\t 
 
i 
 
EVOLUTION OF LAW: 
 
 SELECT READINGS ON THE ORIGIN AND DEVELOPMENT 
 OF LEGAL INSTITUTIONS 
 
 .Volume HI 
 
 . FOEMATIYE INFLUENCES OF 
 LEGAL DEVELOPMENT ' 
 
 COMPILED BY 
 
 ALBERT KOCOUREK 
 
 PROFESSOR OF LAW IN NORTHWESTERN UNIVERSITY 
 AND 
 
 JOHN H. WIGMORE 
 
 PROFESSOR OF LAW IN NORTHWESTERN UNIVERSITY 
 
 BOSTON 
 
 LITTLE, BROWN, AND COMPANY 
 
 1918 
 
''^k 
 
 '4. 
 
 Copyright, 1918, 
 By Little, Bkown, and Company. 
 
 All rights reserved. 
 
 KISTO^^Yf^ 
 
 NortoooTJ ifrc00 
 
 Set up and electrotyped by J. S. Gushing Co., Norwood, Mass., U.S.A. 
 
 Presswork by S. J. Parkhill & Co., Boston, Mass., U.S.A. 
 
PREFACE 
 
 For the statement of the purpose of this series of volumes, we 
 refer again to the preface of Volume I. 
 
 I. The first volume ai med to set out concrete examples and 
 evid ences of law and legal institutions as fo und in ancient general 
 litera ture, modern observations of retarded societies, the monu- 
 ments of ancient laws and codes, and in ancient legal documents. 
 So far as was feasible the materials there selected fall either under 
 the category of "aiicient" or ''})riniltive. " These terms, of course, 
 are not convertible either in the law or elsewhere. What is ancient w^ 
 may, or may not, be primitive; and what is primitive may, or 
 may not, be ancient. The preponderance of interest for the 
 student of historical jurisprudence lies in what is primitive, rather 
 than in what is only ancient; but the probability that ancient 
 laws and codes contain a residue of greater or less bulF'of rudi- 
 mentary legal ideas, we believe supports the combination of the 
 ancient and the primitive in a general survey of legal evolution; . 
 and such combination has the distmct advantage of giving a dual/ 
 basis of comparison in the study of developing legal ideas. / 
 
 On the same point, it may also be said that for the purposes 
 which we have had in view, a logical separation of strictly primitive 
 materials from such as show development, and even a high order 
 of development, of legal ideas, would hardly have been practicable. 
 The peoples and laws represented therefore range through various 
 stages of legal and social condition, from the Australian tribes or 
 Seri Indians at one pole to the Babylonians or Egyptians on the 
 other. 
 
 The sources of ancient and primitive law are to be found not only 
 in the three primary classes represented in the first volume; 
 namely, (i) ancient literature, (ii) modern observations of re- 
 tarded peoples, and (iii) the records of ancient laws and legal trans- 
 actions ; but valuable information is afforded also by such sec- 
 ondary departments of study as (i) linguistics and folklore. 
 
 OQOOil I 
 
L 
 
 VI PREFACE 
 
 (ii) child psychology ^ and animal behavior, and (iii) prehistoric 
 anthropology and archseology. The first and second groups, as 
 may be seen, have a close relation point by point. The secondary 
 group of inquiries, so far as represented, is drawn into the present 
 volume, while more logically (though less conveniently) connected 
 with the plan of the first volume. We regard the secondary 
 group as one of great importance, and it is subordinate in treat- 
 ment only because of the great difficulty of assembling the right 
 materials for a course of systematic readings on law and legal 
 institutions. 
 
 II. The second volume is devoted to an expository treatment 
 of legal ideas and legal institutions in their genetic and evolutionary 
 bearing. The first two volumes are intended to be used concur- 
 rently. In the great luxuriance of writing on matters of legal 
 history and legal evolution, it was not easy to discover, outside of 
 such well-known authorities as Maine, Post, Leist, Kohler, Le- 
 tourneau, Laveleye, treatment of legal ideas based on a general 
 view of the world's legal phenomena. One authority regrettably 
 absent in our list will illustrate the proposition. The studies of 
 Dareste (and others might be named) are confined so closely to a 
 particular period or a particular people that the universal element 
 in the law which we have sought to emphasize, is left in the back- 
 ground. 
 
 We have prefeoiei-ganeralization, although the caution must 
 Constantly be kept before the reader to whom this subject is a new 
 one, that nothing in this field of investigation is more dangerous. 
 It may well be doubted whether a sufficient amount of scientific 
 and critical labor has been expended even yet in the collation of 
 facts from which to draw a considerable number of inferences 
 having anything like general or universal validity. « Until a body 
 of valid generalizations can be constructed, historical jurispru- 
 dence will remain an inchoate scienc^ The second volume shows 
 that a good beginning already has been made, and it may reason- 
 ably be hoped, when this science has been as long cultivated as 
 the science of philology, that comparable results will have been 
 attained. 
 
 It is precisely here, we think, that " natttt^Llaw " (that drome- 
 dary which has carried the burden of many a caravan of juridical 
 delusion from the days of the ancient Greeks up to the present day) 
 
 1 As illustrative of what may be accomplished in this field which has 
 only very rarely touched on legal institutions, see "Nursery and Savagery'* 
 by Elsie Clews Parsons, in '* The Pedagogical Seminary " (Clark University), 
 Vol. XXII, 2, 296. 
 
PREFACE VU 
 
 has its pecu liar place . Therejappears^to he a natural law of de- 
 velopment o\ legal ideas, ^ uniform and generaj^n its operation as 
 Grimm's law in phonetics. The discovery of the content of this 
 natural law is the task which the investigators in this field will 
 have to perform, testing, verifying, and replacing the hypotheses 
 already attempted, based on the rich accumulation of materials 
 now available and still being industriously collected by the 
 workers in ethnology, ethnography, anthropology, archaeology, 
 and a variety of other fields. 
 
 The experimental method unfortunately cannot be used in this 
 science under the same favorable conditions as in the physical 
 sciences. History and the physical monuments of man's activi- 
 ties have been the chief reliance in earlier decades in tracing the 
 growth of the law. \X^ater, when the essential truth of the unity 
 of the human mind found a jjlacc, direct observation became the 
 leading method of evolutional investigation ; but the experimental 
 method has only been at most suggested. In this connection 
 reference may be made to the chapter by Mr. Johnson on rudi- 
 mentary society among boys, reprinted in this volume, and to the 
 study by Mr. Shinn, on mining camp customs.^ Both of these 
 studies are interesting and suggestive, far beyond the actual results 
 brought out, as indicating the possibility of a new instrument to 
 supplement our knowledge of the course of the development of 
 legal institutions. 
 
 The records of written history are scanty and embrace but a 
 small portion of man's struggles and achievements. That so 
 much has been extracted from these fragments is a monument to 
 the efforts made to probe out the secrets of the past. Doubtless 
 much may yet be brought to light, but in the meantime the in- 
 vestigations in this field must push on in other directions. The - 
 possibility of direct observation of savage and barbarous tribes is 
 daily being narrowed. The time approaches when savagery in 
 the world will be an extinct phenomenon, and when barbarism 
 will be so far contaminated with the vices and virtues of what we 
 please to call civilization, that this avenue of insight into evolu- 
 tion will become more and more corrupted, and, eventually, will 
 be abandoned. When that day comes, resort must be had to a 
 kind of experimental method. Such a method will have difficulty 
 in justifying itself as scientific. The same doubt arose when the 
 method of direct observation of retarded peoples began to be 
 used. Both methods are based on a fundamental psychological 
 ^ Johns Hopkins University Studies (1884). 
 
VIU PREFACE 
 
 premise, and it would seem, if this premise is valid in one case, 
 that it should be equally valid in the other. 
 
 There is a special kind of fascination in attempting here what 
 seems to have been done with great success in the reconstruction 
 of fossil remains of extinct animals. A single bone may lead to the 
 reconstruction of the entire skeleton based on the size, shape, and 
 function of the fragment used as a starting-point. Biological 
 function however is immeasurably more simple than legal func- 
 tion ; the one is related to the world of physical phenomena, the 
 other to the world of mental and physical facts. It is not difficult 
 to see that the organization of physical functions by way of recon- 
 struction, while undoubtedly presenting magnificent difficulties, 
 requires a smaller volume of contingent factors which enter into 
 the problem of solution, than the organization of legal phenomena 
 from isolated discoveries. And yet, all we mean to say is that the 
 difficulties Are only greater, and not that the thing itself is im- 
 possible. /On the contrary, it is our belief that with greater pene- 
 tration into the mental life of man ^ in the various stages of his 
 evolution, there will be afforded the necessary basis for great re- 
 constructions in the evolution of law. ) These will surpass in value 
 and interest the important work already accomplished by the 
 relatively small number of investigators who have enriched 
 our knowledge of legal institutes within the last fifty or sixty 
 years. 
 
 / This point of attack must be the basis of all future explanation 
 (and study. When efforts in this direction are aided and guided 
 by scientific instruments of precision, we may expect that a fairly 
 complete account may be given of the origin and development of 
 all legal ideas, and that the fragments of legal life as discovered to 
 us in the remains of distant eras will be explained, and explained 
 perhaps in many respects differently than we now understand 
 them, and with meanings of considerable importance to us as we 
 think of the law as the center of all social activities with a cultural 
 mission. 
 
 Emphasis of the mental life will greatly enrich this science in the 
 direction of differentiations not now recognized or slurred in favor 
 of a simpler, but less accurate view of legal development. Mr. 
 Innes has furnished an interesting illustration of this in his 
 comparison of eastern and western methods of administering 
 justice.^ 
 
 1 Cf. Jung, "Psychology of the Unconscious." 
 
 2 Hibbert Journal, Jan. 1913. 
 
PREFACE IX 
 
 The apparently (and only apparently) inefficient methods of the 
 Mohammedan in dispensing justice cannot be explained on the 
 basis of the customary thought of our time and place. A sym- 
 pathetic understanding of the oriental point of view is necessary 
 to overcome the narrow prejudice and the hasty judgment which 
 would give an entirely erroneous idea of the relative position and 
 value of a system of law applied under conditions different from 
 those which surround the observer. 
 
 Th^ l^ W fhe^^^^^^ ^'^^ rf^lqfiv-^ fr> q]| j^g P^'l?.^'^ of COUtact. It 
 
 is one of the tasks of this kind of investigation while taking account 
 of the common elements in human nature which predominate to 
 produce a common and regular course of developmeijt in legal in- 
 stitutions, also to note the variations which depart from the main 
 trunk of growth and throw out unfoldments which require special 
 investigation and treatment. 
 
 The search for unity, which is responsive to something funda- 
 mental in the human mind, has led to the greatest diversity not 
 only in the physical sciences but perhaps especially in the social 
 sciences. Like generalizations too rapidly invented, the insist- 
 ence upon unifying principles has doubtless been something of a 
 hindrance in the advancement of a general science of legal evolu- 
 tion. J The presence in all systems of law of encysted ideas which 
 marlTthe accidents of history, and of disused functions which are 
 carried along in the passage of time, is frequently misunderstood, 
 especially when such elements are emphasized as being typical of 
 the general level of progress attained in the particular system of 
 law under consideration. The extent to which outgrown ideas 
 persist in legal evolution when first recognized is striking. In 
 proof of this we have only to look about our system of law. 
 We shall not look far before we find ideas which have lived through 
 millenniums of the world's history and remain now as rudiments 
 whose existence is either ignored or whose original function is 
 misapprehended. In examining an ancient code there is always 
 some danger of interpreting as distinctive what is merely bizarre 
 when perhaps the phenomenon observed is only a relic of a for- 
 gotten past. 
 
 We have- already said that in our view of the subject^its greatest 
 utility — and we do not mean to assert that a thing must be useful 
 to be valuable — lies in the possibility of applying the laws of legal 
 evolution to the problems of the present day, and in forecasting 
 the immediate future movement of social forces. There is, of 
 course, a contrast between history and value, but the realization 
 
X PREFACE 
 
 of a value is inexorably bound up with history and conditions. A 
 modern code of partnership law or divorce law may be an excellent 
 basis for the regulation of the commercial and social situation 
 here and now ; but the same code would as certainly fail of under- 
 standing, use, or even authority if imposed on the Khonds or Bogos. 
 We do not wish to underestimate the notion of value but it must 
 be insisted that a future value is not the same as a present value ; 
 and that for human, practical purposes what is realizable and ex- 
 istent is of far larger importance than that which is only specu- 
 latively realizable and as yet unrealized. /The true basis of the 
 science of legislation is found in the history of the race. The 
 aberrations and misdirection of legislative effort in the various 
 organs of government are due to the variant interpretation 
 of value by the lawmaker in disregard of the facts of legal 
 history. 
 
 There are some things which legislation is incapable of doing, 
 / and others which it ought not to attempt. The first kind of legis- 
 lation results in the dead-letter law ; ^nd the second produces the 
 fiction and spurious interpretation — the efforts of society to 
 make an unfit law harmonize with the capacity of society to re- 
 ceive it. The statute books are full of the dead-letter laws, and the 
 volumes of reports are crowded with the evidence of fictions and 
 spurious interpretation. Perhaps, notwithstanding^ all efforts, it 
 will always be thus ; for the human mind cannot be measured as 
 with a tape-line, and the best that science can hope to do is to 
 approximate the course of social development, and avoid the ex- 
 treme discordances which hamper the flow of progress. 
 
 While advocating the importance of historical studies as having 
 sort of practical bearing, it must be admitted that the inter- 
 pretation of the facts of history in an evolutionary sense is hardly 
 less difficult than the ascertainment of values. We have volumes 
 upon volumes of ethnological and anthropological reports gathered 
 from the ends of the earth. But what do these reports mean? 
 What underlying principles do they involve ? This is the mission 
 of interpretation and generalization. When the complexity of 
 the problem is fully appraised, it can no longer be doubted that 
 the great future of this study will be that of drawing out of this 
 great mass of accumulated and accumulating facts the underlying 
 threads invisible to the unpracticed eye, — threads which bind to- 
 gether the institutions of men living in society, into definite figures, 
 which again in turn require interpretation to discover their function 
 in the fabric of life. The problem here is simply another aspect of 
 
PREFACE XI 
 
 what is the problem in every other science. At its foundation it 
 touches the ultimate realities, and while we could not hope in this 
 series of readings to go farther than the preliminary stage of point- 
 ing out the unity and art in the weaving of the tissues of legal ideas, 
 we believe we can do no less than indicate our own impression of 
 the far-reaching importance of these inquiries. 
 
 One more qualification seems necessary in any claim of a prac- 
 tical mission for historical studies. This is the psychological 
 qualification. Whether reason is only a mechanical expression 
 of forces in a chain of causation, and whether consciousness is only 
 an epiphenomenon, are questions which concern the philosopher 
 rather than the lawyer ; and yet questions of this sort inevitably 
 project themselves into the realm of the law when an attempt is 
 made to deal with legal ideas in fundamental terms. These read- 
 ings do not seek to deal with problems of this kind.^ 
 
 This qualification so far as it bears on the present point is exactly 
 represented in the familiar controversy between Savigny on one 
 side and Jhering on the other. If the method by which the law 
 has grown is more akin to an unconscious process rather than a 
 voluntary, reasoned, and consciously selected development, then 
 it must be apparent that the function of human reason in the midst 
 of other phenomena has an autonomy which is at least highly 
 limited, if not actually fictitious. As to all this, however, the 
 cautious reader will judge for himself. 
 
 III. After thus summing up the earlier issues of this series, we 
 come now to an explanation of the present volume. It is divided 
 into three parts, as follows : First, an introductory part deals with 
 the criteria of legal evolution and the methods of its study. Treat- 
 ment of these ideas is fundamental for the purpose of any dis- 
 cussion of either social or legal development. When a comparison 
 is made between the institutions of dift'erent peoples, it is necessary 
 that there should be some basis of appraisement of the ideas com- 
 pared ; otherwise we should be able only to note differences and 
 similarities without being able to affirm of them any quality what- 
 soever. To what extent the idea of progress may be evaluated 
 by other than purely material tests, or to what degree the worth 
 of an institution may be affected by relation to surrounding 
 circumstances need not be pointed out. 
 
 Legal ideas are not ends in themselves, but only means to ends. 
 
 1 Reference may be made to The Modern Legal Philosophy Series for 
 various attempts to treat these matters so far as they are of importance 
 in legal theory. 
 
Xll PREFACE 
 
 It is a peculiarity of the human mind to attach to ideas, and to cus- 
 toms long familiar, the attributes of permanence, rationality, and 
 necessity, even at the moment when nothing remains of them but 
 the outer shell, covering matter already decayed and worm-eaten. 
 In such times of crisis there ensues a period of confusion and 
 breakdown and then an up-building process, which goes on again 
 to its maturity and decay. In our own day we may see as one of 
 the numerous examples of this development the marked changes 
 wrought in the relation of employer and employee. Another 
 generation will probably find this department of the law, and 
 perhaps others, entirely transformed in comparison with the law 
 of the last generation. The meaning of the term " Progress " 
 is a problem which lies at the base not only of the law, but of all of 
 the social sciences. 
 
 Secondly, the instant volume attempts to deal with the factors 
 of legal evolution. * 
 
 The term "factor" or "influence" is ambigu ous and vague. 
 Its leading implication is causation, but causes are infinite. Nature 
 knows no classification of its phenomena, and we must artificially 
 create them by setting up our own mental standards in which 
 certain things are emphasized to the exclusion of all others. The 
 favored thing is called the eflficient cause; but an inspection of 
 our efficient cause in relation to social facts will show it kaleido- 
 scopically merging with other efficient causes. Thus a geophysic 
 factor may in turn be an economic factor, or even a biologic 
 \ factor. 
 
 V Of these factors or influences, the following find representa- 
 tion : geophysic, economic, biologic, religious, racial, political, 
 psychologic, and social. 
 
 The first of these will justify a word of explanation. In spite 
 of the importance of the claims made for the geophysic influence 
 upon social institutions, and the great array of names ^ which are 
 associated with these claims, it seems odd that so little is avail- 
 able to show in a co ncr ete way the influence of climate or soil on 
 specific legal ideas. This again may indicate how much remains 
 to be done in the field of legal and social evolution in the collection 
 of facts, ^t is easy to understand that with man's primary 
 dependence on his environment the character of this environ- 
 ment must have had an important connection with the kind and 
 
 1 Among others, Aristotle, Ritter, Buffon, Herder, Montesquieu, Guyot, 
 Buckle, Ratzel, Peschel, R^clus, Metchnikoff, Le Play, Demolins, Ripley, 
 Penck, Dexter, Semple (represented by a chapter in this volume), 
 Huntington, Simkhovitsch. 
 
PREFACE Xlll 
 
 number of human activities expressed eventually in legal customs 
 and definite legal institutions^/ 
 
 It probably will be unsafe to venture far in this direction in 
 claiming for physical conditions specific determinative influences 
 on the origin and development of legal ideas until more information 
 is assembled. It is not improbable either that when such infor- 
 mation is at hand, more careful consideration will develop the 
 conclusion that too much has sometimes been claimed for purely 
 external conditions. Such claims can easily have an apparently 
 sound basis and yet he misleading, in this, that the coincidence of 
 circumstances favoring an institution may be erroneously regarded 
 as causative. For example, polyandry may be seen as the result 
 of physical conditions marked by a low temperature unfavorable 
 to the production of crops where agriculture is the sole or chief 
 means of subsistence. It may be plausibly argued, as by McLen- 
 nan, that where numerous separate households are economically 
 impossible, infanticide and a plurality of husbands are the natural 
 result. In the same way polygam;v may be explained as a con- 
 sequence of economic abundance. (Here as in all other contro- 
 versies the difficulty is in the point of emphasis of the factors 
 involv'ec/. Undoubtedly much of interest and truth can be ex- 
 tracted from man's geophysical relations, as influences of legal 
 evolution, even if we do not go so far as to say that man and his 
 mores are things of the earth and are governed by the same physical 
 laws as determine the shape of a crystal or the successions of plant 
 life. 
 
 As illustrative of such connections we may point to the rise of 
 commerce and commercial institutions contiguous to the Medi- 
 terranean Sea, and in warm climates w^here nature renders a 
 surplus, and the absence at the same time of anything but the 
 most rudimentary commerce elsewhere. Undoubtedly a physical 
 explanation will answer here. The road to commerce existed and 
 commerce followed the road ; but farther back there were yet 
 other physical and psychical conditions which were necessary to 
 suggest the phenomenon which appeared. 
 
 While it may be impossible to find an instance where climate or 
 
 land has generated a legal idea or a legal institution, there can be 
 
 no doubt that the geophysic factor has been at least effective in 
 
 accelerating or multiplying legal phenomena. Without attempt- 
 
 ' See, for example, for the influence of rainfall on the birth rate, the 
 death rate, and marriage, "Response to Rainfall in India", by Leonard O. 
 Packard, in Bull. Am. Geographical Soc, Vol. XLVII, 2 (Feb. 1915), 
 pp. 81-99 (97, 8). 
 
XIV PREFACE 
 
 ing to classify the groups of cases where land or climate has had 
 such a secondary influence based on other primary factors, it can- 
 not be doubted that it may modify national character, that it 
 may affect the economic basis of legal relations, that it may change 
 the current of legal history by cutting a people off from surround- 
 ing social influences, and, conversely, that geographical situation 
 may favor a social environment. In this sense the geophysic factor 
 is all-important for specific legal histories, if not also for legal his- 
 twy in the abstract — legal evolution. 
 ^ ' The last division of the present volume attempts to cover in 
 general the processes which have been instrumental in organizing 
 human groups into definite social, political and legal structures, 
 and the sustaining forces which have governed their development..„ 
 We have reproduced some of the leading interpretations of the 
 concept society, although, manifestly, it has been impracticable 
 to give place to each variety of sociological theory variously repre- 
 sented in chief by such writers as Schaffle or Worms, Small, 
 Brentano, Coste, Fouillee, De Greef, Durkheim, Simmel, Tonnies, 
 and others, each of whom represents a type more or less distinct 
 from any of those entered in this work. For full treatment of 
 sociological theory the reader must be referred to its own literature, 
 but the material from sociology included here is justified by the 
 belief, contrary perhaps to legal tradition, that law itself is^onJx 
 a social phenomeno n, and is not to be fully understood in detach- 
 ment from the human bases, necessities, and forces from which it 
 arises^ 
 \ These foundations of legal evolution are physical and psychical ; 
 but coincident with them is an universalizing element which tran- 
 scends mere physical necessity and the complex interplay of 
 psychic disposition, tending always in infinite detail and in chang- 
 ing fortune to a refinement of legal phenomena and higher stages 
 of adaptation of legal institutions to the capacities and ends of 
 human society. / Spencer has already made thoroughly familiar 
 tjie principle of differentiation in the biotic and social realm. 
 (Maine, also, has called attention to the same thought in legal 
 evolution in his casual comment on the fewness of legal ideas in 
 the ancient world. Thus, for example, the family (an institution 
 which preponderates so largely in all studies on legal evolution), 
 in primitive times, contained within itself the entire stock of legal 
 ideas which emerged only after a long process of economic and 
 social differentiation in the functions of the grou£y/ 
 The economic and legal relation is one which is particularly 
 
PREFACE XV 
 
 intimate, and it is that relation which has given to us the category 
 of what Austin calls pervasive legal ideas. It is, of course, ab- 
 solutely clear that in a society which is not a closed economic 
 unity, a Robinson Crusoe as it were, there must be ideas, how- 
 ever rudimentary, of possession, liability, and hostages for pay- 
 ment or securities, ideas which rest on the very simplest objective 
 foundations. 
 
 An increase of economic function implies something more than 
 a variation of physical motion. It involves likewise a mental 
 exertion as the propulsive force of their existence. As these 
 functions increase, legal ideas slowly and unsteadily sprout out 
 of the soil of necessity and throw out twigs and branches which, 
 while in part dependent on the support and sustenance of the 
 earth, have their chief life and function in the sphere of air and 
 light. 
 
 As legal ideas ^row and differentiate they also become more 
 ideal, not necessarily in the ethical sense, but in the sense of being 
 iirtellectu al creation s. This may be illustrated by the idea of 
 ownership^ Primitive man was incapable of the notion of owner- 
 ship apart from possession, and any dealing with things which 
 might have involved such legal transactions as sale or mortgage- 
 would have been entirely too fanciful and unreal to be understood. 
 This tree of legal evolution, it would now seem, on purely logical 
 grounds, has reached its greatest theoretical growth. Variations 
 and adaptations in detail are possible and in many respects neces- 
 sary, but great organic or systemic evolutive movements are no 
 longer possible. The same causes produce the formal similarities 
 among the various systems of law. They are like trees in a forest, 
 differing in species, but all being alike in genus. \ 
 
 Legal rules and institutions in their earliest development appear ' 
 as instinctive adaptations of human beings on the plane of physical 
 necessity. Food must be gotten, shelter must be provided, the 
 sex instinct must find an outlet, and defense against enemies must 
 be established. La w in this stage is germinal, and so far as there 
 appears to be any regularity and continuity of response to needs, 
 they are of an unreflected kind stimulated by the hard conditions 
 of nature. We are here far from the Austinian theory of law. It 
 is plain, also, that "natural man" suspects nothing of the Puchta 
 basis of law. The element of physical force displayed on one hand 
 by the warring aspect of nature, and on the other by the hostile 
 instinct of mankind generated in fear and mystery, is dominant. 
 Hobbes has aptly described the reign of nature as " nasty, brutish. 
 
XVI PREFACE 
 
 and short"; and well may the savage greet the rising sun with 
 shrieks of lamentation, for the day is one of misery, hunger, and 
 death. ^tj^:^ 
 
 No theory of humayinstitutions has been so far from the truth 
 as that of therg araHisaical^reigiTof natuy ^. This may be asserted 
 safely, even though the sciences which discover to us the history 
 of the earth and the records of buried ages can probably minister 
 little to knowledge of the first steps up of the human race so far as 
 concerns the absolute origin of law. If the theory of organic 
 evolution is to be accepted, it is also more than probable that at 
 the beginning of the human stage of progress, the primary activi- 
 ties of life were already considerably standardized by some sort 
 -•of coj npromi se of conflicting brute forces — a compromise in 
 which there yet appeared a nobler strain shown in attachment 
 to offspring, and even in the fact of any form of peaceable 
 human association whatsoever, which later was destined to take 
 on a specific ethical meaning. 
 
 In the earliest stage of legal evolution of which we have any 
 reliable information, furnished principally by modern observations 
 of savage groups, the law has ceased to be instinctive and has al- 
 ready crystallized into fixed social habits and ideas. Physical 
 force within the group tends to become latent and to be replaced 
 by the equally efficacious sanctions of religion and superstition. 
 The taboo is a sufficient implement of restraint for the average 
 tribesman, and outlawry is as rarely exceptional as our still savage 
 use of capital punishment. In this stage mankind has achieved 
 a distinct gain over the forces of nature. The fact that time and 
 opportunity have conjoined to formulate a body of superstitious 
 beliefs and rituals unmistakably shows a remainder over. The 
 existence of these beliefs and of these ceremonies is also an ethical 
 gain in that the harshness and brutality of physical coercion is 
 replaced by the more refined pressure of religious conviction. Not 
 that the religious bond weighs less heavily than the shackles of 
 physical restraint, for "what the whole community comes to be- 
 lieve in, binds the individual as in a vise." Nor yet does the 
 existence of a new set of restraints mean absence of the harsher 
 conditions of life ; these conditions remain and will continue until 
 mankind has conquered economic necessity. 
 
 If a generalization may here be ventured, it would seem that 
 one of the standards of social progress is the progressive elimina- 
 tion of the physical and material elements in the conflicts of life, 
 and the substitution therefor of religious, ethical, and intellectual 
 
PREFACE XVU 
 
 forces. In triqaLsQciety, legal order is accomplished by a variety 
 of psychical restraints which eventuate in physical coercion only 
 by way of relapse from the normal conditions of legality; but 
 outside the tribal association these psychical bonds do not reach, 
 and physical measures are the normal measures of equalizing inter- 
 tribal conflicts. Modern states have at once lost and gained some- 
 thing in their evolution out of group society. Intellectual re- 
 straints have been substituted for emotional restraints; but 
 intellectualism as a cohesive force is a complex^ a hydra-headed 
 entity differing in marked degree from the relatively simple psycho- 
 logical bond w^hich is sufficient to organize primitive societies. 
 Primitive society from the point of view of psychological function 
 is to the modern state as an amoeba to a mollusk. 
 
 In their external relations modern states have not shown com- 
 parable development; resort to force is still the normal method 
 of adjusting essential conflicts of interest, and human nature will 
 yet erect many hecatombs before there can or will be attained a 
 solidarity of the world based on a principle which will be recognized 
 by all nations and peoples. 
 
 • Another cognate movement may also be observed which has 
 been especially conspicuous within the centuries of recorded his- 
 tory — the expansion of liberty from the multiplied trammels 
 which have held it enslaved, and which still in the greatest variety 
 of forms curb the movements in thought, and action of individuals, 
 societies, and States. 
 
 The struggle for liberty has also been the struggle of the law. 
 It has undergone the same general evolution as the law itself, and 
 has been influenced by the same internal and external forces which 
 have governed the course of legal institutions. 
 
 In the beginning, the overshadowing forces of nature and fear 
 o'f enemies held man to the narrovvest "circles of existence. Liberty, 
 thought of as an expression of personality in the earliest stages, 
 can hardly be said to have existed. The foundations of restraint 
 of liberty are physical and economic. Later when man (and we 
 mean always man in some sort of association with his fellows) 
 has in a limited way overcome his environment, and has invented 
 an accepted explanation of the mysteries of nature, and when the 
 physical and economic chains have been lengthened, new shackles 
 of a more refined kind are added. /This tendency to subject the 
 individual to restraints either physical or psychical has persisted 
 into the present day ; for the history of life has been a chapter 
 of bondage. So accustomed has mankind become, throughout 
 
XVlll PREFACE 
 
 the long history of the human race, to restraint as a part of nature, 
 that when man is freed from one set of bonds, he instinctively 
 forges for himself others. 
 
 "Man is born free, and he is everywhere in chains," was the 
 sounding statement which functioned as a bellows for the spark 
 of a revolution. On the contrary, man was not born free, and no 
 revolution has done anything more than to effect a substitution 
 of one kind of restraint for another. From one point of view 
 societies and systems of law may be regarded as highly complicated 
 forces of resistance. In the present epoch the ferment of great 
 economic development is bringing about and will bring consider- 
 able changes in the general content of liberty, both from a social 
 and strictly legal point of view. Individual man attained perhaps 
 the greatest amount of formal liberty about a hundred years ago, 
 but the swing of events is now in the other direction ; and if the 
 next movement shall be one of real progress, it may be expected 
 that if formal liberty is reduced again ^ to a kind of status, 
 material liberty will increase. 
 
 It has been pointed out repeatedly in these studies that the 
 course of evolution does not follow mathematical straight lines 
 or regular curves. Its movement is rather like that of an army 
 which presses forward against the points of least resistance. But 
 no description, metaphor, or analogy will be accurate as such. 
 To speak of the last device which is commonly resorted to, one 
 may see with JV j^aine, the ^mo^^ement from status to contract as a 
 great mechanical movement unfolding through some sixteen or 
 seventeen centuries of European time ; . and, by way of reaction, 
 the swing of events in the reverse direction from contract whose 
 height was realized at and before the French revolution, back to 
 status. How much or how little there may be of profit in this 
 cyclical survey of events, it may be difficult at this time to sa;;?^ ; 
 but we may be sure that in human events there is no good evidence 
 of identical cycles, although we may readily concede to legal evo- 
 lution a growth at least analogous to the ascending spiral where 
 the corresponding curves have various interesting general re- 
 semblances profitable for a romantic view of legal evolution, if 
 p-^Upt directly available for the exacting demands of hard science. 
 I Summarizing what we believe has been the course of legal and 
 I social evolution, but disregarding here the various minor oscil- 
 I lations which have furnished the detail of history, the movement 
 I has been one which may roughly be separated into three great 
 I periods — the physical, the metaphysical, and the rational. The 
 
PREFACE XIX 
 
 first largely covers the prehistoric period ; the second is perhaps 
 the earliest which can be penetrated by any of the methods which 
 may be usefully employed in these studies ; and the last represents 
 the centuries in which the law and its institutions have been re- 
 garded as human instruments and controlled by human agencies 
 for the attainment of human ends. Each upward epoch has had 
 transmitted to it various survivals of an earlier origin, and fre- 
 quently in the long march of evolution there have been baitings 
 and even retrograde movements, which obseryed in the light of 
 decades or centuries appear to deny any sort of constancy, regu- 
 larity, or certainty of evolution or progress. One of the important 
 tests of this progress, corresponding to the stages of legal evolu- 
 tion, has been the rising influence of intellectual factors against 
 the coarser materialistic foundations of law, the rise of ethical 
 and rationalizing factors of legal development, and an increase 
 of material freedom accomj>anied by differentiation of formal 
 restraints on liberty. 
 
TABLE OF CONTENTS 
 
 PART I 
 
 CRITERIA OF LEGAL EVOLUTION 
 AND METHODS OF ITS STUDY 
 
 CHAPTER I 
 
 PAGE 
 
 A Classification of Social Types and a Catalogue of Peoples 3 
 By S. R. Steinmetz. 
 
 CHAPTER II 
 
 The Scientific Method of Generalizing from Data op Legal 
 
 Evolution 77 
 
 By Joseph Mazzarella. 
 
 CHAPTER III 
 
 Critique of Method in the Study of the Law*s Evolution 153 
 By John H. Wigmore. 
 
 PART II 
 
 FACTORS OF LEGAL EVOLUTION 
 IN GENERAL 
 
 CHAPTER IV 
 
 Factors of Legal Evolution 163 
 
 By Edmond Picard. 
 
 CHAPTER V 
 
 Causes for the Variation of Jural Phenomena in General 182 
 By Carlo Nardi-Greco. 
 
 xxi 
 
XXll TABLE OF CONTENTS 
 
 A — GEOPHYSICAL FACTORS 
 CHAPTER VI 
 
 PAGE 
 
 Law and Geography 198 
 
 By H. J. Randall. 
 
 CHAPTER VII 
 
 The Influences of Geographic Environment on Law, State, 
 
 AND Society 215 
 
 By Ellen Churchill Semple. 
 
 B — ECONOMIC FACTORS 
 
 CHAPTER VIII 
 
 Economic Foundations of Law 234 
 
 By Achille Loria. 
 
 C — BIOLOGIC FACTORS 
 
 CHAPTER IX 
 
 Animal Societies and Primitive Human Societies . • . 267 
 By Adolfo Posada. 
 
 CHAPTER X 
 
 Natural Origin of Property among Birds, Beasts, and Fishes 288 
 By R. Petrucci. 
 
 CHAPTER XI 
 
 Rudimentary Society among Boys 316 
 
 By John Hemsley Johnson. 
 
 D — RACIAL FACTORS 
 
 CHAPTER XII 
 
 Section 1. Internal and External Factors of Legal De- 
 velopment , . 352 
 
 By Ludwig Kuhlenbeck. 
 Section 2. The Race Factor in Legal Evolution . . . 355 
 
 By Houston Stewart Chamberlain. 
 
TABLE OF CONTENTS XXlll 
 
 CHAPTER XIII 
 
 PAOE 
 
 Influence of National Character and Historical Environ- 
 ment ON THE Development of the Common Law . 369 
 By James Bryce. 
 
 E — RELIGIOUS FACTORS 
 
 CHAPTER XIV 
 
 The Influence of Religion upon Law as Illustrated by the 
 
 Idea op Property 378 
 
 By Ludwig Felix. 
 
 F — PSYCHOLOGIC FACTORS 
 
 CHAPTER XV 
 
 Sympathy in Group and Institutional Survival • • . 393 
 By Edward D. Page. 
 
 G — POLITICAL FACTORS 
 
 CHAPTER XVI 
 
 The Constitutional Factor of Legal Development • . 417 
 By Emil Reich. 
 
 H — SOCIAL FACTORS — PHYSICAL FORGE 
 
 CHAPTER XVII 
 
 Section 1. The Struggle for Law .••... 440 
 
 By Rudolph von Jhering. 
 Section 2. The Compromise Nature of Law . . • , 447 
 By Adolph Merkel. 
 
 chapter' XVIII 
 
 The Use of Conflict 451 
 
 By Walter Bagehot. 
 
 4 
 
XXIV TABLE OF CONTENTS 
 
 CHAPTER XIX 
 
 Struggle and Adaptation '. , . 473 
 
 By Michel-Angelo Vaccaro. 
 
 CHAPTER XX 
 
 Arbitrament and Guaranty in the Origin op Law • . 485 
 
 By Gaston Richard. 
 
 PART III 
 PROCESS OF LEGAL EVOLUTION 
 
 CHAPTER XXI 
 
 Evolution of Social Structures 501 
 
 By Lester F. Ward. 
 
 CHAPTER XXII 
 
 Social Integration and Differentiation .... 514 
 
 By Herbert Spencer. 
 
 CHAPTER XXIII 
 
 Planetary Theory of the Law's Evolution .... 531 
 By John H. Wigmore. 
 
 CHAPTER XXIV 
 
 Degenerative Evolution 542 
 
 By Jean Demoor, Jean Massart, and ifiniLE Vandervelde. 
 
 CHAPTER XXV 
 
 The Evolution of Civil Law - 571 
 
 By Raoul de la Grasserie. 
 
 CHAPTER XXVI 
 
 The Perpetual Evolution of Law 667 
 
 By Edmond Picard. 
 
 INDEX 679 
 
FORMATIVE INFLUENCES OF LEGAL 
 DEVELOPMENT 
 
 PART I 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 AND 
 
 METHODS OF ITS STUDY 
 
 Chapter I 
 
 A CLASSIFICATION OF SOCIAL TYPES 
 AND A CATALOGUE OF PEOPLES 
 
 By S. R. Steinmetz 
 
 Chapter II 
 
 THE SCIENTIFIC METHOD OF GENERALIZING 
 
 FROM DATA OF LEGAL EVOLUTION 
 
 By Joseph Mazzarella 
 
 Chapter III 
 
 CRITIQUE OF METHOD 
 
 IN THE STUDY OF THE LAW'S EVOLUTION 
 
 By John H. Wigmore 
 
EVOLUTION OF LAW 
 
 Volume III 
 
 FORMATIVE INFLUENCES OF LEGAL 
 DEVELOPMENT 
 
 PART I 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 AND 
 
 METHODS OF ITS STUDY 
 
 Chapter I 
 
 A CLASSIFICATION OF SOCIAL TYPES 
 AND A CATALOGUE OF PEOPLES ^ 
 
 I. Sociology — Its Defects and 
 Its Need of Method. 
 
 II. The Possibility of a Classifi- 
 cation in Sociology. 
 
 III. The Various Systems of Clas- 
 sification, 
 
 IV. The Purpose of Sociological 
 Classification. 
 
 V. Previous Attempts at Socio- 
 logical Classification. 
 VI. A Suggested Plan of Socio- 
 logical Classification. 
 VII. Plan of a Catalogue of All 
 Known Societies and Their 
 Historic Phases. 
 
 I. Sociology — Its Defects and It? Need of Method 
 
 1. The primary defect which strikes a critical mind in even 
 the best sociological works, with but few exceptions,^ is the lack of 
 a general and consistent familiarity with the entire scope of the 
 sociological field. One rarely gains the impression of an author's 
 competency in all or even in some of its aspects. It is, of course, 
 
 [^ By S. R. Steinmetz. The original appeared as an essay with the 
 title, "Classification des Types Sociaux" in " L'Ann^e Sociologique", 
 III, 43-147 (1900), Paris, Felix Mean. The translation is by Miss Dina 
 Zolotkoff. Miss Zolotkoff was awarded the Jiuisprudence Prize, 1915-16, 
 in Northwestern University School of Law, for work in Jurisprudence, 
 including the presentation of this translation.] 
 
 ' As, for instance, the work of Spencer, thanks to his great labor on 
 sociological r6sum6s, arranged by tables, in the eight foUo volumes of 
 
 3 
 
4 CRITERIA OP LEGAL EVOLUTION [Part I. 
 
 natural that research work, when specialized, should confine itself 
 to a limited and circumscribed area ; but familiarity with the re- 
 maining parts should not be entirely lacking. As for more general 
 researches, they should not concern themselves with one locality 
 more than with another. Those who are engaged in such re- 
 searches ought to possess a somewhat deeper knowledge of all the 
 groups of peoples and of all the types of culture. I believe that 
 everybody will recognize with me the fact, that many an author, 
 though otherwise highly esteemed and daring in his speculations, 
 produces the impression of being wholly unacquainted with 
 Arabian culture, or the culture of eastern Asia, or the highly 
 original, exceedingly interesting civilization of Central America. 
 Another author does not offer convincing proof of having a more 
 or less thorough acquaintance with any primitive or barbaric peo- 
 ple. The ethnologist is often sadly deficient in history. And just 
 that science in which the author is deficient might have been of 
 the greatest service to him, even to the extent of changing the 
 entire trend of his reasoning. 
 
 How often does a sociologist, when endeavoring to establish 
 a law common to all peoples, draw his premises from only one 
 class of social organizations, brushing aside the others, with 
 a liberty that is truly naive ! Albeit the conquests of descrip- 
 tive sociology are neither new, nor infrequent in our time, nor 
 unimportant, still it is quite a rare occurrence to find sociological 
 observations based on peoples who are as familiar to us as those 
 of the states of Central Soudan, Indo-China, Kashmir, the peoples 
 of Central America, those of Peru before the conquest, and the 
 important empires comprised in English-India. Even ancient 
 Russia, Japan, and Korea are nearly always ignored.^ 
 
 Our criticism then may be summarized as follows : for all soci- 
 ology bearing either on humanity as a whole, or on barbarous and 
 cultivated peoples (which sociology is not to be confounded with 
 ethnology), the comparative stage has not yet begun. The com- 
 parative method has not as yet become a factor in sociological 
 
 ** Descriptive Sociology", comprising the English, the French, the Israel- 
 ites and Phoenicians, the Mexicans, etc., and of inferior races, the Poly- 
 nesians, the Africans, and some Asiatic peoples ; the compilation was 
 made by Messrs. Collier, Duncan, and Scheppig. The little use that has 
 been made of this immense collection of well-estabhshed and conveniently 
 arranged facts is a grave reproach to our science. 
 
 ^ It is true that there are exceptions: Stein ("Die Sociale Frage im 
 Lichte der Philosophic", 1898) had the intention of becoming a very 
 laudable exception, but did not succeed; he gives some ethnological 
 resumes, but they do not constitute researches and are not at all original. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 5 
 
 researches worthy of that name and laying claim to something 
 more than mere rhetoric or gossip. And, I feel safe in saying, 
 that if this method has not attained greater favor, it is principally 
 due to the absence of a proper classification of peoples according / 
 to their respective social states and the degrees of their respective/ 
 civilizations. 
 
 2. The reason that the eye of the sociologist does not encompass 
 all the categories of peoples and cultures is the absence of such 
 classification. He has no perception of all the peoples because 
 it is impossible for human vision to master the chaos. The some- 
 what philosophical sociologist realizes but vaguely that there are 
 peoples besides the Greeks, the Romans, and the contemporary 
 Europeans who may not be classed as savages. Primitive peoples 
 are beneath his consideration. He deems it incompatible with 
 the dignity of philosophy to harness its superb hypotheses in the 
 service of so humble an history. It would be hard to find a zoolo- 
 gist who, in formulating his general theories, should for a moment 
 think of ignoring the inferior forms of life, or neglect making a 
 thorough study of them. But what, on the other hand, is the 
 ethnographic and ethnologic erudition of even our most renowned 
 writers of general sociology? Instead of a science of social be- 
 ginnings, we are offered a philosophy of law, or dithyrambs such 
 as those of Mr. Izoulet. They pretend to base our social theory, 
 and consequently our social technique, upon vague clouds which 
 are ever swayed by the changing mood of philosophical fancies. 
 
 It is the absence of a universally accepted classification in our 
 science which inevitably leads to the errors above enumerated, 
 with many regrettable consequences. Recently published books 
 on suicide, though numerous and well-written, neglect for the most 
 part to make mention of any of the peoples, whether barbarous 
 or primitive, who are situated beyond the borders of the European 
 sphere.^ I have called attention to this error and have taken the 
 first step towards its correction ; but with the exception of Vier- 
 kandt, who is more of an ethnologist, and Durkheim,^ none of the 
 sociologists have availed themselves of the suggestion. More- 
 over, it is evident that our entire conception of suicide must change, 
 when it is taken into consideration that suicide is a common occur- 
 
 1 See my criticism on the popular r6sum6 of Dr. Wynaendts Francken, 
 ••De Zelfrtioord" (I^ Haye, 1899), in the "Spectator", Dec. 1899. 
 
 'Compare my article "Suicide among Primitive Peoples", in the 
 "American Anthropologist", 1894, and those of Lasch on suicide among 
 primitive and barbarous peoples, in the "Globus", 1898 and 1899, and 
 in "Zeitschrift fiir Social wissenschaft", 1899. 
 
6 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 rence among several primitive and some barbarous peoples, as 
 for instance, the Chinese and the Hindus. And likewise are all 
 speculations on the evolution of the feminine sex, and its prospec- 
 tive emancipation, deficient by reason of their giving insufficient 
 attention to the diversity of social types. The explanation of 
 the causes of present conditions has, therefore, been most super- 
 ficial.^ It would not have been at all difficult to ascertain the close 
 relation between the conditions of women and the entire moral, 
 economic, and intellectual situation.^ And even though the diver- 
 sity of peoples and the abundance of social forms are recognized 
 in the abstract, such recognition, always because of the same de- 
 fect, is not thorough and substantial enough to be always present 
 in the minds of sociologists, and to influence all their researches 
 — even to the unconscious formation of their hypotheses. 
 
 3. This grave error is accompanied by another — an inheritance 
 of our speculative past. In all their reasonings, the sociologists 
 start out with the conception of a humanity which is one and in- 
 divisible. Besides ignoring the diversity of types there is a tend- 
 ency to deny practically their existence. They are not suffi- 
 ciently known and the need of knowing them is not sufficiently 
 felt. This tendency to ignore is fostered by the dogma of the 
 essential unity of human kind, which still survives. And all 
 these prejudices are nurtured by the mere habit of abstract reason- 
 ing, and the aversion to practical, though more exacting research, 
 based upon historical and ethnographical materials. The beaten 
 track of reasoning on human qualities and on society in general 
 makes it difficult to form any different conception. Our scientific 
 ancestors were philosophers who knew man but a short time, and 
 jurists who conceived one law for all peoples, deriving it from the 
 principles of Roman law. Small wonder, then, that in general 
 sociology, they still cling 'to those habits of mind, which have the 
 advantage of making work very simple. By a few deductions, 
 a whole series of laws may be construed within a few hours.' 
 That is very amusing, and tires no one but the reader. 
 
 1 I permit myself to refer to my essay, " H. et Feminisme ", 1899, Leiden, 
 where I have attempted to elaborate upon the problem a little more. . 
 
 2 See researches by Grosse, "Die Formen der Familie und die Formen 
 der Wirtschaft" (1897), and my criticism in the "Revue international de 
 Sociologie", 1897, p. 923-926. 
 
 3 As is the case in books such as Gumplowicz ("Grundriss der Socio- 
 logie", 1855), or R. Worms, "Organisme et Societe" (1890). Compare 
 my criticism on organism in "Die organische Socialphilosophie " in 
 *'Zeitschrift fiir Socialwissenschaft", 1898, and Giddings, "Principles of 
 Sociology", p. 62. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 7 
 
 For the purpose of explaining man's conduct, sociologists 
 started out by imagining him totally different from what he is. 
 He was depicted as always intelligent, always egoistic, always 
 clear- visioned where his own interests were concerned, always 
 alert — when as a matter of fact, he is almost always lazy, stupid, 
 negligent, and at times rather good-natured. It was natural, 
 after such a beginning, to finish by not understanding anything 
 of his history. The most serious error committed was to suppose 
 that all men were nearly equal — an error for which socialism came 
 as the serious punishment. The means for understanding and 
 appreciating the function of capitalists and industrial leaders 
 was sidetracked.^ The second error, analogous to the first, was 
 the neglect of the enormous differences distinguishing diverse 
 economic periods in classic economy. Humanity was regarded 
 only from the vantage of the nineteenth century. As an instance, 
 the fact may be cited, that only one single way of determining 
 value was thought of. It should have been known, however, 
 that in the cities of the Middle Ages, values were determined in 
 an entirely different manner — not by the balancing of supply 
 and demand, but by a rational estimation.^ And how is the theory 
 of the cost price of production to be determined ? Different pro- 
 ducers sell at altogether different prices ; for instance, the primi- 
 tive, such as is still found in a large part of the world, sells things 
 which he has produced at the cost of much labor for mere trinkets, 
 when his fancy for such trinkets (and that is a known trait of his) 
 has been aroused.^ It is true that historical economy has wrought 
 a great change ; but it seems that the doctrine is still being built 
 up by deductive generalizations, and that the lessons learned 
 from history figure in it only as ornaments. Historical and 
 comparative induction does not yet occupy the important posi- 
 tion it is entitled to in theoretical economy. It is, rather, a study 
 apart. The diverse social types are never taken into considera- 
 tion ; they are not regarded as important. 
 
 This defect in method is probably fostered by conservative 
 
 ^ "Die Dispositiven Arbeiter" by Prof. J. Wolf, intermediaries be- 
 tween inventors, the creators, and the manual executives; also his 
 "Socialismus und Kapitalistische Gesellschaftsordnung" (1893), pp. 399 
 seq. Wolf showed more appreciation for the promoters than the other 
 economists, but still not enough. Cf. also Mallock, "Labour and the 
 Popular Welfare", 1892, and "Social Aristocracy" (1897). 
 
 2 Cunningham, "Growth of English Industry and Commerce", I 
 (1898), pp. 457 seq.; Fruin, "Verspreide Geschriften", I (1899); "Een 
 HoUandsche Stad in de Middeleeuw", pp. 102, 104, 107; Gtuw, "En- 
 glische Wirtschaftsent\\ickelung im Mittelalter" (1898), pp. 23, 28, 29. 
 
 » Bucher, "Die Wirtschaft der Naturvolker" (1898), p. 30. 
 
8 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 tendencies which fail to recognize that our social and juridical 
 forms are neither eternal and immutable, nor even the happy 
 and lasting results of a straight-line development ; but are merely 
 the traits appertaining to a particular social type, surrounded by 
 others. It is a remnant of pre-Copernican philosophy. From 
 such method one fails to see that we are changing, and that our 
 European culture is nothing but a particular phenomenon much 
 like other phenomena. All that is admitted is the straight-line 
 development, terminating in our social order. It is thus that 
 the economic history of Europe was construed by the eminent 
 professor of Leipzig, for whom the Greek and Roman world was 
 in no way superior to the " geschlossene Hauswirtschaf t " ("Oiken- 
 wirtschaft " of Rodbertus) which was followed by the economy of 
 the towns of the Middle Ages, and the national economy of our 
 own times.^ This simple theory is being asserted in the face of a 
 mass of well-known facts of Greek and Roman economy .^ This 
 is due to the narrow conception of evolution as a straight line — 
 a narrow and limited conception indeed, which has even influenced 
 so well-informed and brilliant a man as Mr. Biicher to build his 
 theories accordingly. The diverse social types which do not fit 
 into the straight-line development are ignored. From a purely 
 scientific point of view, the larger conception seems to be the most 
 attractive. I feel sure that the influence of practical tendencies 
 is at play here in the most vexatious manner. It is not a causal 
 explanation of the phenomena of social life that is looked for, but 
 rather a justification of our social state. It is the historical (alias 
 ethical) school which is being urged on by this extra-scientific 
 need.^ 
 
 \A' The same defect — of ignoring the classification of peoples 
 — is found also in ethnology,^ and that is even more surprising, 
 for that science is altogether devoid of any direct, practical tend- 
 ency. In ethnology, the error is of a more intellectual nature. 
 In ethnology, the mind does not work by classifications either, 
 
 1 Biicher, "Die Entstehung der Volkswirtschaft", 1898 (2d ed.), p. 65. 
 
 2 Cf. Mayer, "Die Wirtschaftliche Entwickelung des Alterthums" 
 (1895); Cunningham, "Western Civilization in its Economic Aspects" 
 (1898); Beloch, "Griechische Geschichte"; Brooks Adams, "La Loi de 
 la Civilisation et de la Decadence" (1899), p. 50; Beloch, "Die Gross- 
 Industrie im Altertum" in "Zeitschrift fiir Socialwissenschaf t " (1899), 
 pp. 18 seq. 
 
 3 Cf. Bougie, "Les sciences sociales en allemagne " (1896), pp. 75, 81; 
 J. Wolf, " Socialismus und Kapitalistische Gesellschaf tsordnung " (1893), 
 pp. 118 seq. 
 
 4 As for example in the philosophy of law. Cf. the introduction to 
 my "Erste Entwickelung der Strafe", 1894, I, introd., 95, sec. 1. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 9 
 
 and it is only very recently that any other tendency has made 
 its appearance.^ I shall note only one example, which is typi- 
 cally significant because of the name and scientific worth of the 
 writer, the w^ll-known author of the "History of Human ]\Iar- 
 riage." He entirely ignores any classification, but confounds in 
 the course of his argument primitive and civilized peoples of 
 various types. 
 
 Ethnologists know very well that the peoples among whom they 
 trace the evolution of various institutions do not all belong to the 
 same type.^ They even know that the existence of any particular 
 social trait must lead to far-reaching consequences, and must 
 influence more or. less all other institutions. They know this, 
 but they do not utilize their knowledge. That is because there 
 is no classification of peoples, and because ethnologists do not 
 keenly feel the need of a classification. To them, all peoples are 
 of the same type ; and yet no one knows better than they do that 
 reality is not in aCcord with this simple conception. 
 
 5. In ethnology we find again a partiality for the one-straight- 
 line evolution, which hitherto was the valued possession of the 
 economists; we find it here in full bloom. If indeed, as must 
 be admitted, the ethnologists (with but few exceptions) are evolu- 
 tionists, their conception of the evolution of humanity is much 
 too simple. According to their conception, every social condition, 
 however centrifugal, must represent a rung of a single ladder; 
 and, in conformity to that tendency, every phenomenon discovered, 
 however rare it may be, is generalized as some stage in the develop- 
 ment which every race, every people, has traversed in the past or 
 must traverse in the future.^ For them, it is always the same 
 monotonous road. They are, however, obliged to recognize 
 several too evident deviations — for example, the absence of the 
 nomadic state in the history of the more civilized peoples of 
 
 'I accuse myself. In my "Strafe", as well as in my "Endokanni- 
 balisraus" (1896), are to be found only insufficient traces of the classi- 
 fication of peoples, although I have at least limited all my researches to 
 primitives alone and have not confounded them with superior barba- 
 rians, as was and still is the case with the best ethnological publications. 
 My "Lohn und Strafe", in "Jenseits der Naturvolker " (1897), is in this 
 respect much improved. 
 
 2 Proof of the scant attention given to these questions is furnished by 
 HUdehrnnd, an economist, it is true, who in his "Problem der allgemeinen 
 Entwickelungsgeschichte des Rechts und der Sitte" (1894), p. 25, re- 
 gards the New Zealanders, who are quite well known, as hunters. Cf. 
 my criticism on that book in "Museum", Dec. 1894, pp. 368 seq. Later 
 he corrected this error, which is repeated on page 13 of his very important 
 work "Recht und Sitte auf den verschiedenen Wirtschaf tskulturstuf en " 
 (1896), p. 190. 
 
 ' CJ. RatzeVs criticism, "Autobiographie", II, p. 704. 
 
10 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 Central America and Peru ; but that in no way changes the gen- 
 eral and deep-rooted tendency to ignore classification. 
 
 This tendency begets another: a predisposition of the mind 
 to regard those earlier institutions which do not conform to those 
 prevalent among us, as the initial forms of evolution. The gen- 
 eral assumption of early communal ownership, and the univer- 
 sality of mother rule before father rule are examples of this tend- 
 ency.^ They avoid admitting what seems most natural, that 
 under the influence of conditions differing by their quantity, qual- 
 ity, and order of succession, the different groups of races could not 
 have accomplished the same series of changes. These differences, 
 always multiplying, must have produced types of evolution, and 
 as a result, diverse types of culture, that will probably never 
 resemble each other — which, by the way, is a consolation. 
 ******* 
 
 6. The respective situation of the different peoples in classifi- 
 cation is not clearly determined by these writers ; and yet the 
 solution of very important problems depends upon the situation. 
 For instance, Grosse maintains that hunters and fishers preceded 
 agriculturists, and from this premise he deduces that the form of 
 family life found among the former is more archaic than that 
 among the latter.- This reasoning does not, however, convince 
 Kohler.^ The first error which Grosse commits is that of treating 
 as a genealogical sequence that which he holds forth as a classifica- 
 tion of resemblance pure and simple. The second is that he ignores 
 the remnants which pass from one stage of civilization into the 
 next. If his mind had been more deeply impressed by the prin- 
 ciples of classification, he would have avoided these errors.^ If 
 the idea of the diversity of types of culture were foremost in the 
 minds of the investigators, it would change the very character of 
 ethnological researches, and would make them more profound, 
 and more fertile in safe discoveries. 
 
 ^* ***** * 
 
 7. Since even in the best works on comparative sociology and 
 ethnology (with but rare exceptions) there has been no attempt 
 
 1 Cf. my essay "Die neuern Forschungen zur Geschichte der Mensch- 
 lichen Familie" in " Zeitschrift fiir Socialwissenschaft " (1890), pp. 685 seq.j 
 825-826. 
 
 2 Grosse, "Die Formen der Wirtschaft und die Formen der Familie" 
 (1896), pp. 29, 42, 45, 48, 52, '64, 133, 164-5. 
 
 3 Kohler, "Zur Urgeschichte der Ehe" (1898), p. 11. 
 
 * Cf. my "Die neuern Forschungen zur Geschichte der MenschUchen 
 Familie" in "Zeitschrift fiir Socialwissenschaft", 1899, pp. 685 seq., 
 809 seq. 
 
