psychologists term the
"auditive type" ("Revue philosophique," Oct. 1891, article by Ribot,
on "General Ideas").
^ Notably in Israel, where, alongside of the judgments of the kings a,nd
the Levites, we find the "judgments of zeal," i.e. the spontaneous execution
of a criminal by an indignant crowd. Indignation is a very old thing, and
therefoi'e also the moral sentiment.
Chap. XXXI, § 8.] EVOLUTION OF PROCEDURE 703
States, the laws had to be voted directly by the assembled people,
while in the large States they could be voted only by represent-
atives. And, furthermore, as invention led to the domestication
first of animals, then of plants, diffusing and exchanging them, and
the tribe passed from the hunting to the pastoral stage, and then
to the agricultural stage, which permitted fixity of location and
density of population, it is plain that legal procedure must have
grown rich and complex in detail, and the judicial function must
have become regularized and specialized.
But I do not perceive that (apart from direct borrowings) two
peoples who remained entire strangers to each other exhibited any
similitudes that could not be explained by the foregoing considera-
tions. . . . All that can be generalized, as to the successive
transformations of procedure, is that, contrary to the common
opinion, it becomes more and more formal as it advances (at
least up to a certain age), i.e. more and more precise, regular, and
minute. And why? For the same reason that the orthography
of language develops an ever-increasing meticulosity, — in spite
of the reformers of the moment, and in proportion to the prog-
ress of literatures.
3. But though there is no common point of departure, and no
common path imposed on the judicial methods of diverse peoples,
may we not at least say that they tend to the same point of arrival ?
Thus far, this pole-star of hypothesis has not revealed itself to
my eyes. I do indeed see, in proportion as the field of civilization
expands, a small number of procedural systems replacing numer-
ous diversified ones. And it may be that this progressive elim-
ination will lead finally to the reign of a single system, i.e. the
procedural system (as well as the language) peculiar to that na-
tion which proves most invasive, most obstreperous, most full
of prestige. For it is beyond doubt that, by the laws of imitation,
and just because we start with a diversity of original things each
of which aspires to make itself universally imitated, some day a
unity will come about by the triumph of one of them. Thus it
was that the Roman empire as a juridical unity was formed by
the superposition of the law of the city of Rome upon the Etruscan
law, the Celtic law, the Hellenic law, and the others. But that
sort of uniformity is very different from the uniformity produced
by inherent finality or purpose in nature, the necessary effect of
the concurrence of contacts, whether imitative, spontaneous,
or forced, — very different from the uniformity caused by that
necessity that every system of law, developing in isolation, shall
704 PROCEDURE [Part IV.
issue into a condition closely identical with that upon which all
the others are converging (as if by some higher attractive force),
and regardless of the various starting-points and of the diverse
travels of each. . . .
What need of further descending into concrete details? Does
an ideal procedure imply necessarily the existence of barristers,
attorney's, bailiffs? Clerks, yes, I concede that, since the inven-
tion of writing.^ But in ancient Egypt, where trials were in writ-
ing, and though their juridical evolution was the longest, and
reached the farthest point in its own type, of any in the whole
world, there were no arguments and no lawyers. In China and in
Japan there w^ere no lawyers. In La Plata (and we all know that
the peoples of South America are proud of their progressive-
ness) there are neither attorneys nor bailiffs.
I do not say that that is the last word in perfection. But I
believe that I am right in saying, No one can describe the Pro-
cedure of the Future.
It will be — what They will make it !
1 Even among the Aztees, who used a sort of cursive painting for lack
of a script, we find a clerk represented as " pictographing " the decisions.
214 3 ^
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