Chap. I.] A CLASSIFICATION OP SOCIAL TYPES 11 
 
 to make as complete an induction as possible, the point where 
 classes can be defined with precision cannot be reached. A well- 
 made induction and a precise definition are complementary to 
 each other. For instance, if one wishes to know what form of 
 religion or family life was found among the inferior hunters, two 
 preliminary conditions must be fulfilled. The characteristic 
 traits of the inferior hunters must be defined with precision ; the 
 limits being fixed by those of the lower class farmers and fisher- 
 men ; and he must make as complete a collection as possible of 
 all well-described examples of peoples who come within those 
 limits. In this manner only can the principal inquiry be pursued. 
 
 If the need of an experimentum crucis, which is recommended 
 by all logicians and neglected by all sociologists, were more univer- 
 sally felt, one would feel himself obliged to use the inductive method. 
 It is a well-known fact that but few of the sociological arguments 
 are able to carry conviction to an analytical mind ; the reason 
 lies, first, in the insufficient use of the inductive method and the 
 too frequent use of illustrative reasoning; and secondly, in the 
 fact that an experimentum crucis is almost regularly omitted. 
 When sociologists have brought forward several illustrations in 
 support of their hypotheses, they are entirely content; they do 
 not try to extend their researches to the entire class in question ; 
 they do not look for objections ; they do not even look for apparent 
 exceptions to the given rule — consequently, they never convince us. 
 
 A striking example of the grave defects which have just been 
 mentioned is the otherwise interesting and suggestive book of 
 Brooks Adams, "The Law of Civilization and of Decadence." 
 Adams does not ask himself whether the law proposed by him 
 would hold good for the entire class of peoples which is the object 
 of his study. He attempts to verify it only among the Romans, 
 Byzantines, French, and English. He does not attempt to ex- 
 plain decisive facts in any other manner; he does not mention 
 the other hypotheses which have been advanced, and does not 
 try to account for them. Although the book made a deep impres- 
 sion upon me, I am sure that no critical reader would be convinced 
 by the arguments. You are puzzled by such works; you feel 
 perplexed. You begin by saying : it is possible that this is true. 
 You end by saying : it is very possible that it is otherwise. All 
 works on sociology leave the same impression. One might argue 
 that the enormous complexity of facts is the cause of it. But I 
 answer : why do students in natural sciences take the trouble to 
 master the relatively simple phenomena, while we slacken our 
 
12 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 efforts on this point in the face of such complex problems? No, 
 the error lies in our method ; the fault is ours. 
 
 Here is an illustration of this frequently inadequate knowledge 
 of the sociologists, and of their boldness in deriving far-reaching 
 conclusions therefrom. Mr. Adams (I blame him, because his 
 merits are many) tries to make us believe that woman was always 
 more esteemed by the peoples among whom she was bought, 
 than by us, and that her social standing was very high during the 
 Middle Ages. He seems to take the poetic cult of women as a 
 social reality. His first assertion is contradicted by all ethnology ; 
 his second by all history.^ Adams made these paradoxical state- 
 ments because his theory demanded it — but he does not prove 
 them. In like manner one often meets the gratuitous assertion 
 that the nomads invented slavery by the domesticating of animals, 
 and that hunting and fishing peoples did not have it. Nieboer ^ 
 has shown by a careful induction that these two hypotheses lack 
 sufficient foundation. 
 
 There is only one way of remedying this situation in sociology : 
 the exigencies of system must be raised much higher, so that the 
 work of the dilettante may be readily distinguished from that of 
 the true scholar. And the first step toward the method of which 
 we stand so greatly in need, and for which I am convinced our 
 science is ripe, is the introduction of classification. 
 
 II. The Possibility of a Classification in Sociology 
 
 But the need of a reform does not suffice to bring one about. 
 It must be feasible. For us, the question comes down to this: 
 is there classifiable matter in sociology ? 
 
 1. Let us not deceive ourselves : our case is entirely different 
 from that of zoology or botany. There, the innumerable masses 
 
 1 V. Spencer, "Sociology", I, p. 716; Grosse, "Die Formen der Familie 
 und die Formen der Wirtschaft" (1896), pp. 181, 221, 223, 225; Wester- 
 marck, "History of Human Marriage" (1891), p. 402; Biicher, "Die 
 Frauenfrage im Mittelalter" (1882), pp. 8, 17, 33, 45, 48, 54 ; K. Weinhold, 
 "Die deutschen Frauen im Mittelalter" (1882), I, pp. 238, 239, 248, 253, 
 256, 260-261, 280, 320-326; II, pp. 6-13, 28; Paul, "Grundriss der 
 germanischen Philologie" (1898), III, pp. 418, 419, 423; Rudeck, 
 "Geschichte der offentlichen Sittlichkeit in Deutsehland " (1897), p. 171 ; 
 Schultz, "Deutsches Leben im 14ten und 15ten Jahrhundert" (1892), 
 pp. 254, 255, 257; Boos, "Geschichte der rheinischen Stadtkultur", 
 III (1899), pp. 45, 46; Lamprecht, ''Deutsche Geschichte", II, pp. 53, 
 177, 179; III, pp. 101, 182; J. Grimm, "Deutsche Rechtsalterthumer " 
 (1881), pp. 403, 404, 407, 421, 447, 449, 450. 
 
 2 " Slavery as an Industrial System ", 1900. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 13 
 
 of individuals form natural groups, in which the individuals re- 
 semble one another to such an extent that we usually neglect 
 their individuality and consider only the species, which alone is 
 declared to be really existing. ^Moreover, the species are so 
 numerous (in the middle of our century, 150,000 are already 
 known) and their principal groupings are on the whole so evident,^ 
 that Aristotle had already distinguished them in a very rational 
 way, and nobody can fail to recognize their principal traits. How 
 different all that is in sociology ! There are by far fewer individual 
 societies than there are species, or even .kinds, in zoology and in 
 botany. Social individualities are, moreover, much less strictly 
 defined ; so much so, that it requires deep, thorough study in 
 order to properly distinguish them. It is impossible, at least 
 as far as the most advanced among them is concerned, to survey 
 them all at once ; one does not get to know them or differen- 
 tiate between them except on paper. Until a few years ago, 
 there were only very few peoples who were clearly distinguished 
 — too few to feel the need of grouping them ; and their individual 
 traits were too well known to believe in the possibility of any 
 grouping in which each individual people would not form a group 
 of itself. The Jews, the Greeks, and the Romans were individuals 
 of which the minutest details were studied ; one would disdain 
 ranging them in one class, for that would imply an admission of 
 their resemblance with other less esteemed peoples. As long as 
 one saw everywhere only heroes, geniuses, and exceptional facts, 
 the very idea of classifying that which ought to be absolutely 
 individual was absurd.^ The first condition, then, was to know 
 many peoples, too different from us, so that no one could overlook 
 those differences ; too numerous, so that no one could help feeling 
 the need of grouping them. Moreover, it would be necessary 
 to know them well enough to see the apparent similarities. 
 
 Another difficulty was the abundance of individual traits which 
 the peoples presented, traits which have since become sufficiently 
 well known to tempt one to classify them, and one feels that such 
 a classification might be undertaken with success. Besides, one 
 only considered the individual characteristics, and failed to recog- 
 nize the enormous importance of general characteristics. It is 
 only after political economy, comparative ethnology, and anthropo- 
 sociology have demonstrated the preponderant influence of mode 
 
 ' Not too much so: compare for instance, L. Agassiz, "De TespSce et 
 de la classification en zoologie" (1869), pp. 119-135. 
 
 ' Bourdeau, "L'Histoire et les historiens" (1888), pp. 13 seg., 110 seq. 
 
14 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 of life, and of the social and anthropological combinations of 
 a given people upon all social manifestations, that the point of 
 view has changed; and it is constantly changing more.^ Here, 
 analytical science must precede and prepare the way for classi- 
 fication. It is the opposite course to that which natural history 
 followed ; for there, classification preceded by far the well-estab- 
 lished morphology and physiology. 
 
 2. A circumstance which does not facilitate the distinction be- 
 tween social types, and the diverse periods of historic peoples, is the 
 well-known and almost universal fact that these types have not 
 been defined in a striking way, but on the contrary, the institutions 
 of one type continually overlap those of another. There have never 
 been abrupt changes between two periods or two types of civiliza- 
 tion, and one finds less and less of them in a measure as our his- 
 torical knowledge increases. That which seemed to be an abrupt 
 change has that appearance only for those who adhere to schematic 
 summaries; but with each advance in our knowledge, we see 
 that imaginary dividing space resolve itself into a series of imper- 
 ceptible transitions. What trouble they formerly took to ex- 
 plain in different ways, each more ingenious than the next, the 
 acceptance of the Roman law at the end of the Middle Ages. That 
 which made the difficulty was that this introduction of a foreign 
 law system was conceived of as a rapid, entire event. They sup- 
 posed that nothing was left over from the past, that it was an 
 actual, visible change. Now that we know of these many and 
 slow transitions, the fact has nothing miraculous in it. We know 
 that there are in southern Europe a thousand remnants of Roman 
 law, that ecclesiastical law has left numerous traces, that scholarly 
 lawyers prepared the transformation by small, imperceptible 
 advances, so that nowhere has the ancient, popular law entirely 
 disappeared, but on the contrary, more traces of it have remained 
 than would be supposed. Thanks to the labors of De Tocque- 
 ville, Taine, and others, the same change has come about in our 
 conception of the social and economic revolution which followed 
 the French Revolution of 1789. Even here the stream conti- 
 nuity was much less drained than was imagined. In Central 
 America, the same phenomenon presents itself again to us : the 
 
 ^ The materialistic conception of history, once relieved of its exclusive- 
 ness, seems to me to include a great deal of truth, the same way as an- 
 throposociology, which does not deserve the attacks by Loria ("Social 
 Anthropology" in "The American Anthropologist", April, 1899), nor 
 those by Woltman ("Die Darwinische Theorieund der Socialismus", 1899), 
 or by Jentsch ("Socialauslese", 1898): yet those promising researches 
 are still in their first youth. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 15 
 
 brutal conquest of Mexico and Peru by the Spaniards did not 
 destroy the original civilization ; it did not exterminate the In- 
 dians. But there remained numerous traces of them which make 
 of that part of America a country very different from Spain. In 
 short, everything shows that in sociology, as in geology, the 
 theory of sudden revolutions has been renounced for that of slow 
 and gradual evolution due to the action of causes which are always 
 the same and which work without interruption. 
 
 The difficulty which classification encounters by reason of 
 that particularity, is still more aggravated by the fact that one 
 and the same period is not the same in all its manifestations for 
 two neighboring peoples. For instance, the Middle Ages, that is 
 to say, the period which extends from the last of the Merovingians 
 up to the fifteenth century, is marked by entirely different char- 
 acteristics in Germany, France, Italy, and England. The power 
 of the sovereign and that of the nobles, the position of free men 
 and the significance of cities and corporations, all differed in these 
 four countries during the Middle Ages.^ In zoology, it is true, we 
 also see very striking disparities. The whales, differing from all 
 other mammifers, live in the sea ; the length of life is not the same 
 in any group of higher animals.^ But there is always this differ- 
 ence with sociology : in natural history, there is no trouble in 
 showing that the individuals of a species are altogether similar, 
 and in sociology, on the contrary, one sees immediately and clearly 
 the differences between societies which would be the most likely 
 to enter into the same class. 
 
 Are there not indeed enough difficulties in our way? Ought 
 we, then, give up our plan ? I do not think so. 
 
 ******* 
 
 We have not been able to find an argument to convince us of 
 the impossibility of classifying peoples and social conditions. 
 We have shown the usefulness of classification. Now we must 
 try to introduce it. 
 
 In order not to make avoidable mistakes, let us consult freely 
 the experience of other classifiable sciences, and let us listen to 
 the lesspns of general logic. 
 
 > Cf. the remarks of Durkheim, *' Les rSglea de la m^thod'e sociologi- 
 que" (1895), pp. 108, 109. 
 
 2 Agassiz, loc. cit., p. 141 : "there is little uniformity in the representa- 
 tives of different classes, and that within certain limits." 
 
16 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 III. The Various Systems of Classification 
 
 Durand (de Gros) is undoubtedly the logician who has treated 
 the general problem of classification most exhaustively. He 
 distinguishes four diverse orders which might be made the basis 
 of a classification : the class of generality or of similarity, the class 
 of composition or collectivity, the class of hierarchy, and the class 
 of genealogy and evolution.^ The first ranges the objects accord- 
 ing to the proportion of common characteristics which unite them ; 
 here the lowest group combines the units which have the greatest 
 number of characteristics in common, and consequently is the most 
 restricted in number. " The classifications in botany and zoology 
 pass as typical applications of the taxonomic order of generality. "^ 
 In our times, however, the genetic order has to a large extent con- 
 quered that ground. The class of composition or collectivity is 
 based upon the relation of the whole to the part and the part to the 
 whole. Mr. Durand sees the most perfect example of this class in 
 our system of numeration.^ " The hierarchic series is nothing but a 
 progressive series of grades. " ^ The best known example of this 
 class is the army. Finally, the genealogical class ranges objects 
 according to their order of kinship, in ascending, in descending, 
 in collaterals. The prototype of this class is natural relationship ; 
 the ideal model of all the applications of this order is the genea- 
 logical order. The most interesting applications are found today 
 in the systems of relationship of languages, of societies, of human 
 races, and especially in those of botanical and zoological species. 
 
 It is superfluous to show that for our purpose, there can be no 
 question of the classes of composition and hierarchy. Both of 
 them find many an application in the domain of sociology, but the 
 classification of peoples and types of culture has nothing to do 
 with them. 
 
 Again the kinship of different peoples, their origins, their 
 migrations and their intermingling, the favorite theme of many 
 an ethnographer, are certainly of great interest for the sociologist ; 
 but nothing of all that has any bearing upon the classification of 
 the diverse civilizations. 
 
 The only class which remains for us to consider is the 
 class of similarity. Later we shall look more closely to see 
 
 ^ Durand {de Gros), "Apergus de taxonomie g^nerale" (1899), pp. 
 5 seq. 
 
 2 Durand, loc. cit., p. 18. ^ Lqc. cit., p. 37. * Loc. cit., p. 52. 
 
Chap. L] A CLASSIFICATION OF SOCIAL TYPES 17 
 
 whether the genetic class cannot modify the class of similarity 
 in sociology, as was the case in natural history according to 
 Darwin.^ 
 
 Before examining the various attempts at classification under- 
 taken by sociologists, it will perhaps not be out of order to look for 
 a moment into the tw^o modes under which the class of resemblance 
 may present itself, both of which are employed in natural his- 
 tory. The first has received the name of artificial classification, 
 the second that of natural classification. In natural history, 
 the former preceded the latter.^ Linnaeus replaced the artificial 
 order by the natural order in zoology ; but in botany he preserved 
 the artificial order. Here, the reform was only accomplished by the 
 great botanists of the beginning of our century, Jussieu and the 
 elder Candolle. The admirable structure of botanical classification 
 has required the work of a century.^ This may encourage sociol- 
 ogists. 
 
 What is artificial classification ? It is that classification in which 
 the division of species rests on a single characteristic.'* This 
 characteristic is chosen not because of its importance in the 
 organism, nor because it especially points out the greatest number 
 of other resemblances and differences between the two classes of 
 objects, but solely because it is easy to prove and distinguish. 
 The best example is the grouping of plants by Linnaeus according to 
 the number of stamens. The only advantage of this classification 
 is that by it one can better recall the number of these organs. 
 As for the rest, however, its utility is trifling. 
 
 In what, then, is the natural classification distinguished from 
 the preceding? In that it chooses as a principle of division not 
 a single, arbitrary characteristic, but the one or those which carry 
 with them the greatest number and the greatest possible variety, 
 of other qualities. Thus an essential quality which alone is the 
 cause of the greatest divergence between the groups which possess 
 it and those which do not is preferred as a principle of division.^ 
 In that way, the greatest number of general truths can be found 
 for these two groups. It may be said that those qualities are 
 really essential which contribute most in making the members of 
 
 ' Moll, "De Invloed van Darwin's Afstammingsleer op de Botanie" 
 (1890), passim. 
 
 2 According to Wundt ("Logik", II, p. 43), this is generally the case. 
 
 3 De Candolle, "La phytographie", p. 73. 
 * De Candolle, lac. cit., p. 181. 
 
 » Mill, "Logic", II, p. 272; Wundt, "Logik", II, p. 41. 
 
18 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 one group similar to each other and different from those of other 
 groups.^ The groups thus formed are truly natural. 
 
 ******* 
 
 The supreme test for each truly natural classification will be 
 this : that a division according to other principles will lead to the 
 same grouping.^ That will be the proof that the objects having 
 the greatest number of qualities in common have really been 
 classed together, and that those differing in most aspects have 
 been separated ; this is the natural aim of every scientific classi- 
 fication. All the logicians and all experienced classifiers are agreed 
 upon that. All that one expects from a grouping of objects is to 
 facilitate the discovery of truths as general as possible, and to 
 fix them in the memory in a convenient order which alone will 
 guarantee their use at the opportune moment.^ 
 
 If a truly natural system of classification be once established, 
 it seems to me that the classification by the genetic order would 
 not effect much of a change. Certainly the relations between the 
 groups w^ill then appear in quite another light. The evolutionist 
 theory alone has attempted to establish a causal connection be- 
 tween the different groups, instead of a simple relation of co- 
 existence in the mind of the Creator. Besides, the limits of the 
 groups, especially the most advanced, will be sometimes modified 
 by the importance attached to the genetic relations. But in 
 general, the really natural groups based upon essential similarities 
 will remain invariable. Must my character be placed in another 
 group because those of my parents belonged to other, different 
 groups? Do the different principal classes of the branching of 
 the vertebrae resemble each other less essentially; and do they 
 differ more essentially from classes belonging to other branches 
 because there is a theory about their origin and about the 
 manner they are derived one from the other ? I cannot conceive 
 it. The four principal classes of Haeckel : '* protozoa, metazoa, 
 vertebrata, and mammalia, are, as well as the four branches of 
 Cuvier, based upon the general and essential plan of the struc- 
 ture of animals. It is certain that the inferior groups, genera and 
 species are formed after the resemblance of the individuals; no- 
 
 1 Mill, loc. cit., p. 275. 
 
 2 Sigwart, "Logik" (1878), II, pp. 550, 552. 
 
 3 Mill, loc. cit., p. 270. The general problem of classification may be 
 stated as follows : to provide that things shall be thought of in such 
 groups, and those groups in such an order, as will best conduce to the 
 remembrance and to the ascertainment of their laws. 
 
 4 Durand (de Gros), loc. cit., pp. 176 seq. Agassiz, loc. cit., pp. 375 seq. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 19 
 
 body would recognize individuals having no resemblance to each 
 other, although of the same descent, as forming one species. One 
 of the best representatives of the systematic evolutionists in zoology 
 concedes this last point, in saying that the recognition of the kinds 
 and species will be almost always possible by exterior signs alone, 
 without it being necessary to make use of all the anatomical, 
 ontogenetic, and paleontological equipment.^ 
 
 The classification by genetic order can have no other aim than 
 to discover what groups have had kindred origins, and the same 
 ancestry, and to unite them in one and the same superior group. 
 It is supposed that resemblance generally indicates the same 
 origin ; but no great weight is placed any longer on entirely super- 
 ficial resemblance, because it is known that forms which at fijst 
 glance appear identical to us, often reveal themselves as very 
 different when we know their phylogenetic history.^ Resem- 
 blance does not always indicate the same origin, as can be easily 
 understood ; diverse phylogenetic processes may finally end in an 
 identical form. To appreciate the taxonomic significance of a 
 character, it is particularly necessary to know all the functional 
 significance of the organism.' « 
 
 Certainly, the fundamental use of anatomy, of ontogenesis, of 
 paleontology, and of geography brought about a deeper under- 
 standing of the manner of estimating the principles upon which 
 the divisions of groups are based. The very purpose of the 
 formation of superior groups, especially those which concern 
 classes and families, has changed. One wishes to discover be- 
 tween them a relation of kinship and is no longer satisfied with 
 the simple relation of resemblance. But I do not see that the 
 category of resemblance should disappear entirely from the 
 system. The groupings by resemblance always underlie the 
 ultimate between individuals. Only they start with the idea that 
 the same combination of the same heterogeneous characteristics 
 is not easily to be found in groups of a different origin. Con- 
 sequently, when two groups present combinations of different 
 qualities, it is concluded that they are not of the same origin.** 
 
 The great aim of system in natural history is to establish the 
 evolution of animal forms. If the identity of origin, and of pro- 
 found and actual resemblance of form and of function, are not to 
 De confused in the long run, it will be necessary to have the system 
 
 ' Fiirbringcr, " Untersuchungen zur Morphologie und Systematik der 
 Vop^ol" (1888), p. 1137. 
 
 2 Furbringer, pp. 1127-1128. ^ Furbringer, p. 1129. 
 
 * FiirbringeT, p. 1131. 
 
20 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 of resemblance, that is to say, the natural system,^ such as we 
 have described according to the authority of the best logicians, 
 always by the side of the genetic system. In short, it can be said, 
 that the only aim of the entire evolutionist theory is to explain 
 causally the resemblances which are to be found in nature. Fiir- 
 bringer himself recognized the practical and propaedeutic use- 
 fulness of descriptive systems.^ 
 
 Thus, for the sociological aim which we are pursuing, we have 
 the choice between three kinds of classification : the artificial 
 system (one, single, arbitrary characteristic), the natural system 
 (a group of essential characteristics which indicate the greatest 
 resemblance or difference), and the genetic system (relation of 
 kinship and choice of principles of division capable of deciding 
 the question). 
 
 In pursuance thereof, I express my conviction that for our 
 special aim, which is not so much to explain the connection of 
 societies as to hasten in general all the sociological studies, by 
 familiarizing ourselves with the types of society and civilization, 
 and by enabling us always to have present in our minds all the 
 representatives of each of them, the first and the last system 
 are not the best; the second, called natural, is the only one 
 which suits our purpose. 
 
 IV. The Purpose of Sociological Classification 
 
 Before we commence our resume and our criticism, we must 
 first clearly understand the objects which we wish to classify. 
 
 They are the very objects which sociology studies. If we con- 
 ceive its domain as more limited, the object of our grouping will 
 be more restricted, both in nature and number. If we should 
 consider sociology according to Simmel as the science of different 
 forms of hurnan association,^ we would find in a book such as 
 
 1 It seems to me that Fiirbringer is not right in branding every 
 sy stern which is not genetic, as artificial (p. 1121) for the strong and 
 essential resemblance cannot be called artificial. However, the relation 
 to origin, the explanation of resemblances, are absent in this system ; 
 the groups are not connected together by a causal tie, but only by an 
 ideal tie, even though the resemblance is a real fact. 
 
 2 Loc. ciL, p. 1132. 
 
 ^Simmel, "Das Problem der Sociologie" in Schmoller's "Jahrbiicher 
 fiir Gesetzgebung, Verwaltung und Volkswirthschaft", 1894, p. 1305; 
 the sole object of sociology will be the study of forces, of forms and the 
 evolution of human associations. Cf. Thon, "The Present Status of 
 Sociology in Germany", in "American Journal of Sociology", Jan., 1897, 
 pp. 568, 570. 
 
Ch-VP. I.J A CLASSIFICATION OF SOCIAL TYPES 21 
 
 Gierke's a sufficiently complete historical classification of these 
 forms, such at least as it obtains in Germany. But when properly 
 interpreted, the definition of Simmel is susceptible of including a 
 much more extended domain. For our aim at least, we deem it 
 proper to accept the largest conception of the scope of our science. 
 In that case, it will be the positive and comparative study of 
 human kind, with the single exception of its physical and psychical 
 foundation, which depends upon biology and psychology.^ Thus, 
 all societies with their moral, juridic, economic, and demographic 
 manifestations, and in their historical evolution, are the objects 
 of sociology.^ 
 
 After thus defining the boundaries of our domain, it is under- 
 stood that the objects which we have to classify will be the various 
 static conditions of all societies. We already know that the diverse 
 manifestations discussed above, such as obtain in a certain period 
 in the same society, are closely connected with each other. These 
 diverse aspects of social life form one unit. It is the units thus 
 formed that we wish to classify. 
 
 With the peoples whose history we do not know, or who have no 
 social history, that is to say, those with whom no essential social 
 change has been discovered, the social state may be identified 
 with the people; we can say that we classify the savage races, 
 and not the different phases of their social condition. With 
 historic races, it is altogether different. Here, we have to classify 
 the different social conditions which succeed each other in the 
 course of the evolution of these peoples. When, then, shall we 
 recognize such a condition as sufficiently different from those that 
 preceded it, in order to constitute a distinct social phase? The 
 answer to that question results from what we have said of the very 
 purpose of our classification. A different phase will emerge before 
 us when the diverse, essential manifestations of society, which 
 are interrelated and interdependent, will have undergone an essen- 
 tial change, that is to say, a change which aflPects them all in their 
 relations as well as in their nature. The situation is just the same 
 as if we were confronted by a new society, which naturally has to 
 be classified like the others, such as it was, and such as it no 
 longer is." 
 
 When can we admit that this condition is fulfilled ? That will 
 
 ^ Barth,'' Die Philosophie der (Jeschichte als Sociologie" (1897), pp. iv, 
 10. 
 
 2 That some poorly defined parts of this general sociology are cultivated 
 by more or less independent sciences such as Economy, Ethnology, His- 
 tory of Religions, History of Law, etc., is of little concern to us. 
 
22 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 depend entirely on the system of classification which we will have 
 adopted. If, assuming the impossible, the classification of groups 
 would depend on the amount of the population of each group, 
 then the United States with a population of thirty millions in 
 1880 would belong to one group, and now with a population of 
 fifty millions ^ it would enter another group. The phase which 
 we will thus be called upon to regard as a unit, will remain so as 
 long as the principle of division will not indicate a change. 
 
 That which precedes concerns the historical extension of our 
 units. As to the geographical extension, the case is a little dif- 
 ferent. Here, two methods of procedure would be possible. One 
 might say that a social unit stops geographically there where an- 
 other people begins, or where there is another government, another 
 history, often another language, in short, where all the conditions 
 by which the Hollanders, Belgians, and Germans find themselves 
 different and forming different peoples, are fulfilled. Another 
 measure can also be applied. A people may be limited to the 
 domain where the same system of social characteristics prevails. 
 Then, we will have a single sociological unit, wherever the same 
 type of family, of government, and of demographic distribution 
 is dominant. It seems to me that it is proper to regard the latter 
 group as a social class which includes many units, rather than as 
 an actual unit. Otherwise, the geographical contiguity would 
 make this unit disappear; and all over the earth there would be 
 many units and no groups. Our geographical units will be those 
 that geography and ethnography accept as such, according to the 
 unit of history, of supreme government, self-consciousness, etc.^ 
 
 V. Previous Attempts at Sociological Classification 
 
 Let us first arrange the previous attempts in several groups. 
 I do not wish to apply to them any subtle and systematic principle 
 of classification. I will only distinguish them according to their 
 characteristic traits. 
 
 Thus we will have the following groups : 
 
 1. Vague and indefinite groupings. 
 
 2. The artificial groupings (Coste, Ward, Fouillee). 
 
 3. Those according to the degree of differentiation (Spencer, 
 Giddings, De Greef, Durkheim). » , 
 
 ^ Mayo-Smith, "Statistics and Sociology" (1895), p. 368. 
 
 2 For special problems a special classification can be made, as it was 
 already remarked above; cf. my article "Die neueren Forschungen zur 
 Geschichte der menschlichen Familie" in "Zeitschrift fiir Socialwissen- 
 schaft" (1899), pp. 693-694 (reply to an objection by M. Westermarck). 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 23 
 
 4. Those according to the characteristics and intensity of 
 economic life (Liszt, Biicher, Vierkandt, Peschel, etc.). 
 
 5. Mixed groupings (Sutherland, Le Play). 
 
 6. Genetic, historical, and ethnographic classifications (Brinton, 
 Ratzel). 
 
 7. The natural classification according to one or many essential 
 principles. 
 
 1. Let us begin by distinctions into very vague, hut very large 
 classes, which alone have gained some popularity. A distinction 
 is often made between historical peoples and those which have no 
 history. Certainly, this difference implies many others, which 
 proves its importance. The historical peoples have writing, a 
 certain literature, and a more or less exact knowledge of their 
 past — all things which the others lack ; and naturally these dif- 
 ferences are accompanied by an innumerable mass of others. We 
 consider them so especially, when we compare the extreme examples 
 of both sides : the civilized peoples and the savage tribes. But it 
 is not proved, and it is even very improbable that, for instance, 
 the Persians and the Koreans, the Mexicans and the Peruvians 
 would belong to different classes if all humanity only contained 
 these two. ]Moreover, the division into two is too simple, of 
 insignificant utility, and it must be limited to popular usage. 
 
 The same objections can be made to another analogous division, 
 that which distinguishes peoples into barbarous and civilized, and 
 puts savagery on one side, and civilization on the other. Another 
 objection which can be added to the preceding is the indefiniteness 
 of these expressions. The systems which we will pass in review 
 are to a great extent merely attempts to define these terms. Let 
 us abstain, then, from making a special criticism of it. ♦ 
 
 There is more claim to consideration in the distinction between sta- 
 tionary civilizations and progressive civilizations. The great ma- 
 jority of peoples are regarded as stationary, while the other category 
 is limited to the Greeks, to the Romans, to the peoples of western 
 Europe and to their dependants. It is known, moreover, that 
 Egypt, Chaldea, China, India, Japan, Mexico, and many others 
 have made great progress in their times ; Rome and Greece have 
 not had a longer existence. But let us go further. There can 
 be only one truly stationary society — of Pithecanthropi — men 
 who but yesterday were monkeys. There is not a single truly 
 primitive people on earth. All the others have made enormous 
 progress. To ignore the stages through which they have passed, 
 
24 CRITERIA OF LEGAL EVOLUTION , [Part I. 
 
 perhaps without any particular direction, is the greatest mistake 
 of ethnology. Peoples should, then, be divided into more or less 
 progressive types, since there is no truly stationary people. What 
 quantitative principle can furnish such a rule? I think that 
 we ought to discard these vague and useless groupings. Let us 
 pass to the second category. 
 
 2. I call artificial the classifications which apply a single, ex- 
 terior measure more or less arbitrarily chosen. 
 
 {a) In his book full of wholesome thoughts and useful sugges- 
 tions, Coste proposes to divide societies according to the relations 
 of the urban population to the whole population — relations which 
 would furnish us with the true comparative densities, which may 
 be called the sociological densities. For him, these latter are the 
 foundations of rational sociometry.^ The foundation of this proj- 
 ect of classification, or sociometry, which amounts to the same 
 thing, is the idea that all social progress holds together and reflects 
 a social solidarity, and that "all these results proceed from the 
 same initial phenomena, the numerical increase of a unified popu- 
 lation. " " I willingly concede the charms and advantages of this 
 project. The measure applied is divisible into as many parts as 
 one wishes ; it is more exact than any other measure which sociol- 
 ogy has at its disposal. It would be very unusual for a people to 
 be so unknown to us that we would be unable to ascertain its popu- 
 lation and to what extent it is concentrated in the cities. I do 
 not ignore the great significance of the numerical increase of 
 population for the progress of civilization. I know that it has been 
 attempted with a certain plausibility to present it as the only force 
 which urges humanity ahead. ^ The concentration of the popula- 
 tion in the cities is certainly of great value as a symptom of the 
 intensity of social life. 
 
 While appreciating the importance of this principle, it seems 
 to me useless as applying to the division of peoples. It is a pity 
 
 1 A. Coste, "Les principes d'une sociologie objective" (1890), Paris, 
 F. Alcan, p. 168. 
 
 2 Ibid., p. 159. 
 
 ^ Loria, "Les bases 6conomiques de la constitution sociale" (1893), 
 p. 4. The thought has been advanced particularly by K. Kautzky in his 
 "Der Einfluss der Volksvermehrung auf den Fortschritt der Gesellschaf t " 
 (1880). This resembles the competitive predilection of the small mer- 
 chants, especially on the increase of population. CJ. Elster, "Bevolke- 
 rungswesen",in " Handworterbuch der Staatswissenschaften", II (1899), 
 p. 709. Darwin himself was inclined towards this idea: cJ. "Descent of 
 Man", 1894, p. 618, and Ploetz, "Die Fiichtigkeit unsrer Rasse und der 
 Schutz der Schwachen" (1895), pp. 4, 208. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 25 
 
 that Coste only applies it to civilized peoples ; otherwise he would 
 have obtained very curious results. Peoples who have evidently 
 reached the same stage of progress in their social culture, would 
 find themselves widely separated by the application of this prin- 
 ciple; for example, China and Persia. According to the chance 
 by which one people includes a desert within its frontiers, and 
 another is confined between powerful enemies, the first would be 
 placed beneath the second. Mr. Coste himself is obliged to muti- 
 late his principle by including in the United States only the 31 
 older states.^ Why does he not do the same for Russia, Sweden, 
 Norway, Turkey, and Austria ? There are still other consequences 
 which condemn the system : France (100) ^ is placed beneath 
 Russia (103) ; the older states of the United States (198) far above 
 Germany (122); the Netherlands (24) beneath Turkey (26); 
 Spain (19) above Belgium (12). From these comparisons one 
 would estimate that Holland (24) is much more industrial than 
 Belgium (12), while in fact the contrary is the truth. Moreover, 
 I believe that the basis of this principle consists of an exaggerated 
 appreciation of the importance of large cities. Will not im- 
 provement in the means of transportation bring about the end of 
 that concentration which forms the greatest danger to our modern 
 life? Does the sane and civilized population of Sweden (7) 
 deserve to be placed far down on Coste's list, far below Turkey 
 (26) and Japan (58) ? 
 
 Great as may appear the value of sociometry for the interpreta- 
 tion of history and international relations, for our end it seems to 
 me useless. I do not believe that this criterion sufficiently in- 
 volves the most essential social differences as its corollaries ; but 
 that is what we ought to look for. I believe I am right in calling 
 this division artificial and in rejecting it as such.^ 
 
 (b) The division of societies which Fouillee proposes to us has 
 for foundation the relation of the whole to its parts.'* He applies 
 this principle to the classification of individual organisms, to 
 
 » Loc. cU., p. 174. 
 
 2 These figures indicate the product of the population with concentra- 
 tion in large cities. 
 
 3 What still more militates against this test is the fact that in little 
 time the large cities can perceptibly grow larger without changing, for 
 that matter, the social state of the land in general, as in America, in 
 western Australia, and in the Transvaal. It was one of the blunders of 
 England to have overlooked that, Johannesburg notwithstanding, the 
 Boers have remained the same as at Amajuba. 
 
 * A. Fouillee, "La science contemporaine " (1897), pp. 168-193. 
 Cf. P. Barth, "Die Philosophie der Geschichte als Sociologie" (1897), I, 
 p. 149. 
 
26 CRITERIA OF LEGAL BVOLUTION [Part I. 
 
 animals as well as to societies. He does not admit the antagonism 
 established by Spencer between physical organisms with a strict 
 centralization and in which the parts exist only for the whole, 
 and societies where the whole exists only for the individuals, who 
 are alone capable of pleasure and sorrow.^ 
 
 According to Fouillee, in this connection of the whole to its 
 parts there is an evolution, the phases of which form the classes 
 of his division. Society tends towards the realization of the ideal 
 of an organism whose parts would be conscious individually and 
 collectively — an ideal which is not realized in physical organisms.^ 
 
 The first class contains very rudimentary and decentralized 
 societies in which the whole exists for the parts rather than the 
 parts for the whole; for example, the savage tribes. I wish to 
 make two remarks. To begin with, this characterization is shock- 
 ingly vague; what is meant by savage tribes? what are their 
 limits ? what are the signs by which one can recognize this class ? 
 But above all, I believe that the opinion of the ethnologists, and 
 they alone are competent upon this point, is altogether contrary 
 to Fouillee's idea on the solidarity of savage races.'' They always 
 consider them as living in the midst of groups as closely united 
 as possible, and their social manifestations all bear the mark of 
 this close unity. According to them, the individual has not yet 
 been differentiated from the entirety. 
 
 Fouillee's second class embraces "the societies of imperfect 
 centralization and decentralization in which the whole exists 
 more for the parts than the parts for the whole." "Then there 
 is a centralization more involuntary than voluntary, under the 
 action of a supreme chief — whose authority each tribe, each 
 individual longs to escape. It is, so to speak, despotism in balance 
 with anarchy. " ^ The Middle Age with feudalism furnishes an 
 example. 
 
 I presume that, in general, feudalism would be a characteristic 
 trait of this class; but then, there is a difficulty in the always 
 neglected fact that feudalism is not altogether confined to the 
 
 1 Spencer, "Sociology", I, p. 449: the society exists for the benefit 
 of its members. 
 
 2 Fouillee, loc. cit., p. 176. 
 
 3 Thus expatiates itself the disdain towards the savages on the part 
 of philosophers and economists, who represent to us the first phases of 
 the ontogenesis of the human kind. M. Coste wishes to exclude them 
 from the objects of sociology {loc. cit., p. iii). Fouillee does not seem 
 either to have studied them in a special manner. Would a student of 
 general biology ever neglect the inferior organisms or the branches of 
 radiary or of protozoary? 
 
 4 Loc. cit,, pp. 178-179. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 27 
 
 Middle Ages ; it has a much more extensive domain, and is often 
 found among the peoples called savage.^ Neither does it appear 
 clearly whether the peoples called barbarous (Ancient Mexico, 
 Peru, China, Persia, Ancient Egypt, Roman Empire, Soudan, 
 Hindu States, the empire of the Mogul, etc., etc.) ought to be 
 ranged in this class or the following. Could Fouillee have been 
 thinking only of Europe? That would be an exclusiveness, the 
 analogy of which would have been ridiculous in botany and zoology. 
 In the Middle Ages in the cities, the life of a group was very active, 
 much more pronounced than at any subsequent period. The 
 relation between the parts and the whole was not weak ; but the 
 more active groups were smaller. Fouillee, as a philosopher with 
 too large views, ignores all these distinctions. In China also, 
 the restricted community is very strong, but the organization of 
 the empire is very loose. 
 
 The third class contains "the military states of Spencer" in 
 which the individual exists more for the state than the state for 
 the individual. The European states from the sixteenth to the 
 eighteenth century would be included in that class, Germany of 
 the nineteenth century perhaps more than that of the eighteenth 
 century. The empire of the Caliphs would belong to that class 
 more than any other, likewise that of Tchengis Khan and Tamer- 
 lane. But there is a great difference between our Germany and 
 these barbarous empires ! 
 
 The fourth class includes the very superior societies in which 
 the state exists for the individuals, rather than the individuals 
 for the state — the highest form, to which the future belongs. 
 Do Belgium, Italy, Holland, and the United States form military 
 states, or do they express the supreme form of society which will 
 last until eternity ? We cannot imagine either one or the other. 
 
 (c) The classification which Lester Ward proposes in his great 
 work is very similar to that of Fouillee.^ Ward distinguishes 
 four phases. The first he calls the solitary or antarchic stage; 
 it is that in which man lives alone, or in little isolated groups — a 
 purel}' hypothetical phase. The second is the constrained aggre- 
 
 ^ Cf. for example: Marcuse, "Hawaiische Inseln" (1894), p. 95; 
 Charnay, "La Civilisation Tolteque", "Revue d'Ethnographie ', IV, 
 p. 302; Haarhoff, "Bantustamme Sud-Africas", p. 61 (Zouloos) ; Veth, 
 "Timor", p. 24; L. Wilson, "West Africa" (1862), p. 132 (Ashanti) ; 
 Hunter, "Brief History of Indian Peoples", pp. 138, 177; Prochewalski, 
 "Mongolei", p. 517 (Trangouts) ; Colquhoun, "Among the Shans", 
 pp. 256 seq. I only give a few of my notes. 
 
 ' Lester Ward, "Dynamic Sociology" (1883), I, pp. 464-^67. I regret 
 not to know more than the first edition of this important book. 
 
28 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 gate or anarchic stage ; the association here is constrained, the 
 individual . is free, but does not live in security; social virtue is 
 still unknown. It is an ephemeral, transitory phase, of which one 
 finds trace among the Fuegians, central Australians (almost un- 
 known), the Veddahs, and the Bushmen. But no ethnograj)her 
 has ever reported that their association is constrained except by 
 the need of a common life, and it is not otherwise with us. As for 
 saying that this phase is ephemeral, the assertion seems to me 
 gratuitous. Did not the paleoliths live in this situation,^ and is it 
 not probable that all of human kind has passed through the same 
 phase, and only passed out of it after hundreds of centuries ? 
 
 The third phase is called the national or politarchic stage; 
 from that time on there are chiefs, and the beginnings of govern- 
 ment; war makes larger nations. This phase actually includes 
 all of human kind with the sole exception of inferior savages. As 
 to the fourth, the cosmopolitan or pantarchic stage, it belongs to 
 the future. It goes without saying that such a classification will 
 not help us at all in attaining our aim; it is rather a rapid esti- 
 mate of political evolution. 
 
 The common fault of these three attempts consists in this : 
 that they divide all societies and consider social evolution under 
 a single aspect only. Now, it is always much more probable, 
 in sociology as in zoology, that the ramification of a tree in many 
 directions represents the scheme of classification which is most 
 similar to the reality of evolution. 
 
 2. The second group of systems which we will treat is character-' 
 ized by the fundamental importance attributed to the fact of 
 differentiation. They are all based on the model of Herbert 
 Spencer, and are only modifications thereof. We will commence, 
 then, with that one. 
 
 ******* 
 
 (a) In summarizing his proposition, Spencer ^ only distinguishes 
 two principles according to which he wishes to distinguish societies ; 
 but the first is double. In the first place, societies would be 
 ranged according to their degree of integrity, as simple or more 
 or less complex; but this evolution in the degree of complexity 
 
 1 Tylor has proven that the paleoUths resembled in everything the 
 Tasmanians recently exterminated by the English. Cf. Ling- Roth, 
 "The Aborigines of Tasmania" (1890), pp. v, et passim; E. B. Tylor, 
 "On the Tasmanians as Representatives of Paleolithic Man", "Journal 
 of the Anthropological Institute of Great Britain and Ireland", XXIII 
 (1894), pp. 141 seq. 
 
 2 "The Principles of Sociology" (1893), I, p. 562. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 29 
 
 is accompanied by a corresponding evolution in the degree of 
 differentiation — that is to say, increasing heterogeneity. Thus, 
 since the second series always develops parallel to the first, the 
 two would form a single principle of classification : differentiation 
 is a corollary of integration. The second principle, less definite 
 according to Spencer, is the division into military and industrial 
 societies.^ The first are particularly characterized by compulsory 
 cooperation, the second by voluntary cooperation. 
 
 In the tables ^ which he has set up to elucidate the first group- 
 ing, according to integration and differentiation, Spencer makes 
 three different distinctions. In the first place, he establishes 
 four different classes : simple societies, societies simply compound, 
 societies doubly compound, societies trebly compound. The 
 last, of which he says nothing more there, include : ancient 
 Mexico, the Assyrian empire, the Egyptian empire (of which 
 period?), the Roman empire. Great Britain, France, Germany, 
 Italy, and Russia; several of these states would perhaps have 
 attained a still higher phase. The three first classes are further 
 subdivided according to whether the peoples have no chiefs at all, 
 or only an occasional chief, or a chief who although permanent 
 has only an indefinite and unstable power; the highest class in- 
 cludes societies which possess a well-established government. The 
 first of these subdivisions is absent in the second and third class, 
 where there are no longer peoples without leaders. 
 
 Finally, in these subdivisions of the classes, new distinctions are 
 again introduced, according to whether the peoples are nomadic 
 (be they hunters like the Fuegians and Bushmen, or farmers like 
 the Bedouins), semi-nomadic or altogether settled. Spencer cites 
 examples of people for each " species infima." 
 
 This system of the great sociologist does not altogether satisfy, 
 even though we recognize its advantages. These advantages 
 consist of the fundamental and profound characteristics of the 
 superior classes of one subdivision as well as of another, and of 
 the clearness of both subdivisions (according to the character of 
 the ruler, and according to the relation of the people to the soil). 
 But there are serious objections to this classification. In the 
 first place, it seems to me a great inconvenience that the two 
 divisions have no relation to each other. They are really two 
 different classifications which have nothing to do with each other, 
 
 ^ hoc. cit., pp. 544-577. Also in the "Political Institutions", 1885, 
 pp. 568 seq., 603 seq. Spencer has described more explicitly these two 
 types of societies. 
 
 2 Loc. cit., pp. 539, 540, 542. 
 
30 CRITERIA OF LEGAL EVOLUTION [Paet I. 
 
 and neither aid nor complement each other. There are industrial, 
 peaceful peoples in the first two classes of the system of differen- 
 tiation/ and all the peoples of treble or quadruple composition 
 are more or less military. The militarism or industrialism of a 
 society does not seem to me to furnish the proper basis of a classi- 
 fication. This characteristic, moreover, is not very stable; the 
 United States seem to us to be the least militaristic state in the 
 world, and yet the manner in which they possessed themselves of 
 the Spanish colonies has shown them to be extremely militaristic, 
 — a revelation, the spirit of which has been still more accentuated 
 by the attempts which they have made to suppress liberty in the 
 Philippines. The industrial or military characteristic of a society 
 might figure as a secondary trait in one or several groups, but it 
 could not furnish us a principle of division. As for the rest, the 
 only truly industrial peoples, that is to say, essentially peaceful, 
 would be a few societies which from another point of view ought 
 to figure at the bottom of the ladder ; ^ for we have not known, 
 until now, any civilized people which has not been more or less 
 military. Such a division would be altogether useless. 
 
 The other classification of Spencer does not seem to me perfect, 
 either. The celebrated author only shows very summarily the 
 importance of these groupings ; that is, he does not clearly show 
 how these distinctions are compatible with an endless number of 
 connected characteristics. In other words, he does not establish 
 that they are truly essential in the evolution of societies and 
 civilizations. We have enumerated the peoples who have quali- 
 fied as trebly compound. How can one not be struck by the 
 diversity of the societies included in this class? The German 
 empire and ancient Mexico are found side by side there I It 
 seems to me, however, that there are many more differences be- 
 tween them than between the Comanches (second class) and the 
 Iroquois (third class). The Athenian federation is placed beneath 
 that of the Iroquois and the Araucanians, in the second subdivi- 
 sion of the third class ! ^ Are not such errors due to the too 
 superficial nature of this principle of division ? On the other hand, 
 
 ^ Spencer himself names the Bodos and the Dhimals, the Todas, the 
 Mishmes, the white Karens, the Lepehas, the Pueblos, the Santals, and 
 the Papuan Arafuras ("Pol. Inst.", pp. 616, 617); c/. "Ethics", I, pp. 
 396 seq. Many others could have been added, particularly the Esquimaux 
 of Point Barrow {Murdoch, "Rep. Am. Bur. EthnoL", 87-88, p. 41), the 
 Veddahs (Sarasin, "Die Weddah", p. 488), the Chamkani {Bellew, 
 "Afghanistan", p. 86), etc. 
 
 2 In some lines, pp. 538, 541. 
 
 3 Durkheim, "Les regies de la m6thode sociologique " (1895), p. 102. 
 
Chap. L] A CLASSIFICATION OF SOCIAL TYPES 31 
 
 the definition that Spencer gives of the simple society is so vague 
 that all savage peoples might be entered in one single class. ^ 
 
 Again, it seems to me that, having passed a certain stage, a 
 higher composition of societies no longer is attended by great 
 difl'erences. Has Belgium changed so much in its fundamental 
 characteristics since the foundation of its Congo colony? Are 
 not Holland, with its extended colonies, and Switzerland, which 
 has never had any, similar in essential respects; and if they are 
 different, which is not contestable, are these differences indeed 
 due to that circumstance ? It will be necessary to prove the reality 
 of these relations before the utility of this system could be regarded 
 as established. And, no disciple of the great father of sociology 
 has, as far as I know, fulfilled this condition. Spencer's classifi- 
 cation is more a consequence of his system than an attempt to 
 find the most useful order for our researches in the mass of societies. 
 It is a philosophical rather than a sociological system, a theo- 
 retical rather than practical one. 
 
 (b) The classification which Durkheim proposes, and which he 
 calls morphological,^ is an improvement on that of Spencer. In 
 the first place, Durkheim gives us a better definition of a simple 
 society, without departing from these systems. He calls by this 
 napie a society which does not include others simpler than itself,^ 
 and the parts of which are individuals and not groups. It is the 
 horde whose members are atomically in juxtaposition to each 
 other. ^ Perhaps there is no living example of such a society ; 
 but certainly there are societies formed, immediately and without 
 another intermediary, by a repetition of hordes : then, this horde, 
 a part of a larger whole, is called clan. Durkheim does not see 
 any difficulty in the fact that the known clans are composed of 
 families, first because the family formed themselves after the clan,^ 
 and then because the family is not a social segment, not being a 
 political division.^ (Here, I must interrupt our author. In the 
 first place, why is not the primitive family a political division, 
 since it includes the first principle of authority, the prolific source 
 of the development of public authority ? ^ Then, are social 
 segments and political divisions the same thing? Durkheim has 
 not proved it : and after all, these are the societies which we are 
 
 ' Durkheim, loc. cit., p. 101. * Loc. cit., p. 100. 
 
 3 Loc. cit., p. 102. 
 
 < By the same author, "La division de travail social" (1893), p. 189. 
 5 Which seems to me very hard to prove. « Loc. cit.., p. 103. 
 
 ' C/. my "Erste'Entwicklung der Strafe" (1894), II, eh. vi, vii, 
 and VIII. 
 
32 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 trying to classify. Finally, what difference does it make if, 
 chronologically, the family was formed after the clan, if mor- 
 phologically, it is an integral part of it ?) 
 
 The other classes are formed by every possible combination of 
 these clans. All these modes of combination would be just as 
 many fundamental classes. From this point of view one would 
 find, in the first place, aggregate forms of clan without inter- 
 mediary groups, called simple, polysegmentary societies, — for 
 instance, certain of the Iroquois and Australian tribes, the Kabyles, 
 the Athenian phratry, and the Roman curia. The third class 
 is formed by the polysegmentary societies simply compounded, 
 for example, the confederation of the Iroquois and Kabyles, and 
 the three primitive Roman tribes. The fourth class includes 
 polysegmentary societies doubly compounded, of which the con- 
 stituent parts are themselves simply compounded societies; for 
 instance, "the city, an aggregate of tribes w^hich are themselves 
 aggregates of the curia, which in their turn are resolved into gentes 
 or clans." ^ Thus it would follow, each superior type would be 
 formed in general by a repetition of societies of the type imme- 
 diately inferior. There are always exceptions to this rule : there 
 are societies of which the constituent parts are not of the same 
 class — such as the Roman empire. 
 
 Durkheim then attempts to distinguish the varieties of each 
 class, according as to whether the segments, of which society is 
 formed, have retained more or less of their individuality, or have 
 been altogether absorbed.^ This mode of composition is really 
 of great importance. Side by side with the Germanic tribes 
 which the author names, a still better example of the independence 
 of tribes in the midst of society — better because of its develop- 
 irient on an immense scale — is furnished by the Chinese empire, 
 where the gentes and families, far from being absorbed, have 
 retained a great preponderance.^ Still other varieties might 
 establish themselves by the degree in which in one composition, 
 one segment suppresses another, or the segments are equal. 
 
 One cannot ignore the importance of this contribution to Spen- 
 cer's method, nor that it constitutes an important correction. 
 With good reason, Durkheim abandons the distinction between 
 military and industrial societies. Both subdivisions of Spencer 
 (according to the character of the ruler and the connection with 
 
 1 Loc. cit., p. 104. 2 i^oc. cit., pp. 105, 106. 
 
 ^ Wells Williams, "The Middle Kingdom" (1883), I, pp. 473-486; 
 Douglas, "China" (1899), pp. 231, 380. 
 
Chap. I.]' A CLASSIFICATION OF SOCIAL TYPES 33 
 
 the soil) are likewise put aside by the author, who retains only the 
 principal division according to the degree of composition. 
 
 To resume our ungrateful task of criticism, this system is open 
 to the same objections as that of Spencer. Although Durkheim 
 himself has recognized the necessity of choosing the essential 
 traits as a principle of division/ he makes no pretense of proving 
 that his system carries with it the infinite number of derivative 
 characteristics, which distinguishes the true principle of classi- 
 fication. I believe that his division is deficient because of this. I 
 see proof of it in the fact that the Iroquois and the Australians are 
 placed in the same class. Read the most optimistic description of 
 the most advanced Australians, that of Dawson,^ and the picture 
 which Hale has traced of the Iroquois,^ and judge whether these 
 two peoples should not have been placed in different classes. On 
 the other hand, Durkheim speaks of the curia, the phratries, and 
 the "arch" [tribe] of the Kabyles; that would presume that he 
 classifies types of human association rather than complete socie- 
 ties. In that case it would be natural enough for him to have 
 chosen this principle of classification, which for such an aim is 
 almost the only one possible. But in his introduction and in his 
 conclusion, if I have properly understood them, nothing indicates 
 that he had thus limited the object of his research. But if he 
 too is attempting to classify entire societies, it does not seem to 
 me to prove anything except that the degree of segmentation is 
 the most essential characteristic trait.* 
 
 (c) No other disciple of Spencer is as explicit on our subject 
 as Giddings,^ as might however have been expected, since he alone 
 has the great merit of having WTitten a complete and elementary 
 treatise of our science, a treatise which has a number of good 
 qualities. 
 
 Giddings begins very properly by recognizing that every dis- 
 tinct science ought to have its own classification and nomenclature, 
 because its phenomena are not the same as those of other sciences, 
 even though they resemble them.^ The way to avoid the mistakes 
 of classification is to classify according to a single principle ; we 
 
 ^ Loc. cit., p. 99. 2 Dawson, "Australian Aborigines" (1881). 
 
 3 H. Hale, "The Iroquois Book of Rites" (1883). 
 
 * Of. the criticism of Worms, "Organisme et Soci^t^" (1896), pp. 286- 
 287. 
 
 5 "Principles of Sociology" (1896). However, it is not easy to be 
 complete in our science ; thus war is entirely ignored in this treatise. 
 
 ^ Loc. cit., p. 63. 
 
34 CRITERIA OF LEGAL EVOLUTION • [Part I. 
 
 know exactly that according to logicians this would be the charac- 
 teristic trait of the artificial classification. This single principle 
 (we will see later that Giddings does not support it) would be, as 
 Spencer has proposed it, the degree of differentiation, which at 
 least would reconcile for us the type of Whewell and the definition 
 of Mill. "A true class is that in which. the objects are grouped 
 together according to some characteristic which has been pro- 
 duced by normal differentiation. So if this genetic criterion were 
 not applied, temporary or casual relations of phenomena would 
 be taken for permanent and essential relations." ^ We await 
 proof of it. As for the rest, this assertion is not very clear, for 
 I do not believe that for an evolutionist theory, there could be a 
 single thing which had not been produced by normal differentia- 
 tion — the cause of everything. 
 
 Mr. Giddings remarks^ that the only sure method of distinguish- 
 ing inferior forms from superior forms, those which precede from 
 those which follow, is to establish the genetic relations indicated 
 by the degree of differentiation. But certainly this remark is 
 not true in its application to peoples. Did not one people, al- 
 though related to another, have to pass through alone the different 
 stages of its development? The Ossetes of Russia are kin of the 
 Germanic peoples; their degree of social differentiation does not 
 at all show this relationship. 
 
 Though, however, our author repeats in several ways that 
 classification according to the degree of social differentiation alone 
 will succeed, he himself does not unfortunately give us an explicit 
 classification. Nevertheless, his book contains many indications 
 in this direction. In uniting them, one can form some idea of 
 the classification of societies such as he conceives it. He begins by 
 making a fundamental distinction between ethnical and demotic 
 societies. The first are genetic associations, where a blood re- 
 lationship, real or fictitious, is the principal social connection; 
 the second are aggregate associations connected by interest, cus- 
 tom, and cooperation. It seems to me there are no peoples with 
 whom kinship and birth do not play a preponderant role ; other 
 bonds are joined with them, but the first and most important is 
 always blood; that is true even of the United States, in which 
 the numerous immigrants become true Americans only in the 
 second generation. Ethnical societies comprise all societies, up 
 to the civilized societies, which possess a fixed territory, a socially 
 developed constitution, commerce, social classes,^ etc. But all 
 
 1 Loc. cit., p. 63. 2 Lqc, cit., p. 64. ^ Lq^. cit., pp. 157, 158. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 35 
 
 these conditions are fulfilled by peoples called barbarous (Chinese, 
 INIohammedans, Mexicans, etc.). Does Giddings include them 
 among the civilized ? And yet with them, relationship and even 
 tribes still play a leading role ! One can say the same of many 
 other peoples, for instance, the Javanese. I believe that our author 
 would have much trouble in dividing actual societies according 
 to that rule. Besides, it is not apparent that these distinctions 
 are made according to the stages of differentiation ; it is certain 
 that Giddings has not proved that origin. Likewise, he forgot 
 to show us that these distinctions are essential, that these traits 
 admit of the greatest possible number of derived characteristics. 
 
 The existing ethnical societies are shortly divided by him into 
 three groups according to their degree of social composition : (1) 
 small hordes, sometimes temporarily united ; (2) tribes, or united 
 and extended hordes, better organized and occupying a fixed 
 territory; (3) coherent aggregations or confederations of tribes, 
 which do not yet form municipalities or national states, because 
 their commercial, intellectual, and industrial development is not 
 yet sufficient. Here we see differences in the degree of aggrega- 
 tion rather than in the degree of differentiation ; which certainly 
 is not the same thing. Giddings thereupon divides these three 
 classes joined together into two groups, according as the societies 
 are matriarchal or patriarchal. But the connection between 
 these two groups is not at all clear, either as to their essence or 
 division. The author does not show us the relation of this last 
 division to his fundamental rule, nor the essential significance of 
 the distinction between matriarchal and patriarchal societies. 
 
 The demotic or civilized societies only form a single branch ^ 
 of which the evolution, however, is divided into three phases, 
 which differ not only chronologically, but also by their character- 
 istics and structure ; ^ they should be called subclasses rather 
 than phases. The first includes ancient Egypt and Babylon ; the 
 second was not altogether complete in Greece, while Rome was 
 only on the threshold of the third, to which the modern nations 
 have risen, probably those of Europe (with the exception of those 
 of the east and southeast) and their derivatives. The first phase 
 is marked by political integration and the common organization 
 of the central government ; it is the political period. The second, 
 the legal period, is characterized by intellectual and personal 
 
 » Loc. ciL, p. 168. 
 
 2 Loc. ciL, pp. 299-302. Cf. pp. 306, 309. These phases are named: 
 military and religious, liberal-legal, economical-ethical. 
 
36 CRITERIA OF LEGAL EVOLUTION [Pabt I. 
 
 liberty, by the constitutional state, the presence of a multitude of 
 inferior associations, by the profound differentiation which the 
 social constitution shows in its details. The third phase, called 
 industrial, is no longer either military or political, but economical 
 and ethical. Up to this time, no existing people belongs to it. 
 Neither do I see how Greece and Rome, with their slavery dominat- 
 ing their social life, their state religion, their oscillation between 
 tyranny and oligarchy, their poverty of social life which contrasts 
 in so striking a manner with what one sees in the Middle Ages, 
 supplies the above-described conditions of the second phase. In 
 this distribution, Giddings does not seem to apply at all his stand- 
 ard of differentiation or relationship; his point of view is here 
 teleological and is not far removed from that of the moralist. 
 
 Giddings, then, has not complied with the conditions which 
 he himself has recognized as necessary.^ His contribution to 
 Spencer's system is not very important. Perhaps he will later 
 give us a classification less hastily made ; ^ that which he proposes 
 to us now does not help us much. 
 
 3. The third group of classifications, to which we now come, is 
 distinguished by two traits. In general, their authors have rather 
 wished to show successive phases of human evolution, than classes 
 capable of coexistence in the same period of evolution. But 
 there is nothing to keep us from correcting this main defect, which 
 is not at all essential in their divisions. They propose a series, 
 often incomplete, of phases through which all humanity must 
 uniformly pass; we will change this series of consecutive terms 
 into coordinated classes. By this change, their propositions will 
 be relieved of the fundamental error. 
 
 (a) A traditional distinction, which has come down to us from 
 antiquity, is based on the various phases of human history ac- 
 cording to the means preferably employed by peoples in seeking 
 their subsistence. Thus, we were^told to distinguish the following 
 periods : hunting and fishing, cattle-raising, farming, and manu- 
 facture ; because all people were supposed to have passed through 
 these stages.^ The economist, Liszt, developed this conception, and 
 
 1 The important thing is to make classes that are significant and that 
 correspond to actual stages of evolution (p. 302). What is found here to 
 be warned against is rather the natural classification, with one word more 
 on differentiation. 
 
 2 Page 158. 
 
 3 Barth, loc. cit., p. 255; G. de Mortillet, "Origin de la chasse, de la 
 peche et de 1' agriculture", Vol. I (1890), p. 147, passim, is still partial to 
 the old theory of three phases. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 37 
 
 added several other phases to it : after agriculture, he distinguishes 
 also agriculture connected with manufacture, and jSnally agricul- 
 ture connected with manufacture and commerce.^ I have already 
 pointed out the great shortcoming defect of all these schemes : 
 they claim to be a consecutive and universal series, which is evi- 
 dently wrong. An important example is the well-known fact that 
 many peoples have never passed through the stage of shepherds, for 
 instance, the agricultural peoples of ancient America, and the great 
 civilizations of Central America and Peru ; for this simple reason, 
 that in those places there were no animals possessing the necessary 
 qualities for this kind of life, before the arrival of Europeans. 
 Another objection which is not so well known is this : the in- 
 ferior agriculturists are not at all superior to the hunters or fishers, 
 and almost always their civilization is less developed than that of 
 the more advanced hunters and fishers. It is very possible that 
 the superior hunters have passed through a preliminary stage of 
 agriculture, and only turned again to hunting and fishing after 
 they had conquered the territory which lent itself primarily to 
 these modes of subsistence.^ 
 
 (6) Hildebrand ^ has made an economic division of humanity, 
 based on the internal organization of economic life, or the manner 
 in which the products are distributed. He distinguishes : (1) the 
 economic organization marked by natural exchange ("Natural- 
 wirtschaft ") ; (2) that characterized by use of money ("Geld- 
 wirtschaft") ; (3) finally, a last phase, in which credit dominates 
 and penetrates into economic relations ("Creditwirtschaft"). 
 The great importance of this division cannot be ignored. The 
 transition between the last two stages, although insensible his- 
 torically, is particularly great in principle. Credit supposes a 
 highly developed social organization; especially is there a great 
 difference if one looks only at the clearly defined periods where 
 one or the other form is really dominant. On the other hand, 
 one might remark that, for instance, credit was of considerable 
 importance in the classical world, and that in the Middle Ages 
 bills of exchange and life annuities were already rather well known. 
 ******* 
 
 But the division of Hildebrand into only three classes seems to 
 us rather narrow ; each phase contains too many divergent soci- 
 
 ^ Barth, loc. ciL, p. 256. 
 
 2 Gro8se, "Die formen der Familie und die Formen der Wirtschaft" 
 (1896), p. 29. 
 
 3 Hildebrand, "Natural- Geld- und Creditwirtschaft", in ** Jahrbucher 
 fiir Nationalokonomie und Statistik", Vol. II (1864), p. 4. 
 
38 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 eties under the other essential relations. Especially the second 
 is very broad : a certain kind of money was employed quite early 
 by peoples very inferior from the standpoint of general culture.^ 
 On the other hand, it was a very long way that men had to travel 
 until they reached the point where credit had acquired a relatively 
 important influence — an influence which perhaps has for its 
 characteristics the diffusion of business corporations, and the use 
 of checks by individuals, practices peculiar to Anglo-Saxon coun- 
 tries. Besides, the use of money does not constitute a very great 
 social difference as compared with the exchange in nature ; thus 
 this classification is not of great use to sociology. 
 
 (c) Roscher, the well-known champion of the historical method 
 in political econom^^, gives us another division of economic char- 
 acteristics ; ^ he distinguishes household economy ("Hauswirt- 
 schaft"), the economy of corporations and associations, the 
 economy of the community, of the state, national economy and 
 the economy of humanity, of which we only perceive as yet the 
 first signs. But Roscher himself does not develop this classifica- 
 tion, which in his work has rather an analytical than historical 
 or geographical significance. 
 
 (d) Much deeper in its insight is the view expressed by Karl 
 Biicher, the well-known professor of the University of Leipzig. 
 According to him, the first phase of the economic life of humanity 
 was characterized by the individual search for sustenance; the 
 individual then was only occupied with himself ; man and woman 
 had separate households; the child was neglected, owing to the 
 formidable egoism of the parents.^ Biicher imagines that this 
 analysis is based upon the observations of ethnographers.^ I 
 doubt it. As to the terrible egoism toward children, I believe 
 that I have demolished that attractive theory.^ Biicher's second 
 phase, which has only been incompletely attained by the savage 
 peoples, but which the European peoples had already traversed 
 
 1 Schurtz, "Grundriss einer Entstehungsgeschichte des Geldes" (1898), 
 passim. I do not believe that Hildebrand had reason to define money as 
 coined precious metals exclusively (Loc. cit., p. 4), and to range the 
 other species of money in the natural exchange ("Tauschwirtschaft", 
 p. 15). Wherever one favorite product acts as a medium of exchange 
 and as standard of value and of price, it is money. 
 
 2 M. Roscher, "Grundlagen der Nationalokonomie " (1880), pp. 24-25. 
 
 3 K. Biicher, "Die Entstehung der Volkswirthschaf t " (1808), pp. 2-31. 
 ^ Loc. cit., p. 31. 
 
 5 See my article, "tjber das Verhaltnis zwischen Eltern und Kindern 
 bei den Naturvolkern", in "Zeitschrift fiir Social wissenschaft", 1898, and 
 the corresponding paragraph in my "Erste Entwicklung der Strafe", 
 Vol. II (1894), pp. 179-253. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 39 
 
 when history began/ is that of the " geschlossene Hauswirtschaft ", 
 where each family, in the largest sense, formed a household alto- 
 gether separated from those of others. Each household provided 
 for all its own needs ; there was no division of labor, but the house- 
 hold itself included enough persons to develop in its midst a some- 
 what extensive division of labor.^ I have already shown Biicher's 
 conception, according to which all Greek afid Roman antiquity 
 has not risen above this phase.^ However great my esteem 
 for the authority of Biicher may be, it is impossible not to 
 agree with his adversaries.^ His third phase would be that of 
 communal economy ("Stadtwirtschaft") to which our Middle 
 Age would belong. Here the economic influences are limited to 
 the cities ; they, produce only for the demand ; products pass 
 directly from the producer to the consumer. Finally, the fourth 
 and last phase is that of national economy ("Volkswirtschaft") 
 where the products pass through many hands before coming to 
 the consumer. 
 
 In reading the very interesting characterization which Biicher 
 gives us of these four phases, one is struck by their general impor- 
 tance.^ The author himself is sure of it. Certainly, the funda- 
 mental traits of economic organization of a society must have a 
 deep and general influence upon its constitution and all its vital 
 manifestations. Biicher is perfectly right in saying that the eth- 
 nologists have too long neglected this important point.^ How- 
 ever, this author's classification does not altogether satisfy us; 
 at least, it is not sufficient for the sociological aim which we pursue. 
 In the first place, this reduction of all human societies into four 
 classes, of which the first class has hardly a representative among 
 known peoples, seems to me troublesome. The second class 
 includes a multitude of societies, altogether different when looked 
 at from any other point of view; while the third class seems to 
 me to be either a little schematic or else very rarely represented. 
 In all times commerce has played a preponderant role, and has 
 bound people together. That is as true of savage tribes, even 
 those who live in the most inhospitable regions such as the arctic 
 regions, as of the societies of the Middle Ages. We must guard 
 
 ^ hoc. cit., p. 41. 2 Lqc, cit., pp. 32-47, 58 seq. 
 
 3 Loc. cit., pp. 65 seq. 
 
 * E. Meyer, *'Die wirtschaftliche Entwicklung des Alterthums" 
 (1895), p. 6 et passim, and Cunningham, "Western Civilization in its 
 Economic Aspects" (1895), pp. 105, 109, 112, 183 seq., 187. 
 
 ^ The latter phase would be possible only in a modern state. 
 
 « He could have found much information in the great monographic 
 works of Le Play and his School. 
 
40 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 against this tendency to schematize.^ Another objection to this 
 division is that in the third class attention is paid only to the 
 system of labor in the cities and all the rest is neglected. Neither 
 is it certain that this form of organization carries with it a great 
 variety of secondary characteristics. As for the fourth class, 
 there is a lurking difficulty in the fact that our international econ- 
 omy ("Weltwirtschaft") supposes a combination of societies 
 which themselves are found in the second class. Finally, the people 
 of the colonies would belong variably to either the second or fourth 
 class. I do not think that Mr. Biicher's classification can satisfy 
 our needs. 
 
 {e) Grosse ^ has made a classification upon a more differentiated 
 economic basis. His aim was to look for the different forms of 
 family which are parallel to the different economic constitutions 
 of society. He guards against the tendency to build a consecu- 
 tive series; he knows that the second class does not necessarily 
 precede the third, and that this is not inferior in all aspects to the 
 fourth. His classes are five in number : inferior hunters and 
 fishers, superior hunters and fishers, nomadic shepherds, inferior 
 farmers, and superior farmers. Almost always the economic 
 life of a people does not belong exclusively to one of these classes, 
 but each society belongs to one or the other according to the form 
 of subsistence which is preponderant with each. The idea is right. 
 
 Between the two types of hunting peoples, the difference is 
 rather quantitative than qualitative ; ^ the results of the hunt of 
 the superior hunters is much richer than that of the others, thanks 
 to the perfected arms which they use, and especially to the greater 
 fertility of their surroundings. But this distinction does not seem 
 very fundamental. If it is valid, one ought to generalize and 
 distinguish everywhere the peoples which inhabit rich soil, and 
 those which live amidst poor surroundings. The inferior farmers 
 differ from the superior farmers in this trait : that among the 
 first each capable individual applies himself to farming, while 
 among the latter a good part of their economic forces is reserved for 
 other industries.^ Grosse has not distinguished simple collectors 
 ("Sammler") from hunters; however, these first, which are 
 characterized by the absence of hunting weapons, ought properly 
 
 1 Bucher (p. 81) answers the objection. 
 
 2 E. Grosse, "Die Formen der Familie und die Pormen der Wirthschaft " 
 (1896), pp. 7, 9. On the other hand, the classification followed by Hilde- 
 brand in the first volume of his important book, " Recht und Sitte auf den 
 verschiedenen wirtschaftlichen Kulturstuf en " (1896), is very simple; he 
 only distinguishes : hunters and fishermen, shepherds, farmers. 
 
 3 Loc. ciL, p. 27. * Loc. ciL, p. 28. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 41 
 
 to take the place of the inferior hunters, who should not be sep- 
 arated from other hunters. If one is looking for essential traits, 
 there is more reason to distinguish between fishers than hunters, 
 according to whether they are nomadic or settled ; for the possi- 
 bility of establishing a fixed home supposes that their technique 
 has already reached a high degree of development. As a matter 
 of fact there are very few fishermen who are not altogether 
 settled. 
 
 Grosse has not made a special class of farmer-hunters such as 
 Dargun has.^ These occupy themselves with agriculture without 
 being settled. They change fields every time they change their 
 settlement, giving no care to their lands or crops, and devoting 
 themselves to hunting and fishing in order to complete their means 
 of sustenance; they are found particularly in South America. 
 According to our author, each person among the inferior farmers 
 devotes himself to the cultivation of the fields; but among the 
 peoples where farming is least developed, things are not arranged 
 that way. The women, and later the slaves, are alone busy with 
 this kind of work, while free man hunts, fishes, trades, fights, or 
 does nothing at all. It is only in the more advanced agricultural 
 phases that an entire community devotes itself to the work of the 
 fields. And then nearly always it develops a certain branch of 
 the work and with that begins a manufacture — blacksmiths, 
 armorers, builders of ships and houses, etc. Thus, Grosse's two 
 classes do not seem to me to be those which most conform to reality. 
 
 The last class, that of the superior farmers, is too large; it 
 includes the semi-civilized peoples of Asia and anpient America, 
 two-thirds of our Middle Ages, and all modern societies. As might 
 be expected from an ethnologist, Grosse has not tried to analyse 
 the various phases of societies which are not savage; he mixes 
 them all into a single, heterogeneous, and deformed class.^ His 
 classification, in spite of its great merits, is not satisfactory. 
 
 (/) Hahn, in his very useful book, has given us some valuable 
 information upon the various forms of the economic life of the 
 peoples. He takes notice, in the first place, of the hypothetical 
 phase of pure collectors ("Sammler")) who lived on vegetable 
 products and the smaH animals which were about them, without 
 
 * Lothar Dargun, "Ursprung und Entwicklungsgeschichte des Eigeu- 
 thums", in "Zeitschrift fur vergleichende Rechtswirtschaft", V (1884), 
 pp. 38 seq. 
 
 2 Naturally, his book clearly shows the consequences of his defects; 
 the interesting changes which the family has undergone in the last phases 
 of social evolution are all neglected by him ; he has likewise ignored the 
 curious particulars which characterize the family of the hunter-farmers. 
 
42 CRITERIA OF LEGAL EVOLUTION [Part I, 
 
 using any instruments or weapons whatsoever.^ His second class 
 consists of hunters and fishermen, who are either wandering, 
 settled, or owners of domestic animals (for instance, dogs). The 
 third class consists of primitive farmers, who made use of only 
 one instrument, the pick-ax ("Hackbau") ; this form of culture 
 is very extensive; it is found especially in South America, in a 
 part of Africa, and in the Indonesian islands.^ The fourth class 
 is rather a subdivision of the third; it might be called farming 
 with a pick-ax, hastened and centralized by European culture 
 and energy ("Plantagenbau")- It is only found in several parts 
 of America and India, Sumatra, and Java; its instrument was 
 especially the negro slave.^ Garden culture, horticulture ("Gar- 
 tenbau") is the most intensive of all forms of agriculture; it is 
 the highest degree of the exploitation of the soil. It makes no 
 use of any beasts, but uses human refuse, and is lacking in many 
 human forces. It is found especially in China and Japan. ^ The 
 sixth class is formed by the races with whom breeding of cattle 
 forms the principal means of human livelihood. Hahn sketches 
 hastily for us how this method of making a livelihood exerts a 
 deep influence on the social life, the history, and the character of 
 the peoples who are devoted to it.^ The seventh and last class 
 consists of agriculture properly so-called, characterized by the 
 prevalence of cereals, the use of cattle and the plow; it is found 
 among the civilized races, in Persia, in English India, and in several 
 other European colonies.^ TIaliii also supposes that the peoples 
 who possess this method of cultivating the soil are united by a 
 communal civilization, although they belong to four linguistic 
 groups. Indeed, only a small number of religious ideas dominate 
 this enormous empire ; ^ which clearly proves the historical con- 
 nection between the varied parts of which it is composed. A 
 special division is formed by irrigation farming, of which Egypt 
 and ancient Babylon furnish examples ; ^ Hahn predicts for this 
 mode of culture a great future even in civilized countries.^ 
 
 Our author has based his economic classification exclusively 
 on the method in which the first food stuff is produced ; he neglects 
 
 all the rest, even the cultivation of other important stuffs, such as 
 
 • 
 
 1 E. Hahn, "Die Hausthiere" (1896), p. 385. 
 
 2 Loc. cit., pp. 388 seq. ^ Loc. cit., pp. 402 seq. 
 * Loc. cit., pp. 402 seq. ^ Loc. cit., pp. 407 seq. 
 
 ® Loc. cit., pp. 410 seq. For the dispersion of these forms of culture 
 consult especially the card at the end of the volume. 
 
 7 Loc. cit., pp. 415-416. » j^qc. cit., p. 417. 
 
 ^ Hahn gives a very interesting application of these distinctions in 
 the economic geography which forms his volume, pp. 423-547. 
 
Chap. I.] ' A CLASSIFICATION OF SOCIAL TYPES 43 
 
 clothing, mining ores, use of wood, water, etc. Moreover, he is 
 not certain that the superior societies are characterized by their 
 method of farming. Will the gradual turning of a civilized society 
 towards horticulture ("Gartenbau") make so much difference? 
 The evolution towards the big industry, so important in modern 
 manufacturing societies, with its enormous increased production, 
 with its tendency to concentrate in the cities, with its need of 
 markets, with the progress in science which occurs at the same time, 
 etc., nothing of all that is touched by Hahn's division. That, 
 however, is what forms the profound difference between us and 
 the eighteenth century. On the other hand, in the inferior classes, 
 the hunter-farmers are not taken into consideration. But this 
 classification has an advantage in that it admits easily of sub- 
 divisions according to the shades and combinations of economic 
 characteristics. 
 
 4. The economic classifications of societies which we have just 
 gone over, consider the whole of economic life from one side only. 
 Some do not take into consideration organization of economy 
 ("Wirtschaft"), such as Hildebrand and Biicher. Others build 
 upon the predominant method of the principal industry (Grosse, 
 Hahn). I do not see the necessity of this artificial limitation. It 
 is necessary to enlarge the framework. All the parts which char- 
 acterize the economic foundations of the different societies must 
 be considered, if one wishes to get from them a principle of division. 
 Later on, we will take up the theories which go farther in this direc- 
 tion than the preceding. 
 
 The group of classifications which next claims our attention 
 now is distinguished by the greater complexity which it introduces 
 into our division of societies. As for the rest, they also may be 
 applied primarily to the economic basis of civilization. 
 
 (a) The first savant of this group is Le Play, the peculiar sociolo- 
 gist who occupies a place apart in our science. It is regrettable 
 that his work and that of his school is so little studied by the 
 savants of the other schools. Aside from much childishness and 
 many eccentricities, one finds conscientious study of important 
 facts, carried on with a care which is found nowhere else, while 
 the disciples of Le Play often give us general ideas, interesting 
 hypotheses, which no earnest sociologist dares ignore.^ Unfor- 
 tunately, the savants of that school rarely measure up to the 
 
 ^ See on the work of Le Play in p:eneral the article of A. von Wercksten, 
 "Le Play", in "Jahrbiicher fiir Gesetzgebung, Verwaltung und Volks- 
 wirtschaft", 1894, and Vignes, "La science sociale d'aprSs les principes 
 de Le Play et de ses continuateurs ", 2 vols., 1897. 
 
44 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 height of modern science ; because of that, their theoretical work, 
 outside of the monographs which are the foundation of it, often 
 make an impression of dilettantism. 
 
 That which characterizes Le Play himself, even more than his 
 school, is that he pays particular attention to the basis of society 
 — the inferior classes, — and not to the summits, the esthetic 
 and intellectual creations of exceptional natures. In examining 
 the former, he makes distinctions between prosperous and 
 wretched peoples, and between simple and complicated races.^ 
 
 The simple races live only on the natural products of their 
 own lands, and on water products; all the members are almost 
 equal. Among them the shepherds have the patriarchal family, 
 the fishermen the single-head family ("famille souche")^ and the 
 hunter the unstable family. The complicated and agglomerated 
 races make use of all natural forces to sustain the life of their 
 enormous and compact masses. With them, the family undergoes 
 profound changes, the patriarchal family becoming the single- 
 head family ("famille souche"), sometimes even unstable. The 
 families of these societies are very unequal in wealth and social 
 authority,^ and Le Play divides the societies themselves into stable, 
 uncertain, and disorganized, according to the type of family which 
 predominates. 
 
 This type may be either patriarchal, single-head ("souche"), 
 or unstable. In the first, the domestic group is a strong unity, 
 under the permanent authority of the head of a family, who keeps 
 around him even his adult sons and daughters. This type is still 
 sometimes found among agglomerated populations with a com- 
 plicated life, for instance, among the German peasants in Le Play's 
 time.^ While the simple societies remain stable as long as the 
 family is dominated by the decalogue, the complex and literate 
 societies, into which the influence of the cities has penetrated, 
 can only keep the same stability ^ with the help of religion and 
 government. A more comfortable life, and especially wealth, 
 lead to disorganization.^ The stable family can be patriarchal, as 
 with the shepherds, or single-head ("souche"), as with the fisher- 
 men.^ These latter are obliged to settle down by necessity, as 
 well as by the advantages of their profession, and they turn easily 
 
 1 "Ouvriers Europeens", I (1879), pp. 70, 210, 212. 
 
 2 hoc. ciL, pp. 381-384. 
 
 3 Loc. cit., pp. 138, 162; Volumes II, III, IV, of the "Ouvriers Euro- 
 peens" are devoted to stable populations, V to disturbed populations, 
 and VI to disorganized populations. 
 
 4 Loc. cit., Vol. V, p. xi. ^ Loc. ciL, p. xviii. 
 * Loc. cit., Vol. VI, pp. XV seq. 
 
Chap. I.J A CLASSIFICATION OF SOCIAL TYPES 45 
 
 to agriculture; their ideal type is to be found in Scandinavia.^ 
 The stable form of family rests on the institution of inheritance : 
 it is possible in all times, all industries, and all localities. The 
 single-head ("souche") family is distinguished by the complete 
 transmission of the patrimony to a single heir, which obliges the 
 other children to earn their bread in an independent manner, and 
 to migrate in case of need.^ 
 
 It is evident that Le Play's division only concerns one phase 
 of things ; therefore, it is highly artificial. It cannot be called 
 superficial; rather it is fantastic. Fortunately, it has been 
 corrected and completed by the followers of the master, the writers 
 of the "Science Sociale." These authors distinguish societies 
 according to three characteristic traits ; in the first place, accord- 
 ing to the predominant type of family, then according to the prin- 
 cipal mode of existence, and finally according to the ethnographical 
 grouping. It is regrettable that there is not an article in the 
 entire "Science Sociale" in which these various principles of 
 division are arranged harmoniously. 
 
 Demolins offers an important correction to the theory of the 
 three types of family. He adds a fourth : the false single-head 
 ("souche") family, which is rather the patriarchal family placed 
 in poor surroundings; such a family remains always the center 
 of gravity to the children, who return to it as soon as they have 
 earned a little competency in the city.^ In his "Geographic 
 Socialede la France", the same author paints for us in an inter- 
 esting and suggestive manner the deep influence of environment 
 and the mode of subsistence upon the entire social life, and es- 
 pecially on the family. The best articles in the review cited apply 
 the same method to the different peoples,^ who are classified 
 according to their ethnical descent and the nature of their habita- 
 tions ; these factors indeed determine the character of the sur- 
 roundings, upon which depends the mode of subsistence, which 
 in its turn decides finally the character of all the institutions of 
 
 ' hoc. cit.. Vol. VI, pp. XX, xxi. f Loc. cit., p. xxii. 
 
 3 Demolins, "L'fitat actuel de la science sociale", in "Science Sociale", 
 XV, pp. 12, 13, 14, 18. 
 
 * For instance Demolins, "Les trois soci^t^s k formation communau- 
 taire de famille", Sc. S. XV, pp. 165 seq. ; p. 167. The societies of the 
 globe are divided into societies of communitary formation and societies 
 of particularistic formation. The community can govern either in the 
 family only, in the family and state, or in the state alone (p. 168). The 
 former are to be found only on the steppes with the shepherds ; they are 
 divided into three types : those of the rich prairies of Asia, those of the 
 Polar Tundras, and those of the poor deserts of Arabia and of the Sahara 
 (p. 173). 
 
46 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 the people, and the role it plays in history. It is strange that 
 to these followers of Le Play, so religious and conservative, is owed 
 the most systematic application that is known of the principles 
 of Buckle and Taine. 
 
 Vignes, in his book upon the "Science Sociale d'apres I'ecole 
 de Le Play ", proposes to us the following classification. First 
 simple societies : the hunters in the forest ; second form of simple 
 society : the shepherds in the prairies, subdivided according to 
 the nature of their surroundings ; third form of simple society : 
 the fishermen along the edge of the sea and fishing streams. The 
 classification of the complex societies is made according to the 
 physiognomy of the families which compose it. The first class 
 is formed by the societies-communities of family and state; it 
 is to be found in the Orient, outside of simple societies. The 
 second class is divided in two, according to the preponderant type 
 of family: unstable or single-head ("souche")- The complicated 
 peoples are also distinguished one from the other according as 
 they are descended of shepherds, hunters, or fishermen. While 
 Le Play distinguished types of family according to cohabitation 
 and hereditary transmission, the criterion of his followers of the 
 "science sociale" has become the nature of the training given to 
 children.^ 
 
 This short resume perhaps cannot convey to the reader the 
 interest which this classification presents — a classification which 
 has the great merit of having been applied and put to practice; 
 it is not a theoretical division like so many others which we have 
 examined. Criticism is not very easy in the face of such work. 
 The weak side of this system is certainly that which concerns the 
 superior peoples, those of Europe of the Middle Ages and of modern 
 times, which are only divided according to their two or three 
 types of family. The Middle Age is not characterized at all; 
 modern civilization is characterized principally by the unstable 
 or single-head ("souche") family. That is very little. These 
 forms of family are also found among primitive hunters and fishers. 
 Too many essential differences are ignored. The Latin and Anglo- 
 Saxon countries possess entirely different forms of family, and 
 yet they present numerous similarities. 
 
 They have certainly more resemblance to each other than they 
 
 have to the primitive peoples with which they share in common 
 
 1 Vignes, loc. cit., I, pp. 96-220; Demolins, "Les societes issues des 
 Deserts", Sc. S. XV, pp. 315 seq. ; R. Pinot, "La classification des especes 
 de la famille", Sc. S. XVII, pp. 51 seq.; P. De Rousiers, "Les Populations 
 circumpolaires", Sc. S. VI, pp. 221 seq. 
 
Chap. I.] A CLASSIFICATION OF SOCL\L TYPES 47 
 
 the same forms of family. That this preponderant importance 
 is given to a single factor seems after all to be due to an attitude 
 of mind towards social facts which is more that of the moralist 
 than of the scientist. In the meantime, however, how have the 
 at least solid distinctions of Le Play evaporated under the hands 
 of his followers, who draw nearer to modern science, but away 
 from Le Play ! I have already remarked that these authors have 
 in effect not evolved a harmonious system of these various divi- 
 sions. The final criticism must w^ait until then. 
 
 (h) The celebrated American ethnologist, Lewis H. Morgan, 
 has given us a classification of societies ^ which has had the singular 
 good fortune of becoming well-known, because it has been adopted 
 by the Marxist school. 
 
 Morgan holds the idea that all civilized people have passed through 
 two successive stages of savagery and barbarism. The road of 
 humanity has been marked on one side by inventions and dis- 
 coveries, and on the other by the evolution of forms of family; 
 by recognizing these three symptoms, we shall be able even to 
 determine the principal phases of human evolution. Leaving 
 aside that which concerns inventions and discoveries, the progress 
 of human kind has particularly manifested itself in seven direc- 
 tions : livelihood, organization of society, language, family 
 religion, family life, architecture, and ownership.^ (It is obvious 
 that the list of ]\Iorgan is only approximate; he forgets, among 
 other things, science, morals, and art.) 
 
 The two principal phases of the organization of society are 
 marked by the tribe (gens), of w^hich the nation is the highest 
 form, and by the state, which commences with the city.^ These 
 two forms mark the difference between primitive and modern life. 
 But all peoples must have traversed the same or nearly the same 
 road, because the human brain is the same with all races. The 
 identity of historical results with different peoples is also caused 
 by the fact that the experiences of barbarism and civilization are 
 only the development of the conceptions of savagery. 
 
 As to the phases of civilization, Morgan points out that the 
 distinction of the archaeologists between the stone, bronze, arid 
 iron periods will not suffice. It is probable that in the future, 
 
 1 This classification is treated by Morgan in his "Ancient Society" 
 (1877) ; I regret that I possess only the German translation of this ex- 
 haustive work; I cite from this latter "Die Urgesellschaft, iibertragen 
 von Eichoff unci Kautsky " (1891). A very short resume is given by 
 Morgan in his "Houses and House-Life of the Aborigines" (1881), pp. 4, 5. 
 
 2 "Urgesellschaft", pp. 4, 5. ' Loc. cit., p. 6. 
 
48 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 by reason of the predominant influence which they exercise on 
 the Ufe of humanity, the inventions aftecting the art of subsistence 
 furnish the best foundation for this division. Hitherto, the his- 
 tory of all these inventions is not well enough known ; but in the 
 meantime, we must build our conclusions on those of which we 
 do know something ; we shall see that each of these implies another 
 culture, represents a kind of life peculiar to it. Morgan believes 
 it very possible that he will find some exceptions in the applica- 
 tion of this test; but that i does not change the fact that in that 
 way all the principal peoples can be divided into classes, accord- 
 ing to their progress in civilization. He distinguishes three periods 
 of savagery and three of barbarism. The first period of savagery 
 begins with the infancy of humanity and ends with the use of fish 
 and fire; man fed himself in the beginning on fruits and nuts. 
 There is no example of it which has come down to the historical 
 period. The second period of savagery begins with the use of 
 fish and fire and ends with the invention of the bow and arrow; 
 men spread over the earth; the greater part of Australians and 
 Polynesians belonged therein when they were discovered by Euro- 
 peans. The third period of savagery ends with the invention of 
 pottery. It is at this stage that the Athapascan tribes of the Hud- 
 son country, those of the Columbia river, and some tribes along 
 the seacoast of North and South America found themselves when 
 they first began to be observed. 
 
 The threshold of barbarism, Morgan's next stage, is marked by 
 the use of pottery, although such a sign is always rather arbi- 
 trarily chosen; it closed with the invention of phonetic writing. 
 The first period of barbarism finishes in America with farming by 
 irrigation, and the use of adobe (bricks dried by the sun), and in 
 the ancient world, with the raising of domestic animals. The 
 Indians to the west of the Missouri belonged to that group. The 
 second period of barbarism ended with the invention of the art 
 of melting iron ore. The Indians of the villages in New Mexico 
 and Central America form part of this class, as well as the old 
 Bretons. These latter, it is true, knew the arts of iron; but it 
 was the proximity of more civilized nations which lifted them in 
 these arts above the proper level of their social organization. The 
 highest period of barbarism ends with the invention of phonetic 
 writing and the use of this writing for literary purposes. To 
 this period belong the Greeks of Homer, the Italian tribes shortly 
 before the foundation of Rome, and the Germans in the time of 
 Caesar. 
 
Chap. I.J A CLASSIFICATION OF SOCIAL TYPES 49 
 
 Here commences Morgan's last stage, civilization, with phonetic 
 writing (in which can be included the hieroglyphic writing on 
 stone) . The advanced periods of humanity are attended by a greater 
 variety of means of sustenance ; otherwise the dispersion of men 
 and the formation of larger nations would have been impossible. 
 From this point of view there can be distinguished subsistence 
 by means of fruit and roots cultivated upon a limited territory; 
 nourishment by fishing, which already made a larger dispersion 
 possible, while hunting became more advantageous because of 
 the invention of improved weapons. These two modes of sub- 
 sistence date back to savagery. The period of barbarism gives 
 rise to three others : primitive agriculture, breeding of cattle in- 
 tended to supply the animal food and milk which America lacked, 
 and finally agriculture, properly so-called, supplying unlimited 
 food. With this latter, the concentration of man becomes possible. 
 
 The different periods of human evolution are attended by dif- 
 ferent forms of family. Morgan distinguishes five principal 
 forms. Of the first, in which brothers and sisters intermarry, 
 there are only traces; the second ("punalua") had for its char- 
 acteristic the usage by which many brothers had many sisters 
 in common. These two types belong to savagery. The syn- 
 diasmic family is one in which the woman is married to a single 
 man, while the man is free. The two others are the patriarchal 
 family, which is often polygamous, and the monogamous family ; 
 the latter, in particular, belongs to civilization.^ The last two 
 series, kinds of subsistence and types of family, are only corol- 
 laries of the true classification which is based upon special inven- 
 tions, and these are only contingent corollaries which do not 
 ordinarily accompany the various phases of the first series. So 
 we can ignore them in considering Morgan's proposed classifica- 
 tion. 
 
 The first remark which occurs to us is that after all Morgan 
 appears to be more of an ethnologist, in a strict sense, than an 
 historian of human civilization. To tell the truth, he has ignored 
 the higher forms of civilization in a most surprising way. Civilized 
 Asia, both ancient and modern, all the antique culture of Africa, 
 Asia, and Europe, Islam, the Middle Ages, the sixteenth, seven- 
 teenth, and eighteenth centuries, and modern times, — all that 
 forms only a single group in his scheme, although differences are 
 apparent here which are just as striking as those which distinguish 
 the different forms of savagery. 
 
 » Loc. cit., pp. 15-23. 
 
50 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 Another criticism to be made (although I admit the admirable 
 qualities of Morgan's system) is that the divisions of Morgan 
 relate to the general phases of human progress, rather than to 
 special classes and particular types of culture and evolution. 
 This author is taken up with the simple conception of evolution. 
 That seems to me to be a dangerous bias, particularly for one who 
 classifies. Also, he is much too systematic, too much engrossed 
 with his system, to be able to make his classification conform to 
 the facts, and to the similarities and differences which they really 
 present. In running through his book, one does not get the im- 
 pression that he tried to embrace in one view, both broad and 
 impartial, all the groups of peoples; it seems that the author 
 dwelt particularly on the Indian tribes of North America, on the 
 Greeks, the Romans, and the Germans of Tacitus. The rest is 
 more or less ignored. How else can one account for the fact that 
 according to his definitions, the hunter-farmers (" Jagerbauern ") 
 should be counted in his second class, the barbarians, when they 
 are in fact among the lowest societies of South America, Africa, 
 and India? The Australians and the Polynesians are also placed 
 in his second period of savagery ; that is, among the most savage 
 peoples who are actually living. Yet how can one put in the same 
 class two groups of people so entirely different? The Fijians, the 
 New Zealanders, and the Hawaiians, whose social and political 
 organization is very developed, w^ould be placed in the same 
 category with the Australians — societies almost amorphous, a 
 great part of which does not even recognize a leader ! ^ Finally 
 and particularly, the Polynesians were, in general, agriculturists, 
 yet had no such primitiveness about them.^ 
 
 Morgan's principal division itself (savagery and barbarism) 
 seems to me to have a foundation which is too fragile to support 
 the entire structure. Savages are separated from barbarians by 
 the invention of pottery. But to begin with, Morgan has not at 
 all shown that this invention is attended by a large number of 
 secondary characteristics, which would really make it a distinctive 
 and essential trait, but seems in fact to be very doubtful. Again, 
 such an invention would naturally be lacking among a people 
 which possesses none of the material required, and yet such people 
 because of that might not be less inventive, nor have needs less 
 
 1 CJ. Curr, "The Australian Race" (1886), I, pp. 53-56, and my 
 "Erste Entwicklung der Strafe", II (1894), pp. 20-42, where I have dis- 
 cussed the question of the government of the Australians. 
 
 2 Cf. Waitz-Gerland, * ' Anthropologie der Naturvolker", VI (1872), 
 pp. 61-64. 
 
Chap. I.J A CLASSIFICATION OF SOCIAL TYPES 51 
 
 well satisfied. An example will illustrate these two objections : 
 it is that of the Polynesians compared with the Melanesians. 
 Among the former, pottery was unknown, but they were skilled in 
 making bottles and cups out of that admirable material, bamboo ; 
 they also excelled in making boats, houses, etc. The latter, al- 
 though much less advanced in all respects, knew how to make 
 pottery.^ Is that any reason for an ethnologist to place the Poly- 
 nesians in the same class with the Australians, and place the 
 Melanesians in a more advanced class ? 
 
 Morgan's distinctive mark of civilization, phonetic writing, is 
 more significant, because more essential and attended by more 
 corollaries. But that would oblige us to class as civilized some 
 very inferior societies, some, for instance, in the earlier Middle 
 Ages and the Battas, who possessed a writing.^ But is there not 
 some fact which is more essential than pottery to characterize 
 the barbarians who have reached the threshold of civilization, 
 and to distinguish them from the lower forms of savagery ? There 
 are a number of African and Indonesian peoples practised in the 
 art of breeding cattle, and yet who do not deserve to be placed in 
 the second stage of barbarism. The invention of the bow and 
 arrow as a distinguishing mark between the second and third 
 periods of savagery is open to the same objection.' It seems that 
 Morgan has made a poor application of the idea of the Darwinian 
 classifiers, who in natural history often group animals according 
 to signs which are of little importance.^ For them, these signs are 
 only evidence of kinship, which is their true principle of division. 
 For Morgan, however, these insignificant traits form the true 
 principles upon which he bases his classes, even the most important 
 — and that is contrary to the logic of classification. 
 
 ******* 
 
 (c) Now let us turn to another author — a naturalist who has 
 written, a very new, very original book (with many omissions, to 
 be sure) on the evolution of morals. In order to avoid the tire- 
 some repetitions as well as arguments by means of examples, which 
 
 1 Waitz-Gerland, loc. cU., VI, pp. 70 and 595; the agriculture of the 
 Fijians alone surpasses that of the Polynesians, that of the other Melane- 
 sians is inferior to it : ibid., pp. 579-580. 
 
 2 Von Bremncr, "Besuch bei den Kanibalen Sumatras" ^1894), p. 293. 
 
 3 C/., for example, C. M. Plcj/tc, "Sumpitan and Bow in Indonesia" 
 in "Internationales Archiv fiir Ethnographie," IV (1891), p. 267 ; the bow, 
 which is not known in Sumatra, is used on the Mentaw islands, p. 275. 
 Gonerallv in the west (Sumatra, Borneo, Celebes, and Java included) the 
 sumpitan is used ; in the east, the bow is used. 
 
 * Moll, loc. cit., p. 25; FUrbringer, loc. cit., pp. 1124-1126. 
 
52 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 arguments are never convincing, Sutherland has elaborated as 
 an introduction to his work a classification of peoples, based not 
 on ethnical relations but only on the general standard of their 
 intelligence.^ There is hardly any need of remarking that this as 
 a fundamental principle of division is very vague, very arbitrary, 
 and very subjective. It gives rise to an infinite number of different 
 applications. 
 
 To determine the general standard of Ihe intelligence of peoples, 
 Sutherland makes use of different criteria, which are not the ele- 
 -ments of one single standard, as in the case of the simple classi- 
 fications. There are four branches. 
 
 (1) The division of savagery is characterized by the three 
 following traits : men live in small, isolated groups, at a distance 
 from one another, and live on natural products ; their life passes 
 completely in a fight for existence. 
 
 The lowest stage is occupied by the lower savages : dwarfed, 
 with weak limbs and large bodies, wandering by families of ten to 
 forty members, without habitations, almost naked, and having 
 the smallest human skulls known. Such are the pygmy peoples : 
 Akkas, Bushmen, Negritos, Semangs, and Veddahs. The half- 
 way savages, next, have a better physical appearance, use screens 
 as habitations, know what clothes are, although nakedness re- 
 mains common to both sexes, construct rough boats, use weapons 
 of stone and wood, wander in hordes of from fifty to two hundred 
 souls, without differences of rank and without social organiza- 
 tion, but with customs having the force of law. This class in- 
 cludes the Tasmanians, the Australians,^ the Ainu of Japan,^ the 
 Hottentots,^ the Fuegians, and several forest tribes of Brazil and 
 Guinea. The higher savages, finally, are of medium stature (ex- 
 cept in arctic regions) ; they have habitations, although in general 
 these consist simply of tents made of skin ; nakedness is still 
 very common to both sexes; they use well-made weapons of 
 stone, copper, and bone; they wander by tribes of from one 
 hundred to five hundred souls; insignias, distinctive of rank, 
 begin to be used; the chiefs have a poorly defined authority; 
 
 1 "The Origin and Growth of the Moral Instinct" (1898), pp. 103-108. 
 
 2 For the most part they do not possess any boats at ail, Ratzel, loc. cit., 
 II, p. 51, particularly on the east and south-west coasts of Australia. 
 
 3 The Ainu are not going naked: Batchelor, "The Ainu of Japan" 
 (1892), pp. 45 seq. Their huts are good enough: Savage-Landor, "Alone 
 with the Hairy" (1893), p. 207. 
 
 4 Neither the Hottentots, who wear the belt with the kaross, there, 
 at least, where they remained most untouched by European influences: 
 Ratzel, I, p. 91. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 53 
 
 order is based upon tribal custom. Included within it are : 
 the majority of the American Indians, such as the Indians of 
 the prairies, the Aleuts,^ the Tinnehs, the Haida,^ the Shoshones ; 
 the Patagonians, the Abipones, the Araucanians; the Samoids, 
 the Kamtchadales ; the Nicobarese; the Santals, the Todas, 
 the Karens, etc. 
 
 (2) The barbarians obtained the greatest part of their suste- 
 nance by directing by foresight the productive forces of nature; 
 thus, agriculture and breeding of cattle are their characteristics. 
 For the rest, each family supplies its own needs ; there is little divi- 
 sion of labor ; but since means of subsistence are more abundant 
 and more regularly distributed during the year, arts and sciences 
 come into existence. The inferior barbarians : the habitations, 
 generally permanent, form villages; they are clothed except in 
 the warm countries ; pottery is known ; they have good boats, and 
 instruments of stone, wood, and bone, and small cultivations 
 around their habitations; commerce begins; there are fixed 
 ranks, but based upon individual merit as determined by war; 
 the government is directed by chiefs according to traditional 
 laws; they live by tribes of from one thousand to five thousand 
 souls, but are capable of forming larger federations. They in- 
 clude : the Iroquois, the Thlinkeets, the tribes of Guatemala, 
 the Mosquitos, the Maoris, several of the Melanesian tribes, the 
 Basutos, the Kafirs, the Bechuanas; the Dyaks, the Battas, the 
 Ostyaks, the Tunguses, the Kirghiz, the Khonds, and the Bhils. 
 The halfway barbarians : they have good, permanent habitations, 
 collected in such a way as to make large towns ; they are clothed, 
 although nakedness is not considered indecent; pottery, the art 
 of weaving, and to a certain extent, working on metals are known ; 
 commerce begins ; they have specie, and markets are usual ; 
 they are found combined into states comprising up to one hundred 
 thousand souls, governed by petty kings, with codes of common 
 law, well-defined ranks, based in part on the military bravery 
 of the individuals, and in part on that of the family. This class 
 includes the prosperous races of Central Africa, for example : the 
 Dahomans, the Ashantis, the Wanyamvesi, the Niam-Niam, 
 the Dinkas, the Mombuttu ; the Fijians, the inhabitants of the 
 
 ^ Men and women are very well dressed; their settlements contain 
 up to three hundred persons : Bancroft, " The Native Tribes etc.", I, p. 89. 
 
 J Nihlack, "The Coast Indians of Southern Alaska and Northern 
 British Columbia", eh. vi. They have separate dwellings for summer 
 and winter, villages, fortifications; their garments are richly elaborated 
 and ornamented. 
 
54 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 Samoan Islands, Tonga, and Marquesas, the Germans of the time 
 of Csesar, the Romans before Numa, and the Greeks of Homer. 
 The high barbarians: they possess stone buildings; are always 
 clothed; they have iron instruments, an advanced metallurgy, 
 silver money, small row-boats, a rough justice, administered by 
 courts; they may count one-half million individuals under a 
 single king, with hereditary ranks, and extensive division of labor. 
 Sutherland places among them : the Abyssinians, the Somali, the 
 Malayans of Sumatra, the inhabitants of Java and Celebes, the 
 Arabs and the nomadic Tartars, the Greeks under Solon, ancient 
 Mexico and Peru, the Jews under the Judges, the Anglo-Saxons 
 of the Heptarchy, the Romans during the beginning of the Re- 
 public, the Tahitians, the Hawaiians. 
 
 (3) Civilization, the third branch, is distinguished by the greater 
 ease with which men procure subsistence, by the division of labor, 
 by the extreme differentiation of combined functions, by inde- 
 pendence; material ease, procured without difficulty, together 
 with specialization, causes progress in the arts and sciences. 
 Lower civilization possesses cities enclosed by walls, with hand- 
 some stone buildings ; the plow is used ; war is beginning to be 
 the task of a single class; courts of justice are formally consti- 
 tuted ; literature begins. The peoples which belong to it are : 
 the Algerians, the Touaregs, the Kabyles, the Turcomans, the 
 Tibetans, the Annamites, the inhabitants of Cambodia, the Jews 
 of the time of Solomon, the Assyrians, the Egyptians, the Phoe- 
 nicians, the Babylonians, the Carthaginians, the Greeks after 
 Marathon, the Romans in the time of Hannibal, and the English 
 under the Norman kings. The half-way civilization : the temples 
 and the houses of the rich are well built in stone; professions 
 multiply ; there are sail-boats ; writing becomes common ; manu- 
 scripts spread; war is the object of one profession; laws are 
 united in codes; there are lawyers. Of this class are the Per- 
 sians, the Siamese, the Afghans; the Finns and the Magyars of 
 the last century ; the Greeks of the time of Pericles, the Romans 
 at the end of the Republic, the Jews after the Macedonian con- 
 quest, .England under the Plantagenets, and France under the 
 first Capets. Higher civilization : the houses are generally of 
 stone ; roads paved ; there are canals, and water- and wind-mills. 
 Navigation becomes scientific, war is no longer the task of the 
 entire people ; books, in manuscript, are much read, and litera- 
 ture is much esteemed; the central government, very strong, 
 controls dozens of millions of subjects; codes of laws are put 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 55 
 
 down in writing and officially published ; there is an official hier- 
 archy, numerous and carefully graded. This class includes the 
 Chinese, the Japanese, the Hindus, the Turks, the republics of 
 South America, the Romans of the Empire, and Western Europe 
 of the fifteenth century. 
 
 (4) The author does not give us the general characteristic of 
 his highest phase, culture. Inferior culture is marked by the 
 following traits : material needs are more easily satisfied by the 
 substitution of natural forces for human labor ; this, in connection 
 with organization and a more efficacious cooperation, leaves man 
 free to cultivate his intellectual and esthetic faculties; the press 
 is generally employed, education is an essential duty, war loses its 
 importance more and more, degrees of honor depend more on 
 mental capacity than on courage, laws are made by the represent- 
 atives of the people, there is the beginning of national efforts to 
 accelerate progress, and diffuse art and science. The principal 
 European nations and the United States are the examples of this 
 phase. The half-way culture : all men are well nourished and 
 lodged ; war is universally condemned, although it still exists 
 now and then ; small armies, which all peoples unite in forming, 
 do the police duty of the world ; commerce and industry develop 
 along sympathetic lines ( ?) ; liberal education is universal ; 
 crimes and punishment are rare. This standard will be attained 
 in four or five centuries. The superior culture is something very 
 nebulous ; it is at least one or two thousand years removed from us. 
 I ask pardon of the reader for having given so fully the classi- 
 fication proposed by Sutherland. It is worth pausing for. It 
 would have been impossible for me to have made it known and 
 appreciated by a more succinct sketch, which would necessarily 
 be incomplete and inadequate to the thought of the author. The 
 merits of this system are apparent. In adopting a division of four 
 parts, two of which are reserved for the higher forms, the author 
 is not obliged to pack together in one division all the societies 
 which have passed barbarism, including in it those to which we 
 ourselves belong, and those which will be formed only in the re- 
 mote future. Its framework is thus larger than that of those or- 
 dinarily advanced. Another not less important merit is to have 
 taken as a principle of classification the general standard of in- 
 telligence ; there is not a circumstance which is more essential to 
 human society, to culture, and to man. Furthermore, this scien- 
 tist has given us a review of peoples. at all stages of cuRure which 
 is larger than that given by any sociologist. What a pity that he 
 
56 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 did not develop this part of his work by making clear to us the 
 data which caused him to put a particular people in a particular 
 class, and the sources of his data ! The entire work would have 
 gained thereby ; for, in the condition in which it is, we cannot 
 have full confidence in this classification, with which all the rest 
 of the book is closely connected ; and which is, otherwise, one of 
 the great virtues of the work. 
 
 It seems to me, however, that this classification has serious 
 faults, as well as great merits. The author tells us that his wish 
 was to arrange the peoples according to the standard of their 
 intelligence; for his special aim, such a classification would per- 
 haps be sufficient. It has not led to a straight-line classification, 
 although that seems to have been the aim. But one people can 
 show as much intelligence in farming as another in fishing. To 
 prosper and elevate oneself to a certain degree of civilization 
 when one is placed among good conditions does not show an in- 
 telligence superior to that of one who is obliged simply to struggle 
 against unfavorable circumstances. I fear that such an esti- 
 mate would lead only to a dangerous arbitrariness. Who will 
 say how much weight should be given to such and such an inven- 
 tion in this balance of intelligences? The way in which Suther- 
 land has combined his tests does not seem to me sufficiently au- 
 thenticated. It is regrettable that he has not given his reasons. 
 The use of windows, for example, was one of the traits of his 
 second phase of civilization, that of chimneys one of the third. 
 Why? As far as the historic peoples are concerned, it is easy 
 enough to range them according to the chronology of their devel- 
 opment (and even then it remains yet to guess at the question of 
 whether the progress is permanent and without relapse !) ; but, 
 for the other peoples, according to what rule shall we proceed? 
 Under these conditions, any estimate runs the danger of becoming 
 too subjective. 
 
 There are criteria which Sutherland applies, by regularly follow- 
 ing the march of their evolution; for example, dwelling places, 
 concentration in villages and towns, social integration. But 
 there are others which are less in harmony with this rule, such 
 as the evolution of government. Here Sutherland chooses one 
 form rather than another because it happens to please him ; but 
 even if he is in accord with the majority of his readers in such an 
 estimation, it remains, nevertheless, personal and arbitrary. The 
 value of these distinctive traits is very unequal, because the use 
 of windows cannot have the same symptomatic significance as 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TY|»ES 57 
 
 the specialization of the miHtary profession. What shall be done 
 if such unequal symptoms are in conflict? And in general, what 
 shall be done if some symptoms are lacking and others are present ? 
 Sutherland does not give us any directions as to how to solve these 
 difficulties. 
 
 Sometimes, universal judgment is in flagrant opposition to the 
 comparisons which our author makes. This is the case, for in- 
 stance, when he puts races like the Afghans and the Finns of the 
 last century, who have done almost nothing for the progress of 
 humanity, in the same rank with the Greeks of the time of Pericles, 
 who in many respects have not been surpassed by any race, even 
 among the civilized ones. It seems to me dangerous to measure 
 the intellectual standard of a society by signs as external as those 
 which Sutherland employs. I believe that that is the reason for 
 the peculiarity of which we have just spoken. In general, our 
 author furnishes us only with external symptoms for adminis- 
 trative, industrial, and scientific progress. The tests he uses 
 have nothing decisive about them. The real degree of the devel- 
 opment of philosophy and science is never mentioned. The 
 transformation from manufacturing economy into industrial 
 economy is not considered an indication of a distinct class ; while 
 arbitrary signs, such as the lesser importance of war, for instance, 
 or the greater importance attached to mental capacity as opposed 
 to military courage, occupy an important place among the symp- 
 toms of inferior culture, the only one attained up to the present 
 time. Even among the Australians and Indians, wisdom in 
 council was highly respected; witness the respect for the aged 
 (which later disappeared). The mental capacity which made a 
 good hunter, a good fisher (e.g. the northern peoples), a good 
 merchant, a great king, has always been greatly esteemed. The 
 conferring of the government upon the representatives of the people 
 is found also among other peoples of a different degree of civiliza- 
 tion. It is an open question whether among inferior societies 
 one became a leader because he was rich, or rich because he was 
 a leader ; but, according to our author, it is courage in war which 
 made a leader, even among the half-way barbarians. Art and 
 commerce would only begin with barbarism; commerce would, 
 still be in a state of infancy with the half-way barbarians, while, 
 as a matter of fact, commerce has a great importance for all the 
 arctic peoples, in the largest sense of the word ; ^ and art certainly 
 
 ' Boas, "The Central Eskimo", "An. Rep. Bur. Ethnol.", VI (1888), p. 
 469; Von Schrenk, "Die Volker des Amur-Landes " (1891), I, pp. 590-630. 
 
58 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 shows itself among the superior savages as defined by him.^ The 
 organization of the family, the connection between the individual 
 and the superior and inferior groups, the intensity and extensive- 
 ness of altruism, the conception of the unknown and of nature, 
 are not taken into consideration in this classification. 
 
 One of the signs of a superior civilization, as defined by him, 
 would be the extension of a strong central government over dozens 
 of millions of subjects ; but then, the republics of the Netherlands 
 of the seventeenth century, which only counted two million in- 
 habitants, and whose central government was notoriously weak, 
 Switzerland, Portugal, and the Scandinavian states, would never 
 have reached this phase. The hunter-farmers would belong to 
 the inferior barbarians, because they cultivate the soil; but, as 
 a matter of fact, they are not settled peoples, they do not make 
 good boats, their hordes are small, their governments are as weak 
 and powerless as possible. Finally, Sutherland takes the advent 
 of lawyers as one of the signs of half-way civilization ; this suffi- 
 ciently shows the external character and the incoherence of his 
 criteria ; for this would have been a good point only on the ques- 
 tion of the appearance of parties to litigation by representatives. 
 
 To resume, the idea of this scientist to judge of the relations 
 of descent according to signs, which, although insignificant, are 
 valuable for this purpose because of the fixity and permanence 
 which is theirs, merely because of their slight importance, has 
 received a poor application here. The standard of intelligence 
 can be judged only by its most characteristic expressions. Thus, 
 Sutherland's system cannot satisfy us either. But it is difficult 
 to give a definite judgment upon it, because it is neither developed 
 nor defended by its author. One cannot help feeling that not 
 enough justice is done to him. 
 
 5. That which distinguishes the new group of classifiers of which 
 we are now to speak, is that they apply a really essential test. 
 One does not find among them either over-subtle tests, such as 
 weje employed by our previous authors, or distinctions whose 
 essential importance is susceptible of doubt. They go straight 
 to the point, and distinguish societies of men by those characteris- 
 tics which differentiate them more than any other thing. At 
 least, that is their claim ; we shall see how far they have succeeded. 
 
 (a) The first whom we take up is Auguste Comte, the mathe- 
 matician who became a sociologist, a constructive mind, who, 
 while maintaining that experience (i.e. positive knowledge) is 
 1 Grosse, "Die Anfange der Kunst" (1894), passim. 
 
CiLVP. I.] , A CLASSIFICATION OF SOCIAL TYPES 59 
 
 the sole domain of science, yet disdained to make it the foundation 
 of his work. With many sociologists, this lack -strikes us, but 
 with none more than Auguste Comte, the reputed founder of our 
 science. 
 
 The simple arrangement which Comte has given us of the 
 history of civilization is sufficiently known. A true science of 
 human evolution would be almost identical with a classification 
 of societies; for there could be no mistaking the various paths 
 which the peoples have traversed. It goes without saying, that 
 Comte finds only a single line of evolution. It is philosophical 
 poetry rather than positive science. According to him, all people 
 pass through three principal phases in the course of their philo- 
 sophical evolution, and from this point of view, it is the stage at 
 which they find themselves which determines the rest of their 
 social life. It is " the main law — of the constant and indis- 
 pensable succession of the three general states, primitively theo- 
 logical, transitionally metaphysical, and finally positive." ^ The 
 theological state is subdivided into three ages : fetishism, poly- 
 theism, and monotheism. Parallel to the theological regime, the 
 military regime developed. The metaphysical epoch becomes 
 the critical and revolutionary epoch for the theological as well 
 as the military regime.^ The positive state brings with it peace 
 and the overthrow of militarism.^ 
 
 Comte strives to deduce all social changes from the development 
 of the successive stages of the human mind. He gives us a good 
 example of this dependence, the conversion of the hunting peoples 
 to farming, in consequence of their attachment to local fetishes, 
 a conversion which their material needs could never have caused.'^ 
 
 In the parallel advance which the three series of social phe- 
 nomena made, esthetic, philosophic, or scientific, and industrial, 
 it is always the second which gives the impulse; i.e. the philo- 
 sophic stage determines the industrial and esthetic stage; it is 
 quite contrary to the economic materialism of Marx's school. 
 According to Comte, the conception of the world at a given moment 
 
 1 A. Comte, "Cours de philosophie positive" (1864), IV, pp. 303 seq., 
 463 seg. 
 
 2 Vol. V of the course is devoted to this exposition. 
 
 3 It is interesting to compare Spencer's theory with what Comte says 
 (ly, pp. 504 seq.) on the opposition of the mihtary spirit and the indus- 
 trial spirit : the industrial spirit has the peculiarity of stimulating the 
 advance of some without suppressing the others; while the reverse is 
 peculiar of the military spirit (p. 509). 
 
 * hoc. cit., V, pp. 61-64; nothing but interminable phrases.' Hahn's 
 attempt to ascribe to agriculture and cattle raising a mythological origin 
 is otherwise ingenious : loc. cit., pp. 89 seq. 
 
60 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 puts its imprint upon all other social facts.^ It is curious that 
 Comte himself .was unfaithful to this theory, which seemed to 
 him so fundamental ; from the year 1300 (he conceded) until the 
 French Revolution, it was industrial evolution which dominated 
 the two others ; with our century, thanks to the advent of pos- 
 itivism this state of things has changed, and as in ancient times, 
 scientific evolution has regained its preeminence over the others.^ 
 Comte goes to much trouble to show that the various epochs of 
 human evolution (ancient times,' Middle Ages, modern times 
 since 1300) are dominated in all their manifestations by the actual 
 condition of philosophy, upon which depended even the form of 
 government.^ It is certainly his idea that human societies "^ 
 ought to be arranged according to their philosophic condition.^ 
 Criticism of the metaphysical state, which as such has never yet 
 existed, is easy. From another point of view, the positive state 
 belongs, even according to Comte, to the future. There only 
 remain, therefore, the various phases of the theological state. 
 Comte's ethnographical knowledge was very slight ; which ex- 
 plains why he dared undertake a chronological distinction (in 
 truth, abstract) between the fetish stage and the state of poly- 
 theism. We, after the splendid work of ethnology in this field, 
 dare not follow this attempt : the two states are too inextricably 
 mingled. If Barth was right in claiming for Comte the honor 
 of having undertaken the finest possible classification of human 
 societies,^ this undertaking has miscarried; and the abstract 
 method has sustained an inevitable check. We will see that for 
 the principal divisions of societies, a more profound distinction 
 is possible, which takes more account of given facts: Comte 
 neglected them because he looked at them from too great a height 
 to really see them. For the inferior divisions, he does not give 
 us any distinctive trait. Thus, for the practical classification of 
 societies, he gives us no help. His sole merit, from our point of 
 view, was the establishment of the principle that societies might 
 be distinguished according to the general characteristic of their 
 intelligence. 
 
 1 Loc. cit., IV, p. 461. 2 Loc. ciL, IV, pp. 57-61. ^ 
 
 3 Barth, loc. cit., p. 54. 
 
 * He only considers a few, and that very superficially; "une saine 
 analyse speciale (serait) incompatible avec la nature abstraite de (mon) 
 Elaboration sociologique." For him, Germany comprises Holland, 
 Flanders, the Scandinavian countries, and even Poland!, VI, pp. 60-61.^ 
 
 5 As to Comte, compare the fine estimate given by Barth in his "Phi- 
 losophic der Geschichte als Sociologie" (1897), pp. 23-57. 
 
 8 Barth, loc. cit., p. 55. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 61 
 
 (6) One of the most thoroughly worked out classifications has 
 been given us by Vierkandt.^ He, too, would divide peoples 
 primarily according to their psychical characteristics, because all 
 the phenomena of civilization are based fundamentally on psy- 
 chical processes. The height of civilization and psychical apti- 
 tude determine each other. 
 
 The classification which he proposes to us consists first of two 
 large, fundamental divisions: the primitive peoples ("Xatur- 
 volker") and civilized peoples ("Kulturvolker"). These last are 
 characterized by the liberty of the individual, critical taste, and 
 free research ; the former are determined negatively by the absence 
 of these qualities. Between these two extremes, are found the 
 semi-civilized peoples ("Halb-Kulturvolker"), who are like the 
 primitives in their intellectual life, and like the civilized in their 
 economic situation. The primitive peoples are subdivided into : 
 
 1 . Settled semi-civilized peoples ; 
 
 2. Semi-civilized nomadic peoples ; 
 
 3. Primitive peoples in the narrow sense ; 
 
 4. Wandering peoples ; 
 
 while the third principal class is formed by the peoples of mixed 
 culture. The subdivisions are, therefore, not established accord- 
 ing to the same principle as are the fundamental classes, although 
 in the definition of half-civilized peoples, an economic element 
 does enter. In his last article, as may be seen, the author makes 
 semi-civilized peoples a simple variety of primitive peoples.^ 
 U^The psychical difi^erences between the two principal classes are x^ 
 the following. Primitive peoples remain passive when in the 
 presence of nature, while civilized peoples dominate it to their 
 advantage. Half-civilized peoples are already active in material 
 life, but spiritually they are still slaves of nature ; they still lack 
 science and free personality. In religion, the gods are feared by 
 the primitives, while civilized man, on the contrary, places faith 
 in his gods ; the dynamic principle prevails among the gods of the 
 primitives, but among the gods of the civilized world, the moral 
 principle prevails. Civilized people consciously aspire to increase 
 the intellectual, political, and economic welfare, and in their efforts / 
 to this end, successive generations form a continuous chainV 
 
 ^ "Naturvolker und Kulturvolker" (1896), a very profound study (ra 
 psychic and social differences between these two classes of societies; 
 " Die Kulturformen und ihre geo^aphische Verbreitung " in " Zeitschrift ", 
 1897 ; " Die Kulturtypen der Menschheit", " Archiv fiir Anthropologic ", 
 1898. 
 
 2 Cj. pp. 62 and 63 of the article "Kulturtypen" with pp. 141-142 of 
 the book "Naturvolker und Kulturvolker." 
 
62 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 Some element of this complexus is lacking in all primitive peoples. 
 The former are historic and progressive, whereas the latter are 
 without continuity and paralysed by tradition. Life and time 
 have little worth as far as they are concerned ; their will is rather 
 instinctive and impulsive, lacking sound motives, under the in- 
 fluence of the moment. Among civilized peoples, simultaneous 
 action of the masses is very rare, although common among the 
 primitive peoples, where individuals bear more resemblance to 
 each other and act under the same impulsion by virtue of the same 
 instinct. Action among civilized peoples is less unified, but more 
 energetic and permanent. The energy of the primitive peoples is 
 perhaps not inferior, but it is less centralized and is less well 
 directed towards a goal than is the energy of civilized peoples; 
 ceremonies, religious rites, niceties of language, absorb too much 
 of the strength of the primitives. Repression of evil, when it has 
 once come, is a characteristic trait among these peoples, just as 
 foresight and prophylactic treatment distinguishes civilized peoples. 
 Inferior morality is marked by impulsiveness. In conflicts be- 
 tween egoistic and altruistic tendencies, it is public opinion, tradi- 
 tion, and fear which are the deciding factors; among civilized 
 peoples, it is conscience which decides. Disinterested devotion 
 to an ideal task is unknown even among the half-civilized peoples, 
 who have not even an idea of it. Among them, the individual is 
 bound to the group; free personality exists only among civil- 
 ized peoples. The sentiments of the former are strong, but of 
 short duration; those of the latter are more feeble, but more 
 durable. Moderation in expression of feeling, absence of in- 
 domitable passion, are the essential traits of culture. True 
 science only appears with civilization; up to that point of de- 
 velopment, thought is dominated by mythology. Primitive 
 peoples have very good sensitive organs, very excellent memories, 
 but thought soon becomes fatiguing to them; they are more 
 receptive than civilized peoples, but the latter are better quali- 
 fied to produce.^ 
 
 Wandering peoples include the inferior savages who nourish 
 themselves with the lesser animals, crustaceous animals, or even 
 fish and products of the chase, and live from day to day. Vier- 
 kandt numbers among them the Australians and the Tasma- 
 nians, the Mincopies, the Veddahs, the Aetas, the Kubus, the 
 
 1 This estimate which I have given in resumg is to be found on pp. 
 63-67 of the article " Kulturtypen " ; the book, pp. 106-252, contains 
 an amplification thereof which I recommend to the reader. 
 
Chap. I.J A CLASSIFICATION OF SOCIAL TYPES 63 
 
 Bushmen, and the dwarf tribes of Africa, the Fuegians and the 
 Botocudos. Following the example of Peschel, he does not include 
 the Esquimaux, and that for very good reason.^ He gives us a 
 rapid survey of that which these peoples, the most inferior known 
 to us, have in common. 
 
 The second class of primitive peoples, the true primitives 
 ("die eigentlichen Xaturvolker") are characterized by their modes 
 of subsistence; for their nourishment, they depend on the hunt, 
 on the raising of cattle, and on primitive agriculture ; they are not 
 truly settled, with the exception of the Polynesians ; their organ- 
 
 ' ization is marked by totemism, their religion by animism and the 
 beginning of mythology, in which we already find a hierarchy of 
 superhuman powers. To this class belong the Indians, the 
 northern tribes, the northern Asiatics and the peoples of the 
 Caucasus, the mountain tribes of India, the negroes of the south 
 of Soudan, and the ocean peoples, with the exception of the 
 Japanese. 
 
 The semi-civilized nomads are found only in the steppe zone of 
 Asia and Africa. Materially and intellectually, their culture 
 rises high enough, but their struggle with nature absorbs all their 
 strength, therefore, the ideal is not known to them. They are 
 the masters born of settled but weak peoples. These shepherds 
 are very apt at political actions by large masses, because all the 
 individuals resemble each other enough, and because their empty 
 heads offer little resistance to the ideas w^hich are suggested to 
 them, while their mode of living predisposes them to energetic 
 action. Such actions, however, are not lasting. 
 
 The last subclass is that of the semi-civilized settled peoples. 
 Such are the Mexicans and the Peruvians, and, in the old world, 
 the Oriental states surrounding the zone of steppes : the states of 
 the Soudan, and those of the Orient, but also India, China, Japan, 
 and the Jews. The characteristic which differentiates them from 
 
 - us consists chiefly in their submitting to the absolute domination 
 which their authorities exercise, and in the absence of all ideal. 
 They do not possess the freedom of the nomads ; their government 
 
 F is despotic. Their religion stifles them with rites, regulations, 
 and ceremonies. The state is founded upon and maintained by 
 fear and tradition, not upon national devotion. Their religion is 
 generally monotheistic, but the deity is more power than moral 
 ideal ; before it, the individual feels nothing but his insignificance. 
 
 ^ "Kulturtypen", p. 67; c/. Schurtz, "Katechismus der V6lfc<#rkunde", 
 p. 30, and Peschel, " Volkerkunde " (6th ed., 1883), p. 144. 
 
64 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 The third principal class, that of mixed cultures, has for its 
 origin the influence exercised by the European civilization on 
 certain inferior peoples, as in modern meridional America, in the 
 colonies, in Japan, and in the whole of eastern Europe. Their 
 characteristic consists in this — that superior civilization does 
 not penetrate beneath the surface.^ As for the historic peoples, 
 the Greeks alone have attained true culture ; neither the Moham- 
 medans of the Middle Ages, nor the Romans were advanced as far 
 as they. It began in the cities of western Europe at the end of 
 the Middle Ages.^ 
 
 No other author has given us such a thorough justification of 
 his classification, which, it must be admitted, offers us important 
 advantages for our object. The principle of division is very deep ; 
 it is really productive of all the manifestations of social life ; Vier- 
 kandt has demonstrated it in a masterly manner. I shall express 
 my appreciation by following his example in many instances in 
 my own plan. 
 
 However, I have several objections to make. I regret that with 
 him, the semi-civilized peoples form only a subclass. Their 
 differences, in reference to the two other classes, are as large as 
 those of an intermediary class would be. It seems dangerous to 
 me to divide all humanity into just two halves. The principle 
 which governs this division admits of too many distinctions; 
 it is flexible enough for a richer classification. Mixed civilizations 
 cannot form a separate, principal class; every subclass, higher 
 in degree than the lowest, ought to have beside it a mixed class 
 which contains all the cases where a society of one degree overlaps 
 a society of another type. In Soudan, there are plenty of examples 
 of barbarous societies which exert a tolerably strong influence 
 over the savage peoples. 
 
 I also see a danger in the fact that Vierkandt's sketch, more 
 philosophical than ethnographical, reveals a tendency to imagine 
 humankind in the form of a single, progressive line. His classi- 
 fication is too linear — not extended enough ; it is concerned 
 too much with the degree of evolution attained, and not enough 
 with the particular characteristic, the social type of the respective 
 peoples, independent of all progress. All his classes are one above 
 the other, with the possible exception of two subclasses of the 
 semi-civilized — nomads and settled. Such an arrangement, fol- 
 lowing a single ascending series, seems to me too limited, or at 
 
 1 ''Kulturtypen", pp. 69-75. 
 
 2 '^Naturvolker und Kulturvolker", pp. 322-333. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 65 
 
 least dangerous, while our science is so young. There is, in short, 
 too much theory in such a classification. It teaches and supposes 
 only a philosophy. That is what I want to avoid. All that I 
 expect from a classification adapted to the actual condition and 
 most pressing needs of our science is an ample and rational 
 order. It ought to have as little in common as possible with 
 the Procrustean bed. Its compartments should be elastic enough 
 to permit facts to slip in easily without danger of an artificial 
 arrangement. 
 
 The limits of the two subclasses of the wandering peoples and 
 the genuine primitives ^ are not sufficiently fixed with reference 
 to each other ; their economic life, their connection with the soil, 
 their religion, are not differentiated enough, at least according 
 to Vierkandt's description, to justify the separation. On the 
 other hand, I would want to distinguish in these two classes of 
 primitives several groups of peoples. Vierkandt's second sub- 
 class contains too many dissimilar elements. 
 
 The same objection might be made to the manner in which the 
 superior class is formed — that of the truly civilized. One feels 
 the pressing need of subdividing it. Indeed there are enough 
 apparent differences in this class to permit one to distinguish 
 several groups. The end of the eighteenth. and the beginning of 
 our own century seems to me to be a well sketched-out line of 
 demarcation : here, the more or less despotic government, and 
 manufacture, in which serfdom and nobility remained still deep- 
 rooted, and the slow progress of science; there, a contrary spec- 
 tacle offers itself to us ! The modern peoples who have really 
 undergone this evolution are divided, cut in two, by this line. 
 
 Another defect in Vierkandt's system is that it is not malleable 
 enough ; it does not leave enough room for the new classes which 
 might be discovered by a more profound study of social forms. 
 It is a final system, such as a finished science might claim to make. 
 We need principles of division which will not only be large enough 
 to include everything which may be discovered in the future, but 
 which at the same time will be the incentive to research, the 
 stimulus which encourages us to make finer distinctions, to ana- 
 lyze more .thoroughly, to constantly discover new forms. Es- 
 pecially no anticipation ! Only a young, flexible system belongs 
 
 ^ The names of the latter seem to me very poorly chosen. Are 
 nomadic peoples less primitive than the others? The author has probably 
 started out to denominate the second, and has given them the name of 
 the entire class, while the nomadic peoples have been for him a sort of 
 accessory. 
 
66 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 to our young science. And I believe that a system as empiric as 
 possible will best serve our purposes. 
 
 6. Finally we arrive at our last group of classifications. The 
 savants whom it includes attempt to apply the principle of eth- 
 nographic relationship; this principle is opposed to that of the 
 descent of peoples, which is purely anthropological, and to that 
 of sociological evolution, according to which the social forms and 
 elements of culture must be studied — an abstraction must be 
 made of the peoples who manifest them. These ethnographers 
 believe themselves able to distinguish and define separate domains, 
 in which but a single principle of civilization rules. Thus they 
 determine definite zones of civilization. With one, it is the in- 
 fluence of geographical surroundings which predominates in the 
 formation of these zones (Ratzel) } With another, it is the radiant 
 action of a given center which makes itself particularly felt, al- 
 though in this case, the influence of surroundings is not forgotten 
 either.^ Thus, Ratzel distinguishes in Africa four zones of culture : 
 the Africans of the south, those of the center, those of the east, 
 and those of the Red Sea region.^ Frobenius distinguishes a Greek 
 culture, an oceanic culture, a culture of the Asiatic continent, one 
 of Eastern and another of Western Africa.^ 
 
 I am not unappreciative of the great importance of these re- 
 searches. But their aim is historical or geographical, rather than 
 sociological. It is necessary to distinguish the sources of a group 
 of similar forms and to explain this similarity ; but that does not 
 dispense with the duty of looking for other similarities, and uniting 
 them in groups. It is not merely chance that the ethnographers 
 who have this tendency are those who have studied the material 
 civilization of peoples, the forms of their instruments and arms, 
 the details of their ornaments and architecture, etc., while the 
 ethnologists who regard things from the sociological point of view 
 are those who have devoted themselves to the study of social 
 forms and the products of superior intellects. The varieties of 
 the former are inflnite, and it is understood that in such matter 
 the action of imitative radiance is great. The savants who study 
 these material forms are always inclined to accept an historical 
 explanation, connecting civilizations with each other by means 
 of filiation. The others, the socio-ethnologists, noticing that the 
 
 1 Ratzel, "Volkerkunde" (1885, 1st ed.), I, pp. 18-19. 
 
 2 L. Frobenius, "Der Ursprung der Afrikanischen Kulturen" (1898), 
 I, pp. ??-Q, 256. 
 
 3 "Volkerkunde", I, pp. 37 seq., 369 seq., 568 seq., Ill, pp. 59 seq. 
 ^ Loc. cit., pp. 256 seq., passim. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 67 
 
 ideas or the customs — objects of their studies — are snot imitated 
 and accepted by neighboring peoples with such facihty because 
 they cannot exist without being more or less deep-rooted, prefer 
 to explain it by interior and spontaneous development. Each, 
 I believe, is right within its respective special domain. The science 
 of the future will know how to value in detail and w^th precision 
 that explanation which ought to govern the given problem. In the 
 meantime, w^e cannot ignore this truth, that the world cannot 
 always imitate, there must be somewhere something original, 
 some matter for imitation. Now we wish to know the nuclei 
 of originality, and to class them according to their similarities. 
 Not all the hunter peoples have taken their habits of the hunt 
 from imitating one another ; I would unite them in one group for 
 the purpose of studying the other characteristics which they have 
 in common. I would do the same for polysegmentary peoples, 
 the inferior barbarians, or another class of some division. But I 
 would arrive at curious results if I should group together the 
 peoples w^hich have been subjected to the influence of the Semitic 
 civilization ! The Europe of our era, Asia Mi n or. Indonesia. Ind ia, 
 and also the Africans up to the south would meet there. The 
 American from the Fuegians and the Shoshones to Peru would 
 form a single group. TKe usetuMeSS 6f such a classitication would 
 be insignificant. What a variety each class would comprise ! 
 A new classification according to essential resemblances would 
 then be inevitable. Even subdivisions by more limited radiating 
 centers would not relieve us of this necessity. The contradiction 
 between descent and resemblance always exists. The Finps-j ire 
 of Ural-Altaic descent, related to the Lap£s^nd Samo yede s and 
 to otKer i\iaag£il3-^ Ratzel places them then under the typer- 
 borcan zone of culture.^ Since the last century, they have risen 
 to the level of the most civilized peoples of the world. Sociology 
 needs another classification than this, although its usefulness for 
 purely ethnographical purposes cannot be denied. 
 
 We have finished our resume of the attempts at sociological 
 classifications. They can be grouped in the following manner : 
 
 Artificial classifications (Coste, Ward, Fouillee) ; 
 
 ]\Iorphological classifications (Spencer, Durkheim, Giddings) ; 
 
 Economic classifications, of which one accepts as a principle 
 of division the method of distributing products (Hildebrand) ; 
 
 1 Brinton, "Races and Peoples" (1890), pp. 211-213; F. Muller, 
 *'Alle:emeine Ethno^aphie" (1879), p. 383. 
 
 2 "Volkerkunde", II, pp. 753, 767. 
 
68 - CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 another the general organization (Biicher) ; another the develop- 
 ment of technique (Grosse, Hahn) ; 
 
 Geographical-ethnographical classifications (Ratzel, Froebenius) ; 
 
 Psychological classifications (Comte, Sutherland) of which a 
 variety is formed by the classification according to special inven- 
 tions (Morgan) ; 
 
 Mixed classifications (Vierkandt, Le Play, Steinmetz) ; 
 
 With a diffidence which is but due from one who has criticized 
 all others, I now permit myself to present the classification 
 which seems to me the best. 
 
 ^ Yl. A Suggested Plan of Sociological Classification 
 
 After all these attempts, unexceptionally interesting and often 
 very important as they are, it would be indeed unfortunate were 
 I to attempt to appear entirely original. I aspire only to a rational 
 and practical eclecticism. 
 
 Since we must of course reject the artificial systems and the 
 geographical systems, then (unless we use a mixed system) it 
 remains for us only to choose between the morphological, the eco- 
 nomical, and the psychological systems. 
 
 Regarding the morphological systems so well represented by 
 Spencer and Durkheim, I repeat my principal objection : I fail 
 to see the essential significance of that principle of division; I 
 do not believe that it involves the greatest possible number of 
 secondary characters. And is not that the principal criterion for 
 all proper classification? 
 
 Thus there remain for us only^ the economical and the psycho- 
 logical systems. 
 
 1. For the great principal division, the latter seems to me the 
 better one. 
 
 To begin, I propose to assort human societies into four branches 
 according to the predominating characteristic of their intellectual 
 life. This intellectual characteristic is the result of a great number 
 of natural causes, which blend their action ; and in its turn, it is 
 the determining cause of a not lesser number of characteristic 
 traits. This is the central element, whose influence reaches the 
 farthest possible point of the periphery; it is the most essential 
 trait, carrying with it the greatest number of derived character- 
 istics. The intellectual character of a society ought to be esti- 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 69 
 
 mated according to its highest point; thus, our societies belong 
 to the highest existing type, although there are inferior phases 
 found among them. A society occupies the rank indicated by the 
 intellectual type which predominates it until that type is replaced 
 by another. The Middle Age was the Middle Age, despite several 
 liberal and critical minds.^ 
 
 The first branch is what I might call in German "Urmenschen." 
 I mean by that those who do not think much differently from beasts, 
 who form no ideas about unknown things, pure materialists, 
 positivists such as no longer exist. They not only lack religion, 
 but also all idea of soul, of mind, of fetishes ; they have as yet no 
 conception of animism. Perhaps there are still traces of this 
 phase. In general, it is prehistorical and, therefore, hypothetical ; 
 but it must inevitably precede the second. 
 
 The second branch is that of tlie savages of primitive societies. 
 The doimlianl lypeof their intellectual life is marked by naivete ; 
 they think only by association. They have developed animism 
 under the form of spiritism, of the cult of ancestor worship and 
 fetishism. These men are not yet in need of system in their con- 
 ceptions ; their intellectual force is too weak for such an effort. 
 
 This great forward step is taken by the third bran ch, among whom 
 we find the aptitude to systematize ana to umty id^^y. diyJlL 
 mythologies and hierarchies of superhuman beings are the products 
 of this type; inventions of considerable importance are made; 
 magnificent, philosophical poems are conceived; even a certain 
 amount of erudition is acquired. But the human mind is not 
 yet free. Ancient Asia Minor, Egypt, China up to our own times, 
 the Mohammedan countries, our Middle Age, belong to this class. 
 
 The fourth branch h as taken birth since the Re nasppnrp and thp 
 sixteenth century. Protestantism is one of the first manifestations 
 of the essential characteristics, which is free criticism, a methodi- 
 cal and scientific attitude towards the entire world. Humanita- 
 rian morals, methodical and not spasmodic social reforms, regular 
 scientific progress which serves as a foundation for an intensive in- 
 dustry, are the necessary effect of this intellectual development. 
 
 2. These four branches form a progressive series. That is 
 not the case with the other classes which I am going to propose. 
 The principle of their division will be the general characteristic 
 of economic life. 
 
 The first class is that of the small collectors ("Sammler"), who 
 gather the gifts of nature with nothing but the most simple in- 
 ^ Renter, "Geschichte der religiosen Aufklarung in Mittelalter." 
 
70 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 struments, and who use the direct products of this harvest to 
 satisfy their needs ; they lack all industry — even hunting and 
 fishing. There are no longer any traces of this type. A subclass 
 or species will be formed by a higher type of society, which still 
 follows pure collection as the foundation of its nourishment, 
 but whose economic life shows a higher development, thanks to 
 their connections with societies of another type ; or thanks to the 
 extraordinary richness of the matter to which their activity ap- 
 plied itself: they are the superior collectors ("collecteurs supe- 
 rieurs")- Such mongrel forms are found in several of the Oceanic 
 Islands, where palms are exploited, but not cultivated. 
 
 The second class is that of the hunters, who live only on the 
 product of the chase. The first species of this class is formed by 
 the tribes who cannot sustain themselves entirely by the chase, 
 but still resort largely to simple collection : for example, the Aus- 
 tralians, the Fuegians, etc. The second species is that of pure 
 hunters; the third comprises the peoples who are partly fishers 
 and partly hunters; the fourth, the tribes who have still other 
 occupations besides the chase, although that remains their prin- 
 cipal means of sustenance. 
 
 The third class is formed by the fisher-folk, who support them- 
 selves almost exclusively by means of fishing. The species are 
 formed, as in the preceding class, by the different ways in which 
 the principal method is combined with others. Only a thorough 
 study could make all of them known ; my preliminary researches 
 have shown me the following, although the number can be in- 
 creased. The first species is that of the fishermen who are at the 
 same time either collectors or hunters ; the second is that of pure 
 fishermen without mixture, the third is formed by tribes who 
 find sustenance largely in other ways, for example, as shepherds, 
 sailors, pirates, etc. 
 
 The fourth class is that of the nomadic or hunter-farmers. In 
 the first species we will put all those who present this kind of life 
 in its pure state : wandering, giving no thought to their culture, 
 they are without domestic animals, and have no occupation. The 
 second species show a more developed phase ; it is still impossible 
 to say which is of the greatest use to them — farming, hunting, 
 or fishing, but they give the greatest care to plantations ; they are 
 semi-settled ; they have domestic animals. A third species might 
 be formed by the hunter-farmers who have at least some other 
 occupation. 
 
 The fifth class contains the inferior forms of true agriculturists. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 71 
 
 who are sedentary and to whom hunting has become of secondary 
 importance, although it is still of real use. In the first species 
 they are in as pure a condition as possible. In the second they 
 combine agriculture with other primary occupations, destined 
 to procure for them their first necessary materials, provided 
 always that these occupations have at least some importance to 
 their life. For example, they are carriers, breeders of cattle. But 
 it is necessary that this element does not have too much influence 
 on their means of livelihood, does not form their principal means 
 of sustenance, and especially does not make them nomadic. For 
 in those cases, they would be placed in the class of wandering 
 shepherds. Perhaps the occasion will present itself to distinguish 
 still other species. 
 
 The sixth class is formed by the superior agriculturists, with 
 whom industry and commerce are not yet special professions, 
 with very rare exceptions, like those of the blacksmiths, musicians, 
 etc. The hunt and, in general, fishing have passed to the third 
 rank. The care given to plantations is much greater, and sus- 
 tained by artificial means of some importance : they make use of 
 irrigation, manure, and perfected instruments. They can be 
 subdivided into species according to Hahn's distinctions : for 
 example, superior agriculture which does not use the pick-axe, 
 intensive agriculture of the gardens, etc. Other species would 
 be formed by the combination of agriculture with cattle-grazing, 
 piracy, ocean-fishing, commerce, or other combinations of these 
 occupations. 
 
 The seventh class of my sketch represents the nomadic shepherds, 
 that is to say, wandering peoples with their flocks, who procure 
 their principal nourishment in one or another manner. In the 
 first species, they still make more or less use of hunting and fishing ; 
 in the second, they are in a state of purity; the third is formed 
 by shepherds who incline already towards agriculture. The 
 subclasses can explain the degree of this agriculture, which shows 
 at the same time the degree of their attachment to the soil, the 
 measure in which they are becoming settled. I suppose that 
 shepherds might be divided according to the kind of beasts which 
 they raise. It is not the same thing whether they pasture horses, 
 deer, cows, or goats. 
 
 The eighth class is distinguished by the complexity of condi- 
 tions. The division of labor has grown, industry is much more 
 differentiated and occupies a higher rank; in consequence, com- 
 merce is of greater importance, whether interior or exterior. But 
 
72 • CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 the concentration of working-men in the shop is still very re- 
 strained; a great part of industry is done in the household, as 
 accessory to agriculture. This class includes European peoples 
 up to the last stage of the Middle Ages, the Chinese, etc. The 
 kinds are formed according to whether one or another secondary 
 occupation is of most importance, for example, fishing in Holland 
 and Norway, lumber industry in Germany, etc. 
 
 The ninth class is the period of manufacture : concentration 
 of human forces for the purpose of the same production, with a 
 division of labor among them and a still rudimentary use of natu- 
 ral forces. The species have the same foundation as in the pre- 
 ceding class; at least their formation depends on whether com- 
 merce is or is not preponderant, etc. Probably comparative 
 study will establish still others. 
 
 Finally the tenth class, the last which has been revealed up to 
 this time, is characterized by industry : division of labor urged 
 as far as possible, regular use of natural forces (steam, electricity, 
 explosives, etc.) become the foundation of all production, the 
 entire economic life depending upon international commerce — ■ 
 such are the distinctive traits. One distinguishes the species 
 according as to whether the type is more or less elaborated, ac- 
 cording as to how it is appreciably mingled with other less elevated 
 types. Germany and Belgium can be opposed to England and 
 France. 
 
 3. The species almost always admit of varieties; that is to say, 
 groups of societies, which while possessing all the given character- 
 istics of a species, vary among themselves according to the manner 
 in which these traits are manifested. For instance, one will often 
 meet two varieties in a species, depending on whether the place 
 in which they find their sustenance is rich or poor in that respect. 
 All other characteristics remaining the same, this difference in 
 environment will bring about sufficiently important secondary 
 differences. Another variety is due to the fact that a single state 
 will often include very different classes ; such as Italy, the United 
 States, Russia. Such a state would be a variety of the sort in- 
 dicated by the predominant type ; according to the width of chasm 
 which separates the parts of these states, one can range them like 
 varieties or else form different species of the same class with them, 
 as I have indicated in the tenth class. Another variety can be 
 formed by societies which possess colonies, mostly tropical, in- 
 habited by another race and belonging to another sociological 
 class. It is not necessary to argue that the possession of similar 
 
J 
 
 Chap. I.] A TLASSTFICATION OF St>CIAL TYPES 73 
 
 colonies draws with it not only economic, but social consequences, 
 which extend in all directions, in order to justify a variety. It 
 seems to me also that varieties may be distinguished according 
 to whether the society under consideration has subjected another 
 society of a species of the same or a different class, or even, on the 
 other hand, is subjected ; as is often the case in Africa (the Akkas 
 subjected to another people) and in Indonesia. In any case, it 
 is necessary that the connection between two peoples does not 
 reduce itself merely to the payment of a tribute. 
 
 When this scheme will be applied to the mass of social forms, 
 certainly other species and other varieties will be found, and from 
 one thing or another, the necessity will arise of changing the 
 grouping I have just proposed. It is only after long experience 
 with a classification, that the plan can attain perfection. I have 
 explained why I hope that the future progress of our science will 
 consist in its becoming classified, that is, in its becoming an actual, 
 detailed classification of all known societies and their historical 
 phases, made in such a way that in the future, all argumentation 
 and sociological research must rest on this classification. That 
 is our first duty. I have a faint hope that in such a practical 
 application, the plan proposed by me will prove its utility and 
 worth as a working hypothesis. It is necessary that we should, 
 without delay, put our hands to the work and apply practically 
 and until the end whatever plan the men competent in the matter 
 shall prefer. 
 
 VII. Plan of a Catalogue of All Known Societies 
 and Their Historic Phases 
 
 I have a conviction that there is perhaps not one sociologist, 
 historian, or ethnographer who possesses a complete view of all 
 societies, both living and past, and the historic phases known 
 by us. At least, our historical acquaintance with economic and 
 social life is not at all sufficient. My own country, although 
 quite small, has not its social history ; unless I am mistaken, the 
 greater part of civilized peoples, with the exception of England, 
 Germany, and France, find themselves in the same position. 
 Naturally, scattered materials and monographic studies are pub- 
 lished everywhere ; but we are far from possessing a social history 
 of an entire, historic people. It would be, moreover, much more 
 urgent to work in that field than to enrich without end our en- 
 tomological collections. As to our ethnographical knowledge, I 
 
74 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 have already mentioned its enormous defects, much more re- 
 grettable, since for the most important classes of phenomena, for 
 the social and psychical life, they cannot be later remedied, be- 
 cause of the rapid disappearance of these peoples, due to our 
 civilization and our brutality.^ 
 
 ******* 
 
 But it is not sufficient to point out the defects; it is neces- 
 sary to expose them and fix them in our minds in a more intensive 
 manner. It is this result which can be obtained by the cata- 
 logue which I am going to propose. 
 
 I propose a rational catalogue of peoples and their historic 
 phases. The most important social qualities of each people ought 
 to be given in a systematic manner. For example, the name of 
 the people, the character of its economic life according to our 
 classification, the character of its government, of its social com- 
 position, of the organization of the family, of ownership, its demo- 
 graphic situation, its intellectual and religious phase, etc. I 
 think that a dozen of these rubrics would suffice. 
 ^-- To simplify the work, a fixed and precise nomenclature could 
 be accepted. In each rubric (1, 2, 3, etc.) each characteristic 
 would be defined with precision and designated by the name, which 
 in the synoptic sketches could be replaced by a letter ; these let- 
 ters, indicating characteristics, would then have a fixed signifi- 
 cance. For example, if the rubric "organization of the family" 
 was the third, the mother rule could be indicated by (a), father 
 rule by (6), polygamy by (c), polyandry by (d), monogamy by (e), 
 the system of relationship between the parents by (/), easy divorce 
 by (g), etc.; this series, it is clear, has a purely descriptive and 
 not evolutionary value. The character which only manifested 
 itself by several surviving traces, could be indicated by the 
 letter placed to the left, and above the letter of the leading char- 
 acter ; other characteristics of the same nature to the right. The 
 formula of the family of the Battaks according to Wilken 
 would be : 3, ah. Naturally, the same numeral might include 
 several letters; for example, a patriarchal, polygamous people 
 would be represented by 3, 6c; if it is monogamous and prac- 
 tices the system of relationship between two parents, by 3, ef, etc. 
 A transition would be indicated by — : for example, a — b. 
 
 1 I take this occasion to call attention to the excellent little book of 
 M. G. Friedrici, "Indianer und Anglo-Amerikaner " (Braunschweig, 
 1900), where he depicts, according to the best sources, the outrageous 
 conduct of Anglo-Saxons against the Red-skins down to our days. 
 
Chap. I.] A CLASSIFICATION OF SOCIAL TYPES 75 
 
 The definitions ought to be very exact, entirely conforming to 
 the given facts ; if this should be impossible, a convenient sign 
 (for example : *) would indicate it. Naturally, the appendix of 
 the tables ought to contain all the citations, and all the arguments 
 which led to the definitions represented by the letters of the rubric. 
 
 What are the advantages which I expect from a satisfactory 
 execution of this plan? 
 
 In the first place, we would be forced finally to arrive at these 
 precise and practical definitions. It would be necessary to de- 
 termine the traits which make us declare a certain society ma- 
 triarchal or patriarchal. It would be an inestimable advantage 
 in our fluctuating science. The second advantage would be to 
 have a catalogue of all the peoples and all the known phases. 
 This table, like all lexicons, would tend, as if of itself, to become 
 complete and to urge all workers to finish it. Soon special savants 
 would wish to correct the mistakes, due to the insufficiency of 
 their work, and those which our catalogue would bring out in relief. 
 That would excite them to the researches of which we have need, 
 and the results of which we shall so willingly apply. And once 
 having become accustomed to this sufficiently simple nomen- 
 clature, all the most characteristic traits of a people or a fixed 
 phase of an historic society could be seized in an instant.^ Then 
 no more vague assertions, in which the fact that the cited people 
 possess altogether different characteristics, will be forgotten. One 
 could not appreciate too highly this easy way of recognizing in 
 their systematic relations, the essential properties of the people 
 which claim our attention. These tables would be the applied 
 classification, and therefore would furnish the best method of 
 reaching necessary corrections. It would give a firm base to a 
 number of monographs of classes, species, and variations of peoples 
 which would form a part of the otherwise solid sociology, as well 
 as the deductions, phrases, and vague hypotheses, with which 
 our present sociology satisfies itself and which nobody thinks of 
 verifying. I can sum up all the advantages of these tables by 
 simply saying that they constitute a catalogue, and what is more, 
 a systematic catalogue. / 
 
 I cannot think of any other method which would be as simple 
 and as little artificial to represent to us in one moment all the 
 essential traits of each known people. 
 
 ^ I believe that a catalogue of from a thousand to fifteen hundred 
 peoples and phases (for their delimitation see ante) would be already of 
 great use for ethnological and sociological researches. 
 
76 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 I hope that the first part of this essay has prepared the reader, 
 if he still has need of it, to realize the great profit which serious 
 sociological research would draw from such a working instrument. 
 The facilities which it would give would lead more effectively to 
 a true induction than the most eloquent exhortations ever so often 
 repeated. Water follows the incline ; it is necessary to make the 
 best method easy in order to see it properly applied. 
 
Chapter II 
 
 THE SCIENTIFIC METHOD OF GENERALIZING FROM 
 DATA OF LEGAL EVOLUTION^ 
 
 PART I. METHOD OF CLASSIFICATION AND ANALYSIS 
 OF DATA OF JURAL EVOLUTION 
 
 § 1. Jural Ethnology Defined. 
 
 A. Special Jural Ethnology 
 
 (I) Morphology 
 § 2. Morphology. Definition of Terms. 
 
 (II) Stratigraphy 
 
 § 3. Two General Social Types : 
 Feudal and Gentilic. 
 
 § 4. Definition of Terms. 
 
 § 5. Method of Restoring or Pro- 
 jecting Incomplete Institu- 
 
 tions. 
 § 6. Graphic Formulas Explained. 
 § 7. Use of Graphic Formulas to 
 
 Classify Peoples. 
 
 (Ill) Genealogy 
 
 § 8. Significance of Jural Gene- 
 alogy. 
 § 9. Definition of Terms. 
 
 § 10. Genealogic Laws. 
 §11. Reconstruction of the Gene- 
 alogic Process. 
 
 (IV) Psychology 
 § 12. Method of Studying Jural Psychology. 
 
 (V) Philosophy 
 § 13. Method of Studying Jural Philosophy. 
 
 B. Comparative J^0ml Ethnology 
 
 § 14. Comparative Morphology.^>^ § 17. Comparative Psychology. 
 § 15. Comparative Stratigraphy. § 18. Comparative Philosophy. 
 
 § 16. Comparative Genealogy. 
 
 ^ By Joseph Mazzarella. This passage is taken from the author's 
 "Les Types Sociaux et le Droit" (Paris, 1908, Octave Doin; vol.3 of- the 
 Encyelop^die Scientifique). The passages translated represent pp. 45- 
 146, 282-342, 371-422, with omissions. The translation is by John H. 
 Wig more. 
 
 Dr. Mazzarella, of Catania, Sicily, is the author of numerous works 
 of original research in comparative legal ideas, chiefly deahng with Hindu 
 and Malayan law: "La condizione giuridica del marito nella familia 
 matriarcale", 1899; "Teoria etnologica del matrimonio ambihano", 
 
 77 
 
78 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 PART II. EXAMPLE OF THE METHOD APPLIED TO 
 COMPARATIVE JURAL PHILOSOPHY 
 
 (I) Data to he Compared 
 
 19. The Institution of Ambilian 
 
 Marriage in Malaysia. 
 
 20. Its Relation to Forms of 
 
 Social Aggregation. 
 20 a. Its Relation to Other Forms 
 of Marriage. 
 
 21. Its Relation to Systems of 
 
 Relationship. 
 
 22. Its Relation to Domestic 
 
 Power. 
 
 § 23. Its Relation to Property. 
 
 § 24. Its Relation to Obligations. 
 
 § 25. Its Relation to Inheritance. 
 
 § 26. Its Relation to Political In- 
 stitutions. 
 
 § 27. Its Relation to Penal Insti- 
 tutions. 
 
 § 28. Its Relation to Procedural 
 Institutions. 
 
 (II) Causes of Ambilian Marriage, as Exhibited in the Series of Reference 
 
 §29. 
 
 Inductive Determination of 
 the Factors of Causation. 
 
 §30. 
 
 Deductive Verification of the 
 Same. 
 
 (Ill) Causes of Ambilian Marriage as Exhibited by General Ethnic Com- 
 parison 
 
 § 31. General Ethnic Comparison I visional Inferences, 
 
 as Confirmatory of Pro- 
 
 PART III. EXAMPLE OF THE METHOD APPLIED TO 
 SPECIAL JURAL GENEALOGY 
 
 § 32. The Institution of Loan ; 
 Its Jural Genealogy in 
 
 Ancient India. 
 
 33. 
 
 (I) Morphology 
 The Dharmasutric Period. I § 35. The Yajnavalkyan Period ; 
 
 § 34. The Manavic Period. 
 
 the Naradian Period. 
 
 (II) Stratigraphy 
 
 § 36. The Dharmasutric Period. 
 § 37. The Manavic Period. 
 
 38. 
 
 The Yajnavalkyan and the 
 Naradian Periods. 
 
 (Ill) Genealogy 
 
 § 39. Principle of Stratigraphic 
 Variation for the Dhar- 
 masutric and Manavic 
 Periods. 
 Reconstruction of the Pre- 
 Dharmasutric Period. 
 
 §40. 
 
 § 41. Reconstruction of the Primi- 
 tive Period. 
 
 § 42. Summary Law of Morphologic 
 Variation. 
 
 § 43. Summary Law of Stratigra- 
 phic Variation 
 
 § 1. Jural Ethnology Defined. The results of the studies to 
 be set forth in this work show plainly that our theory of jural 
 types is to be distinguished from that of Albert Post, and marks 
 
 1903 ; and numerous articles in the '*Rivista italiana de Sociologia", and 
 elsewhere. 
 
 To comprehend the full possibilities of the rigidly scientific method 
 here expounded, one must consult the original treatise and the various 
 special essays. — Ed.] 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 79 
 
 a new stage of thought in jural ethnology. The introduction of 
 the idea of s trat i graph i ''' t^"f*lT^ i'^, which was quite unknown to 
 Post and his school, is the mnr]TrrL_fpnitur» of ffltr syatenij and 
 therefore represents the new phase in the development of the 
 science. 
 
 In our opinion, Jural Ethnology (or. Ethnologic Jurisprudence, 
 or the Science of Comparative Law) is that science which, by a 
 comparative study of the customs and laws of all peoples, aims 
 at the discovery of the general process of development of jural 
 ideas and institutions, and of the causes which determine them 
 and the principles by which they operate. We divide Jural 
 Ethnology into two parts : Special (or anahi:ic), and General 
 (or comparative). The former studies a specific jural system from 
 five points of view, viz. its morphology, stratigraphy, genealogy, 
 psychology, and philosophy; and it therefore has five subdivi- 
 sions. The latter part (comparative jural ethnology) aims to 
 discover the general principles and causes of jural evolution, by 
 the aid of comparisons of the several systems of law already 
 analyzed by the first branch of the science. 
 
 We shall see that each jural system can be decomposed, mor- 
 phologically, into a large number of elements themselves irre- 
 ducible, the description of which represents the jural norms of 
 that system. We shall see that in every jural organization there 
 are two fundamental ethnological tj^es, viz. the feudal and the 
 gentilic (or clan), respectively marked by the absence and the 
 presence of an hierarchic stratification of social classes; that 
 every jural norm is, in general, inherent in the one or the other of 
 these types,^ and that thus, by the application of a strict analysis, 
 one may determine the intrinsic composition of each jural insti- 
 tution and system. We shall see, further, that by the use of 
 stratigraphic analysis we may not only discover the process of 
 development of each institution and system, and may recon- 
 struct the unrecorded phases of their evolution, but may also 
 study the psychology of each people as revealed in its law, and 
 may discover the causes which in each system determine its jural 
 changes. Finally, we shall show that, by the same use of strati- [ A. 
 graphic analysis, in comparing given jural systems which satisfy I ^J^^'^^^M, 
 certain required conditions, one may arrive at the construction/ 
 of a general theory of the evolution of law, — the result aimed at 
 
 ^ [This is a peculiar assumption of the author, which may well be 
 thought to undermine the value of his specific results; but it does not 
 affect the correctness of his method. — Ed.] 
 
80 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 by jural ethnology. The several methods devised by us for 
 solving these problems will be duly described. 
 
 The applications which we shall make of our general theory of 
 social types will enable the reader to judge of the value of the theory 
 itself, particularly of the stratigraphic analysis which forms its 
 characteristic feature. 
 
 What we particularly insist upon is the strictly methodical 
 nature of all these investigations, and the necessity of observing 
 carefully such method in all future study of jural ethnology. 
 
 A. Special Jural Ethnology 
 
 (I) .Morphology 
 
 § 2. Morphology. Definition of Terms. In special Jural 
 Ethnology {supra, § 1), morphology aims at the methodical 
 reconstruction of the jural system of a specific people. 
 
 A. Jural Activity. (1) In every people, even the least ad- 
 vanced, jural phenomena group themselves into distinct orders, 
 or divisions, ten in number, including respectively. Forms of 
 Social Union, Marriage, Relationship, Domestic Power, Property, 
 Obligations, Succession, Political Institutions, Criminal Institu- 
 tions, Procedural Institutions. 
 
 (2) Every act done by an individual or group, falling under 
 one of these ten divisions, and permissible to be done, according 
 to the sentiments of either the entire people or a specific class 
 thereof, is termed a jural act. The essential features of a jural 
 act, therefore, are: (a) a relation to one of these ten orders or 
 divisions; (h) its legitimacy according to popular or class senti- 
 ments. 
 
 A jural act which cannot be decomposed into more elementary 
 ones is simple or irreducible; one which can be so decomposed is 
 complex. 
 
 (3) The totality of acts of individuals and groups composing 
 a specific people at a given time is termed its jural activity. 
 
 (4) A habit of action, by individuals or groups, resulting in a 
 uniformity of jural acts is a jural practice. It is simple, when it 
 results in uniformity of simple jural acts; complex, when it re- 
 sults in a uniformity of complex ones. 
 
 (5) The totality of jural practices among a specific people at a 
 given time is the regulative content of their jural activity. 
 
 (6) A body of jural practices, which are autonomous, homo- 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 81 
 
 geneous, and unitary, and are intimately bound to each other and 
 are exclusively connected within the same fundamental order 
 {supra, par. 1), forms an institution. The order of grouping of 
 the jural practices which form an institution is the morphologic 
 scheme of the institution ; and it varies in function with the nature 
 of the institution. 
 
 (7) The totality of institutions relating to one of the ten fun- 
 damental orders (supra, par. 1) is the fundamental complexus of 
 institutions. Hence, the regulative content (supra, par. 5) of the 
 jural activity (supra, par. 3) of a people includes ten such com- 
 plexus. 
 
 B. Thus far, we have surveyed the regulative content of the 
 jural activity and its subdivision?. We may now describe these 
 various elements. 
 
 (8) A formula which describes synthetically a simple jural 
 practice (supra, par. 4) is a jural norm. 
 
 (9) The sum of the jural norms for the several practices com- 
 posing an institution (supra, par. 6) is the representation of that 
 institution. 
 
 (10) The sum of the norms relating to a fundamental element 
 of the morphologic scheme (supra, par. 6) of an institution is the 
 elemental complexus of norms. When the element (or practice) 
 is decomposable into more simple ones (supra, par. 2), the sum 
 of the norms relating to each such secondary element is a group of 
 norms. When such a secondary element is in its turn decom- 
 posable into further and less complex elements, the sum of the 
 norms is a sub-group. 
 
 Hence, when the norms composing the representation of an insti- 
 tution are so few as not to permit of division into several elemental 
 complexus (supra), the morphologic scheme (supra, par. 6) of an 
 institution is said to be of the first degree; when it admits of di- 
 vision into elemental complexus, then it is of the second degree; 
 and if into groups, then of the third degree; and if into sub-groups, 
 then of the fourth degree. 
 
 (11) The sum of the representations (supra, par. 9) of the in- 
 stitutions composing a given fundamental complexus (supra, par. 7) 
 is the representation of a fundamental complexus of institution. 
 
 (12) Finally, the sum of the jural norms of a given people at 
 a given time is the jural system of the people. 
 
 This idea of a people's jural system, with the several subor- 
 dinate ideas above defined, permits us to arrive by analysis at 
 the irreducible elements which compose it. And by its aid jural 
 
/ 
 
 82 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 ethnology arrives at the level of the most advanced sciences, such 
 as physics, chemistry, biology, and philology, which have de- 
 composed their subject matter into ultimate elements. 
 
 C. Sources. The distinction between a jural norm and a 
 legal precept is clear. The norm is essentially descriptive; its 
 formula is the work of science. The precept is the product of 
 custom or legislation. The norm describes the effect and mode of 
 operation ; the precept may often not reveal its application. The 
 precepts and the practices furnish the material for formulating 
 the norm. . , } 
 
 (II) Stratigraphy 
 
 § 3. Two General Social Types : Feudal and Gentilic. The 
 stratigraphy of special jural ethnology {ante, § 1) defines the in- 
 ternal composition of a jural system ; i.e. the fundamental types 
 of jural organization to which the norms and institutions are 
 related. In our view, an institution (ante, § 1, par. 6) is not a 
 unitary formation. It is composed of simple jural practices 
 (ante, § 1, par. 4), which are the ultimate elements of a people's 
 jural structure. Each practice is referable to a fundamental type 
 of jural organization; and the type to which are related the most 
 numerous and important practices forming the institution is to be 
 deemed the prevailing type for the intrinsic nature of the institution 
 itself. 
 
 Herein lies the importance of the stratigraphic conception of 
 institutions ; for upon it rest all inquiries into the stratigraphy, 
 genealogy, psychology, and philosophy of a system of law. Hu- 
 manity is in all times and places constituted in groups, which 
 differ as to extent and cohesion. According to Albert Post, 
 the group organization may be founded on ties of blood, of com- 
 munal life in a given territory, of the protective relation between 
 masters and serfs, or of contractual relations between individuals. 
 For these four bases, the jural organization may be termed, re- 
 spectively: gentilic (or clan), territorial, seigniorial (or feudal), 
 and corporative. To each such form of organization is related a 
 total of jural institutions. Often there are found in a single 
 people, side by side, elements peculiar to more than one form of 
 organization ; in that case, however, one of the forms has a pre- 
 dominant importance. Among inferior peoples, usually, is found 
 
 1 [At this point the author enlarges on the method of using sources, 
 and the kinds of sources, for ascertaining the tenor of jural practices 
 whence to formulate the norm. — Ed.] 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 83 
 
 the gentilic form only, founded on kinship. Among the most 
 advanced peoples, the gentilic form is weakened, and the corpora- 
 tive or individualistic form acquires a great importance. In 
 transitional stages, the seigniorial form is preponderant. The 
 four forms mentioned are the fundamental ones, i.e. the social 
 types viewed jurally. 
 
 It will be noted that our classification differs from that of Albert 
 Post. We recognize only two main types, the gentilic (founded 
 on kinship) and the feudal; for the territorial type (of Post) is 
 merely a variety of the gentilic (except in the few instances which 
 are essentially seigniorial or feudal) ; and the corporative or 
 individual type is only a variety of the seigniorial or feudal. 
 Moreover, the characteristic feature of the seigniorial or feudal 
 type is not (as Post believes) the relation of master and serf, 
 but rather the hierarchic stratification of social classes. 
 
 Our two fundamental types, therefore, the gentilic and the 
 feudal, are characterized respectively by the absence and the 
 presence of this hierarchic stratification of social classes; each 
 type, of course, having varieties. 
 
 When we compare the jural systems available for the purpose 
 of study, we find that many of them exhibit only norms which 
 imply the lack of hierarchial stratification of social classes; 
 while many others possess both rules of this sort and rules reveal- 
 ing the action of such stratification. If, after observation of all 
 the jural systems available, we assemble the norms showing no 
 hierarchic social stratification, and' then place together those 
 involving the same institution, and then group these institutions 
 into the ten fundamental complexus (ante, § 1, par. 7) making up 
 each people's system, the schematic jural system thus formed will 
 represent the gentilic type. And if we treat similarly the norms 
 which do reveal a hierarchic social stratification, the schematic 
 jural system thus formed will represent the feudal type. This 
 stratification is of the greatest importance for a people's jural 
 life. Observation shows that the structure of the institutions 
 composing systems marked by little or no social stratification 
 differs notably from that of institutions in systems having a well- 
 marked stratification; and that the variations of such structure 
 correspond always to variations in such stratification. 
 
 Stratification, of course, is not to be confused with a mere 
 differentiation of social classes; for differentiation (whose varia- 
 tions correspond to the complexities of human societies) does not 
 imply an hierarchic relation between the several classes. 
 
84 CRITERIA OF LEGAL EVOLUTION [Paet I. 
 
 The importance of our classification admits of no doubt in 
 view of the multipHcity of classifiable groups which it embraces, 
 and in view also of the nature and value of the principle upon 
 which it is founded — a principle based on the internal structure 
 of juridical systems. It has a purely juridical character, and is 
 not a general sociological scheme ; that is to say, its arrangement 
 of social groups is referable solely to juridical considerations. 
 
 In his remarkable essay on the " Classification of Social Types"/ 
 Steinmetz affirms the necessity of a general sociological classi- 
 fication, and he presents a Qritical and detailed study of various 
 classifications of human society. But in a brief note published 
 in the " Rivista italiana di Sociologia " ^ we have shown the impos- 
 sibility of making a classification of social types from the point of 
 view of general sociology in the present state of that science, 
 and the necessity of proceeding in the various social sciences 
 by the use of special classifications. Durkheim has correctly 
 pointed out that sociology is the ensemble of sciences which deal 
 with the various manifestations of social life — comparative history 
 of law, of morals, of religion, of intellectual culture, etc. 
 
 But a general sociological classification ought to be preceded 
 by a series of classifications of human societies, elaborated by the 
 various social sciences, and based on the phenomena of each social 
 science investigated. In other words, there ought first to be an 
 exact classification of juridical, religious, ethical, esthetic, etc., 
 types. After that, by a comparison of the groups of human 
 society discovered from the standpoint respectively of law, 
 morals, religion, etc., the connections may be found which exist 
 between these various classifications, and the discovery made 
 of the essential qualities and the secondary qualities of social 
 aggregations. Then only will be possible the creation of a general 
 sociological classification. 
 
 Furthermore, the making of a general sociological classifica- 
 tion before a detailed classification of the several social sciences 
 is dangerous for another reason. Sociology is a very extensive 
 and complex science. Those learned in it cannot have profound 
 knowledge of all its branches. As a rule, each sociologist studies 
 by preference a particular social department, and as to each 
 fact well verified, there is a tendency, easy to understand, to 
 attribute to it a pre-eminent importance over other phenomena 
 
 1 [This essay has been translated especially for this volume, and ap- 
 pears as Chapter I. — Ed.] 
 
 2 III, Roma, 1899 — "Studi recenti suUa storia della famiglia " 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 85 
 
 in the mechanism of social life. When a general classification 
 is attempted, in which account ought to be taken of all varieties 
 of social phenomena, each sociologist naturally is inclined to 
 envisage as essential those characteristics of human society which 
 are connected with the phenomena of which he has the most 
 extensive knowledge, and to regard as secondary those qualities 
 which concern other kinds of social data. The fact speaks for 
 itself — the various sociological classifications which have an 
 economic basis are the contributions of economists (Hildebrand, 
 Biicher, Le Play) ; the morphological classifications come from 
 those deeply learned in biology (Spencer) ; those of the geo- 
 graphical and ethnographical sort are the efforts of ethnographers 
 (Ratzel, Frobenius). The danger which results from this is very 
 great, because the value of any classification whether natural or 
 methodical depends on the choice of the essential qualities which 
 are the foundation of the classification itself. It follows that a 
 general sociological classification at the present time is impossible, 
 and that classifications of the separate social sciences are necessary 
 as a preparation. 
 
 § 4. Definition of Terms. Each of the two fundamental 
 social types (gentilic and feudal) includes a number of varieties; 
 the discrimination of these is as yet very imperfect and difficult. 
 
 (a) In the stratigraphic analysis of a jural system,* the ulti- 
 mate object is to ascertain the type. The type of the system is 
 of course the type of the sum of the norms composing the system. 
 
 But usually norms of both types are found co-existing.^ 
 
 (1) In such a case, the type to which belong the greater number 
 of the more important norms is the dominant type ; and the other 
 type is the concurrent .type. 
 
 (2) The relation between the number and importance of norms 
 representing respectively the concurrent and the dominant type 
 is the coefficient of concomitance. According as this relation or 
 proportion is maximum, medium, or minimum, the value of this 
 coefficient is maximum, medium, or minimum. Only the ex- 
 perience and skill of the investigator can avail in determining 
 this value ; for the graduation of the values is made by a discre- 
 tionary scale, much as is the case in the physical sciences when 
 graduation is necessary. 
 
 The value which thus indicates the number and importance of 
 
 * Often, indeed, only one type is represented, but this is invariably 
 the gentilic type; no system is found exclusively composed of feudal 
 types, i.e. without traces of the gentiUc type. 
 
86 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 the norms of a specific type gives us the intensity of that type 
 in that system. Hence, the coefficient of concomitance has a 
 maximum, medium, or minimum value according as the difference 
 between the intensity of the concurrent and the dominant types is 
 minimum, medium, or maximum. 
 
 (6) To analyze a system stratigraphically, the several institu- 
 tions {ante, § 1, par. 6) composing it must be analyzed stratigraph- 
 ically, by ascertaining their coefiicient of concomitance. The 
 process to be employed thus, depends on the degree of the 
 morphologic scheme {ante, § 1, par. 10) of the institution. When 
 the scheme is of the first degree, the elements relating to each 
 type must be grouped, and thus the intensity of the types be 
 ascertained; after which, the determination of the dominant 
 type and the coefiicient of concomitance presents no difficulty. 
 When the scheme of the institution is of the second degree, the 
 several elemental complexus {ante, § 1, par. 7, par. 10) of the norms 
 composing it must be analyzed stratigraphically; then the re- 
 sults of these analyses must be compared, and the dominant 
 type and the coefficient of concomitance ascertained as before. 
 For institutions having a morphologic scheme of the third or the 
 fourth degree, an analogous process must be used. 
 
 (c) Inasmuch as the stratigraphic nature of the norms {ante, 
 § 1, par. 8) is the basis of the stratigraphic analysis of institutions 
 (being the ultimate elements in the structure of the institutions), 
 we may distinguish four kinds of norms : (1) gentilic, (2) feudal, 
 (3) complex, either reducible or irreducible, and (4) indefinite. 
 
 (1), (2) The first two classes signify those norms which belong 
 respectively to the gentilic and the feudal type. 
 
 (3) The third class comprises norms which show both gentilic 
 and feudal elements coexisting. They are irreducible when one 
 of the two types dominates in their structure; otherwise, they 
 are reducible, i.e. they decompose into several simple norms, 
 some of one type and some of the other. 
 
 (4) Finally, an indeterminate norm is one which cannot be 
 classed with either specific type. 
 
 {d) For the purpose of assigning to one or the other type those 
 norms which offer difficulties of interpretation, the following 
 criteria of reference are to be used. They are few in number, but 
 they serve for the analysis of systems as complex even as that of 
 ancient India : 
 
 (I) " A norm belongs to the gentilic or the feudal type, re- 
 spectively, according as it necessarily presupposes, directly or 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 87 
 
 indirectly, the absence or the presence of a hierarchic stratifica- 
 tion of social classes/' 
 
 (II) *' If a norm is compatible with the absence of such strati- 
 fication, and is found constantly in purely gentilic systems, it 
 belongs to the gentilic type, even when it is also found in peoples 
 where both types coexist, and no matter which type is dominant. 
 
 " If a norm is compatible with the presence of such stratification, 
 and is formed constantly in dominantly feudal systems, it belongs 
 to the feudal type, even when it is also found in systems w^here 
 the feudal type is only concurrent and not dominant." 
 
 (III) '' A norm belongs to the gentilic type when it presupposes 
 necessarily the autonomy of some form of human association of the 
 gentilic type, i.e. of the single or personal family, the communal 
 home, the clan, the tribe, or the tribal confederation." 
 
 (IV) " A norm belongs to the feudal type, when it presupposes 
 necessarily a marked development of a contract system." (The 
 latter two criteria are merely applications of II above.) 
 
 (V) " A norm belongs to the gentilic or to the feudal type 
 according as it presupposes necessarily the existence or the absence 
 of a State." (This is justified by the essentially feudal nature of 
 the State, and the well-established relation between the intensity 
 of State power and the intensity of hierarchic stratification of 
 social classes in systems preponderatingly feudal.) 
 
 § 5. Method of Restoring or Projecting Incomplete Institutions. 
 The stratigraphic process is applicable to institutions whose / 
 morphologic reconstruction can be made with relative complete- 
 ness. When such reconstruction is incomplete, one of the follow- 
 ing methods, devised by us, must be employed for the purpose. 
 
 (I) The first method consists in classifying the fundamental 
 features of the institution as far as ascertainable, and then in 
 determining the type with which they are compatible. Three 
 distinct cases may here be presented : 
 
 (a) The fundamental features may be compatible with one 
 only of the two types ; in such case, the institution must be classi- 
 fied as of that type. 
 
 (b) The fundamental features may be compatible with either 
 type. In such case, since the two types have features in common, 
 they are not distinct types, but are varieties of a third and un- 
 kno^^^l type, which one must seek to determine by comparison 
 of the institution in question with other analogous ones ; because, 
 since each type has its own features distinct from the other, the 
 institution having these fundamentals cannot be of different types. 
 
88 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 (c) The fundamental features of the institution are incompatible^ 
 with either of the known types. In such case, the institution 
 must be referred to an unknown type, whose determination must 
 be made by the foregoing criterium, so far as feasible. 
 
 The foregoing method is based on the consideration that an 
 institution, in order to belong to a type, must be compatible with 
 the fundamental features of that type. 
 
 (II) For the second method, certain new terms must be defined : 
 viz. intensity and diffusion. 
 
 (1) Intensity. An institution occurs sometimes in p7ire form, 
 i.e. with all its features ; sometimes in attenuate form, i.e. lacking 
 some of its features; or in residual form, i.e. with only some 
 features remaining, these survivals presenting a graded scale of 
 importance depending on the strictness of their connection with 
 the pure institution. The degree of purity of an institution is its 
 intensity. 
 
 Hence, an institution found in its pure form has a maximum 
 intensity; one presenting only surviving features of least closeness 
 and directness has a minimum intensity. Moreover, if we set down 
 in series the pure form with the several attenuate and residual 
 forms of an institution according to the degree of their purity, 
 we shall have a complete table of the possible intensity of the 
 institution ; and the degrees of such intensity may be represented 
 by a numerical scale (see § 6, post). 
 
 (2) Diffusion. The ethnographic area of existence of an in- 
 stitution is its diffusion. Absolute diffusion is the total number 
 of peoples among whom the institution has been observed. Rel- 
 ative diffusion is the frequency of its practice in a given people. 
 
 Our second method, then, consists in decomposing the jural 
 organization of each people practising the institution, in noting 
 carefully the type to which each element belongs, and then in 
 ascertaining the clear and constant relation (if any) between the 
 abundance of the elements of one type and the intensity and relative 
 diffusion of the institution in question. For this purpose, we must 
 classify the several peoples in a descending series according to 
 the degree of intensity and the relative diffusion of the institution. 
 If then it appears that such intensity and diffusion are propor- 
 tionate, through the entire series, to the abundance of the elements 
 peculiar to one or the other fundamental type, we are bound to 
 conclude that the institution itself belongs to that type. The 
 strength of this inference depends on the extent of the series 
 observed. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 89 
 
 The foregoing method is plainly legitimate, for it is merely 
 an application of the method of "concomitant variations", one 
 of the most rigid of logical methods. It implies the applicability 
 of other methods also, which permit us to determine the relations 
 of an adequate number of institutions to their types.^ . . . 
 
 (Ill) Normality. It remains here to explain one more term, 
 which is needful for analyzing certain parts of our subject, viz. 
 normality. 
 
 When several distinct forms of the same institution coexist in 
 the same people, the institution is polymorphic. Usually, in a 
 people having a polymorphic institution at a given stage of its 
 history, some one form of the institution is regarded by public 
 opinion as its typical form, i.e. the form which all wish to practice 
 and do practice when feasible. This is the normal form, or the 
 normal institution. But usually public opinion further recognizes 
 distinctions of value between some of the forms and others, i.e. 
 a sort of hierarchic stratification of them. Hence, the several 
 forms of a polymorphic institution may be arranged in a descend- 
 ing series, the normal form being the highest and the rest follow- 
 ing in the order attributed by public sentiment. This series, 
 which is usually a brief one, may be termed the normality series 
 of the institution ; and the value or index of normality of a given 
 form of the institution is given by its position in the series. 
 
 The determination of such a series is of course a difficult task, 
 for it requires a careful study of popular sentiment with regard 
 to the institution. The several numerical values of normality in 
 this scale would be determined by each observer's discretion; 
 and, in view of the psychological indefiniteness of the material, 
 it must suffice to distinguish three degrees only, viz. maximum, 
 medium, and minimum; the maximum degree being attributed 
 to the normal form of the institution. 
 
 § 6. Graphic Formulas Explained. Having thus defined the 
 terms necessary in stratigraphic analysis, it remains to devise a 
 graphic scheme for representing concisely the results of such 
 analysis for a given people and institution. 
 
 The stratigraphic composition of any given body of norms 
 (whether a group, or a sub-group, or an institution or a complexus, 
 etc. ; see ante, § 1), i.e. the relation between the dominant and 
 the concurrent type for that body of norms, may be expressed 
 by the coefficient of concomitance {ante, § 4, par. (a) 1) of the 
 
 ^ [At this point the author expounds two additional varieties of method. 
 — Ed.] 
 
90 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 V 
 
 concurrent type. This is the stratigraphic formula of that body 
 of norms. It is noted by combining in a parenthesis the abbre- 
 viation of the name of the dominant type with that of the concur- 
 rent type, followed by the coefficient in a small figure below the 
 line. The three degrees, maximum, medium, and minimum 
 (ante, § 4, par. (a) 1), of the relation of concomitance of the two 
 types are represented by the figures 3, 2, 1 ; and the absence of 
 any concurrent type, by the figure 0. 
 
 For example, if in the stratigraphic analysis of a given sub- 
 group of the jural system of a given people we find that the feudal 
 type is the dominant one, and that the gentilic type is also present 
 in medium value, the stratigraphic formula will be : (Feud . , Gent .2) . 
 If in another sub-group we find the gentilic type alone existing, 
 the stratigraphic formula is: (Gent., Feud-o). 
 
 This use of formulas is extremely important, in that it enables 
 us to represent the results of an analysis in tabular form. Such 
 a table bears upon the degree of the morphologic scheme {ante, 
 § 2, par. 6) of the system examined, and thus upon the degree of 
 the analysis effected. The extent of the table itself bears upon 
 the extent of the morphologic scheme of the system; the most 
 complete table will be one which comprises the results of an 
 analysis of an entire system to the fourth degree (ante, § 2, 
 par. 10). 
 
 § 7. Use of these Formulas to Classify Peoples. This strati- 
 graphic analysis enables us to represent in outline the classifica- 
 tion of jural systems, or (what comes to the same thing) the 
 classification of peoples from the jural point of view. The detailed 
 analysis of the lowest elements of the system forms the basis for 
 the classification of the intrinsic constitution of the system. In 
 the following table are set forth the seven classes into which all 
 jural systems are reducible; they may be called type-families 
 of law. 
 
 
 
 
 Concurrent 
 
 Numerical 
 
 
 Dominant 
 
 Type, with 
 
 Designation 
 
 
 Type 
 
 Coefficient of 
 Concomitance 
 
 1 
 
 Gentilic, pure 
 
 Gentilic 
 
 Feudal 
 
 2 
 
 Gentilic, semi-pure 
 
 " 
 
 Feudal 1 
 
 3 
 
 Gentilic, feudal 
 
 " 
 
 Feudal 3 
 
 4 
 
 Gentilic, semi-feudal 
 
 (( 
 
 Feudal 2 
 
 5 
 
 Feudal, semi-pure 
 
 Feudal 
 
 Gentilic 1 
 
 6 
 
 Feudal, gentilic 
 
 " 
 
 Gentilic 3 
 
 7 
 
 Feudal, semi-gentilic 
 
 u 
 
 Gentilic 2 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 91 
 
 This table shows in the first column the numerical designation, 
 and in the second the name of the type-family of law; in the 
 third column is the dominant type, and in the fourth column the 
 concurrent type, w4th the coefficient of its concomitance, for that 
 particular type-family. It will be noted that no purely feudal 
 type-family of law is shown, for observation reveals that no known 
 jural system is exclusively of the feudal type ; that type is always 
 found mingled with more or less numerous elements of the gentilic 
 type. 
 
 As an example of the mode of using this classification for the 
 analysis of a given system, let us take the results of an extended 
 analysis ^ of the institutions of a particular homogeneous group 
 of peoples, viz. the six principal Malayan peoples of the island 
 of Sumatra, viz. the Menangkabao, the Battak, the Pasemah, 
 the Lampong, the Palembang, and the Bengkulais. These form 
 a series of reference, or basis of scientific study of type ; because 
 their homogeneity is large as to ethnic origin, social condition, 
 and geographic relations. It has already been pointed out (ante, 
 § 2, par. 1) that the jural system of every people is composed of 
 ten orders or fundamental complexus of institutions, viz. I. Forms 
 of Social Union; II. Marriage; III. Relationship; IV. Domes- 
 tic Power ; V. Property ; VI. Obligations ; VII. Succession ; 
 VIII. Political Institutions; IX. Penal Institutions; X. Pro- 
 cedural Institutions. The stratigraphic composition of a jural 
 system depends upon the stratigraphic composition of these 
 ten fundamental complexus. For exhibiting the stratigraphic 
 composition of these six systems in the series of reference, the 
 following table (in which the numerals I, II, etc., indicate the above- 
 named ten complexus) summarizes the results of a detailed 
 analysis : 
 
 From this table it appears that, in the jural systems of peoples 
 studied, the gentilic type has a marked preponderance. The 
 feudal type is very weak among all except the Palembangs ; and 
 even in that people the feudal preponderance is limited to political 
 institutions and to property, and even in those complexus the 
 coefficient of concomitance of the gentilic type is high. 
 
 The systems examined can be grouped into three classes, strati- 
 graphically: 1. The first includes the Menangkabao, the Pase- 
 mah, and the Lampong; here the gentilic element is notably 
 developed and the feudal element is weak;^ the stratigraphic 
 
 1 [This analysis occupies pp. 201-279 of the author's treatise, and is 
 here omitted. — Ed.I 
 
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92 
 
 CRITERIA OF LEGAL EVOLUTION 
 
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Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 93 
 
 formula for this class becomes: (Gent., Feud.i). 2. The second 
 comprises the Battak and the Bengkulais ; the gentilic element 
 is dominant, but the feudal element is larger than in the first class ; 
 the stratigraphic formula becomes (Gent., Feud.2). 3. The third 
 class comprises only the Palembang; the gentilic element is still 
 dominant, but the feudal element is also strong ; the stratigraphic 
 formula becomes (Gent., Feud. 3). 
 
 This example makes clear that our stratigraphic analysis rep- 
 resents the greatest step of progress for jural ethnology. Only 
 by the aid of this instrument can that science progress beyond 
 its descriptive genetic stage and become an explicative science. 
 By stratigraphic analysis, an ethnologic genealogy, psychology, 
 and philosophy of law become possible. 
 
 (Ill) Genealogy 
 
 § 8. Significance of Jural Genealogy. Jural Genealogy is 
 that branch of special jural ethnology {ante, § 1) which studies 
 the development of the jural system of a particular people. It 
 is founded on stratigraphy; for its criteria and its methods de- 
 pend upon the ascertainment of the intrinsic composition of the 
 institutions of the jural system, and therefore of the fundamental 
 types in that system. 
 
 In studying the evolution of an institution, the variations of 
 its structure fall into two classes, viz. extrinsic and intrinsic. 
 Intrinsic variations are those which correspond to changes in the 
 intensity (ante, § 5, par. II) of the jural types coexisting within 
 the institution. Extrinsic variations are those which affect the 
 form of the institution but do not correspond to any change in 
 such relation of intensity in the component t>^es. Thus, the 
 latter sort are morphologic, and the former are stratigraphic. 
 
 This classification may be illustrated by an example from the 
 institution of Loan in ancient India. As wull be later seen, the 
 evolution of that institution shows that its composition, in the 
 several periods forming the whole course of its development, may 
 be represented by the following stratigraphic formulas : 1st period, 
 (Gent., Feud.o) ; 2d period, (Gent., Feud.i) ; 3d period, (Gent., 
 Feud.2) ; 4th period, (Gent., Feud. 3) ; 5th period, (Feud., Gent. i_2 ; 
 6th period, (Feud., Gent.i). An inspection of these formu- 
 las shows at once that the Loan of ancient India, in passing 
 through the six periods named, exhibits variations corresponding 
 to changes in the relative intensity of the jural types entering 
 
94 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 into the institution. They are thus stratigraphic or intrinmc 
 variations. These historic periods covered a long space of time, 
 each one occupying several centuries ; and the above stratigraphic 
 variations were due to the slow and gradual substitution of feudal 
 for gentilic rules, or the addition of feudal to preexisting gentilic 
 rules. But in each epoch also a number of other rules were formed 
 and disappeared w^hich did not alter the quantitative relation of 
 the jural types in the institution. They modified the form, but 
 not the intrinsic nature of the institution ; hence they were merely 
 morphologic, or extrinsic. 
 
 Stratigraphic, or intrinsic, variations are of much greater im- 
 portance in the evolution of an institution than morphologic 
 variations; because the former imply changes in the process of 
 hierarchic stratification of social classes, the most fundamental 
 jural fact in human societies. That period, therefore, in the 
 history of an institution, a complexus of institutions, or a system, 
 during which it preserves the same stratigraphic composition, 
 may be termed its genealogic period. 
 
 This term is of importance. Hitherto, the successive stages in 
 systems or institutions have been marked off by historians with 
 purely chronological criteria ; but these can only be superficial and 
 extrinsic. If the idea of genealogic periods be adopted, the phases 
 of evolution of an institution or a system may be distinguished 
 on the basis of intrinsic composition of the institution or system. 
 
 § 9. Definition of Terms. The basal body of jural norms in 
 any system is the suh-group (ante, § 2, par. 10) ; for all higher forms 
 are merely combinations, more or less complex, of sub-groups. 
 
 (1) When two sub-groups belonging to different jural systems 
 (or different genealogical stages of the same system) have an 
 identical denomination,^ they are homonyms; when they have 
 different denominations, heteronyms. For example, the sub-groups 
 concerning the composition of the royal tribunals in the first and 
 the second periods of ancient India are homonyms. In the follow- 
 ing studies, homonyms only will be considered. 
 
 (2) When a sub-group shows in its structure only one of the 
 fundamental types, it is monotypical; when it shows the two 
 types, it is hitypical. Since the intensity (ante, § 4, par. (a) 2) 
 of a type in a given sub-group is the relation between the number 
 of its norms of that type to the total number of norms therein, 
 it follows that the intensity in a bitypical group is given by an 
 ordinary fraction ; that the two fractions representing the two 
 
 1 [This term "denomination" is not explained by the author. — Ed.] 
 
 J 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 95 
 
 types have the same denominator ; that their sum is unity ; and 
 that in a monotypic sub-group the intensity of the gentilic type 
 is 1, and of the feudal type is 0. 
 
 (3) When two homonjTuic sub-groups have the same types 
 and intensities, i.e. the same stratigraphic composition, they are 
 similar; otherwise they are termed dissimilar. 
 
 Hence, two similar homonjTaic sub-groups must be represented 
 by identical stratigraphic formulas ; and two dissimilar homo- 
 nymic sub-groups by different stratigraphic formulas. 
 
 (4) Comparison signifies establishing a connection ; and a 
 connection can be established only between homogeneous elements ; 
 and this homogeneity is relative to the connection or comparison 
 that is sought. The comparison, therefore, of two sub-groups, 
 as to their stratigraphic composition, their homogeneity, i.e. com- 
 parability, is relative to that composition, i.e. the nature, posi- 
 tion, and intensity of the component types. Whenever there- 
 fore the intensity of the types in one group is only a variation of 
 the intensity of types in another group, they become comparable. 
 
 Hence, two sub-groups are comparable if the intensities of 
 the component types of the one can be regarded as variations of 
 the corresponding t}T)es of the other. 
 
 This fundamental proposition we call the " principle of the 
 comparability of sub-gro2ips." And the foregoing principle in 
 par. (3) we call the " principle of the stratigraphic representation 
 of sub-groups. . . ."^ 
 
 Starting with these two principles of comparability and the 
 stratigraphic representation of sub-groups, and remembering 
 that without rectifying beforehand the relative stratigraphic for- 
 mulas no comparison would be valid, the following method enables 
 us to make the sub-groups comparable and to rectify the relative 
 stratigraphic formulas : 
 
 To compare several systems (or distinct phases of a single 
 system, or corresponding parts of different systems), from the 
 stratigraphic point of view, designate the systems as T, T', T", 
 T'" . . .\ T being the most complex term, i.e. the one having 
 the largest numbers of sub-groups. Call this term of the series 
 the principal, and the others secondary. Draw up a table showing 
 for the several sub-groups of each system the norms which are 
 intrinsically gentilic in type, the norms inherently feudal in type, 
 
 ^ [At this point the author elaborates some more detailed canons; 
 but, owing to his failure to clarify his meaning by examples, it is useless 
 to reproduce his principles. — Ed.] 
 
96 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 and the total norms occurring. Arrange this table so as to show 
 in the first column the order-number of the sub-groups, and in 
 the second column the name of the sub-groups belonging to the 
 principal term. In three other columns show, for each sub-group, 
 the number of gentilic norms, the number of feudal norms, and 
 the total number of norms. Each secondary term will also be 
 represented by three columns, showing respectively (corresponding 
 to the sub-groups of the principal term) the number of gentilic 
 norms, the number of feudal norms, and the total number of 
 norms. If in any of the secondary terms there are sub-groups 
 which do not occur in the principal term, the three values will 
 be designated by placing the number and name thereof in the 
 columns (first and second above) appropriate thereto, and by 
 placing short dashes in the three columns for the principal term. 
 And if, on the other hand, sub-groups occurring in the principal 
 term are lacking in one of the secondary terms, insert short dashes 
 for them in the columns of that secondary term. 
 
 By studying this table, one can evaluate readily the intensity 
 of each type, for the several sub-groups, in each of the terms 
 under comparison.^ . . . 
 
 § 10. Genealogic Laws. The formula which expresses the 
 progress of the variations of a norm, or group of norms, in a series 
 of stages of development of a given jural system, may be termed 
 its genealogic law. These variations, and their laws, may be 
 either morphologic or stratigraphic. 
 
 (a) The actual progress of morphologic variations cannot be 
 expressed in genealogic laws unless morphology can reconstruct 
 the entirety of the norms ; and this is rarely feasible. Such laws 
 will, therefore, be usually hypothetical only. 
 
 (1) Form and Extension. In every sub-group of norms, the 
 nature of the component rules is their form (qualitative) ; the 
 number of them is their extension (quantitative). 
 
 If a given sub-group, in a given stage of history, shows no 
 rules existing, we may conventionally represent its extension by 0. 
 If, for example, in studying a given sub-group during three suc- 
 cessive historical periods A, B, and C, we find that the sub-group 
 has 5 rules in period A, then 4 rules in period B, then disappears 
 entirely in period C, it has an extension zero in period C. Three 
 degrees (as elsewhere) sufiice in practice to evaluate extension, 
 — maximum, medium, and minimum. 
 
 1 [The author here elaborates his use of this method in "rectifying" 
 the stratigraphic formulas of secondary terms. — Ed.] 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 97 
 
 (2) The morphologic variations of extension are positive, or 
 incremental, when the number of norms in a sub-group increase 
 in passing from one stage to another ; and negative, or diminuent, 
 if they decrease. The value of such variation may be expressed 
 in three degrees, as maximum, medium, and minimum. 
 
 (6) Stratigraphic variations also may be classed into qualitative 
 and quantitative. The former are such changes as appear in the na- 
 ture and position of the component types ; the latter are such as 
 appear in the number of component norms inherent in each type. 
 
 Changes in the number, from one period to another, are varia- 
 tions of intensity of the type; and the terms positive or negative, 
 maximum, medium, or minimum, here apply as before. If in a 
 given sub-group a type does not appear at all, its intensity is zero ; 
 and it is maximum, medium, or minimum, according to the num- 
 ber of norms referable to the type in question. These variations 
 during successive periods can be shown in tabular form, as in Part 
 III, post. 
 
 § 11. Reconstruction of the Oenealogic Process. When any 
 part of a jural system is examined as it passes from one historic 
 stage to another, the brusqueness generally observable in the 
 changes raises the doubt whether the gaps thus revealed are 
 attributable, not to actual non-existence of the norms (or sub- 
 groups of norms), but rather to an imperfection in the sources 
 of information. Hence, since a complete representation of the 
 elements is necessary for certitude in tracing genealogic laws, we j 
 must determine whether the apparent lack of certain elements 
 is a real one. If not, a complementary reconstruction must be 1 
 attempted. 
 
 As a basis for such a method, the following postulates must 
 be kept in mind : (1) The evolution of a jural system in successive 
 periods is generally regular and continuous ; (2) The development 
 of any morphologic element, within a given system at any one of 
 the periods, corresponds to the stratigraphic and morphologic 
 variations of the system in the entire series, at the particular 
 period, and especially to the morphologic and stratigraphic com- 
 position of the particular element at the periods immediately before 
 and after the one in question, and in the entire series. 
 
 One of the most important problems in the jural genealogy 
 of a specific people is this one of the complementary reconstruc- 
 tion of institutions where the sources for a given period are inade- 
 quate. The available method is illustrated in Part III, post.^ 
 
 ^ [The author's exposition of it at this point is here omitted. — Ed.] 
 
98 CKITERIA OF LEGAL EVOLUTION [Part I. 
 
 When such reconstruction can be accompHshed for an entire jural 
 system during all its periods, the generalization of its genealogical 
 laws is no longer merely hypothetical but definitive. 
 
 (IV) Psychology 
 
 § 12. Method of Studying Jural Psychology.^ This branch 
 of jural ethnology has for its object the discovery of the ideas and 
 sentiments prevailing among a given people, as determined by a 
 consideration of its jural norms. A jural practice is a habit of 
 action leading to jural acts, and it must have a psychologic sub- 
 stratum. Two elements compose this substratum : (1) the series 
 of ideas and sentiments which predispose the individual agent to 
 doing the act; (2) the series of ideas and sentiments, prevailing 
 in the community, to which the act must conform in order to be 
 regarded as permissible. 
 
 Ethnologic psychology, for the specific people, must determine, 
 not only the psychologic data for the particular system, but also 
 the area of diffusion of those data within each people. But their 
 ascertainment is difficult, and is not always feasible. 
 
 For solving the fundamental problem of special jural ethnology, 
 the following method has been devised by us. The observer is 
 to ascertain the collective ideas and sentiments which fulfil the 
 following conditions, as to each norm : (1) Their compatibility 
 with the expression of the norm ; (2) their compatibility with the 
 stratigraphic feature of the norm; (3) their compatibility with 
 the genealogic process of the norm (if Imown) ; (4) their com- 
 patibility with the general psychologic conditions (so far as 
 known) of the people in question, or of the portion where the 
 norm obtains; (5) their compatibility with the general social 
 conditions (so far as known) of the people, or portion thereof, 
 and particularly their economic, religious, and moral conditions. 
 
 Plainly, if there is a body of collective ideas and sentiments 
 which fulfil simultaneously all these conditions, such ideas or 
 sentiments are the psychologic data or postulates of the norm in 
 question. 
 
 (V) Philosophy 
 
 § 13. Method of Studying Jural Philosophy.^ Jural ethnologic 
 philosophy, which is the most advanced and difficult branch of 
 1 [This chapter has been here much abbreviated. — Ed.] 2 j^id. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 99 
 
 the science, has for its object the determination of the causes of 
 jural phenomena. 
 
 When we can trace a given norm in its entire course of develop- 
 ment in a particular system, we find it presenting the following 
 series of phases : formation, conservation, variation, transforma- 
 tion, extinction. In the first period, it takes its origin ; in the 
 second, it preserves its fundamental traits ; in the third, it under- 
 goes changes, which do not affect its fundamental traits; in the 
 fourth, the changes do affect its fundamental traits; and in the 
 last, the norm itself disappears. The causes, therefore, which 
 determine these several phases, may be termed, respectively, 
 generative, conservative, modificative, transformative, and dissolutive. 
 The complete causal study of the norm requires a determination of 
 all of these. Ordinarily, such a complete study is not feasible. 
 
 The method of study of any one of these groups of causes is the 
 " method of predefined limits " ; it is analogous to that already 
 set forth for psychological study, but is subject to more restrictive 
 conditions. It consists in selecting hypothetically one or more 
 causes, and inquiring whether they fulfil the following conditions : 
 (1) compatibility with the expression of the norm; (2) compati- 
 bility with the stratigraphic feature of the norm; (3) compati- 
 bility with the genealogic process (if known) of the norm ; (4) 
 compatibility with the general psychological conditions (so far 
 as known) of the people, or portion thereof; (5) compatibility 
 with the general social conditions (so far as known) of the people, 
 or portion thereof, and particularly with its economic, religious, 
 and moral conditions ; and (6) compatibility with the psychologic 
 data of the norm. Whenever such causes, hypothetically selected, 
 fulfil simultaneously all these conditions, they may be deemed 
 to be the real causes of the norm in question. 
 
 The sub-group, being the fundamental body of norms, presents 
 the same phase of development (when it can be studied through- 
 out the course of the jural system) as the single norm ; hence, 
 for the sub-group, the same classification of causes applies as for 
 the norms; and hence, it can have no other causes than those 
 w^hich affected the component norms, in their formation, etc., 
 up to their extinction. Similarly, as the larger aggregations of 
 norms (groups, complexus, institutions, etc.) are composed of 
 sub-groups, their causes can only be those which affected the sub- 
 groups and (within them) the norms. 
 
 Thus this " method of predefined limits " enables us ultimately 
 to ascertain the causes controlling the entire jural system. 
 
100 CRITERIA OF LEGAL EVOLUTION [Part I, 
 
 B. Comparative Jural Ethnology 
 
 The basis of Comparative (or, General) Jural Ethnology is 
 furnished by the data of Special (or, Analytic) Jural Ethnology 
 {ante, § 1), i.e. the sum of results reached in the jural morphology, 
 stratigraphy, genealogy, psychology, and philosophy of the specific 
 peoples. Comparative Jural Ethnology seeks to determine the 
 principles of general jural evolution by comparing the jural 
 systems already analyzed individually. It has the same five 
 branches as special jural ethnology, viz. morphology, stratigraphy, 
 genealogy, psychology, and philosophy. 
 
 § 14. Comparative Morphology. Comparative morphology 
 aims to determine homologies of structure in the several jural 
 systems. Its method is as follows : 
 
 The condition which makes comparison of two jural systems 
 possible is an identity of degree in the morphologic scheme (ante, 
 § 2, par. 6) of the systems. In any exact comparison, the 
 terms must be so far as possible homogeneous ; and morphologi- 
 cal homogeneity means uniformity of structure ; and uniformity 
 of structure means identity of degree {ante, § 1, par. 10) in the 
 morphologic scheme. 
 
 If we take for comparison two jural systems of the fourth degree, 
 the more developed system will be the princijMl term {ante, § 10), 
 and the other the secondary term. In a sub-group of norms, a 
 certain number of them have a dominant importance ; these may 
 be termed the nucleus of the group. When two homonymic 
 {ante, § 9, par. 1) sub-groups are compared, one from the principal 
 term and one from the secondary term, the norms common to the 
 two sub-groups are called homologous norms. The sum of such 
 common norms is the homology of the two sub-groups. 
 
 Homology is perfect, when the homologous norms are identical ; 
 imperfect, when they have merely an affinity ; and zero, when there 
 are no homologous norms. Homology is total when all the norms 
 of the two sub-groups are homologous; nuclear, when only the 
 norms forming the two nuclei are homologous; and partial, 
 in all other cases. The homologies of all sub-groups, when 
 ascertained, give us the homologies of the systems. 
 
 Let us now (assuming that all the jural systems to be compared 
 are of the fourth degree) place all the systems in a series; the 
 principal term {ante, § 10) will be the most developed system, 
 and the secondary terms will include all the other systems grouped 
 according to their ethnic families. By analyzing as above set 
 
Chap. II.] THE SCIENTIFIC METHOD OF GEXERALIZING 101 
 
 forth, we may ascertain the homologies in all the homonymic 
 sub-groups of norms in the entire series of systems. 
 
 We shall thus arrive at the area of diffusion of a given homology. 
 It is universal, when it exists among all the peoples whose systems 
 are compared ; or, at least, among a number of peoples distrib- 
 uted throughout separate ethnic families. It is special, when 
 it is found in only a single ethnic family. If we then take the 
 universal homologies discovered in sub-groups, and coordinate 
 them successively by groups, elemental complexus, institutions, 
 and fundamental complexus {ante, § 2, par. 7, 10), we shall have 
 a system which may be termed the universal morphologic system. 
 It might even be called " universal law", for it would include the 
 elements common to all jural systems. It would represent the 
 substructure of all systems of positive law, and would lead us to 
 the discovery of general causes of law. 
 
 Special ethnic morphology, or the coordination of special 
 homologies (supra) found in the jural systems of a single ethnic 
 family, is formed of two ^factors, viz. a series of universal homol- 
 ogies, and a series of homologies special to that ethnic family. 
 It forms the basis of the jural system of each of the peoples com- 
 posing that family, and it aids us to define the causes of jural 
 phenomena there operating. 
 
 In each people, its law is composed of three factors : A series 
 of universal homologies; a series of special (ethnic) homologies; 
 and a mass of elements peculiar to the system of that people. 
 And the first two factors are generally of superior importance. 
 
 § 15. Comparative Stratigraphy. Comparative stratigraphy 
 has for its aim the discovery of the general principle of types of 
 jural organization. In the chapter (ante, §§ 3-7) on special 
 stratigraphy, we have already sufficiently explained the concep- 
 tion of jural types in its bearing on comparative stratigraphy. 
 
 Suffice it here to add that although our studies in special stratig- 
 raphy have revealed the existence of only two types, the gentilic 
 and -the feudal, yet the application of stratigraphic analysis to a 
 larger number of systems might demonstrate the existence of 
 other types. 
 
 § 16. Comparative Genealogy. Comparative jural genealogy 
 has for its aim the determination of the general process of develop- 
 ment of all the jural systems, as specifically analyzed by special 
 jural genealogy. 
 
 The principles already set forth (ante, §§ 8-11) as to the genea- 
 logic laws of a specific system may easily be extended to the gene- 
 
102 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 alogy of a series of systems. The criteria there given {ante, §§10, 
 11) for the comparison and rectification of stratigraphic formulas 
 become here of prime importance ; for the origin of a particular 
 institution must often be sought by the aid of a comparison of 
 several systems. 
 
 The solution of such a general problem depends upon the solu- 
 tions reached for the following six partial problems : (1) to deter- 
 mine the area of diffusion of the institution in question ; (2) to de- 
 termine the stratigraphic composition of the institution ; (3) to 
 determine an institution of reference {post, § 18) belonging to the type 
 which is dominant in the institution in question ; such institution 
 of reference must be one that has been fully studied and therefore 
 will enable us to ascertain the genetic process of the institution in 
 question by studying the relation between the two institutions; 
 (4) to determine the order of succession between the institution 
 in question and the institution of reference ; (5) to determine the 
 modes of transition between the generating institution and the 
 institution produced; (6) to determine the causes producing or 
 aiding this transition. 
 
 Each of these partial problems requires a special method for 
 its solution.^ 
 
 § 17. Comparative Jural Psychology. Comparative jural psy- 
 chology has for its aim three results : 
 
 (1) It aims, in the first place, to determine the psychologic 
 homologies {ante, § 14) of the systems already analyzed by special 
 jural psychology {ante, § 12), i.e. the postulates common to the 
 systems compared. The terms perfect, imperfect, universal, etc., 
 may be applied to designate the corresponding ideas in compara- 
 tive jural psychology. The sum of the psychologic postulates 
 (vf a given jural system comprises : {a) a series of universal psy- 
 chologic homologies; {b) a series of special (ethnic) psychologic 
 homologies ; (c) a series of psychologic elements peculiar to that 
 people or system ; the former two being of superior importance. 
 
 (2) The second aim of comparative jural psychology is to de- 
 termine the psychologic composition of the fundamental types 
 {ante, § 3) of jural organization. 
 
 (3) The third aim of comparative jural psychology is to deter- 
 mine the general process of development of jural ideas by com- 
 parison of the processes of particular systems. 
 
 ^ [The author here sets forth the methods devised by him ; but as the 
 necessary illustrative apphcations are found only in other essays of his, 
 the passage is here omitted. — Ed.] 
 
Chap. II.J THE SCIENTIFIC METHOD OF GENERALIZING 103 
 
 § 18. Comparative Jural Philosophy. Comparative jural phi- 
 losophy has for its aim the determination of the general causes of 
 jural phenomena, by comparison of the several systems already 
 analyzed by special jural philosophy {anUj § 13). 
 
 Its methods are as follows : 
 
 (1) When an institution has been observed among a more or 
 less extensive series of peoples {ix. has a broad area of diffusion), 
 the simplest method of determining its causes is to study all 
 relations existing between itself and the other jural institutions, 
 in those same systems; then to eliminate all relations not clear 
 and definite; to coordinate and interpret the remaining ones, 
 seeking at the same time to reach the origin of the relations; 
 and to determine the factors forming those relations. The 5um 
 of those factors is the scheme of causes sought for.^ 
 
 This method, of course, can be used only when the specific jural 
 systems studied as the basis are known to us (or can be recon- 
 structed) in their completeness. It is the method used by us in 
 studying the causes of the institution of ambilian marriage among 
 the Malayan peoples {yost, Part II, § 19).^ 
 
 (2) By an extension of the former method, we have devised 
 another one, the most general of all those available for jural 
 ethnology. It consists, briefly, in forming a fixed series compris- 
 ing a certain number of jural systems which fulfil the conditions 
 of being intimately related as to ethnic affinity, geographic prox- 
 imity, and total development of civilization. This we term the 
 typical series of reference. We then proceed to inquire into the 
 causes of the formation, conservation, variation, transformation, 
 and dissolution {ante, § 13) of all the institutions in this typical 
 series of reference ; and to generalize the results thus obtained. The 
 advantage of employing this typical series of reference is that the 
 dangers of subjectivism can be avoided, that it requires a thorough 
 study of the component elements of the systems included, and 
 leads us to the general theory of causes of all the jural phenomena. 
 
 The criteria for the establishment of the typical series of 
 reference are : (a) the selection of the peoples to be comprised ; 
 (6) the method of studying the institutions composing the systems. 
 
 ^ It is true that this method, thus sketched, does not take account 
 causatively of the entire social phenomena of the peoples, but seeks only 
 the relations between the institution in question and the other parts of 
 the jural systems. But the latter relations are always much the more 
 definite; and the relations with general social phenomena can also be 
 studied when the data are available. 
 
 2 [The author here expounds an auxiliary method applicable where 
 data are not so fully available. — Ed.] 
 
104 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 (a) The systems to be selected should represent all the ethnic 
 families ; for general causes can only be discovered in institutions 
 having a universal area of diffusion, and universality of diffusion 
 signifies a diffusion among all (or the greater number of) ethnic 
 families. 
 
 The ethnic classification that is open to least objection is the 
 following : Aryan, Semitic, Hamitic, Mongolian, Caucasian, 
 Dravidian, Indo-American, Arctic, Malayo-Polynesian, Papuan, 
 and Bantu. In this grouping, each ethnic family should be rep ■ 
 resented by at least one people. 
 
 Further, each jural system selected should present only limited 
 complexity ; should offer a not excessive mass of source-material ; 
 should be marked by a substantial preponderance of spontane- 
 ously formed practices over borrowed or '' received " practices ; 
 and, if possible, should be known to us in several successive periods 
 of development. Only this combination of features will enable 
 us to trace the general causes of jural phenomena. 
 
 In the present state of knowledge, the following systems best 
 fulfil the above conditions : 
 
 Typical Series of Reference 
 
 Ethnic Families 
 
 JtJBAii Systems 1 
 
 Aryan 
 
 |1. Old Indie 
 
 Semitic 
 
 Mongolian 
 
 Dravidian 
 
 Caucasian 
 
 Malayo-Polynesian 
 
 Arctic 
 
 
 [2. Old Irish 
 
 3. Hebrew 
 
 4. Arab 
 
 5. Assyrio-Babylonian 
 
 6. Chinese 
 
 7. Tamil (Ceylon) 
 
 8. Grusian (Georgia) 
 
 9. Sumatra peoples 
 10. Esnuimaux 
 
 Indo-American ; . 
 
 Papuan 
 
 11. Aztec 
 
 12. Australian 
 
 13. Kabyle 
 
 14. Kaffir 
 
 Hamitic 
 
 Bantu 
 
 
 
 1 
 
 (6) The mode of studying each of the systems in the series is 
 this : (1) The study of all of the systems must be reduced to a 
 uniform method ; and (2) each system must be examined in detail 
 
 ^ This enumeration is of course provisional only; for the progress of 
 discovery in epigraphy, paleography, hnguistics, archaeology, and eth- 
 nography, may at any time make it feasible to add or omit particular 
 systems. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 105 
 
 from the point of view of morphology, stratigraphy, genealogy, 
 psychology, and philosophy, in the manner already set forth. 
 After the typical series has been thus constructed, the causes of 
 each institution are to be studied within the series, and the results 
 generalized. We should then be enabled to arrive at a strictly 
 scientific theory of the causes of the evolution of law. 
 
106 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 PART II. EXAMPLE OF THE METHOD APPLIED TO COM- 
 PARATIVE JURAL PHILOSOPHY 
 
 (I) Data to he Compared 
 
 § 19. The Institution of Ambilian Marriage in Malaysia. In the 
 
 ethod already expounded for determining the general causes of 
 an institution {ante, § 18) we first take a series of reference, estab- 
 lish the fundamental lines of the systems therein comprised, 
 and the stratigraphic composition of the systems, and then search 
 jor the institution in question within that series. This involves 
 v^ study of the relation between the institution itself and the other 
 institutions of the several systems in the series. 
 
 For this purpose we here select the institution of ambilian 
 marn'o^in its relations to the other institutions of the several 
 systems in the Malayan series. This series of reference includes 
 the six important Malayan peoples inhabiting the large island of 
 Sumatra, viz. Menangkabao, Battak, Pasemah, Lampong, Palem- 
 bang, and Bengkulai. 
 
 In the institution of marriage, the fundamental task of analysis 
 is to define the jural relation of the husband to the family of 
 the wife. The several varieties may be reduced to four : (a) In 
 the first, the husband enters the wife's family, becoming merely 
 a component member; (h) in the second, husband and wife 
 each remain as before a member of his or her family ; (c) in the 
 third, the husband remains in his original family, and the wife 
 comes over into it, as a mere component member; (d) in the 
 fourth, husband and wife separate from their two families and 
 form a new and autonomous family. 
 
 The first of these forms has a wide diffusion, instances being 
 found in almost all ethnic families. The most remarkable and 
 characteristic instance is found among the Malays, where it is 
 known as " ambil anak " ; here we find the husband occupies in 
 the wife's family a subordinate and almost servile position. To 
 this form, taking the name from the purest instance, we give the 
 term ambilian marriage. 
 
 Among the Menangkabao of Sumatra the second of the above 
 forms is the one generally practiced ; husband and wife continue 
 after the marriage to belong to their original families and to live 
 with them ; the husband making visits to the wife in her family's 
 house; and the children belonging to the wife's family. This 
 form is known as " semundo " among the Menangkabao ; and we 
 here term it the semundian marriage. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 107 
 
 In order to study the relations between ambilian marriage and 
 the other institutions, the ensuing tables of analysis will form the 
 text for our commentary. For explanation of the symbols and 
 terms we refer to our prior exposition {ante, § 6), only recalling 
 here that the small figures 1, 2, 3, represent the three degrees of 
 an institution's or a norm's intensity {ante, § 5, par. II), diffusion 
 {ante, § 5, par. II), or normality {ante, § 5, par. Ill) ; ^ and that 
 the ten Tables are based on the classification of institutions 
 {ante, § 2, par. 1) that compose every jural system. 
 
 § 20. Relation of Ambilian Marriage to Forms of Social Aggre- 
 gation. Table I exhibits the relation between ambilian marriage 
 and the forms of social aggregation. It is obvious, 
 
 (1) That the intensity of ambilianism, in the series of peoples 
 examined, is constant ; and that also there is a constancy in the 
 forms of social aggregation presented; and in the intensity of a 
 specific form, viz. the gens ; 
 
 (2) That the maximum of intensity for ambilianism coincides 
 with the maximum of intensity for the gens ; 
 
 (3) That coexisting maxima of intensity, diffusion, and normal- 
 ity for ambilianism coincide with a high intensity (now or perhaps 
 somewhat earlier) for the communal family ; and that an attenua- 
 tion of relative diffusion and normality for ambilianism coincides 
 with attenuation of intensity for the communal family ; 
 
 (4) That the high intensities for the individual family, the tribe, 
 and the village are found with weak relative diffusion and nor- 
 mality for ambilianism. 
 
 § 20 a. Relation of Ambilian Marriage to Other Forms of Mar- 
 riage. Table II exhibits the relation between ambilian and other 
 forms of marriage. It indicates, 
 
 (1) That ambilian marriage, in the series of peoples examined, 
 coexists with other forms; the others being referable to both 
 patriarchal and matriarchal schemes of relationship, except the 
 semundian form, which is purely matriarchal and is a direct sur- 
 vival of the ambilian form ; 
 
 (2) That the intensity of the ambilian form remains constant, 
 whatever the other coexisting forms may be ; 
 
 (3) That the relative diffusion of the ambilian form is con- 
 stantly higher than the others, except the semundian ; 
 
 (4) That the variations in the index of normality for ambilian- 
 
 ' [When the ^mall figures appear thus : Polygamy s ; i ; s — the first 
 figure signifies the intensity, the second the diffusion, the third the nor- 
 mahty. When such a figure is lacking, it is because that quahty is at 
 zero. — Ed.I 
 
108 
 
 CRITERIA OF LEGAL EVOLUTION 
 
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 ism are in inverse ratio to the variations in the index of normality 
 for the other forms of marriage ; 
 
 (5) That the ambihan form coincides directly with the usage 
 of betrothal ; the latter having a constant intensity and diffusion, 
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 diffusion for polygyny is found with the same medium diffusion 
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 coexists with marriage by purchase and the bilateral (or cognate) 
 marriage ; ^ 
 
 (7) That ambilianism and monogyny have no constant relation ; 
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 mum diffusion, while poIyg^Tiy has a maximum intensity and 
 minimum diffusion ; 
 
 (8) That for ambilianism adult age is a necessary condition ; 
 
 (9) That ambilianism is constant with the existence of exogamy ; 
 the maximum diffusion and normality of ambilianism coexisting 
 with tribal or sub-tribal exogamy, and their medium degrees 
 coexisting chiefly with a disappearing exogamy ; 
 
 (10) That ambilianism (except among the Menangkabao) 
 coexists with the patriarchal levirate, whose relatively high in- 
 tensity and diffusion is constant ; and 
 
 (11) That, between ambilianism and the diffusion of divorce, 
 no definite relation is found. 
 
 §21. Relation of Ambilian Marriage to Systems of Relation- 
 ship. Table III shows the relation between ambilian marriage 
 and the systems of family relationship. It leads to the following 
 conclusions : 
 
 (1) That the constancy of intensity for ambilian marriage 
 corresponds to the constancy of intensity for types of relation- 
 ship (except that of artificial relationship, which in four of the 
 peoples is uncertain) ; 
 
 ^ [This word seems to have been erroneously omitted from the author's 
 printed text at p. 288. — Ed.] 
 
 2 [I.e. the second and third forms of marriage. — Ed.] 
 
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 CRITERIA OF LEGAL EVOLUTION 
 
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 , 1. 2 
 
 • 8, 1 
 
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 11 
 
 matr. 3 
 patriar 
 art. rel 
 
 matr. 3 
 patr. 3. 
 art. rel 
 
 matr. 3 
 patr. 3, 
 art. rel 
 
 matr. 3 
 patr. 3. 
 cognat: 
 art. rel 
 
 
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112 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 (2) That the diffusion of ambilianism is directly proportionate 
 to that of matriarchy, and inversely to that of patriarchy and 
 cognation (but, again, the diffusion of artificial relationship is 
 uncertain) ; 
 
 (3) That the normality of ambilianism is directly proportionate 
 to that of matriarchy, and inversely to that of patriarchy and 
 cognation (but again there is uncertainty as to artificial relation- 
 ship). 
 
 § 22. Its Relation to Domestic Power. As to the relation be- 
 tween ambilianism and domestic power, we note ^ 
 
 (1) That domestic power in the ambilian marriage, does not 
 include the "jus vitae ac necis," nor the right of alienation of the 
 persons subject to the power; 
 
 (2) That betrothal is a contract between the family groups of 
 husband and wife; 
 
 (3) That the stage of consolidation of the household groups is 
 a well-advanced one, as shown by the disciplinary powers of the 
 group-chiefs and by the subordinate position of women. 
 
 We may therefore say that ambilianism coincides with a rather 
 limited domestic power, and with a high degree of consolidation 
 of family groups. ^ 
 
 § 23. Relation of Ambilian Marriage to Property. Table V 
 shows the relation between ambilian marriage and the property 
 system. It exhibits (1) the type of ownership, (2) its disposa- 
 bility, (3) the marital shares, (4) the methods of acquisition. 
 
 (1) Five types of ownership are found, (a) Feiidal ownership; 
 here the land is possessed by a privileged class as beneficiary, 
 with specified dues payable to the lord, and with the right of 
 granting sub-tenures to be held on personal services and payments. 
 (b) Sub-tribal ownership, (c) Communal-family ownership, (d) 
 Family ownership, (e) Individual ownership. 
 
 (2) Disposability is classed in four degrees, viz. absolute, lim- 
 ited (i.e. by unimportant restrictions), very limited, and non- 
 existent; indicated by the figures 3, 2, 1, 0. 
 
 (3) Marital shares reveal four types, corresponding to the four 
 types of marriage practiced, (a) Strict semundian; here the 
 husband and wife in a semundian marriage {ante, § 19) retain 
 separate ownership of their property possessed at the marriage, 
 and have common ownership of subsequent acquisitions with 
 
 ^ [There should here be a Table IV, but it is lacking in the author's 
 text ; the data are set forth in the text of the author's Part II, Chap. VII, 
 here omitteti. — Ed.] 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 113 
 
 division of income. (6) Quasi-semundian; this differs from the 
 preceding in not dividing the income from acquired property; 
 it applies when the marriage is cognatic or bilateral, (c) Pa- 
 triarchal; here the wife has no property of her own, and the hus- 
 band is owner of all family property ; it applies when the mar- 
 riage is by purchase, (d) Amhilian; here the husband has no 
 property of his own, and the family property belongs to the wife 
 or her family group. 
 
 (4) Among the modes of acquisition we find succession, exchange, 
 sale, occupation ; but their intensity and diffusion are not always 
 ascertainable. 
 
 A study of Table V leads to the conclusions, 
 
 (1) That stability of intensity for ambilianism corresponds to 
 stability of intensity and diffusion for sub-tribal ownership ; 
 
 (2) That variation of diffusion and normality for ambilianism 
 corresponds to variation of diffusion and intensity for communal 
 family ownership; 
 
 (3) That variations of intensity and diffuMon for communal 
 family ownership tend to correspond inversely with the same 
 features for single-family ownership, and hence the variations of 
 diffusion and normality for ambilianism (supra, (2)) are inversely 
 proportional to the same features for single-family ownership; 
 
 (4) That among the ambilian peoples the intensity and dif- 
 fusion of individual ownership (when it exists) is constantly at a 
 minimum ; 
 
 (5) That feudal ownership is an exceptional phenomenon ; 
 
 (6) That the ambilian marriage-share system is more widespread 
 than the others ; its intensity being proportional to the diffusion 
 and normality of the ambilian marriage, and the variations of 
 its intensity being in inverse ratio to the other coexisting types 
 (except the strict semundian form, which occurs however only 
 exceptionally) ; 
 
 (7) That there is a marked tendency to the non-disposability 
 of communal family property and of sub-tribal property; and 
 
 (8) That ambilianism coincides with a low number of modes 
 of acquisition. 
 
 § 24. Relation of Ambilian Marriage to Obligations. Table 
 VI shows the relation between ambilianism and the principles of 
 obligations. Those principles are grouped into six classes, (a) 
 Capacity (to be obligee or obligor) may exist for a tribe, sub-tribe, 
 communal family, single family, or individual. (Intensity here 
 signifies the importance of the obligations (jural relations) for 
 
114 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 Si; 
 
 o 
 
 P 
 
 s 
 
 < 
 
 o 
 
 m 
 
 § 
 
 succession d 
 sale 1, 1 
 exchange d 
 occupation a 
 
 13 
 
 §i§ 
 
 02 ® O 
 
 SUCC. d 
 
 occup. a 
 exch. a 
 sale (?) 
 
 succ. d 
 occup. d 
 exch. d 
 sale (?) 
 
 succ. d 
 occup. d 
 exch. d 
 sale(?) 
 
 succ. d 
 occup. d 
 exch. d 
 sale (?) 
 
 
 . CO 
 CO 
 
 II 
 
 11 
 
 ii 
 
 CO rt 
 
 eo CO 
 
 la 
 
 ii 
 
 ati§ 
 
 e^ ft O^ 
 
 111 
 
 Q 
 
 O 1— 1 rH 
 
 o o ^ 
 
 o -^ -^ '^ 
 
 OO '^ '^ 
 
 O OO '« -^ 
 
 O O '^ -^ 
 
 o 
 
 CO 
 
 :-i :- 
 111 
 
 III 
 
 
 " °! cj 
 
 PI ;- 
 nil 
 
 « i3 r ^ > 
 
 5 d O .3 rj 
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 eo "^ . 
 
 ill :■ 
 
 iill 
 
 2 
 
 n 
 <3 
 
 CO 
 CO 
 CO 
 
 1— 1 
 CO 
 
 CO 
 CO 
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 1-i 
 CO 
 
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 CO 
 
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 1-H 
 
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 rt5 
 
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 td 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 115 
 
 which the person or persons have capacity; diffusion signifies 
 the number of such relations.) (6) Solidarity may include a tribe, 
 sub-tribe, communal family, or single family. (Intensity here 
 signifies the importance of the relations as to which there is soli- 
 darity; and diffusion, their number.) (c) Sources of obligation. 
 (Here intensity signifies their social importance; and diffusion, 
 the frequency of their use.) (d) Real and formal contracts ; here 
 the degrees signify, for real contracts, the number of them prac- 
 ticed, in proportion to consensual contracts; and, for formal 
 contracts, the number of them practiced, in proportion to informal 
 contracts, (e) Modes of compulsion for a debtor include slavery, 
 restraint, and sequestration (the latter being termed strict and 
 quasi, according as it is effected by public officials or not) ; here 
 the ascertainment of intensity and diffusion is very difficult. 
 (/) Modes of extinction. 
 A study of Table yi leads to the following conclusions : 
 
 (1) Capacity. Tribal capacity is exceptional. Sub-tribal capac- 
 ity has on the whole a low figure. But capacity for the communal 
 family and for the single family is notably high. That of the 
 communal family is highest for the peoples among whom all the 
 figures for ambilianism are very high, and is medium for the other 
 peoples (except the Battak). That of the single family is ex- 
 ceptionally lacking; generally its value is equal to that of the 
 communal family; exceptionally (among the Battak) it shows a 
 high value where that of the communal family is low. Individual 
 capacity shows throughout a minimum. 
 
 (2) Solidarity. Tribal solidarity is exceptional. That of the 
 sub-tribe and lesser groups is formed constantly. That of the 
 domestic groups (where adequate data exist) is of a higher figure 
 than that of the sub-tribe. 
 
 (3) Sources of Contract. The number of contractual forms 
 is small. Their value (when ascertainable) is limited; except 
 for loan and pledge, which have constantly a high intensity and 
 medium diffusion, and also betrothal, which has constantly high 
 values. 
 
 (4) Real and Formal Contracts. These have generally a high 
 value throughout. 
 
 (5) Modes of Compulsion. Slavery of the debtor, which is 
 found among all the peoples, shows always a high intensity and a 
 medium diffusion. The other forms of compulsion are exceptional. 
 Quasi-sequestration (without intervention of the chiefs) has a 
 higher value than the other variety. 
 
116 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 
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Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 117 
 
 (6) Extinction of obligations. Payment is the only mode, 
 and it shows constantly a maximum of intensity and of diffusion. 
 
 § 25. Relation of Ambilian Marriage to Inheritance. Table 
 VII shows the relation between ambilianism and inheritance. 
 The subject of inheritance may be divided under four heads. 
 (1) Modes of inheritance. Here there are three varieties. In 
 the community variety, the thing inherited is the office of chief 
 of the group; the transmission of the property is merely an in- 
 cident of this. In the patrimonial variety, it is the property that 
 is transmitted, not the office of chief. In the mixed varieties, 
 features of both of the first two varieties are found ; when one 
 or the other predominates in its features, we term it community- 
 mixed or patrimonial-mixed. (2) Divisibility of heritage. Ac- 
 cording as this feature is lacking, or affects a small part or an equal 
 part (to the indivisible) or a greater part, we indicate it thus: 
 divis.Q-, divis.^; dims.2; divis.^. (3) Marital inheritance. Here 
 there are three varieties, (a) In the semundian variety, on the 
 death of one spouse, the acquests held in common are divided 
 between the survivor and the family of the deceased ; the latter^s 
 own property goes to his family. This system applies where the 
 marriage was semundian, or was cognatic or bilateral. (6) Am- 
 hilian. Here the husband inherits nothing, (c) Patriarchal. Here 
 the wife inherits nothing. (4) Vocational inheritance. This may 
 be agnatic (going to the agnates), matriarchal (going to the ma- 
 ternal relatives), or bilateral (going to the relatives on both sides). 
 
 From a study of Table VII, the following conclusions emerge : 
 
 (1) The mode of succession. Almost universally observed is 
 the community-mixed. The patrimonial-mixed is exceptional, 
 and coincides with the maximum of autonomy for the single 
 family and with the disappearance of the communal family. 
 
 (2) Divisibility of heritage has regularly a medium value. When 
 a low value exceptionally occurs, it coincides with a high value 
 for all the indices of ambilianism. When a high value exception- 
 ally occurs, it coincides with a high intensity for the single family 
 and with the disappearance of the communal family. 
 
 (3) Marital inheritance. All three varieties are represented. 
 The intensity and the diffusion of the ambilian and the semundian 
 varieties are regularly in proportion to the development of the 
 ambilian and of the semundian (or cognatic) marriages respec- 
 tively. For the patriarchal variety, on the other hand, the in- 
 tensity and the diffusion are in inverse ratio to the development 
 of ambilian marriage. 
 
118 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
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Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 119 
 
 (4) Vocational inheritance. All three varieties are found. The 
 intensity and the diffusion of the matriarchal variety are directly 
 in proportion to the development of ambilianism. For the agnatic 
 and the cognatic varieties, on the other hand, the intensity and 
 the diffusion are in inverse ratio to ambilianism. 
 
 § 26. Relation of Aznbilian Marriage to Political Institutions. 
 Table VHI shows the relation between ambilianism and political 
 institutions. The latter are grouped under five heads. From a 
 study of the Table we conclude : 
 
 (1) Political organs. Those most frequently met with are the 
 assemblies of the tribe and of the village; the village assembly 
 is rare ; other organs are exceptional. 
 
 (2) Functionality. That of the sub-tribal assembly is con- 
 stantly higher than that of all others; it reaches its maximum 
 value with peoples showing a maximum of intensity, diffusion, and 
 normality for ambilianism. 
 
 (3) Social stratification. The minimum for this process coin- 
 cides with the maximum of intensity, diffusion, and normality 
 for ambilianism ; while, on the other hand, medium or high 
 values for this process correspond in general to medium values 
 of diffusion and minimum values of normality for ambilianism. 
 
 (4) Public sentiment. Throughout the series, the political 
 efficacity of collective sentiment is very high. 
 
 (5) Cohesion, i.e., the degree of consolidation of the social 
 formations (gens, tribe, etc.) above the communal family. In 
 all the peoples of the series, the cohesion of the gens is, in intensity, 
 higher than that of the other forms (outside of the village). The 
 maximum of intensity for sub-tribal cohesion coincides with the 
 maximum of intensity, diffusion, and normality for ambilianism. 
 
 § 27. Relation of Ambilian Marriage to Penal Institutions. 
 Table IX shows the relations between ambilianism and penal 
 institutions. The subject may be grouped under four heads. 
 A stud}' of the Table permits the following conclusions : 
 
 (1) Responsibility. Where responsibility is independent of 
 the " malus animus " of the culprit, we indicate it as Dep. q; where 
 dependent upon it, as Dep.i. Throughout the series, responsibility 
 is found not to be based on the culprit's evil intent. 
 
 (2) Kijids of Offenses. Here intensity signifies the importance 
 attributed by a people to a given kind of act as criminal. The 
 number of criminal offenses is found to be very limited. In the 
 group of peoples comprising the Menangkabao, the Pasemah, 
 and the Lampong, the number of criminal offenses is lower than 
 
120 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 o 
 
 00 . 
 
 a 
 o 
 o 
 
 CO 
 
 
 6 ga 
 
 -4-3 t/3 P* 
 
 trib. 2 
 sub-trib. d 
 feud, monarchy i 
 
 K» 
 
 SI 
 
 6 
 
 1 
 
 
 d 
 
 0? 
 
 6 
 
 i 
 
 If 
 
 eg 
 
 1—1 
 
 c^ 
 
 ^ 
 
 o 
 
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 (M 
 
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 1-H (N tH tH 
 
 1-1 CO i-H 
 
 1-H C^ 1-H 
 
 'XS 1 rH ,-H ^ 
 
 CO tH 
 
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 O 
 
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 5 ^ 
 
 
 «2' M 
 
 ^ ^ ^* 
 
 £ ii ft ft;t^ 
 
 03 
 
 It 
 
 i 
 
 3 
 n 
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 CO 
 
 co" 
 co" 
 
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 co' 
 
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 c 
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 i 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING ' 121 
 
 that observed in the group comprising the Battak, the Palembang, 
 and the Bengkulai. 
 
 (3) Methods of Penal Repression for Inter-groupal Offenses. 
 For offenses committed against members of the group to which 
 the offender belongs, we find the following modes of repressive 
 action : The endo -familial vendetta, mediate or immediate; the 
 endo-gentilic vendetta, mediate; the divine vendetta. Throughout 
 the series, we find the immediate endo-familial vendetta employed 
 {i.e. vendetta by the family itself). 
 
 (4) Methods of Penal Repression for Extra-Groupal Offenses. 
 For offenses committed against persons outside of the group, 
 we find : Vendetta, composition, public penalty, (a) For the 
 vendetta, high intensity signifies that its exercise is not limited 
 by restraints of social power; medium and minimum intensity 
 signify that there are such restraints, (b) For composition, 
 intensity signifies the degree of social consolidation involved; 
 it is maximum when the acceptance of the offered composition is 
 obligatory ; medium, when such acceptance is imposed by public 
 opinion but is not legally necessary; and minimum, when its 
 acceptance rests wholly in the choice of the victim or his group. 
 (c) For public penalties, intensity is high if their infliction is not 
 complicated with features of the vendetta principle or the com- 
 position principle; medium, if such features appear but are un- 
 important; minimum, when they are dominant. Normality, 
 for public penalties, is the value attributed to the specific kind 
 by public opinion. 
 
 Throughout the series, the common methods of penal activity 
 are the vendetta and the composition. The peoples may be 
 grouped into two classes, with reference to composition and public 
 penalties; the Menangkabao, Pasemah, and Lampong forming 
 one group, and the Palembang, Battak, and Bengkulai the other. 
 In the first group, the value of composition is higher than in the 
 second ; and public penalties are entirely lacking in the first, 
 but are constantly found in the second. Moreover, the higher 
 values for composition coincide chiefly with the maximum values 
 for ambilianism; the lower values for composition coincide with 
 the lowest values for ambilianism. And, finally, the employment 
 of public penalties coincides in general with the lowest values for 
 ambilianism, and the absence of public penalties with the highest 
 values for ambilianism. 
 
 § 28. Relation of Ambilian Marriage to Procedural Institutions. 
 Table X shows the relation between ambilianism and procedural 
 
122 
 
 CRITEKIA OF LEGAL EVOLUTION 
 
 [Pabt I. 
 
 XI 
 
 o 
 1 
 
 o 
 
 i 
 
 o 
 
 1 
 
 © o 
 
 •■i 
 
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 iz; 
 
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 111 
 
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 ^ ^ ^- f^ 
 
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 7 - «TJ 
 
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Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 
 
 123 
 
 
 1 
 
 a 
 
 o 
 
 73 
 
 >> 
 1 
 
 P 
 
 1.1 
 
 dom. group 
 single fam. (?) 
 
 P 
 
 ri 
 
 it 
 
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 ■E 
 
124 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 institutions. In this Table, four headings are used for those 
 institutions : (1) Type of procedure. There are two pure types 
 of procedure, the arbitral and the coercive. But ordinarily the 
 system of a given people contains elements of both ; such a sys- 
 tem we term mixed; and further mixed-arbitral and mixed-coercive , 
 according to the preponderance of one or the other type. 
 
 (2) The evolutionary stages of procedure are, broadly speaking, 
 two, viz. the priestly-magic stage, and the positivistic stage ; in the 
 former the procedure is regarded as a series of superstitious cere- 
 monies leading to an invocation of supernatural judgment {e.g. the 
 ordeal) ; in the latter, it has come to be regarded as a series of 
 rational steps leading to a decision by human beings. Usually 
 a system which has arrived at the latter stage has retained some 
 elements of the former; where such elements are numerous and 
 important, the system is here noted as " positive-magical." (3) 
 Organs of jurisdiction. These are termed tribal, sub-tribal, or 
 communal-household, according as the organs are the chiefs or 
 assemblies of those respective groups. Intensity here signifies 
 the value of the action of these respective forms. (4) Parties. 
 These may be individuals, domestic groups, or higher aggregations. 
 
 A study of Table X leads to the following conclusions : 
 
 (1) Types of procedure. The type met with in the peoples 
 here concerned is uniformly the mixed-arbitral type. 
 
 (2)1 Evolutionary stages. The positive stage of evolution has 
 been reached in all of them ; but it retains remarkable and impor- 
 tant elements of the priestly-magic stage. 
 
 (3)! Organs of jurisdiction. Generally, in the peoples examined, 
 organs of tribes, sub-tribes, and communal-households are found 
 all three coexisting; the first with medium intensity, the second 
 with maximum, and the third with minimum intensity. 
 
 (4) Parties. The parties are the communal households; in 
 the Battak, the single families (and possibly also among the other 
 peoples). 
 
 (II) Causes of Ambilian Marriage as Exhibited in the Series of 
 
 Reference 
 
 § 29. Inductive Determination of the Factors of Causation. 
 Following to the next step in our method, we may now study 
 the relations of fact thus disclosed, and seek to discover the primi- 
 tive factors, leading to those relations. These factors will be the 
 generative causes {ante, § 13) of ambilianism. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 125 
 
 We must at the outset point out that many of the above rela- 
 tions are too indefinite or too casual to serve as a basis for inference. 
 But a comparison of the more certain, obvious, and definite rela- 
 tions will yield precise results. 
 
 (1) Before proceeding to this study of the inferences to be drawn 
 from other jural institutions, however, we must have in mind 
 the economic conditions of the peoples in question. The economic 
 resources of Malays of Sumatra are relatively limitless. The 
 number and the density of the population are low ; but its demands 
 are satisfied by a flourishing agriculture, abundance of fish, com- 
 merce, piracy, pastoral arts, and the raising of domestic fowls. 
 There are also forests of great expanse, supplying products freely 
 and richly available to all. The labor needed for the utilization 
 and preservation of these resources is considerable; while the 
 tools used are defective and few, in contrast to the multiple forms 
 of industry calling for human labor. That labor is applied to 
 agriculture, fishing, pasturage, metallurgy, house-building, weapon- 
 making, boat-making, navigation, textile work, commerce, prepa- 
 ration and preservation of food, and all the domestic occupations. 
 Thus the ambilian marriage is found in communities having 
 relatively limitless economic resources, but requiring a large quan- 
 tity of labor to utilize and conserve them. 
 
 Now, in the first place, since these peoples have occupied their 
 present territories for a very long time past, the above two features 
 must have been of even greater extent and importance than at 
 present; for the resources must have been relatively more ex- 
 tensive for a less density of population, and the quantity of labor 
 required must have been relatively greater, when the cohesion of 
 social groups was less and the industrial and agricultural technique 
 was more rudimentary. 
 
 And in the second place, the human powers originally available 
 for each autonomous group must have been originally inadequate 
 for utilizing the economic resources. To this circumstance must 
 be attributed the widespread usage of increasing the group by 
 artificial relationship. To this circumstance also may be attrib- 
 uted the universal practice of polygyny ; for it reveals the insuf- 
 ficient number of males. Exogamy, also, which is found through- 
 out the series of reference, is a mark of the numerical weakness 
 of the peoples practicing it ; for it shows the felt need of adding 
 strength from other social groups. (Exogamy, it may be noted, 
 shows a maximum of intensity and diffusion among those peoples 
 having maximum figures for ambilianism.) The adult age required 
 
126 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 for marriage, and the rarity of child-betrothal and marriage 
 (which is otherwise frequent in gentilic peoples), noticeable in 
 the series under study, show clearly the need felt for increasing 
 their numbers by taking in adult strangers; such need being a 
 consequence of the weakness in the human forces needed for the 
 economic preservation of the groups. 
 
 Thus, ambilian marriage (universally diffused, originally, 
 among these peoples), polygamy, and exogamy signified the 
 admission, into the woman's domestic group, of adult males from 
 other family groups ; which was due to the numerical weakness of 
 the male element in the group ; which in turn signified the inade- 
 quacy of the human forces available for utilization of economic 
 resources. 
 
 (2) That a connection exists between ambilianism and the 
 gentilic type of society is shown by the following facts : 
 
 All the forms of social groups in the peoples studied (except 
 the Palembang) are essentially gentilic; and even in the Palem- 
 bang, gentilism is important, and the feudal elements show marks 
 of reception from outside. The forms of marriage — ambilian, 
 semundian, purchase, polygyny — are gentilic in origin ; and 
 the cognatic marriage, which belongs to the higher social type, 
 has small diffusion. The systems of relationship are gentilic; 
 and the supergentilic system of bilateral relationship has little 
 vogue. The patriarchal levirate belongs to gentilism. And to 
 the same type must be referred the following institutions : The 
 remarkable development of tribal and communal ownership, and 
 the weak development of individual and single-family ownership 
 (which acquire importance only when the feudal element is 
 marked) ; the indisposability of tribal and sub-tribal property ; 
 the small number of modes of acquisition of property; legal 
 capacity of social groups, especially the gens and the household 
 community; the remarkable intensity of the solidarity of the 
 latter; the small number of kinds of contract; the notable de- 
 velopment of realism and formalism of contracts; the simplicity 
 of modes of extinction of obligations; the mixed-communal type 
 of inheritance; and the tendency to indivisibility of heritage, 
 with intensity proportionate to ambilianism. And finally the 
 gentilic type is observable in the political institutions (except 
 for the Palembang), as well as in penal methods and procedure. 
 
 A causal relation must therefore be affirmed between ambilian 
 marriage and gentilic structure. 
 
 (3) The social importance of the communal household, which 
 
Chap. IL] THE SCIENTIFIC METHOD OF GENERALIZING 127 
 
 varies proportionately with ambilianism, indicates a causal re- 
 lation. The original autonomy of the communal household is 
 seen in the fact that artificial relationship results directly in the 
 enlargement of these groups, and only indirectly in the enlarge- 
 ment of the gens and the tribe. That gens-ownership is an indi- 
 cation of the original autonomy of the gens is generally conceded ; 
 hence, ownership by the communal household must also be a 
 proof of its original autonomy; for, in the series examined, com- 
 munal household ownership is in intensity and social action much 
 higher than gens-ownership. Other evidences of the original 
 autonomy of the communal household are : The remarkable de- 
 velopment of its legal capacity ; its part in system of inheritance ; 
 correspondence of indivisibility of heritage with the development of 
 the communal household ; its importance in vendetta, composition, 
 and judgment ; and its part in making the marriage-contract. 
 
 (4) Between matriarchy and ambilianism a causal relation 
 is shown by their direct correspondence as to diffusion and nor- 
 mality, and by the inverse ratio of ambilianism to other systems of 
 relationship (except artificial relationship). 
 
 Summing up : The most clear, definite, and important rela- 
 tions discovered between ambilianism and the other jural institu- 
 tions are due to the following factors : (1) Inadequacy of human 
 forces for economic utilization of resources by the social groups, 
 arising from numerical weakness of males ; (2) existence of eco- 
 nomic resources potentially or actually limitless ; (3) necessity of 
 a large quantity of labor to utilize those resources; (4) gentilic 
 structure of social groups; (5) autonomous household commu- 
 nities; (6) matriarchy. 
 
 Logicians distinguish " cause '* from " condition." We may 
 infer that, among the above factors, the first is in this sense the 
 cause; for the inadequacy of the strength required for labor and 
 defense create the need for reenforcement of the groups by in- 
 troducing elements from without; and the factors figuring in 
 the ensuing five items represent the conditions necessary and suf- 
 ficient for satisfying this need by means of the institution of 
 ambilian marriage. 
 
 § 30. Deductive Verification of the Factors of Causation. It 
 remains to generalize these results, by deductively demonstrating 
 that the institution under study must necessarily haw coTne into 
 existence, given all the factors operating among the ambilian 
 peoples of Sumatra. 
 
128 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 Now in the most remote stages of civilization, victory in the 
 struggle for existence is assured to those groups which are most 
 numerous. Groups which are weak, relatively to the social mass, 
 must therefore seek to strengthen themselves. This they do by the 
 admission of outsiders, as is seen in the practice of adoption into 
 artificial relationship, found among gentilic societies, particularly 
 in the most primitive stages. Now these groups are naturally 
 exclusive, viewing outsiders with a hostile eye. Their admission, 
 therefore, would be due only to some necessity, viz. the need of 
 notably increasing their strength for nourishment and defense. 
 But this presupposes that economic resources are available for 
 taking care of this increase, — in other words, resources relatively 
 unlimited, potentially or actually. Furthermore, since gentilic 
 or family-related groups lack the hierarchical stratification of 
 social classes, the mode of admission of outsiders would be one 
 compatible with this feature, — in other words, would be effected 
 by some form of artificial relationship. Now when these groups 
 are autonomous communal households, no active control over 
 these new members would naturally be feasible, due to the group's 
 weakness, lack of cohesion, and relative isolation ; unless the adop- 
 tion took some form of intimate union between the new members 
 and the native ones. Hence a most natural type of such intimate 
 union would be a marriage between a male outsider and a native 
 group-woman. And since the new husband is not a native member, 
 it would be natural to subject him to the domestic power of the 
 chief of the group, and to break all his former bonds with his 
 own native group. And where the adopting group is organized 
 by matriarchy, the children of the marriage would belong to the 
 maternal family; and the husband would have neither marital 
 nor paternal power of his own. 
 
 Thus would come about a type of marriage marked by the 
 husband's entry into the wife's group, by his subordination to 
 the group-chief, by the attribution of the children to the maternal 
 family, and by the husband's lack of paternal and marital power. 
 This would result from six conditions: (1) numerical weakness 
 of the male element in autonomous groups, (2) relatively limit- 
 less economic resources of the group, (3) need of much labor for 
 using those resources, (4) gentilic structure of the group, (5) au- 
 tonomy of communal households, and (6) matriarchal relation- 
 ship. 
 
 Now such precisely are the features of the ambilian marriage ; 
 and the causes leading to it are thus deductively verified. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 129 
 
 III. Causes of Ambilian Marriage as Exhibited by General 
 Ethnic Comparison 
 
 § 31. General Ethnic Comparison as Confirmatory of Pro- 
 visional Results. Of the two empiric methods already expounded 
 (ajitc, § 13) we can use only the second ; for the first requires an 
 analysis (even though a summary one) to have been already made 
 virtually of all the known jural systems, and the data for this do 
 not yet exist. The second method consists in showing that all 
 the factors which operated as causes (of the institution studied) in 
 the peoples included in the series of reference are also found to coexist 
 in all the peoples which practice that institution. Applying this 
 to ambilianism, we are to seek whether the same six factors 
 operating to produce it among the peoples of Sumatra are found 
 among all peoples where ambilian marriage is observed. 
 
 Table XI shows all the peoples practicing pure ambilian prin- 
 ciples.^ The peoples are grouped by ethnic families.^ All the 
 ethnic families are found to be represented; which shows the 
 universality of ambilianism. We must now determine whether 
 (now or formerly) the six factors, already found as causes in the 
 series of reference, are also found in all these peoples. 
 
 The table includes eighty-one peoples. Of these, six must be 
 rejected for our purpose (viz. Chinese, Birmans, Hebrews, Quichuas, 
 Yucatecs, and Ceylon Khonds) because of high complexity of 
 their social structure, which makes difficult and uncertain the 
 determination of the conditions affecting ambilianism. 
 
 Table XII shows all of the peoples in which we have been able 
 to reach a determination as to the existence of the conditions in 
 question.^ They number forty-three in all, distributed among the 
 following ethnic families: Malayo-Polynesian, Papuan, Dravid- 
 ian, Arctic, I ndo- American, Semitic. The most numerous 
 group, twenty-five in number, is found in the Malayo-Polynesian 
 family; the least numerous, one, is found in the Semitic family. 
 In all of them we have demonstrated the existence of all six con- 
 ditions, as w^ell as the correlation between the variations of in- 
 tensity or relative diffusion or normality of ambilianism and the 
 
 ^ It does not include peoples showing only surviving traces (not the 
 
 Eure form), for such instances are of little service in seeking for causes, 
 owever useful they may be to show the area of diffusion. 
 2 As most of them practice the regular ambil marriage, we have not 
 shown in detail the specific form practiced. 
 
 ' [An appendix gives a list of references to the authorities used by the 
 author as the basis of his analysis. In his book, pp. 318-338, he supplies 
 details as to some of them. — Ed.] 
 
130 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 variations of intensity or diffusion of the said conditions, particu- 
 larly of matriarchy and of communal household autonomy. 
 
 Now, if the total series of peoples revealing ambilianism had 
 included only the forty-three peoples of Table XII and the ten 
 peoples 1 of our series of reference, all the requirements demanded 
 by our method would have been satisfied. We should have 
 verified with scientific exactness the hypothesis of the general 
 causes of ambilianism. 
 
 Table XI. 
 
 General Ethnic Comparison: Peoples Practicing 
 Ambilian Marriage 
 
 Ethnic Family 
 
 People 
 
 Malayo- 
 
 1. Menangkabao 13. Galela 
 
 24. Leti 
 
 Polynesian 
 
 2. Battak 14. Tobelorai 
 
 25. Moa 
 
 
 3. Pasemah 15. Alfuros (Bum) 
 
 26. Lakor 
 
 
 4. Ogan-Ulu 16. Watubela 
 
 27. Babar 
 
 
 5. Komering-Ulu 17. Alfuros (Ceram) 
 
 28. Timorlao 
 
 
 6. Musi-Ulu 18. Gorong and 
 
 29. Tanembar 
 
 
 7. Ranuai Ceramlaut 
 
 30. Flores 
 
 
 8. Lampong 19. Timorai 
 
 31. Dama 
 
 
 9. Bengkulai 20. Belunai 
 
 32. Morlock 
 
 
 10. Redjang 21. Luwang 
 
 33. Pelew 
 
 
 11. Enganai 22. Sermata 
 
 34. New Zealanders 
 
 
 12. Dyak 23. Sumban 
 
 35. Nukahivan 
 
 Papuan 
 
 36. Ara 37. Murray Islanders 
 
 Dravidian 
 
 38. Khonds 42. Bodo 
 
 46. Lamana 
 
 
 (Ceylon) 43. Dhimal 
 
 47. Dharwar 
 
 
 39. Gonds 44. Kader 
 
 48. Bihapur 
 
 
 40. Kuki 45. Belgame 
 
 49. Tipperah 
 
 
 41. Bhil 
 
 
 Mongolian 
 
 50. Kotsch 53. Miao-tseu 
 
 51. Khasia 54. Lapon 
 
 52. Chinese 55. Tungus 
 
 56. Birman 
 
 Aryan 
 
 57. Bohemian 58. Jussafzai 
 
 Arctic 
 
 59. Esquimaux (central) 
 
 60. Esquimaux (Alaska) 
 
 61. Kamtschadal 
 
 Indo- 
 
 62. Mandan 67. Quichua 
 
 71. Macusis 
 
 American 
 
 63. Dakota 68. Yukatec 
 
 72. Waraus 
 
 
 64. Knistinaux 69. Carib 
 
 73. S. Amer. 
 
 
 65. Wyandot 70. Arawak 
 
 tropical 
 
 
 66. Seminole (Florida) 
 
 
 Semitic 
 
 74. Hebrew (ancient) 
 
 75. Bedouin 
 
 Hamitic 
 
 76. Fulah 1 
 
 Bantu 
 
 77. Fanti 79. Quoja 
 
 78. Darfur 80. Edeeyah 
 
 81. Bangay 
 
 i[The reckoning does not quite tally, owing to certain inconsistencies 
 in two or more peoples of the series of reference under a single name. — Ed. J 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 
 
 131 
 
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132 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 But in Table XI are twenty-two other peoples/ who practice 
 ambilianism, but for whom sufficient data are lacking to deter- 
 mine the existence of the conditions in question and the correla- 
 tions between their variations and those of ambilian marriage. 
 But the instances of adequate verification represent 67 per cent 
 of the total instances which should have been verified ; and if we 
 add to the forty-three peoples of Table XII the ten peoples of the 
 series of reference, we have fifty-three instances of verification out 
 of a possible total of seventy-five (omitting the six above-named 
 as useless for our purpose), or 71 per cent of all. Even therefore 
 the inability to verify the hypothesis in the remaining twenty- 
 two instances does not affect the stability of the conclusion; for 
 even in the most exact natural sciences the verification of hy- 
 pothesis to such a degree is unusual. 
 
 Moreover we have elsewhere demonstrated,^ for twenty-one 
 of the twenty-two peoples not appearing in Table XII the exist- 
 ence of at least two of the conditions leading to ambilianism, 
 viz. gentilic structure and matriarchy; and for the twenty- 
 second one (the tropical peoples of South America) marks of the 
 gentilic structure and of matriarchy have been demonstrated by 
 Schmidt.^ So that in all the instances the hypothesis is verified 
 as to these two of the six conditions. And as to the remaining 
 conditions, the data that we do possess may be said to give high 
 probability to their existence. 
 
 Thus, the correctness of our hypothesis as to the generative 
 causes of ambilianism has been verified by this method. 
 
 1 [The reckoning does not quite tally, owing to certain inconsistencies 
 in two or more peoples of the series of reference under a single name. — Ed.] 
 
 2 "La condizione giuridica del marito nella famigha matriarcale", 
 Catania, 1899. 
 
 3 "Uber das Recht der tropischen Naturvolker Sud-Amerikas " 
 C'Zeitschrift fiir vergl. Rechtswissenschaft", Vol. XIII). 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 133 
 
 PART III. EXAMPLE OF THE METHOD APPLIED TO 
 SPECIAL JURAL GENEALOGY 
 
 § 32. The Institution of Loan ; its Jural Genealogy in Ancient 
 India. The method of studying special jural genealogy, ex- 
 pounded ante, §§ 8-11, may now be illustrated by taking the 
 institution of Loan in ancient India. 
 
 The entire course of ancient Indian history will be divided into 
 four periods : Dharmasutric, 6th-2d centuries B.C. ; Manavic, 
 2d cent. B.c.-2d cent. a.d. ; Yajnavalkyan, 2d-5th cent. a.d. ; 
 Naradian, 5th-7th cent, a.d.^ 
 
 In each of these periods, we shall first study the morphology 
 and the stratigraphy of the Loan. The elementary complexus 
 of norms {ante, § 2, par. 10), into which the norms for loan are 
 classified, are six: A. Capacity, active; B. Capacity, passive; 
 C. Formation of Contract ; D. Kinds of Derived Obligations (or. 
 Modalities of Loan) ; E. Extinction. Each complexus divides 
 into several groups of norms, and each group into sub-groups; 
 but we shall here not pursue the analysis beyond the second 
 degree {ante, § 2, par. 6, 10) ; elsewhere we have set forth our 
 researches into the details of the fourth degree.^ 
 
 (I) Morphology 
 
 We begin with the morphology of the loan. 
 
 § 33. The Dharmasutric Period.^ A. Capacity, active. Ac- 
 tive capacity {i.e. the persons who are capable of acquiring rights 
 by loans) exhibits the following data : 
 
 Castes. (1) In general, members of the third caste, i.e. the 
 vaisyas, have this capacity. (2) Members of the first two castes, 
 i.e. the brahmanas and the kshatriyas, may make loans excep- 
 tionally, w^hen they are in poverty, or when the obligor be- 
 longs to a class despised for its origin, its creed, or its economic 
 status. (3) The king must forbid the loan by castes to w^hom 
 religious law forbids it. (4) The king may impose the interest- 
 loan on vaisyas. (5) The fourth caste, i.e. the sMras, are in- 
 capable of lending on interest. (6) All castes may lend gratui- 
 tously. 
 
 * Data have been set forth more fully in the author's following essays : 
 *'ll prestito nell' India antica" ("Rev. ital. di sociologia, " VII, 1903); 
 "L' oriprine del prestito nel diritto Indiano" (id., VIII, 1904); "La 
 genealogia del prestito nel antico diritto indiano" (id., IX, 1905). 
 
 2 "Le antiche instituzione dell' India." 
 
 ' For this period the sources are the dharmasutras of Apastamba, 
 Gautama, Vasisththa, and Baudayana. 
 
134 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 Persons. Members of the three higher castes, in brahmanic 
 India (viz. brahmanas, kshatriyas, and vaisyas) were grouped 
 into four classes of persons, viz. students, family-heads, hermits, 
 ascetics. Only the family-heads could make loans. Women 
 could not make loans; nor could minors. Thus it would seem 
 that the domestic group was the real legal person, and the family- 
 hiead acted as its representative. 
 
 B. Capacity, passive. Passive capacity {i.e. the persons who 
 are capable of receiving loans as obligors) existed for all castes; 
 for the authorities say that the rate of interest payable varied 
 with the caste. But only family-heads could become obligors for 
 a loan; since women, minors, students, hermits, and ascetics 
 were incapable. 
 
 C. Formation of the Contract. For lack of data in the sources, 
 we cannot discover a clear and definite conception of consent, nor 
 of the forms required. Usury was a serious breach of the religious 
 law ; and presumably agreements for a rate higher than the legal 
 one were void. This indicates a sense of public order and its 
 restrictions on contractual liberty. 
 
 D. Kinds of Obligations (Modalities). The chief obligations 
 were those of the debtor, viz. payment of interest, furnishing of 
 securities, and restitution of the thing loaned. The creditor's 
 obligations as to interest and the restoration of securities were of 
 secondary nature. Sureties' obligations were subsidiary and 
 limited. The contract of loan was unilateral. 
 
 Interest was of two sorts, ordinary and special. Ordinary in- 
 terest was 15 per cent for money loans; for other things, not 
 more than J of the value of the thing loaned. - Special interest, 
 i.e. higher than the ordinary, had several varieties. Ordinary 
 interest was payable monthly, when payable in installments. An 
 offer to repay the capital discharged the debtor from further 
 interest. The period fixed for restoration of a thing loaned was 
 notably long ; but it might also be short, or might be extended 
 by agreement. 
 
 The securities were of two sorts, suretyship and pledge. Surety- 
 ship took the form of joint and several obligation. Pledge might 
 be either with or without profits; in the former, the creditor 
 had possession but could not collect interest ; in the latter, he had 
 not possession, but received interest. A pledge could cover all 
 the debtor's property, movable and immovable. The pledge 
 with profits was virtually an antichresis. Probably the pledge 
 could be furnished by a third person, such as a relative. The 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 135 
 
 creditor was responsible for the loss or impairment of the pledge 
 by neglect or fraud. 
 
 E. Extinction. The modes of extinction were (1) payment, 
 (2) extra-judicial measures, to be examined in . considering the 
 Manavic period. 
 
 § 34. The Manavic Period.^ A. Capacity, active. Here we 
 find continuing, for castes, all the rules obtaining in the Dhar- 
 masutric period, with the addition of a rule that slaves may not 
 make loans. For persons and ages the rules are also the same. 
 But for sex certain differences are found. In the former period, 
 women were totally incapable of acquiring rights; but in this 
 period the incapacity becomes less marked. The marriageable 
 (but unmarried) female is incapable, having no property rights. 
 The married woman may possess a property of her own, known 
 as '* stridhana", over which she has rights of use and disposal; 
 and this indicates that she could loan it ; but it had only a limited 
 importance. The widow had the same rights over " stridhana " 
 as when married. With their guardian's consent, women could 
 loan their property not belonging to the " stridhana." 
 
 B. Capacity, passive. Here, all the rules of the Dharmasutric 
 period continue. The differences are only these: (1) In the 
 former period, the woman is totally incapable, while in the latter 
 she has capacity as to the " stridhana " ; (2) in the former period, 
 slaves belonged to the sudra caste and hence were capable, while 
 in the latter they formed a special class, and were incapable. 
 
 C. Formation of Contract. Here is found an extension unknown 
 in the earlier period. The contract is regarded as the result of 
 an accord of the parties' wills; lack of consent, actual or pre- 
 sumptive, makes the contract void; minority, drunkenness, and 
 lunacy representing the latter, and fraud and violence represent- 
 ing the former. Thus the internal state of mind was the basis 
 of consent. The outward expression was not required to take 
 any ceremonial forms. Contracts violating the written or cus- 
 tomary law were void; thus revealing a sense of public order 
 limiting contractual liberty. 
 
 D. Kinds of Obligations (Modalities). Loan is a real contract; 
 delivery is the completion of the contract. The loan is still a 
 unilateral contract; and the same rules persist for the derived 
 obligations as in the earlier period. 
 
 Interest varies in rate according to whether security was given 
 
 ^ For this period the only authority is the Manava-dharmashastra, 
 known as the Code of Manu. 
 
136 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 or not ; in the former case, it is 15 per cent annually ; in the latter, 
 24 to 60 per cent according to the debtor's caste. The rate also 
 varies, according to the mode of payment ; the above rate was for 
 payment by installments; otherwise it was much higher. The 
 variation according to castes applied only for unsecured loans and 
 payment of interest periodically; otherwise it was the same for 
 all castes. The maximum of interest for each kind of loan was 
 fixed by religious law; an agreement for higher rates was void. 
 Interest by installments was payable monthly. When the term of 
 the loan was very short, no interest was demandable ; nor after the 
 maturity of the debt, when the term was a year and the principal 
 unpaid. Renewal of the debt, with payment or capitalization 
 of interest, was allowed. For the length of the term, the rules of 
 the former period obtained; but the contract must always fix 
 the term. 
 
 As before, two kinds of securities are found, regulated in sub- 
 stantially the same way. Suretyship may be either judicial, 
 extra-judicial, or real. In the former two cases, the surety's heirs 
 are not ordinarily liable, but in the latter they are. 
 
 E. Extinction. (1) Payment being the chief mode of extinc- 
 tion, the creditor might employ, for obtaining it, first, peaceable 
 measures, and, later, more stringent ones. The custom of '' aka- 
 rita ", according to some commentators, consisted in the creditor's 
 fasting, even until he died; according to others, in killing the 
 debtor's wife, sons, and cattle, and in sitting before the debtor's 
 door. Extra-judicial means were fully recognized as permissible ; 
 but only when the existence of the debt was not disputed by the 
 debtor. When in a case brought before the king's court the ex- 
 istence and amount of the debt are proved, the king cannot refuse 
 to hold the debtor liable. 
 
 (2) The second mode of extinction is the debtor's slavery, and 
 takes place when the debtor is totally without assets to pay. It 
 is forbidden when the creditor's caste is lower than the debtor's. 
 But the latter cannot be forced to go into slavery for debt. 
 
 (3) The third mode of extinction is novation. It effects a 
 renewal of the securities. The satisfaction of the debt, whether 
 voluntary or forced, effects the liberation of the securities, which 
 are accessory only. 
 
 § 35. The Yajnavalkyan Period ; ^ the Naradian Period.^ As 
 
 ^ The sources for tliis period are the dharmashastras of Vishnu and of 
 Yajnavalkya. 
 
 2 The sources for this period are the dharmashastras of Narada and 
 (fragments) of Brihaspati. 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 137 
 
 the morphology of the Loan at these two periods has notable 
 homologies {ante, § 9), we shall treat them together. 
 
 xi. Capacity y active; B. Capacity, passive; C. Formation of 
 the Contract. The elemental eomplexus of norms, in these three 
 fields, are identical with those of the preceding (Manavic) period. 
 
 D. Kinds of Obligations (Modalities). The elemental corn- 
 plexus can here be separated into three groups, concerning interest, 
 pledge, and suretyship respectively. In comparing the two periods, 
 we discover two important facts, in all three groups, the persistence 
 in the Naradian period of almost all the norms of the Yajnavalkyan 
 period, and the addition of new rules. 
 
 Interest. The rules fixing interest-rates according as the loan 
 is secured or not are the same for both periods ; as also the rules 
 varying the rate for unsecured loans in inverse ratio to the debtor's 
 social rank, fijcing the maximum rate, the periodic payments, the 
 classification of kinds of interest, the immateriality of the debtor's 
 caste for the rate for secured loans, the permissibility of cumula- 
 tive payment of interest and capital, the changing of gratuitous 
 loans to interest-bearing loans on specified conditions, the pro- 
 hibition of interest on loans with pledge-bearing profits, the offer 
 to restore the object of the loan, and loans made to merchants 
 traveling by sea or in forests. The new rules peculiar to the 
 Naradian period are very detailed. They concern the limit of 
 interest varying according to the thing loaned; the distinction 
 between the legal and the moral legitimateness of compound 
 interest; and gratuitous loans. 
 
 Pledge. The rules common to both periods for the pledge are 
 those which recognize the three kinds, profit-bearing, non-profit- 
 bearing, and antichresis, the creditor's liability for the negligent 
 loss of the pledge and for unlawful use of it, the creditor's non- 
 liability for loss by act of God or of the king ; the inapplicability 
 of title by prescription ; the recognition of the real nature of the 
 pledge ; the prohibition of the debtor's slavery ; etc. 
 
 Suretyship. The same rules for suretyship exist in both periods, 
 with the addition (in the second period) of rules showing a marked 
 tendency to lessening the surety's responsibility. 
 
 E. Extinction. In the Yajnavalkyan period, the principal 
 mode of extinction is the restitution of the goods loaned or their 
 equivalent. The creditor may resort to any measures, including 
 extra-judicial ones, for this purpose. When a suit is brought and 
 the creditor wins, the debtor must pay to the king, by way of fine, 
 10 per cent of the value of thing loaned. — Slavery of the debtor 
 
138 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 was another mode of extinction, but not when he was a brah- 
 man. Novation was recognized. Creditors were classified, by 
 a sort of judgment; payment must be first made of claims of 
 brahmans, then of the king, and lastly of other persons. 
 
 In the Naradian period, the principal mode of extinction is still 
 restitution. As in the earlier (Manavic) period, the creditor 
 may use amicable measures, judicial proceedings, the " akarita," 
 fraud, or violence. Extra-judicial measures may be resorted to 
 only when the claim is admitted or not disputed by the debtor; 
 if used otherwise, the creditor is fined. A debtor may obtain 
 from the judge a postponement of payment, when good reasons 
 exist. For a part payment, the creditor must give a receipt ; and 
 on complete satisfaction he must either restore the instrument of 
 debt or execute a release. If the creditor violates this law, in 
 the former case he forfeits the remainder of the claim, and in 
 the latter case he pays the debtor the amount of interest on the 
 sum paid by the latter. 
 
 I The second mode of extinction is the enslavement of the debtor ; 
 here there must be an instrument containing the names of the 
 parties, of their castes, and of their neighbors, as well as the 
 amount and the terms of the loan. 
 
 Thirdly, novation could apparently be imposed by the judge, 
 on certain conditions. In that case, all the securities continue 
 in force. The extinguishment of the debt releases the securities. 
 
 (II) Stratigraphy 
 
 § 36. The Dharmasutric Period. A. Capacity , active. In 
 studying stratigraphically this first elemental complexus of 
 norms, in their bearing on caste, we note that the first five {ante, 
 § 33) imply the existence of a hierarchic stratification of social 
 classes, and may therefore be assigned to the feudal type (ante, 
 § 3). The sixth rule, however, permitting the gratuitous loan to 
 all castes, is independent of such stratification, and therefore 
 belongs to the gentilic type (ante, § 3). Now the most funda- 
 mental feature of the gentilic type, especially where the higher 
 forms of organization (tribe, tribal union) are weak, is that the 
 domestic groups (single family, communal household, gentes) 
 are the only legal persons. From this principle follow important 
 consequences, viz. these groups are represented by their chiefs; 
 the individual members of the group have no legal capacity ; and 
 the relations between them and outsiders are only relations be- 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 139 
 
 tween the group and the outsiders. An observation of the various 
 rules {ante, § 33) for active capacity shows that all of them have 
 a gentilic significance; for the domestic group alone has rights. 
 The dominant type (ante, §§ 4-6), therefore, indicated for this 
 particular complexus of norms, is the gentilic type. Nevertheless, 
 as numerous and important norms of the feudal type are also 
 found, the coefficient of concomitance {ante, § 4, par. a) for that 
 type must be given a maximum value (see post, Table I). 
 
 B. Capacity, passive. Here the norms are inherently gentilic. 
 Those which recognize the capacity of all castes as obligors negate 
 a social stratification, i.e. are non-feudal. Those which recog- 
 nize the liability of domestic groups and their chiefs, and deny 
 it for students, ascetics, hermits, women, and minors, are similarly 
 gentilic. The gentilic type is therefore the only one represented. 
 
 C. Formation of the Contract. Here the data are inadequate 
 to determine the type for many of the norms ; e.g. the unilateral 
 nature of the contract, and the things that may be the subject 
 of loans. That the loan is a real contract points to gentilism. 
 The sense of public order restraining liberty of contract implies 
 the existence of a State, which is an essentially feudal concep- 
 tion. But to assign, for this complexus of norms, a dominant 
 type and a concurrent type {ante, § 4) is not feasible. 
 
 D. Modalities. Here we note that the norms as to rates and 
 kinds of interest and as to terms of payment imply a remarkable 
 development of the law of obligations. This is a trait of feudalism 
 of the highest type, viz. the individualist type. But the practice 
 of loans of very long periods is found ordinarily among gentilic 
 peoples, and is inherent in that type. The norm requiring that 
 all loans be secured is gentilic ; for it is found among all societies 
 practicing the loan, and unsecured loans presuppose a relative 
 development of State power, i.e. are feudal. The rules for pledge 
 and suretyship are gentilic; for they show marked weakness of 
 State power to force parties to perform their obligations, and also 
 because they indicate a joint liability in the domestic groups 
 (pledge and sureties being usually furnished by the relatives). 
 On the other hand, the distinction between the profit-bearing and 
 the non-profit-bearing pledge is feudal, implying a development 
 of the law of obligations ; so also are the rules for prescription and 
 for the creditor's liability for impairment of the thing pledged. 
 
 Thus, for the complexus in question, the dominant type is gen- 
 tilic ; the coefficient of concomitance {ante, § 4, par. a) for the 
 feudal type has a medium value. 
 
140 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 E. Extinction. Here the rules are purely gentilic; for the 
 modes of extinction are extra-judicial, the State taking no part. 
 
 To sum up (see Table I, post) : Throughout the foregoing com- 
 plexus, except the third, the gentilic type is dominant. The 
 feudal type appears only in the first and the fourth, its coefficient 
 of concomitance in the former being maximum. For the entire in- 
 stitution — the Loan — comprising the five complexus, the coeffi- 
 cient of concomitance for the feudal type should be given a medium 
 value ; for it cannot be given a minimum value, owing to its 
 important position in the first and the fourth complexus; nor a 
 maximum value, owing to its entire absence in two complexus, 
 and its medium value in another. 
 
 § 37. The Manavic Period. A. Capacity, active. Here the six 
 rules (ante, § 34) relating to castes continue to survive from the 
 Dharmasutric period, with the addition of the one about slaves' 
 incapacity. The rules on the other subjects^ are also the same, 
 except that the woman's capacity has begun to be recognized. 
 Hence the gentilic type remains the dominant one, and the co- 
 efficient of concomitance for the feudal type is maximum. 
 
 B. Capacity, passive. Here the rules continue to be the same 
 {ante, § 34), except two, viz. the recognition of the woman's capac- 
 ity, and the disappearance of the slave's capacity. The formation 
 of a special lowest caste for slaves implies an intensification of 
 the (feudal) process of stratification of classes ; and the woman's 
 capacity indicates the weakening of the domestic group's ex- 
 clusive capacity. Hence, the gentilic type remains dominant; 
 while the coefficient of concomitance for the feudal type may be 
 placed at medium. 
 
 C. Formation of the Contract. Here the rules (ante, § 34) for 
 the real nature of the contract are gentilic; but the otherwise 
 remarkable development of the law of obligations is feudal. Hence 
 the dominant type in the complexus is feudal, and the coefficient 
 of concomitance for the gentilic type is minimum. 
 
 D. Modalities. Here the rule as to long terms of loan is gen- 
 tilic ; but the requirement of fixing that term in the contract 
 itself, and the various other rules (interest, etc.), show a notable 
 development of a system of obligations, i.e. are feudal in import. 
 The rules for non-secured loans presuppose a State, and are there- 
 fore feudal ; while the rules for secured loans, and especially the 
 rule that the rate of interest is independent of the debtor's caste, 
 are gentilic. The pledge, or real security, is gentilic; but the 
 several distinctions and rules {ante, § 34) connected with it imply 
 
Chap. II.J THE SCIENTIFIC METHOD OF GENERALIZING 141 
 
 a notable development of obligations, and thus are feudal. The 
 personal surety is gentilic ; but the judicial alongside of the extra- 
 judicial form of suretyship indicates the formation of a State, 
 as yet weak. The dominant type may therefore be figured as 
 feudal, and the coefficient of concomitance for the gentilic type 
 may be given medium value. 
 
 E. Extinction. The use of judicial modes indicates the ex- 
 istence of the State, but its weakness is seen in the wide use of 
 extra-judicial methods. The debtor's slavery is gentilic, but its 
 limitation as to caste is feudal. Novation is feudal, as indicating 
 a notable development of obligations. On the whole, the domi- 
 nant type is gentilic ; the coefficient of concomitance is of medium 
 value. 
 
 To sum up (see Table I, post), the gentilic type is dominant in 
 complexus A, B, E, and concurrent in C, D; its coefficient of 
 concomitance in the latter two being minimum and medium 
 respectively. The feudal type is dominant in complexus C, Z), 
 and concurrent in A, B, E; its coefficient of concomitance being 
 maximum in A, and medium in B and E. 
 
 The dominance of gentilism in three of the five complexus, 
 the importance of those three complexus, and the presence of the 
 gentilic type in the remaining two complexus, justify us in giving 
 the gentilic type the dominant place in the whole institution. 
 The feudal type is only concurrent; but its dominance in three 
 of the five complexus, and its strong representation in the remain- 
 ing two, obliges us to give maximum value to that coefficient. 
 
 Hence, in the Manavic period, for the institution of Loan, the 
 gentilic type is dominant; the feudal type is concurrent, with a 
 maximum coefficient. 
 
 § 38. The Yajnavalkyan and the Naradian Periods. A, B. 
 Capacity, active and passive. That the elemental complexus for 
 these two subjects continued the same, morphologically, in the 
 two following periods, as in the Manavic period, has been noted 
 {ante, § 35). The stratigraphic conclusions of the Manavic period 
 may therefore be re-affirmed; i.e. the dominant type continues 
 to be the gentilic, and the coefficient of concomitance for the 
 concurrent feudal type is maximum for active capacity and 
 medium for passive capacity. 
 
 C. Formation of Contract. Here the same persistence of ele- 
 ments was noted (ante, § 35) for the two later periods ; i.e. the 
 dominant type is the feudal, and the coefficient of concomitance 
 for the gentilic type is of minimum value. 
 
142 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 D. Modalities. Referring to our morphological analysis {ante, 
 § 35) of this complexus for these periods, we find that, in the first 
 group of norms common to both periods, i.e. rules for interest, 
 the feudal type dominates, since a notable development of a sys- 
 tem of obligations is revealed. Only two of the norms are posi- 
 tively gentilic, viz. the rule making the rate of interest for secured 
 loans independent of the debtor's caste (thus implying a lack of 
 hierarchic stratification of social classes), and the rule permitting 
 a " real offer " (for this implies a weak development of State 
 force). Of the rules peculiar to the Naradian period, all are 
 essentially feudal, in implying an advanced system of obligations. 
 In the second group, the norms for pledge, the profit-bearing 
 pledge is gentilic, being widespread among gentilic societies. So, 
 too, the imprescriptibility of the pledge, and the duty to restore it 
 on payment of the debt, are due to the gentilic principle of the 
 perpetuity of domestic groups, which in gentilic societies are the 
 only persons having property rights. All the other norms, 
 whether common to both periods or special to one or the other 
 period, indicate a notable development of a system of obligations, 
 hence they must be classed as feudal. Accordingly in both 
 periods, the feudal type is plainly dominant and the gentilic type 
 is only concurrent. But in the Naradian period the feudal norms 
 are more extensive and more detailed than in the Yajnavalkyan 
 period; hence the feudal type is relatively more important in 
 the one than in the other period. In the third group of norms, 
 those concerning suretyship, the practice of personal suretyship, 
 implying as it does a weakness of State power, is gentilic; but 
 the norms of suretyship in these two periods, and especially in the 
 Naradian, show a notable tendency to a dissolution of the prac- 
 tice, implying an increase of certainty in legal relations and an 
 intensification of State power ; hence they are feudal. 
 
 For this complexus as a whole, therefore, in these two periods, 
 the dominant type is feudal; the coefficient of concomitance for 
 the gentilic type is at minimum value; but the latter is a little 
 higher in the Yajnavalkyan than in the following period, the 
 contrary being true of the feudal type. 
 
 E. Extinction. Here, in the Yajnavalkyan period, the only 
 norms of gentilic type are those {ante, § 35), which permit extra- 
 judicial measures (implying the absence or weakness of State 
 power), and those which sanction the irregular enslavement of 
 the debtor (a practice widespread in gentilic societies). All the 
 other rules imply a notable development of State power and of 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 143 
 
 a system of obligations ; hence must be regarded as feudal. The 
 number and importance of feudal rules require us to place that 
 type as dominant. The coefficient of concomitance for the gen- 
 tilic type can hardly be regarded as minimum, its norms being 
 important ; nor yet as medium, the rules being few in number ; 
 it stands between minimum and medium. Passing to the Nara- 
 dian period, the only gentilic elements are the surviving ones 
 from the Yajnavalkyan period ; all the others implying a con- 
 solidation of the State and a notable development of a system of 
 obligations, and therefore being feudal in their traits. The 
 dominant type is thus feudal ; the coefficient of concomitance for 
 the gentilic type is minimum, for the number and importance of 
 such rules are relatively smaller. • 
 
 Summary for these Periods. Surveying the two epochs, there- 
 fore, for the entire institution of Loan, we find that the feudal 
 type is dominant in the three complexus, C, Z), E; and that it 
 is concurrent in complexus A, B, with a maximum coefficient of 
 concomitance. The gentilic type is dominant in the two com- 
 plexus A, B ; and in the other three complexus C, Z), E, its 
 coefficient of concomitance is regularly minimum in the Nara- 
 dian period, while in the Yajnavalkyan period it is minimum for 
 complexus C (formation of the contract) but is between minimum 
 and medium for D and E} 
 
 In short, during the Yajnavalkyan period, the total structure 
 of the institution of Loan shows the feudal type dominant, and 
 the gentilic type concurrent w^ith its coefficient of concomitance 
 between minimum and medium. During the Naradian period, 
 the dominance of the feudal type continues, but the coefficient 
 of concomitance for the gentilic type descends to minimum. 
 
 (Ill) Genealogy 
 
 The problem of genealogy for the Loan in ancient India is 
 to discover its origin and the principle of its morphologic and 
 stratigraphic variations. 
 
 § 39. Principle of Stratigraphic Variation for the Dharmasu- 
 tric and Manavic Periods. The method of stratigraphic varia- 
 tions {antey § 11) applied to this problem requires the morphology 
 
 ^ [The author's text here reads: "Dans les autres complexus il a un 
 coefficient constamment minirae, h I'epoque naradienne; relativement 
 a la periode yajnavalkyenne le coefficient est minime dans le complexus 
 de la formation du pret, [et dans les deux derniers complexus] il a une 
 valeur comprise entre la valeur moyenne et la valeur minime." The 
 words placed in brackets are not in the text, but must be inserted in order 
 to make the statement tally with 'the prior analysis. — ^ Ed.] 
 
144 
 
 CRITERIA OF LEGAL EVOLUTION 
 
 [Part I. 
 
 and stratigraphy of at least two successive periods to be at our 
 disposal. This we have secured in the foregoing sections of the 
 present chapter. Table I shows the results in tabular form for 
 the two earliest historic periods. From the data of this Table 
 the following principle of stratigraphic variation may be deduced : 
 
 Table I. The Loan : Stratigraphic Analysis for Two Periods 
 
 Elemental Complexus 
 
 Type 
 
 Dharmasutric 
 Period 
 
 Manavic 
 Period 
 
 A. Capacity, active .... 
 
 B. Capacity, passive .... 
 
 C. Formation of Contract 
 
 D. Modalities 
 
 E. Extinction 
 
 Dominant 
 
 Concurrent 
 
 Dominant 
 
 Concurrent 
 
 Dominant 
 
 Concurrent 
 
 Dominant 
 
 Concurrent 
 
 Dominant 
 
 Concurrent 
 
 Gentilic 
 Feudal 3 
 Gentilic 
 Feudal 
 Uncertain 
 Uncertain 
 Gentilic 
 Feudal 2 
 Gentilic 
 Feudal 
 
 Gentilic 
 Feudal 3 
 Gentilic 
 Feudal 2 
 Feudal 
 Gentilic 
 Feudal 
 Gentilic 2 
 Gentilic 
 Feudal 2 
 
 In passing from the Dharmasutric to the Manavic period, the 
 gentilic type remains dominant; but the coefficient of concomi- 
 tance of the feudal type rises from medium to maximum value. 
 This increase of intensity in the feudal type affects all the ele- 
 mental complexus except Ay where no change occurs. 
 
 § 40. Reconstruction of the Pre- Dharmasutric Period. Now 
 in proceeding to the reconstruction of the still earlier period 
 {i.e, before the 6th century B.C., and covering probably several 
 centuries), we note that as the Dharmasutric and the Manavic 
 periods covered about eight centuries (6th cent. B.C. to 2d cent. 
 A.D.), and the gentilic type remained dominant throughout, it 
 must have existed in the pre-Dharmasutric period; and always 
 the most stable elements in any institution are those of earliest 
 origin. Furthermore, since the feudal type increases in intensity 
 during those periods, and since we have no reason to doubt the 
 progressiveness of this intensification, we may infer that in the 
 more remote period (pre-Dharmasutric), the coefficient of concomi- 
 tance for the feudal type was of minimum value. 
 
 Proceeding now to the specific complexus, we note : 
 
 A. That only in respect to active capacity does the feudal 
 type keep the same intensity in the two periods; in the other 
 types it shows a variation more or less decided ; whence we may 
 
Chap. II.J THE SCIENTIFIC METHOD OF GENERALIZING 145 
 
 infer that in the pre-Dharraasutric period also its intensity must 
 have been here more stable than in the other eomplexus. 
 
 B. That for passive capacity, the only type represented in the 
 Dharmasutric period is the gentilic, while in the Manavic period 
 the feudal type is concurrent with a notable coefficient of concomi- 
 tance ; whence we must infer that in the pre-Dharmasutric period 
 the feudal type is to be given no place at all. 
 
 C. That for the formation of the contract, the feudal type 
 is dominant in the Manavic period, while the gentilic type is con- 
 current with a minimum coefficient of concomitance ; and that in 
 the Dharmasutric period both types are uncertain; but that 
 nevertheless the relative increase and decrease of the feudal and 
 the gentilic types justify us in attributing to the pre-Dharmasutric 
 period a dominance for the gentilic type and a low coefficient 
 of concomitance for the feudal type. 
 
 D. That, for the modalities of loan, since in the two periods 
 Dharmasutric and Manavic the dominance of the gentilic type 
 yields to that of the feudal type, the pre-Dharmasutric period 
 must be credited with a dominant gentilic type and a minimum 
 coefficient of concomitance for the feudal type. 
 
 E. That, for extinction of loan, since the feudal element is 
 lacking entirely in the Dharmasutric period, and acquires in the 
 Manavic period a medium coefficient of concomitance, it must 
 be deemed to have been lacking in the pre-Dharmasutric period. 
 
 With the aid then of these stratigraphic analyses, and of the 
 stratigraphic principle above deduced forsthe Dharmasutric and 
 Manavic periods, let us proceed to reconstruct more in detail the 
 specific norms for the pre-Dharmasutric period ; for those norms 
 must be the ones existing in the Dharmasutric period, modified 
 on the above lines. 
 
 A. Active Capacity. We cannot suppose that active capacity 
 was true of all castes in the pre-Dharmasutric period ; for the 
 feudal element keeps a strong importance for this eomplexus in 
 both the Dharmasutric and the Manavic periods. On the other 
 hand, we cannot suppose that the norms of the Dharmasutric 
 period already existed in their entirety in the pre-Dharmasutric 
 l)eriod ; for these norms show decided changes in passing from the 
 Dharmasutric to the Manavic period. Besides, we know that 
 in all societies the weakening of the feudal element is accompanied 
 by a weakening of royal power and of the separation of castes, and 
 by a weakening in the localization of social function in the several 
 castes. Hence we may infer, for the pre-Dharmasutric period, 
 
146 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 a persistence of the Dharmasutric norm giving active capacity 
 to the vaisya caste, and giving it to brahmans and kshatriyas 
 in only two exceptional cases; though the number of these ex- 
 ceptional cases would have been more extensive. Again, the 
 Dharmasutric rules giving the king a right to force vaisyas to 
 exercise the loan, and the power to forbid it to the other castes, 
 could not have existed in the prior period, or at least only to a 
 limited extent. The Dharmasutric norm forbidding the sudras 
 to exercise the loan for interest must have been more or less re- 
 stricted in the pre-Dharmasutric period. And the Dharmasutric 
 loan permitting all castes to loan without interest, being purely 
 gentilic in feature, must have existed in the pre-Dharmasutric 
 period. The Dharmasutric norms as to active capacity of kinds 
 of persons, women, minors, and domestic groups, are essentially 
 gentilic ; hence they must have pre-existed in the pre-Dharmasu- 
 tric period. And the active capacity of family groups and the 
 representative capacity of their chiefs must have been more 
 marked in the pre-Dharmasutric period, being dominantly gentilic 
 in nature. 
 
 B. Passive Capacity. The Dharmasutric norms are here 
 purely gentilic, hence their pre-existence in the pre-Dharmasutric 
 period, with an intensification of passive capacity for family 
 groups. 
 
 C. Formation of Contract. Since the norm-types are uncertain 
 here for the Dharmasutric period, it is difficult to reconstruct 
 the prior period. But the gentilic norms of the Dharmasutric 
 period must have figured more intensely in the pre-Dharmasutric 
 period, and the feudal element (affecting liberty of contract, etc.) 
 must have been weaker. 
 
 D. Modalities. We have seen that in the Dharmasutric period 
 the gentilic type was dominant, with a minimum coefficient cf 
 concomitance for the feudal type; so that the gentilic norms of 
 thB Dharmasutric period must have pre-existed in the pre-Diiar- 
 masutric period. This signifies : long terms for loans, security 
 for all loans, furnishing of security by the debtor's domestic group, 
 absence of relation between rate of interest and length of enjoy- 
 ment of pledged property, antichresis, absence of judicial and 
 extra-judicial suretyship, solidary real suretyship, no prescrip- 
 tive title to pledge. The feudal Dharmasutric rules could only 
 have had limited recognition in the prior period, e.g. variety in the 
 kinds of interest ; for freedom to settle rates of interest belongs to 
 autonomy of domestic groups, hence is gentilic. The same is 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 
 
 147 
 
 true of liberty to fix terms of payment. The pledge must have 
 been profit-bearing, for such it is in gentilic societies; and the 
 Dharmasutric rule forbidding interest on loans secured by a 
 profit-bearing pledge must also have pre-existed. The norm for 
 creditor's liability for injury to the pledge must have pre-existed 
 even more intensely ; for the principle of liability irrespective of 
 distinction between intent, negligence, and accident, is a feature 
 of gentilic societies. 
 
 E. Extinction. Here the Dharmasutric norms are purely of 
 gentilic type ; hence they must have pre-existed in the pre-Dhar- 
 masutric period. 
 
 Summing up, then, Table II shows the results of our strati- 
 graphic reconstruction of the Loan for the pre-Dharmasutric 
 period, in comparison with that of the Dharmasutric period : 
 
 Table II. The Loan: Stratigraphic Reproduction of the Pre- 
 Dharmasutric Period 
 
 Elemental Complexus 
 
 Type 
 
 Pre-Dhar- 
 masutric 
 Period 
 
 Dharmasutric 
 Period 
 
 A. Capacity, active .... 
 
 Dominant 
 
 Gentilic 
 
 Gentilic 
 
 Concurrent 
 
 Feudal i 
 
 Feudal 3 
 
 B. Capacity, passive .... 
 
 Dominant 
 
 Gentilic 
 
 Gentilic 
 
 Concurrent 
 
 Feudal o 
 
 Feudal 
 
 C. Formation of Contract 
 
 Dominant 
 
 Gentilic 
 
 Uncertain 
 
 
 Concurrent 
 
 Feudal i 
 
 Uncertain 
 
 D. Modalities 
 
 Dominant 
 
 Gentilic 
 
 Gentilic 
 
 
 Concurrent 
 
 Feudal i 
 
 Feudal 2 
 
 E. Extinction 
 
 Dominant 
 
 Gentilic 
 
 Gentilic 
 
 
 Concurrent 
 
 Feudal o 
 
 Feudal 
 
 §41. Reconstruction of the Primitive Period. From Table II 
 it appears clearly that the pre-Dharmasutric period cannot be 
 the period of formation of the Loan. A comparison of Tables I 
 and II shows that in the three epochs there represented — pre- 
 Dharmasutric, Dharmasutric, and Manavic — the gentilic type 
 persists as dominant, while the concurrent feudal type shows 
 notable variations in intensity. These variations, however, 
 proceed by regular and uniform gradations ; the coefficient rising 
 
148 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 from a minimum to a maximum value from the pre-Dharmasutric 
 to the Manavic period. 
 
 It follows that in the formative, or primitive, period of the Loan, 
 the feudal element must have been totally lacking. Chronologically, 
 the date and extent of that period cannot be fixed ; we can only 
 say that it was immediately prior to the pre-Dharmasutric period. 
 It must have been prior to that distant epoch in which India 
 arrived at a stage marked by the consolidation of the caste system. 
 The loan being of great social importance in peoples not far ad- 
 vanced, that consolidation of the hierarchic stratification of social 
 classes necessarily would introduce feudal elements into the loan ; 
 therefore, since no feudal element is found in the primitive period, 
 it follows that the period was prior to that in which the caste system 
 was consolidated. And as the last two periods covered eight 
 centuries, the primitive period must have covered several centuries. 
 
 Since in the primitive period no feudal element occurred, we may 
 reconstruct the loan at that period by eliminating the feudal 
 elements found in the pre-Dharmasutric period and intensifying 
 the gentilic elements there found. 
 
 A. Active Capacity. All distinction of caste must here have 
 been lacking. The only persons capable of making loans, in a pure 
 gentjlic society, were the family groups; when individuals made 
 loans, they were presumed to be in the interest of the group. 
 Students, hermits, ascetics, women, and minors, entirely lacked 
 capacity. Heads of families represented their groups. 
 
 B. Passive Capacity. The same features marked the rules of 
 passive capacity. 
 
 C. Formation of Contract. Here there could have been no 
 clear and definite rules as to consent and the grounds for presumed 
 lack of consent, such as develop in feudal societies ; for such rules 
 are alien to gentilic societies ; so also the notion of public control 
 and limitation of contractual liberty. In gentilic societies, the 
 contracts are real, and are made with special ceremonial forms; 
 arid such must have been the features of the loan. 
 
 D. Modalities. Here we must infer the absence of all re- 
 strictions as to rate of interest and modalities of the contract. 
 
 E. Extinction. All the rules of purely gentilic nature in the 
 pre-Dharmasutric period must have existed in this prior period. 
 
 In thus reconstructing the lines of the loan structure in the 
 primitive period, we are not to assume that these rules were 
 found in their entirety throughout the period. Their formation 
 was slow and gradual; and in some stages doubtless several of 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 149 
 
 them were entirely lacking. Moreover, the reconstruction is 
 incomplete, in that it leaA^es out of account those rules, frequently 
 developing, which subsequently disappear without exercising an 
 appreciable influence on the later development of the institution ; 
 for such rules would not have survived into the later periods which 
 furnish our data for reconstruction. 
 
 § 42. Summary of Morphologic Variations. A comparison of 
 the morphologic results during these six periods enables us to make 
 several important generalizations. 
 
 (1) The structurg_i2f_JJie--loa»'&hews~tw a gradual complexity. 
 In the primitive period, the number of rules is scanty; in the 
 Naradian period, it is notably large ; and the number and im- 
 portance of the rules increases from period to period. 
 
 (2) This gradual complexity is not uniform in all the epochs. 
 From the primitive to the pre-Dharmasutric periods, the transi- 
 tion shows variations of great importance. From the pre-Dhar- 
 masutric to the Dharmasutric, and thence to the Manavic, the 
 transition shows, on the other hand, variations which though 
 notable have not an intensity equal to that of the prior stage. 
 From the Manavic to the Yajnavalkyan period, the variations 
 are not notable. But from the Yajnavalkyan to the Naradian 
 the variations are important both in number and in kind. 
 
 (3) Since in early stages the development of an institution is 
 slow, the importance of the variations from the primitive to the 
 pre-Dharmasutric period presupposes a considerable extent for 
 the latter period, as well as the formation of a considerable part 
 of the rules of that period in the less remote parts of it. 
 
 (4) The gradual increase of complexity of the structure is not 
 uniform in the several complexus. (A) The complexus of active 
 capacity is largely stable ; the greatest variations occur during the 
 transition from the primitive to the pre-Dharmasutric period, 
 but afterwards the complexus remains almost constant. (B) The 
 complexus of passive capacity remains almost constant during 
 the primitive, pre-Dharmasutric, and Dharmasutric periods; in 
 the Manavic period it shows a notable complication ; in the later 
 periods it remains constant. (C) The complexus of formation 
 of loan has a high degree of stability; the variations of the first 
 three periods are notable, but the last three periods show relative 
 constancy. (D) The complexus of modalities is the most variable 
 of all. Its scope is very limited in the primitive period, but in- 
 creases gradually, particularly in the Manavic and following 
 periods. This complexus is the one containing of course the 
 
150 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 greatest number of norms. (E) The eomplexus of extinction 
 shows great stability in the first three periods ; its variation from 
 the Dharmasutric to the Manavic period is notable ; in the later 
 periods the variations are notable but scantier. 
 
 The principle governing the morphological variations of the 
 loan in the periods under consideration may thus be generalized : 
 
 Loan, in the steps of its passage from the primitive to the Nara- 
 dian period, exhibits a gradual and continuous increase of com- 
 plexity of structure; but this increase of complexity is not uni- 
 form throughout the several periods nor throughout the several 
 eomplexus of norms. The maximum intensity of variations of 
 structure is found in the transition from the primitive to the 
 Dharmasutric periods and in the eomplexus of modalities. The 
 minimum is found in the transition from the Manavic to the 
 Yajnavalkyan period and in the eomplexus of active capacity. 
 Between these limits the variations fluctuate, both as to periods 
 and as to eomplexus. 
 
 § 43. Summary Law of Stratigraphic Variations. Table III 
 shows the stratigraphic variations of Loan in the periods under 
 consideration. 
 
 As heretofore pointed out, two successive periods, chrono- 
 logically distinct, in the history of an institution, are genealog- 
 ically distinct only when their stratigraphic composition is dif- 
 ferent. By this criterion, the six periods under consideration are 
 all genealogically distinct. 
 
 The principle governing the stratigraphic variations of Loan 
 in ancient India may thus, by the aid of Table III, be summa- 
 rized : 
 
 In the transitions from period to period, the total structure 
 exhibits a continual, gradual, and relatively uniform increase in 
 intensity of the feudal type; which in the first four periods is 
 concurrent, having a coefficient rising from to 3, and in the last 
 two periods becomes dominant. Correspondingly, the gentilic 
 type shows a decreasing intensity, while remaining dominant 
 during the first four periods; the decrease is correlative with 
 the gradual increase of the concomitant feudal type ; and in the 
 last two periods the dominance passes from the gentilic to the 
 feudal type. 
 
 This regularity of variations for the total structure does not 
 obtain for all the specific eomplexus. (A) In the eomplexus of 
 active capacity, the gentilic type remains dominant in all periods, 
 while the concurrent feudal type, appearing first in the pre- 
 
Chap. II.] THE SCIENTIFIC METHOD OF GENERALIZING 
 
 151 
 
 Dharmasutric period, shows a notable increase of intensity in 
 passing to the Dharmasutric period, and retains a constant in- 
 tensity in the remaining periods. (B) In the complexus of pas- 
 sive capacity, the gentiUc type remains the dominant one through- 
 out ; the concurrent feudal type, occurring first -in the Manavic 
 period, with a medium coefficient, preserves the same intensity in 
 later periods. (C) In the complexus of loan-formation, the feudal 
 type increases progressively in intensity (except in the Dharmasu- 
 tric period), appearing first in the pre-Dharmasutric period with a 
 
 Table III. The Loan: Complete Stratigraphic Reconstruction 
 
 Elemental 
 Complexus 
 
 Type 
 
 Period 
 
 1. Prim- 
 itive 
 
 2. Pre- 
 
 dharma- 
 
 sutric 
 
 3. Dhar- 
 masutric 
 
 4. Ma- 
 navic 
 
 5. Yajna- 
 valkyan 
 
 6. Nara- 
 dian 
 
 A. Capacity, 
 active 
 
 Dominant 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Concurrent 
 
 Feud. 
 
 Feud. 1 
 
 Feud. 3 
 
 Feud. 3 
 
 Feud. 3 
 
 Feud. 3 
 
 B. Capacity, 
 passive 
 
 Dominant 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Concurrent 
 
 Feud. 
 
 Feud. 
 
 Feud. 
 
 Feud. 2 
 
 Feud. 2 
 
 Feud. 2 
 
 C. Formation 
 of Con- 
 tract 
 
 Dominant 
 
 Gent. 
 
 Gent. 
 
 Uncertain 
 
 Feud. 
 
 Feud. 
 
 Feud. 
 
 Concurrent 
 
 Feud. 
 
 Feud. 1 
 
 Uncertain 
 
 Gent. 1 
 
 Gent. 1 
 
 Gent. 1 
 
 D. Modalities 
 
 Dominant 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Feud. 
 
 Feud. 
 
 Feud. 
 
 Concurrent 
 
 Feud. 
 
 Feucf. 1 
 
 Feud. 2 
 
 Gent. 2 
 
 Gent. i_2 
 
 Gent. 1 
 
 E. Extinction 
 
 Dominant 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Feud. 
 
 Feud. 
 
 Concurrent 
 
 Feud. 
 
 Feud. 
 
 Feud. 
 
 Feud. 2 
 
 Gent. i_2 
 
 Gent. 1 
 
 Total Struc- 
 
 Dominant 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Gent. 
 
 Feud. 
 
 Feud. 
 
 tution 
 
 Concurrent 
 
 Feud. 
 
 Feud. 1 
 
 Feud. 2 
 
 Feud. 3 
 
 Gent. i_2 
 
 Gent. 1 
 
 minimum intensity, and becoming dominant in the Manavic 
 period, while the concurrent gentilic type has constantly a mini- 
 mum intensity. (D) In the complexus of modalities, the feudal 
 type shows a gradual intensification, appearing for the first time 
 in the pre-Dharmasutric period as a concurrent type with mini- 
 mum coefficient, and from the Manavic period onwards becoming 
 dominant; the gentilic type, dominant during the first three 
 periods, decreases gradually in intensity, corresponding to the 
 gradually increasing intensity of the feudal type, and from the 
 Manavic period onwards it is the concurrent type, with a de- 
 
152 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 creasing coefficient of intensity. (E) In the complexus of ex- 
 tinction, the gentiUc type, dominant throughout the first four 
 periods, shows notable persistence; the feudal type is lacking 
 during the first three periods, and in the Manavic period it is 
 only concurrent with a medium coefficient; but in the last two 
 periods it becomes dominant, while the coefficient of the con- 
 current gentilic type gradually decreases. 
 
 In general, throughout the several complexus, is found an in- 
 tensification of the feudal element, and a corresponding weakening 
 of the gentilic element, from the Manavic period onwards. 
 
Chapter III 
 
 CRITIQUE OF METHOD IN THE STUDY OF THE LAW'S 
 
 EVOLUTION 1 
 
 What is the necessary method to he used in tracing the evolu- 
 tion of a legal idea? Hitherto, few if any of the results achieved 
 in the evolution of law have been reached by a rigidly scientific 
 method.^ The reasons that extenuate and account for this are 
 
 1 [By John H. Wigmore, co-editor of this series. Reprinted from 
 "Problems of the Law's Evolution", being a portion of the first of a series 
 of three lectures delivered at the University of Virginia by the author on 
 the Barbour-Page Foundation, and originally pubhshed in the Virginia Law 
 Review, IV, 247 (January 1917).] 
 
 2 The general objective of a science of universal legal history has in- 
 deed been perceived to require something more than the collection and 
 collation of data of numerous peoples ; notably this has been insisted on by 
 Post, in his " Ethnologische Jurisprudenz " and other works, and by Del 
 Vecchio in his "Scienza del Diritto universale comparato" (both trans- 
 lated, in part, in Vol. II of this series). But no appUcation seems to have 
 been made of this by a rigid method of inductive demonstration in tracing 
 the evolution of a specific idea or institution. 
 
 In the recent work of Pinelbs, a Pohsh scholar and lecturer at Vienna, 
 "Questions de Droit Romain, etudiees d'apres la nouvelle methode his- 
 torique du Droit compare" (translated by Herzen, Paris, 1911), some pa- 
 rade is made in the preface of the author's "New Method", which shall 
 remedy the "defects" of the prior methods of that science; but the ex- 
 amples given as the professed demonstration of the new methods are 
 lacking in any advance over the method of such eminent laborers as Maine 
 and Post. 
 
 In CoglioWs "Saggi sopra I'Evoluzione del Diritto Privato" (Turin, 
 1885), this distinguished Romanist defines legal evolution in a well-bal- 
 anced and truly scientific treatment, but then proceeds to his specific 
 instances of the process of evolution with this singular postulate, fatal, 
 of course, to the attainment of any results having great value: "Since 
 it is not necessary to study all the plants of a certain species for pur- 
 poses of botanical science, so it is not necessary for legal evolution to 
 examine the laws of all peoples; to pile up facts and to repeat the ac- 
 counts of others is not to discover principles ; they may be discovered by 
 the study of a single system of law, provided it is like the Roman, not 
 merely a fragmentary and imperfect one, but brilliant in the complete- 
 ness of its development;" and therefore he proceeds to demonstrate the 
 existence of a number of supposed principles of evolution by Roman 
 examples alone. 
 
 In Mazzarella's "Les Types sociaux et le Droit " (Paris, 1908; a com- 
 pendium of his views scattered through various works) is found the 
 only rigidly scientific system hitherto published. Its presentation is 
 marred by certain favorite doctrines of his ; but it is the one attempt at 
 a genuinely complete method of generalization. [See Chapter II, supra.] 
 
 153 
 
154 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 numerous. The usual method and necessary effort has been to 
 collect the materials for different countries and periods; for the 
 tracing of the history in each country must come first. This has 
 been possible hitherto for only a few systems of law, in their 
 entirety; the European systems since the Christian era have 
 been subjected to complex forces of imitation from each other, 
 so that a pure system for any long period is rare. But the idea of 
 evolution, as distinguished from history, has been seldom the 
 objective of search. The method has been merely to search for 
 common features in different legal systems, and, after selecting 
 here and there from the entire mass these common features, to 
 point out the reappearance of common institutions, or, in Del 
 Vecchio's words, ''that certain ideas have been the common herit- 
 age of all humanity in all epochs." But this method proves 
 only that similar forms have existed at different times and places. 
 It does not yrow that these forms have had any inherent or neces- 
 sary development as ideas common to all, or that there is a necessary 
 evolution for any particular idea in all times and communities. 
 
 Any rigidly scientific results must be based on at least the fol- 
 lowing elements : Taking a single idea or institution, its forms 
 must be traced (1) in two or more successive epochs for the same 
 communities ; (2) then in two or more communities in successive 
 epochs; (3) then the other legal institutions in the same com- 
 munities and epochs must be mapped out, so that the connection 
 if any may be disclosed; (4) then the main social forces in the 
 same communities and epochs must also be mapped out, so as 
 further to detect the possible causes of difference ; (5) the whole 
 must be conceived of as a simultaneous movement of forces. 
 Perhaps such a rigid method is as yet impracticable, for lack of 
 adequate data, but at least it is an ideal to be looked forward to. 
 
 Let us take an example of its possibilities. Take two legal 
 ideas : first, that of the form of expression of law ; secondly, that 
 of the organ for declaring law. (A) The three chief forms of 
 the expression of law are (a) statute or legislatiori, (b) custom, 
 (c) judgmenty. Sir Henry Maine advanced the plausible as- 
 sertion that the historical sequence is always the reverse of the 
 above, i.e. is this : judgments, customs (first oral, then written), 
 legislation. (B) The three main organs for declaring the law 
 / have been : (a) Kings, or chieftains, (b) Aristocracies, either 
 \ ecclesiastical or political or military, (c) Democracies, either by 
 an expert body of lawmen or lawyers, or by a popular assembly, 
 representative or otherwise. Sir Henry Maine advances the con- 
 
Chap. III.] 
 
 CRITIQUE OF METHOD 
 
 155 
 
 Illustration of the Method of Studying Data of Legal 
 Evolution ^ 
 
 p 
 
 i 
 
 Epoch 
 
 A. Form of Law : 
 
 a Case-Judgments 
 
 b Customs 
 (bO Oral 
 (b2) Written 
 
 c Legislation 
 
 B. Organ of Law : 
 
 a King 
 
 b Aristocracy or Oligarchy 
 
 (bO ecclesiastic 
 
 (b2) poUtical 
 c Democracy 
 
 (cO lawyer-class 
 
 (c2) general assembly 
 
 
 B.C. 
 
 1200 
 
 a case-judgments 
 
 c^ lawyer-class 
 
 OS 
 
 B.C. 
 B.C. 
 
 900 
 700 
 
 bi oral customs 
 b2 written customs 
 
 b2 political oligarchy 
 
 b^ ecclesiastical oligarchy 
 
 
 B.C. 
 
 400 
 
 c legislation 
 
 bi ecclesiastical oligarchy 
 
 A. D. 
 
 300 
 
 a case- judgments 
 
 ci lawyer-class 
 
 
 A. D. 
 
 500 
 
 a case- judgments 
 
 c^ lawyer-class 
 
 
 B.C. 
 
 700 
 
 a case-judgments 
 
 a Kings 
 
 <5 
 
 B.C. 
 B.C. 
 
 500 
 400 
 
 b^ oral customs 
 b^ written customs 
 
 b^ ecclesiastical oUgarchy 
 b2 political oligarchy 
 
 
 B.C. 
 
 200 
 
 a case- judgments 
 
 c^ lawyer-class 
 
 
 A. D. 
 
 200- 
 600 
 
 c legislation 
 
 a Kings 
 
 CO 
 iz; 
 
 A. D. 
 
 500 
 
 a case-judgments 
 
 c^ lawyer-class 
 
 > 
 < 
 
 A. D. 
 
 1100 
 
 b^ oral customs 
 b2 written customs 
 
 c^ lawyer-class 
 
 c^ general assembly 
 
 2; 
 
 < 
 
 A. D. 
 
 1200 
 
 c legislation 
 
 b2 political oligarchy 
 a Kings 
 
 . '-'^ 
 
 A. D. 
 
 1100 
 
 a case- judgments 
 
 a Kings 
 
 §2 
 
 A. D. 
 
 1500 
 
 a case-judgments 
 
 b2 aristocratic lawyer-class 
 
 <^ 
 
 A. D. 
 
 1800 
 
 c legislation 
 
 c^ democratic general assembly 
 
 * The data for Hebrew law are based on Kent and Sanders' chap- 
 ters on "The Growth of Israelitish Law" in "Yale University Biblical 
 and Semitic Studies" (1901). Those for Scandinavian law are based on 
 Ebbe Hertzberg's chapter on Scandinavian sources in Vol. I ("General 
 Survey") of the "Continental Legal History Series" (1913). The data 
 for Roman law are based on the manuals of Muirhead and others. 
 
156 . CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 elusion that in the Indo-European communities, the order of de- 
 velopment was as above : Kings, aristocracies, democracies ; the 
 Orient, in the second stage (aristocracy), developing by an ec- 
 clesiastical oligarchy, and the Occident by a military or political 
 one. 
 
 (1), (2). Let us now test these generalizations by tracing these 
 institutions in three or four types of peoples in successive epochs. 
 In tracing the first institution, the form of expression of law, 
 we find that Sir Henry Maine's sequence does indeed appear in 
 Roman development; though the sequence is broken between 
 (b) and (c) by a marked reversion to (a), or case-judgments, 
 during the late republic and early empire. (Of course, it must 
 be understood that in tracing the sequence of these elements, we 
 emphasize only the dominant element ; two or more elements may 
 exist at the same time, especially case- judgments and legislation ; 
 but one or the other is so dominant as to give the real character 
 of the epoch; just as a river has many side eddies, though the 
 main current is plain.) Among the Hebrews, however, a re- 
 versal of Sir Henry Maine's sequence is found; for the flower- 
 ing time of Hebrew law is found in the records of the Ghemara, 
 the case law or casuistry of the rabbis in the 4th to 6th centuries 
 A. D. ; the rabbis were virtually a lawyer class voicing popular 
 civic law. In the Scandinavian communities (ignoring local va- 
 riances between the three main regions) we find probably the 
 purest record of independent development in any recorded people ; 
 and here the sequence of Sir Henry Maine is found in its ex- 
 actness; the peculiarity is that the second and third stages are 
 so sharply compressed into a short period; whereas elsewhere 
 the second period tended to be prolonged. But in the Anglo- 
 Norman history, which is the most mixed of all in its influences, 
 the second stage, customs oral and written, is virtually omitted 
 (unless we distort the period of written and printed case law 
 since A. D. 1400 by calling it customary law) ; and in the 1800's 
 the method of legislation suddenly dominates the entire mass; 
 perhaps the Cromwellian revolution, had it succeeded in its 
 abortive legal changes, would have marked the destined time 
 for a stage of codified custom ; but at any rate it did not in fact. 
 
 And it is to be noted that Sir Henry Maine's generalizations 
 might be interpreted as meant to explain the whole course of a 
 people's legal development, from beginning to end. Yet the 
 above illustrations represent only segments from a continuous 
 legal life of at least two of the peoples; only the Romans and 
 
Chap. III.] CRITIQUE OF METHOD 157 
 
 the Hebrews have ended their legal career. Hence, the complete 
 legal life, if traced, might show even further variations from 
 Sir Henry Maine's sequence. 
 
 Taking next the second legal idea, viz., the organ for expres- 
 sion of law, we find that Rome does indeed exhibit Sir Henry 
 ]\Iaine's sequence, viz., kings, oligarchies (ecclesiastical and 
 political), democracies (lawyer class and general assembly) ; 
 and Sir Henry Maine's sequence was based partly on Rome as a 
 type. But even here we find before the end of Roman organized 
 life a marked reversion once more to the first stage, viz., imperial 
 law ; and this would signify either that Sir Henry Maine's typical 
 sequence is imperfect, or else that the triple sequence is invari- 
 ably followed by a renewed cycle of the same sequence ; and yet 
 in either case it is fallacious. Moreover, in Scandinavia, we find 
 history emphatically exhibiting the exact reversal of Sir Henry 
 Maine's sequence, viz., (c), (b), (a) ; while among the Hebrews 
 his first stage, viz., (a) kings as judges, is not found at all. In 
 the Anglo-Normans, his three stages are found in his exact se- 
 quence; and yet here the influences were the most mixed, and 
 therefore the coincidence would seem to be less reliable as re- 
 vealing an inherent type of development. 
 
 In short, a rigid inductive method leaves little degree of cer- 
 tainty to his generalized hypothesis. 
 
 (3), (4). Next, however, comes the necessary complement in this 
 method, viz., the mapping out of the related legal institutions and 
 of the social forces; so that the clues to the variations in the 
 selected institutions may be discovered. Space does not suffice 
 to expound the application of this part of the method.^ It must 
 suffice here to note that, taking these outlines, our task would be 
 to prolong the chart, for each people and each epoch, by filling 
 in the several facts (so far as ascertainable), and then to study 
 to detect the possible connection between some of these facts and 
 the variations in the selected institution. For example, both the 
 Scandinavians and the Hebrews, at the earliest period of our 
 
 1 So far as ascertainable, only two authors have hitherto attempted 
 any schematic tables of data mapped out on this line. 
 
 Mazzarella's tables ("Les Types sociaux et le Droit") are imperfect, 
 because based on his fundamental postulate of the distinction between 
 feudal and " gentilician " societies as the controlling one; but his method 
 is undoubtedly sound, and deserves the universal attention of scholars. 
 
 H. A. Junod's " Life of a South African Tribe " (1912, 2 vols.) has in the 
 appendix a schematic table representing the successive stages in social 
 and economic conditions for a certain African tribe. So far as it goes, 
 this is precisely the method to be used ; but his data are too largely hy- 
 pothetical. 
 
158 CRITERIA OF LEGAL EVOLUTION [Part I. 
 
 knowledge, lack the element of kingly justice; with what fea- 
 ture of their social life is this lack connected? It could hardly 
 be connected w^ith the fact of clan and tribal organization ; for 
 both Scandinavians and Hebrews had this at that period ; while 
 the Anglo-Normans lacked this entirely, though they had a king 
 as organ of justice. Was kingly justice connected with the con- 
 quistador ial relation of invaders to a subject people largely 
 outnumbering the conquering immigrants? This feature existed 
 for both early Romans and early Anglo-Normans ; while it was 
 lacking in Scandinavia; and yet, must we not say that it was 
 found among the Hebrews after the exodus? And so, just as 
 we approach some plausible explanatory factor, we find ourselves 
 again baffled and doubtful. Continuing the search, we should 
 take the principal legal institutions, patriarchal power, blood- 
 feud, adoption, serfdom, commercial exchange, and so on; to 
 learn whether any of these, or any combination of them, sig- 
 nifying some definite stage of legal development in themselves, 
 are associated with some particular feature of the form of ex- 
 pression of law, e.g. case-judgments. If in two or more com- 
 munities we could discover such a connection, we might be en- 
 titled (hypothetically) to attribute that feature to a particular 
 stage of legal development in general ; and this hypothesis could 
 then be tested for other communities, and their variations be ex- 
 'plained by local factors. 
 
 The further and wider such a comparison was extended, the 
 more we should be entitled to affirm that the discovered se- 
 quences and causes represented general principles of legal evolu- 
 tion. 
 
PART II 
 FACTORS OF LEGAL EVOLUTION 
 
 IN GENERAL 
 
 Chapter IV 
 
 FACTORS OF LEGAL EVOLUTION 
 
 By Edmond Picard 
 
 Chapter V 
 
 CAUSES FOR THE VARIATION OF JURAL PHENOMENA IN 
 
 GENERAL 
 
 By Carlo Nardi-Grbco 
 
 A— GEOPHYSICAL FACTORS 
 
 Chapter VI 
 
 LAW AND GEOGRAPHY 
 , By H. J. Randall 
 
 / 
 
 Chapter VII 
 
 THE INFLUENCES OF GEOGRAPHIC ENVIRONMENT ON LAW, 
 STATE, AND SOCIETY 
 
 By Ellen Churchill Semplb 
 
 B — ECONOMIC FACTORS 
 
 Chapter VIII 
 
 ECONOMIC FOUNDATIONS OF LAW 
 
 By Achille Lorla. 
 159 
 
C — BIOLOGIC FACTORS 
 
 Chapter IX 
 
 ANIMAL SOCIETIES AND PRIMITIVE HUMAN SOCIETIES 
 
 By Adolfo Posada 
 
 Chapter X 
 
 NATURAL ORIGIN OF PROPERTY AMONG BIRDS, BEASTS, 
 
 AND FISHES 
 By R. Petrucci 
 
 Chapter XI 
 
 RUDIMENTARY SOCIETY AMONG BOYS 
 By John Hemsley Johnson 
 
 D — RACIAL FACTORS 
 Chapter XII 
 
 Section 1. — INTERNAL AND EXTERNAL FACTORS OF LEGAL 
 
 DEVELOPMENT 
 
 By Ludwig Kuhlenbeck 
 
 Section 2. — THE RACE FACTOR IN LEGAL EVOLUTION 
 
 By Houston Stewart Chamberlain 
 
 Chapter XIII 
 
 INFLUENCE OF NATIONAL CHARACTER AND HISTORICAL 
 
 ENVIRONMENT ON THE DEVELOPMENT OF THE 
 
 COMMON LAW 
 
 By James Bryce 
 
 E — RELIGIOUS FACTORS 
 
 Chapter XIV 
 
 THE INFLUENCE OF RELIGION UPON LAW AS ILLUSTRATED 
 BY THE IDEA OF PROPERTY 
 
 By Ludwig Felix 
 160 
 
F — PSYCHOLOGIC FACTORS 
 
 Chapter XV 
 
 SYMPATHY IN GROUP AND INSTITUTIONAL SURVIVAL 
 
 By Edward D. Page 
 
 G — POLITICAL FACTORS 
 
 Chapter XVI 
 
 THE CONSTITUTIONAL FACTOR OF LEGAL DEVELOPMENT 
 
 By Emil Reich 
 
 H — SOCIAL FACTORS — PHYSICAL FORCE 
 
 Chapter XVII 
 
 Section 1. — THE STRUGGLE FOR LAW 
 By Rudolph von Jhering 
 
 Section 2.— THE COMPROMISE NATURE OF LAW 
 
 By Adolph Merkel. 
 
 Chapter XVIII 
 
 THE USE OF CONFLICT 
 By Walter Bagehot 
 
 Chapter XIX 
 
 STRUGGLE AND ADAPTATION 
 
 By Michel-Ange Vaccaro 
 
 Chapter XX 
 
 ARBITRAMENT AND GUARANTY IN THE ORIGIN OF LAW 
 By Gaston Richard 
 
 161 
 
Chapter IV 
 FACTORS OF LEGAL EVOLUTION i 
 
 §2 
 
 §4 
 
 §8 
 
 1. The Factors, or Motors, of 
 Legal Evolution. 
 First Factor : Race. 
 3. Sa,me: The Great Natural 
 Races. 
 Same : Influence of Diver- 
 sity of Race. 
 
 5. Same: Natural Races and 
 
 Historical Races. 
 
 6. Second Factor : Environ- 
 
 ment ; the Mesology of Law. 
 
 7. Third Factor: Foreign In- 
 
 trusion. 
 Fourth Factor : Imitation. 
 
 §9. Fifth Factor: The Great 
 Jurists. 
 § 10. Same : The Great Jurists in 
 
 History. 
 §11. Sixth Factor : Jural Atavism. 
 § 12. Seventh Factor: Progenism. 
 Eighth Factor : Juridical 
 
 Technic. 
 Ninth Factor: Density of 
 Population. 
 § 15. Tenth Factor : Solidary Ac- 
 tion of Great Social Forces 
 and the several Parts of 
 Law. 
 
 13. 
 
 14. 
 
 § 1. The Factors or Motors of Legal Evolution. When we 
 study legal evolution with a view to discovering the general 
 principles which control it, we find that certain principal factors 
 stand out prominently and merit special inquiry/ These great 
 motive forces — cosmic coefficients — differ in kind and intensity 
 in the different periods and regions. Their effects may be cumu- 
 lative or counteractiveT-accofdmg to circumstances. They do 
 not operate in isolation, but with synergy and synchronism. 
 In their totality they produce the several national bodies of law. 
 A people's individuality and originality — that compact and 
 complete system of its own energies which impresses its members 
 with the idea of "my country" — finds expression notably in 
 its law. In passing from one nation to another, we observe 
 shades of jural distinctions which become material differences 
 when the nations belong to different races. As the plant (to use 
 von Ihering's illustration), though appearing to absorb nothing 
 
 ^ [By Edmond Picard, Professor of Law in the New University of 
 Brussels, Senator of Belgium, and former President of the Brussels Bar 
 Association. This chapter is §§ 140-154 of the author's "Le Droit Pur" 
 (Paris, Ernest Flammarion, 1910). The last few sections have been 
 abbreviated. 
 
 The translation is by John H. Wigmore, co-editor of this series.] 
 
 163 
 
I 
 
 \ 
 
 164 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 from without, does in fact draw its nourishment from the soil 
 and the air, so all Law borrows imperceptibly its vital elements 
 from the community in which it has its roots and the human 
 atmosphere amidst which it grows. 
 
 The notion that the legislator is all-powerful is an error; the 
 truth is that the laws of a people are bound to be a reflection of 
 its psychology. It is a remark of Herbert Spencer's that a nation's 
 law is the natural product of its traits; and before him Cicero 
 told us that to learn what man's law is we must study his nature. 
 The law is worthy of our respect and homage only as representing, 
 not a collection of arbitrary rules, but the fertile (though painful) 
 labors of a whole people's life, — the organic product of History. 
 And it secures that respect only through that instinctive devotion 
 which it inspires in those who feel its accord with their inmost 
 nature. 
 
 Multiple, then, as are the factors which go to form law, it is 
 not surprising that the various systems are composite, — mix- 
 tures, amalgams, and sometimes jumbles. In large part, they 
 are the stratifications of unconscious ideas, — not a voluntary 
 product of man in isolation, but collectively of the whole nation. 
 Like language, law too includes native stock, foreign infiltrations, 
 elements coming from outside but transformed by native char- 
 acter, and always an evolution of the whole. The scholastic 
 jurists who believe in the possibility of fixing law are as deluded 
 as the academic pedants who believe in the fixation of language. 
 
 These motor-factors can never — such is their mysterious 
 nature — be all discovered and enumerated. But those most 
 obvious to our imperfect vision are the following: L Race; 
 2. Environment; 3. Foreign intrusion; 4. Imitation; 5. Great 
 jurists; 6. Atavism; 7. Progenism; 8. Juristic technic; 9. 
 Population-density; 10. Solidarity of social forces. 
 
 § 2. First Factor: Ra^ce. Race is the dominant factor in the 
 aspect which human activity takes in realizing itself. This truth 
 has just begun to receive acceptance among Europeo-Ameri- 
 can nations; it has been obscured by two prepossessions, first 
 the childish idea of the sole origin of the race from Adam and 
 Eve, as accepted by Christian theology, and secondly, the idea of 
 the supposed unity of man, no less obstinately cherished by sen- 
 timental ideologues. 
 
 The monogenism of the Biblical tradition — one original couple, 
 placed by Jehovah in a terrestrial paradise — has been repudiated 
 by science. The truth of polygenism must now be conceded, i.e. 
 
Chap. IV.] PRINCIPAL FACTORS 165 
 
 that groups of human beings, with fundamental physical and 
 psychical differences, appeared gradually upon the prehistoric 
 earth at different times and places. And this polygenism also 
 disposes, at the same stroke, of the philanthropic dream that all 
 human beings are equivalent, in racial elements, and that to deny 
 this is to repudiate the constitutional pronouncement that '' all 
 men are equal." 
 
 Polygenism reveals to us these ethnic groups of remote origin, 
 having a common -human element, but also essentially and irre- 
 ducibly different in a number of intellectual traits, notably as to 
 law and justice. In the material of these traits, there is no per- 
 manent borrowing by one from the other. The groups are dis- 
 similar, and they evolve along their original types in strict relation 
 to their physiological and cerebral nature. Some of them — 
 millions in number — have probably disappeared; others are 
 — relatively few — in the course of disappearance, — the Ameri- 
 can Indians, the Australians, the Arctic peoples. 
 
 The unification of terrestrial humanity — a billion and a half 
 souls — as a single identical whole, whether in religion, in language, 
 in art, or in law, is a mere Utopia, in all probability. And even if 
 it could be made to happen, it would be the ^consummate exhibi- 
 tion of artificiality, of tyranny, and of fragility. 
 
 § 3. Same: The Greut Natural Races. We must not confuse 
 the so-called " historic " races — i.e. the entities produced by cir- 
 cumstances — with the great natural races. No one of the 
 latter is due to any contingent circumstance. " Res nata, non 
 facta." They are supra-national. They exist by the same right 
 as do the zoological groups, and with the same persistence. They 
 have no set period of existence; they undergo modification only 
 after lapses of time longer than any of which we have conception 
 or in which our action can be exercised. These races are as un- 
 changeable in terrestrial life as are the mountain ranges. 
 
 Not reckoning the races of small population, there remain five 
 races as to whose distinctness there can be no difference of opinion : 
 Aryans, Semites, Mongols, Hindustans, Negroes. 
 
 The Aryans may be termed Europeo-Americans, if we use their 
 geographic distribution to define them more accurately. It is a 
 more accurate term than Indo-European, which implies that the 
 Aryan race is still represented in Hindustan. The only Aryans 
 now to be found there (probably) are the 200,000 English who 
 rule over 200,000,000 natives. The term also implies that the 
 Aryan race originated in the Bengal peninsula, whereas the most 
 
 k 
 
166 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 recent researches (summed up by Tylor) prove that they occu- 
 pied the plain bordering the northern Uttoral of Europe, whence 
 one of their branches reached Asia. The Semites are spread 
 through northern Africa and western Asia, with considerable in- 
 filtrations in the southern ends of Europe, and, by the Jewish 
 branch, in many other countries. The Mongols, or Turanians, 
 are in China, Japan, and Indo-China. The Hindustans are in 
 Bengal, Siam, and Burma. The Negroes are in central Africa, 
 with offshoots in other parts. 
 
 Within these racial entireties, all the members cerebrate like a 
 single man, in the various fields of human activity, subject only 
 to the national shades of difference. A single race has, in its 
 typical elements, a single soul and body. This soul represents 
 the mobilization of all its ideas and sentiments. It constitutes 
 a totality complex and superb, branching into all the modes of 
 life, — a powerful unity which manifests itself in history with 
 not one interruption, not one self-contradiction, not one durable 
 deviation. 
 
 Physically, common opinion distinguishes these races by the 
 skin-color; while science distinguishes them by anatomic and 
 physiologic features. But a keener insight is represented by the 
 view, now gaining acceptance, which differentiates them by their 
 psychical traits, varying throughout the gamut of social forces, 
 viz. Language, Religion, Art, Morals, Law, etc. The racial 
 concepts in these broad fields combine to form distinct civiliza- 
 tions. And these psychic traits are as fixed as the physical ones. 
 
 The hybrid peoples are of less importance than one might sup- 
 pose. Where crossings of breed have formed mongrels, there en- 
 sues promptly either sterility or a separation among the descend- 
 ants with a return to the original type. In spite of disguises of 
 costume or imitation of manners, a man cannot escape his race 
 and his skin. National groups formed by such mixtures consist 
 ultimately of two races juxtaposed, like peas and beans in a basket 
 together, and not truly blended into a new species. In Spain, 
 for example, even the superficial perception of the traveler de- 
 tects, alongside of the true Europeans, a vast number of Semites, 
 — the raw material of race in Spain, remnants of the Carthaginian 
 and Arab occupations. 
 
 Among the ^ve dominant races, is there some hierarchy of grades 
 of superiority ? Gobineau awarded first rank, in general, to the 
 Europeo-Americans. And one must indeed acknowledge that 
 they seem like an advance-guard for humanity. A strength to 
 
Chap. IV.] PRINCIPAL FACTORS 167 
 
 create is theirs ; while the others have only the strength of inertia, 
 of stagnation, or of imitation, — an ability to live at others' ex- 
 pense without genuine production of their own. The Aryan 
 race is intrinsically eclucable, indefinitely progressive, inexhaust- 
 ibly inventive, and instinctively a colonizer. 
 
 But to pursue these considerations would be to enter into 
 ethnology, and what is here said must be merely that which serves 
 to explain the law. It remains only to note that for solving these 
 problems we must never seek our data in the isolated individual ; 
 but only in the masses of men. The life of the mass is more 
 determinate and more visible than that of individuals. Polyps 
 disclose noticeable specific differences when examined in entirety, 
 while the detached cell of one species may not perceptibly vary 
 from the cell of another species. And, moreover, no argument 
 founded on exceptional cases is valid, in dealing with these large 
 questions; for, as Hergen puts it, the existence of flying fishes 
 does not prove that fishes are birds. 
 
 §4. Same: Influence of Diversity of Race on the Evolution 
 of Law. Throughout the ages this diversity of race has influenced 
 indelibly the generation of law. In law, as in other parts of life, 
 the heart of the race is what we must seek to discover, — seek 
 to hear it beat. Without this, what we find is merely deceptive, 
 
 — an imitation and a travesty. Law (to use Aristotle's parallel) 
 is not like fire, which burns the same for the Persians as for the 
 Greeks. Amid all its varied manifestations, it remains an ethnic 
 instinct, — one of the functions of the soul. And although, as 
 we feel this instinct within us, we tend to receive the illusion of a 
 free personal will, and say, " / am thinking a law ", nevertheless 
 what we ought to say is, " It is thinking a law in me", — just as we 
 say naturally, " It is raining in our town ", " It is blowing a gale 
 this morning." We must acknowledge resignedly that a thought 
 comes when it wills, not when we will. Instead of resenting this, 
 we must enjoy and share it, as the most fascinating of truths. 
 We do not resent the orbits of the planets, nor the rhythm of the 
 tides. The flow of Law should be to us even as the flow of the 
 Nile. 
 
 An ethnic group creates and develops its Law in the same way 
 as itself grows. The immutable soul of the races (in Le Bon's 
 phrase) weaves for itself its own destiny. There is no world-law, 
 
 — only racial laws. The absolute internationalization of law is 
 a mere dream. A single system of law could exist only on an 
 earth which had but a single language. The most that could be 
 
168 FACTORS OF LEGAL EVOLUTION [Part II.' 
 
 pronounced artificially, by agreement, would be a sort of juridical 
 Volapiik. 
 
 As between the several races themselves, law differs sometimes 
 in its general institutions and sometimes in its details. Each 
 oae possesses, as it were, a different physiognomy for its law. 
 To verify this assertion, we must not limit our observation to those 
 jural features which have an almost inevitable likeness, such as 
 sale or exchange ; but must include the larger institutions such as 
 marriage, property, and succession, and even the grand divisions 
 of penal, public, and administrative law. Moreover, among 
 primitive peoples, in the origin of law, the differences are less 
 perceptible; for the racial traits are as yet less specific and less 
 colored than in the periods of full flowering, where all features 
 take on a more clearly marked contour. 
 
 The resemblances among laws of different races are due to 
 factors other than race; they arise from the common human 
 stock. Moreover, the " structure " or jural operation is as 
 inalterable as that of the operations of mathematics. 
 
 § 5. Same : Natural Races and Historical Races. Linguistic 
 usage applies the term " race " to include peoples who had once 
 a single origin but bear now on the surface certain differences 
 due to the chance of history; the Latins, the Teutons, and the 
 Slavs (barring the casual infiltrations) are all Aryans. But 
 common discourse also speaks of the Slavs, the Teutons, and the 
 Latins as separate " races." And this usage has led to countless 
 vagaries, both laudatory and disparaging. It is the main support 
 of chauvinism. None the less, it is unsound; these peoples are 
 like flowers of the same species, differing only in the colors of 
 their petals, like carnations from the same garden-bed. In cor- 
 rectness, we should refer to the Latin (or Slav or Teuton) variety 
 of the Aryan race, or the Jewish variety of the Semitic race. " Res 
 facta, non nata." No doubt we are justified in emphasizing the 
 fact that differences exist between these groups, — differences 
 marked out in the lapse of time by distinctions of environment 
 and by contingencies of history. But nations are what the course 
 of history makes; races are what nature made. And "race" 
 is a term ill adapted to distinguish merely the varieties of a single 
 ethnic stock. The Arabs, the Chinese, the Negroes, do not make 
 this mistake; in their eyes all whites are but one race-mass, 
 whatever their nation. 
 
 In the following passage, Le Bon has well summed the 
 difference between Race and Variety (although he at times 
 
Chap. IV. J PRINCIPAL FACTORS 169 
 
 attaches to the latter that importance which belongs rather to 
 the former) : " The ancestral ideas are the inheritance of the 
 race, a bequest from ancestors earlier or later, a bequest re- 
 ceived at birth and decisive of the mainsprings of conduct. The 
 acquired, or intellectual, ideas are those which man obtains from 
 his environment and education ; they serve to supply his reason- 
 ing and his discussions, but seldom to guide him. Their in- 
 fluence on* his actions is little or none until, by the repeated ac- 
 cumulations of inheritance, they enter into his unconscious being 
 and become his fixed sentiments. Though acquired ideas may 
 sometimes succeed in overcoming ancestral ideas, it is only when 
 the latter have been annulled by contrary inherited ones, as 
 sometimes where different races have been crossed ; for then the 
 person becomes a sort of ' tabula rasa.' He has lost his ancestral 
 ideas; he is merely a mongrel, without moral stamina or fixed 
 traits, at the mercy of every impulse from without." 
 
 Between peoples who are only varieties of the same race (Europeor- 
 Americans, for example) there do indeed occur antipathies, often 
 violent. But the identity of their civilizations is evidenced by 
 their customs, their language-relations, their forms of government, 
 the regulation of their military, commercial, and agricultural 
 systems, their homes, food, drink, religion, pleasures, arts, and 
 literature, — in short, by nearly all of their traits. And their 
 differences of Law are among the least ; they can be explained 
 as transitory only ; and they give promise of a movement towards 
 jural unification. And this tendency would seem to be only a 
 return to that unity in the period of their primitive law ; for the 
 patient researches of scholars exhibit it as identical, in spite of 
 its remoteness in time ; witness the duplication of ideas in the old 
 Brehon law of Ireland and in the law of the Ossetes of the Caucasus. 
 
 It is particularly in the legal inventions of modern times (not 
 fettered by tradition and atavism) that this tendency to unifica- 
 tion is notable, — in the law of patents, of copyright, and of 
 trademark. Not only is the general jural mechanism the same, 
 but the details repeat themselves. Numerous congresses have 
 helped towards this identification in those subjects (for example, 
 maritime law) where international relations are most frequent. 
 The great Codes may have differed in their authorship; but in 
 their basis of ideas are found striking analogies. It is impossible 
 not to feel that, in the profundities beneath their consciousness, 
 these peoples, descended from the same stock, were controlled 
 by the psychic force of the race, common to all and imperishable. 
 
170 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 §6. Second Factor: The Environment. The Mesology of Law. 
 Darwin says : " If we examine the plants which grow on a bank 
 or at the edge of a dense forest, we cannot doubt that the young 
 stalks and their leaves take the positions suitable to insure for 
 these organs the best light and thus to make them capable 
 of effecting the decomposition of the carbonic acid." So too, 
 " mutatis mutandis ", the environment in which human societies 
 live must be examined. It is the source whence, almost exclu- 
 sively, each one has drained the material and moral elements, 
 i.e. the economic treasures, destined to satisfy its needs. And 
 this supply continues even more abundantly, and in spite of the 
 growth of a network of travel and transportation which has so 
 connected the farthest parts of the world that one can no longer 
 speak of " the ends of the earth." 
 
 f Montesquieu in '' The Spirit of the Laws " has an excellent 
 chapter on what might be described, in geologic terms, as the geo- 
 g!-aphic imperative of Law. 
 
 ^Environment includes certain main factors, which by influencing 
 body, brain, and habits, i.e. the customary behavior of a people, 
 affect its Law, which is an emanation of its customs and bears 
 constant and close relation to them. These include : climate — 
 cold, warm, or temperate (which in turn depends upon latitude) ; 
 land-level — plain or mountain ; distance from the sea ; coastal 
 features — flat or rock-bound; nature of the surface — wooded 
 or cleared ; quality of soil — cultivable or sterile. All these and 
 other variations of land and of atmosphere show their traces in 
 the jural system, either by creating species or by modifying 
 varieties. A countless number of statutes and ordinances have 
 no other origin than these differences of terrestrial environment. 
 Brazil and Russia, because they are different geographic regions, 
 will therefore have many differences of law. 
 
 This factor, however, is relative only. The Turks, as Hegel 
 pointed out, live in the same region as the Greeks, and yet they 
 are not like peoples. Race dominates over climatology. The 
 contact between race and the geologic environment produces a 
 plant whose nature is dependent on the two factors, — the prod- 
 uct being almost identical when separate varieties of the same 
 race are affected by similar environments, and changing only when 
 the race changes. Arab and European, transported to the center 
 of Africa, have produced civilizations essentially different, es- 
 pecially in their law. Englishmen at Spitzbergen obey legal 
 customs which only remotely resemble those of the Esquimaux. 
 
Chap. IV.] PRINCIPAL FACTORS 171 
 
 § 7. Third Factor: Foreign Intrusion. Peoples and races have 
 mingled, — sometimes peacefully, sometimes by force ; now by 
 conquest, and now by infiltration. In either case the victor, 
 whether openly or covertly, whether by despotic and less suc- 
 cessful means or by indirect but more intense methods, fixes 
 its customs upon the conquered, — its art, religion, law, and some- 
 times its language. Robespierre was partly right when he called 
 it '' the most extravagant absurdity that a statesman could 
 imagine " to suppose that one people could by mere force come and 
 compel another people to adopt its laws and constitution ; never- 
 theless, even when the intruding conqueror respects the law of the 
 conquered, the influence of the former inevitably is felt, by mere 
 contiguity. The Germanic invasion of Roman Gaul is a suf- 
 ficiently well-known instance. They did indeed apply the prin- 
 ciple of the " personality " of law ; i.e. they allowed the Gallo- 
 Romans to be judged by their own law, while the conquerors 
 kept their Germanic law for themselves; and yet, five centuries 
 later, these two systems had become merged into a single one, 
 the " Coutumes " of old France. For when two peoples of the 
 same racial stock mingle, the process ends in a compromise mix- 
 ture, an amalgamation ; homogeneity ensues from heterogeneous 
 elements. When the Code Napoleon, in later times, was imposed 
 by conquest on Belgium and the Rhine provinces, it worked well, 
 and was continued in force long after the political separation; 
 for these nations were in ultimate origin brothers of the same 
 stock, — in spite of the frothings of Gallophobes and Germano- 
 phobes. 
 
 If, however, the two peoples are of different natural races, the 
 result is quite otherwise. The national law experiences a strong 
 reaction. The influence is no longer one of filiation into an ethnic 
 family, but of antagonism. The two laws persist in hostility 
 side by side, without interpenetration. Le Bon has truly re- 
 marked on " the sure instinct which taught ancient peoples to 
 distrust the stranger." The Aryan-Semitic question, in all its 
 aspects, is at bottom due to no other cause ; in spite of the chaos 
 of explanations, inconsistent and sometimes absurd, the all- 
 sufficient one is the defensive instinct of Aryan peoples against 
 the intrusion of a psychically distinct individuality, which indeed 
 uses Aryan law but without suspecting that it denaturizes what 
 it uses. 
 
 WTien the mixture is one of laws of the same family, the more 
 developed law generally has the preponderant influence. Such 
 
^ 
 
 172 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 was the result with Roman law in Europe; it represented the 
 same type as the Germanic law, but at a more advanced stage; 
 and when the Germanic invasions brought the two systems into 
 contact, the Roman law naturally exercised a considerable in- 
 fluence. And its persistence throughout the Middle Ages as 
 " written reason ", and the conservation of its power even to 
 modern times, exhibiting still an irresistible force after the lapse 
 of fourteen centuries — this domination is neither mysterious nor 
 factitious when we consider the principles above expounded. 
 
 Compare, for example, the fate of the Roman law in western 
 Asia and northern Africa, where the Semitic race prevails. These 
 regions, equally with Europe, were a part of the Empire; and 
 its dream was to hold two naturally different races under a unified 
 dominion. But the dream was impossible; Roman law gained 
 scarcely any influence, and was soon submerged. And the reason 
 was that the legal mind of the Semitic peoples was alien to the 
 Roman mind ; while the Germanic one was kindred. The 
 Punic wars, merciless as they were, might have taught this polit- 
 ical lesson ; but the Caesars never learned it. 
 
 § 8. Fourth Factor : Imitation. Tarde, in his clever work 
 " The Transformations of Law ", attributes to Imitation a highly 
 important — perhaps an exaggerated — part as a factor in legal 
 evolution. Similar views have been expressed by Sir Henry 
 Maine in his " Ancient Law " and by Le Bon in " Man and His 
 Societies." 
 
 It must be conceded that the imitation of legal institutions, 
 present or past, which another people appears to possess in greater 
 effectiveness is a process which satisfies a natural instinct and temp- 
 tation, and is often to be observed. It is a sort of contagion. 
 But those scholars who fear that too much importance is being 
 conceded to race and atavism will in vain proclaim for Imitation 
 that .decisive influence ; for a deeper examination would ascribe 
 it to the other two irresistible factors. This juraljnimicry, this 
 hypnotic duplication, is revealed to us (when the process of adap- 
 tation is successful) as nothing more than a people's instinctive 
 recognition that in another people, more advancedJi^ n it s elf 
 but of the same race, an institution which fits its own being has 
 already been brought into existence. Such experiences lighten 
 up a nation's hidden consciousness and its destiny in the world of 
 law. 
 
 Children learn in this way their native language; they have 
 the appropriate traits and desires, and an unconscious store 
 
Chap. IV.] PRINCIPAL FACTORS 173 
 
 of inherited susceptibilities; everything is ready; the words 
 which they hear fall on prepared soil; their progress is mar- 
 velously rapid, considering that what they are acquiring is so 
 complex. The process, one might say, is merely an awakening 
 of what lay dormant in them. 
 
 But Imitation is sometimes employ ed in n mnnt mifijnruidrd Tnnn 
 ner. Witness the at tempt to appl ^he Code Civil of Napoleon 
 to the Japanese Emp ire, a M ongolian race.^ TKe Europeo- 
 American race, however, in its movenTents for legal reform among 
 its several peoples, justly make use of imitation, by eclectic studies 
 of comparative law. The processes of transplantation, grafting, 
 cutting, inoculation, can here be observed, — a sort of juridical 
 heteropathy. 
 
 An interesting instance of Imitation is found in judicial law, 
 viz. when it shows a tendency to repeat in current cases the de- 
 cisions given in former ones. This observance of habit, or fash- 
 ion, is known as the " authority of precedents", " auctoritas re- 
 rum, perpetuo similiter judicatarum." The method is valuable 
 only when the reasons for the earlier decision are again verified 
 in the later case ; but for the judge merely to imitate blindly the 
 accepted opinion of the past is a pitiable practice. 
 
 § 9. Fifth Factor : The Great Jurists. And so we arrive at the 
 Great Jurists, — called by the Romans " the founders of Law '* 
 (" juris conditores "), — the elite, the protagonists, the special- 
 ists, the leading actors, the dictators of law. 
 
 Great social forces spread themselves like a fluid throughout 
 universal mentality. They are scattered sparsely amidst the 
 human agglomeration. In the several channels of language, 
 religion, la w^ and the like, they show themselves by a fluctuating 
 distribution of a certain total of beliefs, needs, and desires. As 
 they traverse the being of humanity, they impart a vibrant and 
 resonant cerebration. But this diffusion and reception do not 
 exhibit in all the same force or intensity (in the jural sense). At 
 intervals there is an accumulation and an incarnation in marked 
 individualities, — great artists, great prophets or religious leaders, 
 great despots, and great Jurists. These are the conquerors of 
 souls, predisposed and predetermined, — the " men of destiny ", 
 the supermen. 
 
 Sometimes this accumulation of force rises to the degree of 
 genius. Modern thinkers have asserted that genius borders on 
 
 1 [That the Japanese people can be said to be of Mongolian race is at 
 least doubtful; probably the majority are not. — Ed.1 
 
174 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 insanity ; Moreau of Tours put forth this hypothesis ; Lombroso 
 and Nordau verified it. The theory is that the mental constitu- 
 tion which sets apart some men by the originaHty of their ideas, 
 the eccentric energy of their emotions, and the transcendence 
 of their intellectual powers, has its origin in the same organic 
 conditions as those various psychical disturbances of which in- 
 sanity is the fullest expression. And it may be true in the domain 
 of art, of religion, or of politics. But the theory is less verifiable 
 in the calmer and more balanced region of legal science. Ulpian 
 and Papinian, Dumoulin and Domat, Pothier, Demolombe, and 
 Laurent, Ihering and Maine, — these great personalities have 
 never been open to the charge of an epileptic or paranoidal taint, 
 in body or in mind. These types of famous jurists, and others 
 more numerous, have merely revealed that evolution which was 
 going on in the hidden depths of the social consciousness, — re- 
 vealed it by making it more perceptible in miniature, and often in 
 the most correct proportions. They obeyed profound impulses, 
 of which they themselves became the most facile outlets, — = as 
 the lava erupts from the earth at the most friable points. Luther 
 could so speedily disseminate the Reformation, and Mahomet 
 Islamism, because each of them already existed in embryo in the 
 masses who became their converts. 
 
 The great Jurists, then, like all great men, are either precursors, 
 prophesying the future; or analysts, penetrating into life; or 
 generalizers, overcoming resistance. And they are this by in- 
 stinct and spontaneously, not by their own choice. They either 
 prepare, or unfold, or concentrate. Some make ready the path; 
 some increase force or light. And all possess a little of the Prome- 
 theus. Carlyle asserts that whatever is truly great in them broke 
 forth from the depths of the people. They build with stones which 
 have been hewn and polished. They are creators in appearance 
 only. They know truths which others have only vaguely sensed. 
 Their genius enables them to understand in advance the jural 
 needs of society at large. To attribute exclusively to the force 
 of individual effort what is so obviously collective and indivisible 
 is a huge mistake. Social evolution combines with individual 
 evolution in their persons, both being unconscious and spontaneous. 
 Neither directs the other; as emanations, both are concomitant 
 and parallel. Both share Nature's infallibility and irresistibility. 
 Great men, with their phenomena of illumination, are like caverns 
 heaped with treasures; they contain in their hollows all the 
 ideas of a race. The most brilliant are those in whom the race- 
 
Chap. IV.] PRINCIPAL FACTORS 175 
 
 incarnation was most concentrated. When best they understand 
 their mission, they do but give forth a formula for the unclear 
 aspirations of the multitude; they express the thought of those 
 who speak not. Endowed with a sort of sorcery, they employ 
 the forces external to themselves to realize the ideas of which 
 they are the seers and the diviners, the revealers and the charmers. 
 They are seen to be simply the awakeners of souls, heralds, and 
 fellow- workers of the masses, — stage-managers for a. drama 
 composed by nameless authors. 
 
 Those who believe that the great jurists Tnake the Law are as 
 grossly in error as he who would assert that the new leaves make 
 spring-time, or that the crow of chanticleer causes the rising of 
 the sun. Such a belief puts effect before cause. Genius is a 
 factor of Nature ; it is subject to the same principles as the vege- 
 table and the mineral kingdom; its strength is dominated by 
 that of the universe. They are the depositaries of power, the 
 tabernacles of new ideas in embryo; they form the patriciate, 
 the magnates, the heroes, of Law. 
 
 But these supermen may also (and it is not surprising) be 
 leaders, with all the psychology of a leader, i.e. the hypnotizer, 
 who creates nothing himself but the form, and simply translates 
 the instinctive will of the multitude, to which Nature itself gives 
 direction. There is no value in that theory of an elite, advanced 
 out of ignorant conceit, which asserts that nothing comes from 
 below, and that the fertilizing rain of ideas falls from above; 
 for that rain itself is nought but the vaporization of the moisture 
 already drawn from earth. Emerson's phrase, " representative 
 man ", is a correct one ; they are but agents obeying orders. 
 
 § 10. Same : The Great Jurists in History. In the sequence 
 of the ages, the series of famous Jurists — the general staff, as it 
 were — has continued almost without a break ; for Law has never 
 taken a holiday. They might be called the archbishops of Law, 
 their genius administering the communion to the jural needs of 
 the peoples. When the jurist appears in history (Ihering says). 
 Law has passed out of the period of infancy and ingenuousness. 
 
 It is usual to dwell upon some of them, in the courses of ele- 
 mentary law, with more or less detail. Beginning with Lycurgus 
 and Solon, they are represented as having performed that in- 
 credible miracle of imposing upon the Athenian and the Spartan 
 peoples, at one stroke, systems of law in contrast with the native 
 ones (though in fact they probably did no more than to reduce 
 the existing customs into a code). But these disquisitions depart 
 
176 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 from the true path of abstract legal science; for their material 
 is part of the concrete history of law. History's task it is to tell 
 us of these illustrious men of law, their personal traits, their 
 work and influence. But in evolution more importance belongs 
 to their ideas than to their names; for thought counts for more 
 than erudition does. 
 
 These lofty personalities have sometimes had a pernicious 
 influence, whenever they have substituted their own meta- 
 physical notions for that reality of nature to which they should 
 confine themselves as the distinguished interpreters. Whenever 
 they have exaggerated these unreal abstractions, they have lessened 
 and sometimes expunged the direct influence of the people on the 
 formation of Law. Thereby have they created for the people an 
 indigestible Law, which sooner or later will be vomited up in a 
 revolutionary nausea. For the true jurists include, not only 
 the professional lawyers, but the outer groups that influence the 
 reform of law, especially the economists and the statesmen, — 
 beneficent toilers for purposeful change (not to be confused with 
 the mere ambitious politicians, as futile and sordid as a flock of 
 crows). The professional lawyers too often are but a group of 
 parasites apart, full of antipathy and even of disgust for the pop- 
 ular and human law. They have lost touch with the general 
 soul ; and have undergone a degeneration by reason of their pro- 
 fession. They are narrowed by their special environment. Some- 
 times they have given to Law its exterior beauty, a purely 
 theoretic architecture not corresponding to real values, adorned 
 and fa9aded with an empty technic, a symmetry of phrases. 
 Lacking the sense of strict Justice, they perforce become unjust. 
 They are like those infant prodigies in mathematics, who lose 
 their cleverness as soon as they are taught the actual rules of 
 mathematics. Their products must be studied, but not imitated ; 
 for Law must be seen and understood as it is, and not blindly 
 accepted as they represent it. 
 
 The true jurist must be satisfied to remain a shepherd, an 
 enlightened minister to the needs and instincts of his flock, and 
 not aspire to create chimeras. 
 
 § n. Sixth Factor : Jural Atavism. Like every product of 
 the human brain. Law is subject to Atavism. The brain origi- 
 nates in the immeasurable past and its multiple influences; and 
 the habits inured in it are the great conserving element; and 
 atavism is the aflSrmation of indestructible yesterdays sounding 
 the mufiled bugle-call of thoughts long quiescent in the sleep of 
 
Chap. IV.] PRINCIPAL FACTORS 177 
 
 death. Some thinkers, therefore, have regarded atavism as an 
 inherited weakness, the expression of superseded habits and col- 
 lective falsities, — as if the present was burdened with the corpse- 
 odor of the past. 
 
 Atavism is not to be confused with the race-influence, already 
 described. The latter represents the essential and invariable jural 
 stock possessed by each irreducible human group ; but the former 
 is no essential part of this stock. Atavism is formed, attenuates, 
 and disappears in the progress of time; it is contingent upon 
 history. It is an alluvion, a deposit, which yields only under 
 the chemical influences of new facts and the race-stock. 
 
 This deposit is formed by subjection to jural habits. Nature 
 seems to prefer that changes shall not be too rapid. This deposit 
 of older institutions becomes an obstacle to the new ones which 
 the forces of jural evolution tend to produce. " Not the living, 
 but the dead," says Le Bon, " play the dominant role today." 
 '' Multa quae cecidere renascuntur." As the living push on into 
 the future, they are retarded by the ball-and-chain welded by the 
 past. " The fathers have eaten sour grapes ; therefore, are the 
 teeth of the children set on edge," says the Scripture. 
 
 Law, therefore, like Janus, is two-faced. Its evolution thus 
 loses in part that liberty which we are apt to attribute to it. It 
 may be compared to a great factory ; its machinery is constantly 
 getting out of date ; new machinery must be continually installed 
 from time to time; and yet the whole cannot be replaced at a 
 single stroke; so that at any one moment it is a blend of super- 
 annuated and of perfected apparatus. 
 
 Atavism-^as both its pernicious and its beneficent features. 
 It is pernicious when it degenerates into an exaggerated con- 
 servatism, — when it grips down the law like a mortgage in the 
 hands of a hard-hearted creditor. It is beneficent when it in- 
 duces a repugnance to over-rapid changes and to a repudiation 
 of the patterns provided by the past. Hence those periods of 
 resistance and distortion in legal progress. 
 
 The nations of the Europeo-American race have for centuries 
 been subjected, and still are, to a general atavism, intense and in 
 some respects irksome, arising from the inveterate persistence 
 of Roman law ideas. One might have supposed that the peoples 
 which settled in the new regions of the Occident would have cast 
 aside more of their past, and would have produced jural forms of 
 surprising novelty. Far from it. So powerful has been the 
 atavistic influence that neither the transit of an ocean nor the 
 
178 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 novelty of the environment has made a substantial difference. 
 There is perhaps more boldness in their treatment of Law; but, 
 seen as a whole, it bears identical features. Nothing is more 
 significant of the latent energy of tradition. 
 
 The struggle between atavism and new law is adjusted by a 
 process of natural selection, which continually effects the dis- 
 appearance or change of whatever law is least fit for the epoch. 
 This incessant picking and culling is a dynamic phenomenon of 
 elimination. 
 
 § 12. Seventh Factor : Progenism. Not only do the beings 
 of the past struggle within us to effect their influence, but also 
 the beings of the future, who will be completed only in our de- 
 scendants. There are in truth two opposing forces whose focus 
 of concentration is in the present : atavism — the ebb-tide of 
 what has been achieved — and Progenism (to coin a new word), 
 the flood-tide that is rising. 
 
 This phenomenon of anticipatory action, this precursor of the 
 future, forces us to face this question : To w^hat extent is every 
 being influenced by what is destined to happen to his descendants ? 
 Is the production of Law thus influenced? For just as every 
 being contains remnants of what has been, so also he surely holds 
 the germs of what is to be. And if these remnants are indeed a 
 factor in moulding the present, why are not also these germs? 
 There is but a single Whole in the eternity of life. Change and 
 motion do but give a chimerical aspect of separateness. The 
 influences of past and future are alike pervasive. 
 
 And does not this suggestion throw some light on the history 
 of Law? Are we not unjust to discredit the Precursors, and to 
 refuse to see in their dreams anything but impossible Utopias ? 
 May we not profitably listen to these inner voices which summon 
 us to the Law that is to come ? The mark of a great idea is to be 
 denied and doubted till the day of its unanimous acceptance. If 
 the jurist would be spared the remorse of having lingered too 
 long in the decadence of worn-out ideas, and the mortification 
 of having repudiated the noble consummations marked out by 
 destiny, he must give heed in due season to those influences in 
 the formation of Law which we have called Progenism. 
 
 § 13. Eighth Factor: Juridical Technic. To put into appli- 
 cation and to develop logically the processes of Law implicit in 
 its structure and mechanism, — this is juridical technic. The 
 Romans termed it " ratio vel regula juris ", in contrast to ''jus 
 singulare." 
 
Chap. IV.] PRINCIPAL FACTORS 179 
 
 The professional lawyer, imbued with this technic, is eimmored 
 by the charm of its symmetry and the correctness of its logic, — 
 much as the epicure is absorbed in the taste of his viands, to the 
 neglect of their nutritive value. The lawyer, therefore, would 
 preserve it, not only in the application of present law, but also in 
 the formation of new law, and would make the demands of equity 
 subservient to the rigidity of formalism. 
 
 This obstinacy is indeed of service in furnishing a guaranty 
 against unforeseen and extreme consequences, w^hich would throw 
 out of gear the juridical machine. And the legislator does well, 
 therefore, to respect the professional prejudice for symmetry of 
 the law, even at the occasional cost of social loss. But there 
 should be no exaggerated homage. The sound sources of Law 
 can be unhealthily distorted by scholastic technic, by far-fetched 
 dialectic, and by the subtle expedients of an extravagant logic, — 
 products of the pernicious monomania of professional lawyers 
 carried away by fanciful cerebrations. These Jacobins of Law, 
 these pedantocrats, forget that the technic of Law is but a 
 means to an end, and must be sacrificed whenever human needs 
 demand it. The social end is the prime consideration in the 
 formation of Law; and technic, however fine, must always be 
 secondary. 
 
 The jurist by trade can seldom be brought to see this. But 
 Ihering has shown us that the " heuristics " of Law, viz. the 
 valuation of its several interests according to the needs of the 
 time and the spirit of the time, is the true legal system — not 
 responding in base subservience to the immediate contingencies, 
 and yet courageously rebelling against the prejudices of an anti- 
 quated learning. 
 
 Roman law devoted itself to technic with a sagacity which was 
 remarkable, an art which was superb, and a cleverness which 
 was astonishing. It had even its strokes of genius. Posterity 
 brought it to completion ; but its well-founded principles continue 
 to form the main stock of our modern law ; and this eternal part 
 of its vast structure will ever deserve study. Nevertheless, its 
 hypnotism should not induce in us an equal admiration for those 
 parts of its bequest which have now only an archaeological value. 
 One of the reasons for the persistence of its authority is its rigo- 
 rous logic ; but in its own day it had the skill to suspend or mutilate 
 its logic whenever changes in social needs demanded changes of 
 law. By its fictions and its " jus singulare", it avoided the tyran- 
 nous excesses of an absolute juridical grammar. 
 
180 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 We must, therefore, have a care against over-rationahzing 
 Law. We may even take the risk of de-rationaUzing it. The 
 sense of Law is what should have our deepest respect. 
 
 § 14. Ninth Factor: Density of Population. The view that 
 density of population has had a powerful influence on social con- 
 ditions has been energetically advanced by Kovalewsky (" Evolu- 
 tion economique des peuples")- In the general balance, no 
 doubt this factor must be reckoned. And it is not without in- 
 fluence in jural evolution, both in the large and in detail. 
 
 Among certain peoples, where scarcity of subsistence has been 
 of great consequence, it is noticeable that the killing of aged and 
 useless relatives has not only been left unpunished, but has been 
 sanctioned as a pious duty. Polyandry and polygamy have been 
 recognized where there was a disproportion between the sexes. 
 So. too, in a different aspect, density of population has affected 
 legal principles concerned with vicinal life-, — such as partition of 
 estates and servitudes. In regions numerously populated, there 
 is more solidarity and fraternity; unless the human pressure 
 becomes so intense that a pitiless egoism predominates, as in the 
 ancient Chinese custom of the abandonment of infants, and in 
 the abortions of our own day. Conversely, the rare or sterile mar- 
 riages of a decadent period have led to legislation aiming to increase 
 the population. 
 
 These apparently contradictory phenomena of the law have 
 their origin in problems of population, the ultimate solution of 
 which must be sought by sociology. 
 
 § 15. Tenth Factor: Solidary Action of Great Social Forces 
 and the Several Parts of Law. In that intellectual evolution 
 from which Law emerges, as in social evolution at large, every- 
 thing proceeds in obedience to the movements of the whole. The 
 cogs of the machine exhibit a solidarity of motion. All is cause 
 and effect, and each part is united directly or indirectly to all 
 other parts. 
 
 We may therefore say that a society exhibits a healthy Law 
 only when all the great social forces unfold normally. The evo- 
 lution of Law, being a part of universal history, depends to a cer- 
 tain extent on the evolution of aesthetics, morals, religion, arms, 
 language, industry, commerce, politics. It would be a serious 
 error, for example, to suppose that a retarded civilization in Art 
 could have no ill effect upon Law ; for the Law could not then have 
 as perfect a condition as if Art had flourished. So, too, a people's 
 Law, however perfect, would become sterile if Morality degener- 
 
Chap. IV.] PRINCIPAL FACTORS 181 
 
 ated ; for, in spite of its mechanical perfection, it could not func- 
 tion effectively if it were at the service of rascals for the realization 
 of dishonesty, greed, ruthlessness, and injustice. Some have 
 even maintained that the very technical perfection of a people's 
 Law may be a sign of social decadence, and the example of Rome 
 in the later Empire is pointed to ; though this may be explained 
 as coincidence and not as causality. In the words of a former 
 student of mine, writing in approval of these views uttered in a 
 lecture : ''To suppose that the Moral System, individual or social, 
 can advance while Law remains immovable, is to dream of the 
 impossible. Two parallel lines cannot diverge. When we are 
 all ready to acknowledge this, we shall have done with shuffling 
 timidity in the legal profession, with shortsightedness in legis- 
 lators, and with expediency in morals. We are still far from that 
 goal ; but the gospel of its high aim should inspire us to spread 
 the doctrine." The Law of every people has a constant tendency 
 to evolve as a whole, — in solidarity, synchronism, and synarchy. 
 
 Tarde's term for this spontaneous feature is " social logic." 
 In its external phases Law is impregnated at every stage with the 
 national mind, formed and influenced by environment, by tradi- 
 tions, and by events. In a given epoch and country, all men 
 make their laws, as they make their clothes, in a common style. 
 The peaceful revolutions of Law are as universal, as instinctive,, 
 and as mysterious in their hidden causes as are the changes of 
 habit in dress, or those of taste in the vogue of tobacco or alcohol. 
 This truth applies also (subject to variations) to all the members 
 of the same race (either natural or historic), even when they have 
 been conglomerated in distinct groups. And this unconscious 
 consensus <lemonstrates the activity of forces independent of con- 
 scious liberty of will. 
 
 There is indeed an organic law of correlation, — of a harmonious 
 tension of jural forces. The whole generates the particulars. 
 Between the various parts are felt the mutual reactions, — a 
 universal resonance, like that of a tremendous network of invisible 
 telegraph-wires transmitting in every direction the most subtle 
 impulses. 
 
 And here we meet again the analogy of Language, of Religion, 
 of Morals, of Industry. We are in the presence of nothing less 
 than a dynamic unity of Law, 
 
Chapter V 
 
 CAUSES FOR THE VARIATION OF JURAL PHENOMENA 
 
 IN GENERAL! 
 
 § 1. The Quest for the Causes of 
 
 Law. 
 § 2. Political Facts as a Cause of 
 
 Law. 
 § 3. Economic Facts as a Cause of 
 
 Law. 
 § 4. Moral Facts as a Cause of 
 
 Law. 
 
 § 5. Religious Facts as a Cause of 
 
 Law. 
 § 6. Economic Causes of Law. 
 
 § 7. Causes of Law in General. 
 
 § 8. Partial Causes of Law. / 
 
 § 1. The Quest for the Causes of Law. We now proceed to 
 the task of seeking for the general causes, valid for all social types, 
 that govern the variations exhibited by Law in its evolution. 
 We may assume, with much probability, that the causes for the 
 first and most important variations in law will be found to reside 
 in those facts which themselves give rise to jural phenomena. 
 For in general the facts which determine the production of a 
 phenomenon are also those whose variations necessarily deter- 
 mine the variations of the phenomenon produced. We have 
 already pointed out that, to give rise to law, the presence of two 
 sorts of social activity suffices, viz. economic pursuits, and the 
 family \ and we are now therefore to inquire whether a variation 
 in these activities determines a variation in the jural facts, 
 what is the content of such variations, and what is the general 
 relation between the one and the other. In the course of social 
 evolution, new activities arise — morals, the State, religion, art, 
 science ; and we cannot exclude a priori the possibility that these 
 activities, once arisen, may react on the law, producing new 
 variations. 
 
 1 [By Carlo Nardi-Greco. 
 
 This passage represents pp. 310-324, Chap. VIII, of the author's 
 "Sociologia giuridica" (Turin, 1907, Fratelli Bocca). 
 
 The author is a disciple of Asturaro, the eminent sociologist, professor 
 in the University of Genoa ; and was but 23 years of age at the time of 
 the publication of his work, which reveals extraordinary research as well 
 as rigid method and scientific care. 
 
 The translation is by John H. Wigmore, co-editor of this series.] 
 
 182 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 183 
 
 This inquiry, indeed, has already attracted the attention of 
 legal philosophers and of sociologists, and with diverse results. 
 Some have stopped at pointing out generally that the cause of 
 the variations of law lies in the will of the State or the sovereign ; 
 or in a specific intuition innate in man ; or in reason ; or in the 
 sense of justice ; or in the collective conscience of a people. But 
 science cannot be content with these solutions. 
 
 Another group of scholars has attributed the cause of the 
 variations of jural phenomena to particular groups of social facts. 
 And it is true that the social facts of the diverse societies must 
 furnish the causes of the variations of jural phenomena exhibited 
 in each one of them. The primitive reactions of collective life, 
 the simplest legal inhibitions in the horde, the varied sanctions 
 observable in the clan, the associated clans, the village communi- 
 ties, the cities, the organized lordships, and the State, are aimed 
 at protecting the specific structures and functions in their eco- 
 nomic aspects, their family aspects, their military and political as- 
 pects, and so on. These arise under pressure of the need to defend 
 and protect the respective advantages and activities appropriate 
 to these functions. Hence the conclusion that in the other and 
 concomitant social facts are to be sought the causes of the varia- 
 tions of the jural facts. 
 
 Some of those scholars, especially the sociologists, have not 
 stopped with asserting generally the causative relation of social 
 facts, but have proceeded to specify one or another specific group 
 of social facts as the sole and primary cause of jural variations; 
 in particular, political or economic or religious or moral facts. 
 
 § 2. Political Facts as a Cause of Law. The first of these 
 theories attributes the causes of law to political facts. 
 
 It has been asserted that political phenomena, and par- 
 ticularly the formation of the State, are the general cause 
 of law, and therefore that variations in the will of the State 
 are the cause of variations in law. As to this, suffice it 
 here to refer to the demonstration that jural facts are found 
 in human society even prior to the existence of any political 
 institution, and that hence the earliest variations of jural 
 phenomena cannot be explained by variations of political 
 facts. IMoreover, even when a political structure comes into 
 existence, an important part of law continues to form and develop 
 itself outside of any State influences, in the form of practice and 
 customary law. Furthermore, the political State formulates its 
 law by legislation, and the question still remains to be explained 
 
184 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 why the State thus formulates a rule of one content rather than 
 another, and imposes the duty of one sort of conduct and not of 
 another. This inquiry takes us back to the motives and reasons 
 for the State's recognition of specific rules of conduct. All the 
 labors which precede the formation of legislative law show that 
 this determination of the State's will takes place under the causal 
 influence of specific social demands. It is therefore in these latter 
 that we must seek for the prime and general cause of the rules 
 themselves. 
 
 § 3. Economic Facts as a Cause of Law. A second theory 
 asserts that economic facts — and, particularly, facts of economic 
 relations — form the sole cause of the variations in jural facts. That 
 this theory contains a very large part of the truth, and that not 
 only economic relations, but also the facts of production and ex- 
 change, exercise a profound causal influence on the variations of 
 law, is the view of the present author, for which this treatise will 
 supply the proof. The facts reveal indubitably that historic 
 materialism furnishes the most correct explanation yet advanced 
 of the variations of law. But it shares with the other theories 
 the serious defect of unilateralness, i.e. it is open to the reproach 
 of accepting too narrow a point of view for its judgment of jural 
 phenomena. 
 
 In the first place, the adherents of historic materialism have 
 taken into account only a single type of social organization, viz. 
 capitalistic society; and yet prior to and outside of that type 
 of society were and are still found innumerable and varied societies 
 of an egalitarian and communistic type. 
 
 In the second place, the theory has not taken any account of 
 the social facts, other than economic, in their possibility of direct 
 and dominant influence on the formation of law. There exist 
 rules of law which are not completely explainable without giving 
 effect to the variations in the facts of family life, — for example, 
 the principle (in some primitive communities) excluding from 
 punishment the perpetrator of the homicide of a parent, the prin- 
 ciple that subjects to the duty of blood-feud those persons only 
 who are related on the paternal side and excludes those related 
 on the maternal side and vice versa. Nor is the answer a sound 
 one that the facts of family life are themselves explainable by 
 economic facts ; for (as Asturaro has observed ^) even were it 
 demonstrated that a perfect correspondence existed between 
 
 ^ Asturaro, "Sociologia, i suoi metodi", etc.; "II materialismo statico 
 e la sociologia generale." 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 185 
 
 economic and family or gentile facts, thus overshadowing any 
 influence for the needs and sentiments of family life, it must still 
 remain necessary, in explaining jural facts, to accord some in- 
 fluence to the intermediate element, i.e. the family institutions 
 themselves. Nor has historical materialism taken into account the 
 jural principles that concern the higher social institutions — politi- 
 cal, military, religious, artistic, and scientific — principles which 
 are not completely explainable without considering the influence ex- 
 ercised by the more complex phenomena in the various social types. 
 
 The adherents of historical materialism, therefore, in limiting 
 themselves to economic facts as the fundamental cause of law, 
 have not sufficiently inquired into the possible causal relations of 
 the higher varieties of social facts. And, finally, they are open to 
 the criticism of not having given proper place to the sentiments 
 and psychic activities which are attributable to the collective 
 struggles, to inter-individual inhibitions, to sympathy and the 
 social sentiment; for these two exercise a most potent influence 
 on the formation of law. 
 
 § 4. Moral Facts as a Cause of Law. That morals are uni- 
 versally at the base of law, and that the variations of moral facts 
 are the causes of variation in jural facts, has been by some scholars 
 affirmed and by others denied. But the former opinion must be 
 deemed unsound if we are to follow the deductions to be gained 
 from the most general laws of psychology and of zoologic sociology. 
 
 To determine whether Law in the field of historic reality (and 
 we are of course dealing only with actual, not with ideal law and 
 morality), varies in relation to morals, or the contrary, we must 
 restrict ourselves to the known principles that govern psychic and 
 psycho-social facts. Are moral facts, then, the general and funda- 
 mental cause of law ? 
 
 We have already seen that, to produce a minimum of jural 
 facts, it is not necessary that moral facts should preexist, — much 
 less that they should act causally. The collective reactions take 
 place under the stimulus of the sentiments of pain, anger, fear, 
 retaliation, revenge, sympathy, and they become constant through 
 experience of the utility of their repetition ; and this is independent 
 of any moral consideration. In the beginning, the man who 
 does an act hurtful to the group is killed or beaten, in response 
 to an impulse of anger, fear, or the like. Then the penalty con- 
 tinues to be applied to those who do like acts, simply because 
 such had been the former practice, the custom of ancestors, and 
 because experience had shown the utility of the regular use of such 
 
186 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 penalties ; and the memory of such experiences remained uncon- 
 sciously embedded in the depths of each individual consciousness. 
 Anti-social acts are thus punished, in primitive times, because 
 they injure a collective interest and violate the rules which pro- 
 tect those general interests, — not because they are disapproved 
 by the moral conscience. 
 
 It is true that the sympathetic function does concur to affect 
 the formation of law. But, in the first place, the sympathetic 
 function is not of itself a moral activity ; it is merely one of the 
 most important factors in morality. And, in the second place 
 (as the whole course of legal evolution shows), the action of the 
 sympathetic functions on law is always secondary and subor- 
 dinate to that of our self-interest, i.e. our egoistic motives. For 
 example, the law which guarantees the master's power over the 
 slave is in opposition to the sympathy which man feels for man 
 and is in harmony with the egoistic interest of mastership. If 
 therefore the sympathetic function is not a causative factor for 
 law, much less can such a causal relation be attributed to morality, 
 which is a product of sympathy together with other factors. 
 Ownership of slaves, thus, not only is not a product of the sym- 
 pathetic function, but it is in direct opposition to the moral 
 quality of benevolence. 
 
 Let us take another example. During a long stage in the evolu- 
 tion of law, and throughout a large number of human societies, 
 the offender is visited with a penalty regardless of any valuation 
 of the motives that led to his act. The penalty is inflicted in- 
 discriminately on every doer of the act, — on the mentally de- 
 ranged, on the intoxicated, on the person acting ignorantly or 
 involuntarily, or in self-defence, and even on a person connected 
 merely by relationship or vicinage with the actual doer. Some- 
 times animals and lifeless objects were subjected to penal treat- 
 ment ; for they too excited the same sentiments which led to these 
 primitive reactions, — reactions which afterwards became legal 
 rules. Obviously, then, moral valuations were alien to these 
 penal practices; and moral motives were completely wanting 
 in either the formulation or the application of the rule. 
 
 That Law is always and everywhere founded on morals must 
 therefore be denied; and hence it is impossible to explain all 
 the variations of law by the variations of morals. 
 
 But the case is even stronger. Our examination of jural de- 
 velopment in the prior chapters of this work ^ has demonstrated 
 1 [The author's original work.] 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 187 
 
 that morality has not once produced any of those great changes 
 which mark like milestones the highroad of law's evolution. 
 The formation of primitive social unity; the formation and the 
 dissolution of tribal and territorial groups; the substitution of 
 individual for collective ownership; the growth of relations of 
 mastery between classes and individuals in place of equality and 
 cooperation; the substitution of serfdom for slavery, and of 
 wage-employment for serfdom or slavery ; all these great changes 
 have come about through the conflict and adjustment of interests, 
 and through the victory and dominance of certain classes, who have 
 then formulated and applied the law by the employment of social 
 force. Morality may have accelerated and intensified certain 
 of these processes — for example, the process of dissipating servile 
 ownership under the stimulus of the interests involved in produc- 
 tion. But it has never created or initiated the movement. 
 ]\Ioreover — and this is the proof of our thesis — when one 
 jural system has replaced another, a new morality has arisen, 
 which serves as the ideal support and complement of the new 
 legal institutions. It was thus that the egalitarian morality of 
 the collectivist era was replaced by the morality of the servile 
 period, when the new economic order and its appurtenant law ' 
 had succeeded to the primitive system of production. 
 
 Hence, the mode of formation of the moral consciousness (the 
 basis of the moral personality) shows that to hold morals to be 
 the first general cause of law is untenable. For the formation 
 of the primitive moral consciousness the mere conception of 
 punishment sufiices, regardless of any internal approval or dis- 
 approval of the conduct. After long exercise, the inhibition 
 produced by fear of the penalty finally generates in the agent a 
 personal conviction as to either obeying or disobeying the precept 
 contained in the rule, whether or not it is a thing approvable or 
 disapprovable in itself, independently of the fear of the penalty. 
 In this aspect, it is the law that is one of the causes of the growth 
 of a moral consciousness (and not vice versa). It is inconceivable 
 that the inhibition produced by the conception of purely in- 
 trinsic consequences of conduct could be more efficacious, more 
 fundamental, or more simple, than the inhibition produced by the 
 external consequence, viz. the penalty. Hence, among the 
 numerous causes of permanent moral inhibition must be reckoned 
 the repetition of jural experiences and the prolonged exercise of 
 jural inhibition. The same is true of positive personal morality, 
 i.e. benevolence. In fact, law is one of the conditions making pos- 
 
188 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 sible the active exercise of positive personal morality; for the 
 latter presupposes moral inhibition and therefore jural inhibition ; 
 one who is not capable of abstaining from injury to his fellow- 
 beings cannot habitually do good to them. 
 
 To sum up : It is impossible to accept the theory that morals 
 are a prime and general cause of law, and that the variations of 
 the one explain the variations of the other, because : (a) Morals 
 are not one of the causes sufficient and necessary to give rise to 
 law ; (6) the operation of the simpler elements of positive morality, 
 viz. sympathy and altruism, is secondary, in jural development, 
 to that of general social utility, and social utility as a conscious 
 motive in the formulation of rules is in its turn secondary and 
 subordinate to the egoistic motives of those who wield the social 
 forces; (c) the more important variations of law are not caused 
 by variations of morals, but vice versa; (d) law is one of the pre- 
 existing conditions for the formation and development of personal 
 moral consciousness; (e) law is one of the ends of morality. 
 
 § 5. Religious Facts as a Cause of Law. Nor can Religion 
 be deemed the general cause for jural variations. The earliest 
 rules of law are bereft of any religious element. Primitive socie- 
 ties punish certain acts because those acts threaten collective 
 harm and excite in the whole social group the sentiments of anger, 
 revenge, or disapproval. The simplest forms of legal sanctions 
 cannot be explained by variations in religious facts. Hence, 
 religion cannot be the general cause of variations of law or right. 
 
 In the study of jural evolution, we do indeed find an early con- 
 nection between religion and law in the Polynesian groups and in 
 African villages, where the sorcerer is resorted to because his 
 magic will discover the unknown doer of a crime. Here a relation 
 of cause and effect is. evident between law and religion. But it is 
 religion that serves a jural purpose, and not vice versa. 
 
 And in a much later and more complex stage of jural evolution 
 it may happen (but this cannot be asserted generally) that the 
 sanctions of religion are added to those of law, and that the rule 
 of law is looked upon as willed by the deities. But, in the first 
 place, this fact is not found in all human societies, hence does not 
 prove a general causal influence of religion upon law. And, further- 
 more, in no case has a religious change produced a fundamental 
 jural change. The religion finds the legal system already formed 
 and sanctions it, promising the favor of the gods to him who ob- 
 serves the rules of law and supernatural penalties to him who 
 violates them. Law thus remains the basis on which religion acts. 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 189 
 
 Still another connection is found when the priests become the 
 depositaries of tradition for ancestral law and are chosen as its ar- 
 biters. But this alone produces no change in the existing legal 
 system. The attribution of the task of arbiter to the priests is 
 entirely explainable without requiring resort to a theory that 
 law is originally founded on religion. The most notable instance 
 of this double function is that of the Roman " pontlfices." But 
 those personages never exercised genuinely juridical functions. 
 They merely happened to acquire a thorough knowledge of the 
 ancient tribal law of Rome, because it was useful to them in 
 the discharge of their regular functions. For example, among the 
 patricians, the participation of the priests was necessary for the 
 execution of a will " calatis comitiis", for the " detestatio sacro- 
 rum", for the ceremony of marriage by '' confarreatio", and for 
 its dissolution by " diffarreatio." The priests knew and arranged 
 the calendar, hence they must be consulted to learn whether a 
 certain day was " fastus " or " nefastus '^ ; the priests knew 
 whether a thing had become " sacer " or tabooed by religion ; 
 they were fully acquainted with the notions about transmission 
 of the family " sacra", hence their knowledge affected the law of 
 succession to property. The priests therefore had a greater neces- 
 sity to know the law than perhaps any other persons having 
 public functions. " Ponteficem bonum neminem esse nisi qui 
 jus civile cognosset " was the view of Mucins Scaevola at an even 
 later period.^ Hence, only those who were deeply skilled in the 
 law were promoted to the college of priests. Their deliberations 
 had a great authority because they were universally regarded 
 as best acquainted with the ancestral law. Moreover, the 
 priests preserved records of their resolutions, in the " com- 
 mentarii ponteficium", which in later times continued to be the 
 most authentic and authoritative source of Roman patrician 
 law 2 ; availing themselves of this authority and reputation, the 
 priests kept these records to themselves up to the 5th century, 
 when they were published by Gnaeus Flavins and Appius Claudius 
 Caecus ; thus it had become customary to refer disputes to the 
 
 1 Cicero, "De legibus", II, 19, 17. 
 
 ^ Kruger, "Histoire des sources du droit romain", French tr., Paris, 
 1894. Others however have maintained that the priests had genuine 
 judicial functions: Puchta, "Institutionen", §§ 410 el seq.; Ihering, 
 "Geist des romischen Rechts", I, § 18; Karlowa, "Romisches Zivilpro- 
 zess", pp. 23 et seq.; id., "Rechtsgeschichte", I, 274; Bechmann, in 
 "Sitzungsberichte der Miinchner Akademie", 1890, II, 2, pp. 179 et seq. 
 But this latter view would not be inconsistent with oiu: general conclusion, 
 viz. that the religious system serves a juridical purpose and is thus in the 
 relation of effect to cause. 
 
190 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 decision of those who alone knew this law, viz. the priests, who 
 became permanent arbiters. The existence of an arbitral func- 
 tion in the Roman priests is therefore perfectly explainable with- 
 out recourse to the theory that law is an effect of religion. 
 
 So, too (as Maine has shown), the themists of ancient Greece, 
 reputed to be inspired by the deity, were in fact judges appointed 
 by the priests, to whom the controversies were submitted by 
 ancient custom. In many other societies the practice was formed 
 of resorting for decisions to such persons as were older, or wiser, 
 or more skilled, and knew by heart the ancient customs and judg- 
 ments and opinions of the sages. For example, among the shep- 
 herds of Khorassan, the Hamitic peoples of Africa, the Arabian 
 tribes, the contemporary peoples of the Caucasus, the ancient 
 Germans of the North, there were classes of persons, quite dis- 
 tinct from the priests, who were always chosen to judge disputes 
 of law because they were versed in the ancient law. 
 
 One more reaction of religion upon law, as formed in some socie- 
 ties, remains to be noted. The law sometimes champions a cer- 
 tain form of religion, or imposes specific creeds, or prescribes 
 certain religious practices. But this reaction of law upon religion 
 is produced by the necessity of protecting the politico-economic 
 constitution. A bulwark against the revolt of subject masses is 
 furnished by the ascendancy of the priests through the credulity 
 of the people. In any event, this phenomenon is only partial, 
 not general, and therefore cannot serve to support a theory valid 
 for all societies, — the theory that religion is the cause, or one of 
 the general causes, of law. 
 
 § 6. Economic Causes of Law.^ Even the most superficial 
 observation shows how large a number of the rules of law are 
 directed to protecting the economic system of a people. At the 
 very dawn of jural evolution, in the stage of hunting and fishing, 
 there is a repression of acts infringing those ancestral customs 
 whose rigorous observance can alone assure the success of expedi- 
 tions with weapon and net; the individual who appropriates 
 the sustenance which should go to the entire group is punished, 
 and also the one who does not contribute to the group the pro- 
 ceeds of his labors. In the law of tribal societies, numerous rules 
 deal with the division and the transfer of the tribal property, 
 the relations between its manager and the blood-related collabora- 
 tors, the relations between the members of a domestic community 
 and its property in relation to the respective contributions due 
 1 [This section is § 108, pp. 329-333, of the author's text. — Ed.] 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 191 
 
 from them and the rules for their respective enjoyment thereof. 
 Legal sanctions favor the form of production most important for 
 each group; e.g. where pasturage is the principal form, agri- 
 culture is obstructed, and where agriculture is the principal form, 
 pasturage is prohibited. Rules of law guarantee the elemental 
 relations of the exchanges effected between different tribes eco- 
 nomically differentiated. In agricultural communities almost 
 the entire jural activity is devoted to regulating the periodical 
 allotment of the soil, to guarding collective property against in- 
 dividual usurpation, to regularizing the individual family ownership 
 of the home and the surrounding plot of ground. When collective 
 and tribal ownership has passed away, the chief function of the law 
 is to secure the power of the overlord over his serfs and slaves, and 
 to assure their rendering of services and other dues. Finally, when 
 the relations between the producers, who have differentiated and 
 become interdependent, have become infinite in variety, and the 
 State has arisen, the law extends its field of guaranty over the 
 whole vast field of relations of ownership and exchange. 
 
 Thus, the greater number of jural rules have an economic content. 
 
 Corresponding therefore to the three grand economic divisions 
 of production, economic relations between producers, and ex- 
 change, these rules of law may be divided into three groups. Pro- 
 duction may be subdivided, according to the different natural 
 forces utilized (land, animals, bio-chemical properties of animals 
 and plants, minerals, physico-chemical and mechanical forces), 
 and according to the several instruments employed (club, bow, 
 sword, tool, machine, money-capital, etc.), into hunting, fishing, 
 spade-agriculture, pasturage, animal-agriculture, artisan indus- 
 try, mechanical industry, large-scale agriculture, pastoral industry, 
 and so on. Economic relation of producers may be that of associa- 
 tion between producers (communism, collectivism, simple col- 
 laboration) or that of association between the possessors of the 
 means of production and those who collaborate only with their 
 toil (simple mixed association, slavery, serfdom, wage-system). 
 Exchange between the different producers forms the third group 
 of phenomena. Hence we have correspondingly three classes 
 of legal rules, respectively affecting (a) the form of production, 
 (6) the relations between producers, (c) the relations of exchange. 
 
 As we shall now see, the rules of economic law present varia- 
 tions concomitant with the variations exhibited by the economic 
 facts of the several classes. Thus for these two series of facts 
 the variations correspond term for term, and their causal relation 
 
192 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 may therefore, from a scientific point of view, be explained in one 
 of three ways: (1) Either the variations of the economic facts 
 are the cause of the variations of the jural facts ; ^ (2) Or, the 
 variations of the jural facts are the cause of the variations of 
 the economic facts ; ^ (3) Or, there is no causal relation between 
 the two series of facts.^ 
 
 It is here necessary to keep in mind the causal relations exist- 
 ing between the several classes of economic facts. In Marx' view, 
 the most fundamental fact is the instrument of labor. De Greef, 
 Schmoller, and Hildebrand make it the circulation of wealth.^ 
 Loria and Asturaro have demonstrated that it is production which 
 determines the form of the economic relation; both exerting a 
 causal influence on the fact of exchange. The place of the instru- 
 ment of labor is much disputed; for while Marx regards it as 
 decisive, Loria maintains the contrary, holding that the economic 
 relation exercises a causal influence on the instrument. Asturaro, 
 however, believes that the instrument of labor depends directly on 
 production, and that between the instrument and the economic re- 
 lation there is no causal action, but merely reciprocal influence, thus : 
 Exchange 
 
 I 
 
 Economic relation 
 
 Instrument 
 of Labor 
 
 Production 
 
 Laboring population and territory 
 
 1 This is the view maintained by Marx, Engels, De Greef, Loria, 
 Labriola, Asturaro ; tendencies thereto are found in Vico, Montesquieu, 
 Vidari, De Johannis, Stein, Ihering ; historical illustrations are furnished 
 by Pleehanoff, Struve, Cicotti, Salvemini, Salvioli, Arias. The adherents 
 of this theory include Vaccaro and Gumplowicz, in so far as they regard 
 law as a means for insuring ownership, and Worms, in so far as he places 
 economic facts at the base of the series of social relations. 
 
 2 This is the theory maintained by Wagner, Stammler, Barth, Ardigb. 
 
 3 This is the theory of those — forming the majority — who speak of 
 an autonomy, or a reciprocal influence, of the two classes of phenomena. 
 
 [It may be noted in passing, that the author's logic has failed to per- 
 ceive a remaining possibility, viz. that for some facts the economic facts 
 may be causal, and for others not ; the economic causal influence, though 
 constant, being in some cases diverted or counteracted by other facts, 
 e.g. moral or political or domestic facts. This logical slip leaves open 
 to question the validity of his theorem as an explanatory solution. — Ed.1 
 
 * [Cf. Novicow, *' The Mechanism and Limits of Human Association,'* 
 Am. J. Sociology, XXIII, 289 seq. Novicow makes exchange (widest 
 sense) the fundamental social phenomenon. — Ed.] 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 193 
 
 It seems plain that production, economic relation, and exchange 
 form a well-defined causal series, and that the variation of the 
 instrument of labor is determined by the necessity of production, 
 yet coming under the influence of the economic relation and of 
 exchange ; for the groups of higher economic facts, once formed, 
 exercise a certain reaction on the lower facts, -r- These causal 
 and non-causal relations must be kept in mind in establishing 
 the influence which each group of economic facts exercises on 
 the law.^ 
 
 § 7. Causes of Law in General.^ What, then, are the general 
 causes of jural phenomena ? That is, what are the facts necessary 
 and sufficient for the rise and persistence of law in every period 
 and place in which it has existed and now exists ? 
 
 We have seen that law developed out of the collective reactions 
 experienced by the social group against one of its member-elements 
 which by its conduct has evoked in the others the sentiment of 
 hate, or of fear for the future. The causes of these reactions are : 
 (a) the general tendency of living beings to react to all painful 
 stimuli, resulting in those motions (in animals furnished with a 
 certain degree of structural and functional complexity of the 
 central nervous system) which experience shows are adapted to 
 put an end to the painful condition by removing its stimulus; 
 (6) the sentiments which lead the animal to some form of revul- 
 sion, immediate or deferred, against whatever is perceived as the 
 source of pain ; and secondarily the fear of future harm ; (c) the 
 sentiments of sjinpathy, which induce a reaction against one who 
 injures an associate. 
 
 1. These psychic and psycho-social activities produce certain 
 collective social reactions. But never, in sub-human societies, 
 do they produce law. Law arises only in human society, because 
 only the mental peculiarities of man (superior in quantity if not 
 in quality to those of any other animal) convert the collective 
 into jural reactions, by a well-defined process which we have en- 
 deavored to set forth.^ And not even in all human groups does 
 this process take place. The small nomadic groups of primitive 
 hunters exhibit no traces of jural phenomena. For maintaining 
 them united other needs suffice, — the need of economic coopera- 
 tion, the need of satisfying the sex-requirements which unite the 
 male to his females, the need of protection which unites the children 
 
 \[The author here proceeds to illustrate the foregoing thesis with 
 copious illustrations from different legal systems. — Ed.] 
 
 2 [This is §§ 146, 147, pp. 441-446, of the author's text. — Ed.] 
 
 3 [In an omitted chapter. — Ed.] 
 
194 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 to their parents. Muscular strength enables the male to estab- 
 lish his control over the family group, and to protect his women, 
 children, and possessions against attacks from outside. Every 
 dispute that arises between two groups is decided by physical 
 force; and the inhibitions between individuals permit plural 
 hordes to inhabit the same region. Hence there is thus far no 
 need of rules of law, and none arise. For the same reason, jural 
 facts are not found within the families, composed of a group of 
 brothers with their wives and children; for all the adult males 
 have a practically equal physical power, and their reciprocal 
 inhibitions suffice to maintain their coexistence while their 
 economic interest suffices to maintain their cooperation. 
 
 Law, therefore, arises only in groups which have reached a 
 certain numerical size and a constancy of social activity which 
 requires a more effective protection than that supplied by the 
 casual, impetuous, inconstant, and disorderly collective reactions. 
 
 2. Certain human social facts are therefore among the essential 
 causes of law. First of all, what renders possible the co-existence 
 of a number of persons is certain definite conditions of human 
 production. Production by human effort is therefore the " causa 
 sine qua non " of every social fact, — just as nutrition is the 
 fundamental fact of organic life. Human societies are formed only 
 when the food conditions permit them to live together, and they 
 persist only when cooperation is needful for augmenting the sub- 
 sistence required by increasing population. The increase of 
 population and the differing resources of the environment deter- 
 mine the rise of human production, and the changes of these two 
 principal factors explain its earliest and most widespread varia- 
 tions. Production, therefore, presupposes no other social human 
 fact as its causative antecedent. 
 
 3. We said that the collective reactions give rise to genuinely 
 jural facts only when the need for them arrives. This need arises 
 when a guarantee becomes necessary for certain collective social 
 activities and the enjoyment of certain collective goods; for 
 then the merely sub-human motives, individual and social (above 
 alluded to), do not suffice to assure such activities or such enjoy- 
 ment. The prime social activity (first also in time) is production, 
 which implies a relation between the producers. When such 
 economic activity meets with obstruction from individual mem- 
 bers, these obstructions must be overcome by rules relatively 
 constant, in order that the mental representation of the sanction 
 may act on the consciousness of the individuals and inhibit their 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 195 
 
 repetition of their hurtful conduct. And so it is that the earhest 
 traces of jural rules are concerned with a guarantee of production. 
 
 4. But the mere existence of social activity cannot of itself 
 lead to jural facts. There is needed also a certain development 
 of the higher mental faculties, on which the social requirements 
 are to act. Of these the important ones are language and the 
 power of reflection upon the effects of collective reactions. Law 
 could never have arisen if the members of human societies had 
 not been capable of experimenting whether the prohibition of 
 specific acts or the elimination of the actors would be followed 
 by a diminution in their repetition ; or if they had not possessed 
 the wondrous faculty of articulate language by which to communi- 
 cate their experiences, to formulate the rules, to apply them, and 
 to transmit their customs and jural ideas to successive genera- 
 tions. Man alone possessing these faculties, law could arise only 
 in human societies. 
 
 This mental faculty, as a bio-psychical cause of law, is also 
 seen in the circumstance that when its penalties are announced, 
 the resulting inhibition upon individual conduct can only take 
 place through a mental representation of the penalty as ensuing 
 upon certain actions, this mental representation becoming a 
 dominant motive for conduct. This presupposes suflScient men- 
 tal capacity. 
 
 5. The facts of sex and domestic life — marriage, family, re- 
 lationship — must be included as conditions essential to the rise 
 of law. A priori they are not; for in an imaginary primitive 
 society of promiscuity, law could have protected production 
 alone. But in all primitive societies that are known, the family 
 existed before law did, and formed everywhere one of its first 
 objects of protection, the early differentiations of family having 
 already taken place. But the variations of sex and family facts 
 were themselves always determined by economic variations which 
 operated either as their causal condition or their causal motive.^ 
 A causal motive for the sex and family organization was always 
 supplied by the requirements of reproduction, and sometimes 
 by the requirements of production. Hence, a causal relation 
 always exists between economic facts and the family, viz. the 
 relation of causal condition, while sometimes it is also the relation 
 of teleological cause (motive). These two classes of phenomena 
 — economic and sex facts — completely explain the rise and 
 variation of family phenomena. And the variations in them lead 
 
 * [This is elaborately illustrated in the author's §§ 126-140. — Ed.] 
 
196 
 
 FACTORS OF LEGAL EVOLUTION 
 
 [Part II. 
 
 to the variations of law, i.e. that complex of rules which protects 
 a given form of family, of marriage, of relationship, and of domes- 
 tic life in general. 
 
 This survey shows us that the general causes of the rise of law 
 may be thus analyzed : 
 
 A. Conditional Causes (a) Production 
 
 (6) Hate and revenge Sentiments de- 
 termining indi- 
 
 (c) Fear vidual psychic 
 
 activities 
 
 (d) Psycho-social activities due to col- 
 lective reactions 
 
 (e) Human mental faculties, particu- 
 larly language, and reflection 
 on the effects of collective re- 
 actions. 
 
 (/) Economic facts 
 (g) [Family facts] 
 
 B. Efficient Causes 
 
 C. Teleologic Causes 
 
 Here the causes (a) (c) (d) (e) (/) are essential, because without 
 them no jural fact exists ; they are sufficient, because without the 
 intervention of any other social human fact they could lead to 
 the formation of genuinely jural phenomena ; and they are general, 
 because in every period and region they concur in the production 
 of law. Cause ih), being emotional and not utilitarian, could 
 disappear in the later evolution of law. Cause {g) is only teleo- 
 logical ; and though most important in explaining the variations 
 of law it is not an essential cause, i.e. a " sine qua non." 
 
 § 8. Partial Causes of Law. As social forms increase in com- 
 plexity of structure and function, new elements of cause enter. 
 Political power soon exercises a direct and important reaction 
 both on the structure and function of justice and on the content 
 of law. Religion, 'Art, Science, at a certain stage of their develop- 
 ment, are protected by specific jural rules, and thus become so 
 many more purposes, or teleologic causes, of law. Furthermore, 
 the law becomes, at a certain point of its development, the subject 
 of scientific elaboration, and thus Science reacts on the juridical 
 function. 
 
 But these causes are neither primitive nor necessary; for we 
 have seen that jural phenomena are produced in the absence of 
 all these higher social facts; nor are they general, for societies 
 are found which possess jural structure and function and yet 
 
Chap. V.] VARIATION OF JURAL PHENOMENA 197 
 
 possess neither political organization nor facts of science, art, or 
 religion. On the other hand, all these later social activities pre- 
 suppose the existence of law in so far as it protects the conditions 
 and fundamental advantages of social life. Hence, in their first 
 appearance these classes of facts are evidently effects and not 
 causes of the law, which is economic and genetic.^ Political 
 power, for example, serves to secure the fulfilment of the jural 
 function, either by formulating the mode of law-making or by 
 aiding in enforcement of law or by supplying organs of justice. 
 Art invests the customary rules with poetic form. Science be- 
 stows its logical methods for elaborating and systematizing law. 
 Religion threatens supernatural terrors to violators of law and thus 
 completes law's purpose. But the original fact is always a direct 
 causal action of law on the higher social activities; then comes 
 their reaction on jural phenomena, — analogous to that of the 
 tissues and their elemental functions in the organism. 
 
 We have therefore a double reason for denying to the other 
 enumerated social phenomena the status of primitive, genetic, 
 essential, and universal causes of law: (1) Causal relations be- 
 tween law and the special activities distinct from economic and 
 domestic ones do not exist in all societies; (2) law exercises a 
 direct, ascendant, causal action upon these activities before they 
 react upon the law. 
 
 » [After all, then, does not* the author's thesis reduce itself to a matter 
 of words? For if "essential cause" is to mean merely the causes which 
 first gave rise to primitive law, but if since that time other classes of facts 
 have actually been causes, we are left with the barren conclusion that 
 at one early time in the history of law the only universal causes were those 
 mentioned. But the interest of the quest for the causes of law is far 
 from limited to primitive times. — Ed.] 
 
A. — GEOPHYSICAL FACTORS ^ 
 
 Chapter VI 
 LAW AND GEOGRAPHY 1 
 
 § 1. Preliminary. 
 § 2. The Great Legal Systems. 
 § 3. Roman and Common Law. 
 § 4. Public and Private Law. 
 § 5. Law in Contact and Law i 
 Isolation. 
 
 6.\, L4w and Darwinism. 
 
 7. Law and Language. 
 
 8. Conquest and Colonization. 
 
 9. The Inertia of Law. 
 
 10. Particular Legal Institutions. 
 
 11. Conclusion. 
 
 § 1. Preliminary. The study of institutions in relation to 
 their surroundings, or to adopt what Leslie Stephen called '' the 
 jargon of science", their environment, is one that has been under- 
 taken by a series of distinguished thinkers at long intervals of 
 time, but has never permeated the main currents of thought. 
 We find the beginnings of it, as of most other prime factors of 
 knowledge, in the writings of Aristotle. There it lay buried, 
 while speculation moved in entirely different directions, until 
 the Renascence was far advanced. Then it was placed upon 
 a definite basis by the foremost publicist of the sixteenth century, 
 Jean Bodin of Angers. The profundity and originality of his 
 thought was largely prevented from obtaining the recognition 
 due to it (especially in France) by his prolix and involved style. 
 Nearly 200 years later his ideas were amplified by an equally great 
 thinker who was in addition a master of prose style, — Montes- 
 quieu. Of the actual influence of Montesquieu this is not the 
 place to speak, but no one arose to write a work on the lines of the 
 " Esprit des Lois '^ until Buckle published his *' History of Civili- 
 zation " in 1857. The feature that strikes the modern reader in 
 the works of these three old masters is the tendency to exaggerate 
 the influence of climate at the expense of all other geographical 
 factors. 
 
 Buckle had hardly published his first volume when the formu- 
 
 1 [By H. J. Rand ALT, of Bridgend, Glamorgan, England, 
 was written especially for this volume.] 
 
 198 
 
 This chapter 
 
Chap. \1.] LAW AND GEOGRAPHY 199 
 
 lation of the theory of Evolution switched the main body of specu- 
 lation along somewhat different (but not inconsistent) lines, and 
 for years his work was treated with scant attention and less 
 justice. So the progress of the geographical study of history was 
 retarded. The foundation of the School of Geography at Oxford 
 by Mr. H. J. Mackinder and the publication of his '' Britain and 
 the British Seas " (1902), inaugurated a great revolution in the 
 teaching and methodk of geography. 
 
 Up to the present, however, these new methods (or re-statements 
 of old methods) have only been applied in a small degree to the 
 development of institutions, and not at all to the evolution of law. 
 No great things can as yet be expected of so young a study, and 
 the present essay must be regarded as a bundle of random sug- 
 gestions towards the nature of the problems to be faced, and in 
 no way as a statement of definite and proved conclusions. 
 
 It is not necessary for our immediate purpose, to attempt an 
 exhaustive definition of geography. The one indispensable in- 
 strument of geographical study is the Map. In the case of In- 
 stitutions it means a study of their distribution over the surface 
 of the earth, the causes of that distribution, and its relation to the 
 presence or absence of other factors. When one commences to 
 study the location of rules with the aid of a map, one is studying 
 them from the geographical standpoint. 
 
 § 2. The Great Legal Systems. The mot of Voltaire that a 
 traveler in France changed laws as often as he changed horses 
 can only be understood in a restricted sense, for the laws that he 
 changed were only local variations of one great system. Looking 
 at the matter in a broader way and putting aside the customary 
 systems of savage and semi-savage races, we may classify the 
 developed legal systems of the world under five main headings, 
 viz. : — 
 
 (1) The Chinese. 
 
 (2) The Hindu. 
 
 (3) The Mohammedan. 
 
 (4) The Roman and its modern representatives. 
 
 (5) The Germanic or Common Law, of which the English is 
 the chief example. 
 
 The Chinese system may be put aside for the moment as one of 
 the most striking examples of the growth of law in a condition of 
 extreme isolation. 
 
 The others fall into two well-defined categories which may be 
 called the Religious and the Secular. The Hindu and the Moham- 
 
200 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 medan, like the European of the Carolingian period, carries his 
 law about with him as a personal possession. It is inalienably 
 his by virtue of the religion that he professes, and absolutely 
 independent both of his territorial location and of his political 
 allegiance. The religious systems of law belong to a lower plane 
 of human evolution than the secular. They are concomitant 
 with the stage of thought that existed before the ideas of Sin, 
 Legal Delict, and Moral Wrong had been differentiated ; a phase 
 very clearly illustrated to us by the example of the Ten Command- 
 ments, where ordinances of religion, law, and ethics rub shoulders 
 together without the least sense of incongruity. Therefore these 
 systems have an inevitable tendency towards extreme rigidity, 
 because any change in the law would at once be regarded as an 
 alteration in religion, and that to the vast majority of mankind 
 would be an inconceivable act of impiety. Of their geographical 
 distribution nothing valuable can yet be said. The study of 
 religions from that point of view has hardly been attempted. 
 But even were it otherwise it would not shed any great light upon 
 the immediate matter in hand, because the law in these instances 
 is subordinate to the religion, and the distribution of the latter 
 would hardly help in elucidating the conditions that govern the 
 distribution of law as such. 
 
 § 3. Roman and Common Law. The following observations 
 therefore will be confined to the secular legal systems and prin- 
 cipally to those of Western Europe, where law exists as a separate 
 entity, with individual growth. But as many of the facts are 
 none too familiar it may be advisable in the first place to attempt 
 a brief description of the legal geography of France, as a repertory 
 of facts from which we may draw illustrations of principle. 
 
 If we put aside Sclavonic Law as a comparatively isolated 
 system, the whole legal history of Western P^urope since the es- 
 tablishment of the Roman Empire may be characterized broadly 
 as the action and reaction of the Roman and Germanic Systems 
 upon one another. These two systems have always been dif- 
 ferentiated by vital distinctions. The meaning of this statement 
 may be made a little clearer. In classifying languages philolo- 
 gists pay small regard to the enormous number of words that one 
 language may have borrowed from another, as English has done 
 from the classical and Romance tongues; but they look at the 
 five hundred or so words that are in the commonest use, and above 
 all at the structure of the language, its grammar and its syntax. 
 In the same way the jurist would not seize upon the number of 
 
Chap. VI.] LAW AND GEOGRAPHY 201 
 
 rules that may be fundamentally the same in two legal systems, 
 e.g. he would pay little attention to the resemblances between the 
 rules of intestate inheritance in the 118th Novel of Justinian and 
 in the Caroline Statutes of Distribution, but would notice the 
 differences of structure, of procedure, and of method. Wide 
 therefore as are the variations between the Roman and the Ger- 
 manic laws in the matter of particular rules, these are altogether 
 subordinate to the facts that the Roman law is founded upon the 
 interpretation of written texts, Common law upon the applica- 
 tion of precedents ; that the procedure of the one is written and 
 inquisitorial, of the other oral and accusatory. 
 
 This interaction of the two great systems is nowhere so notably 
 illustrated as in the history of France. Right down to the great 
 cataclysm of the Revolution and the promulgation of the Napo- 
 leonic Codes the centralized monarchy of France was divided into 
 two areas of private law, the Pays dii Droit Coutumier in the 
 North, radiating from the military center of Paris, and the Pays 
 du Droit Ecrit in the south, based upon the ancient Provincia and 
 radiating through the gap of Carcassonne. The boundary line 
 between the two presented some remarkable features. On the 
 western coast it started from the Isle of Oleron, so noteworthy in 
 the history of maritime law, thence passed well south of the gap 
 of Poitiers to Limoges and so on along the water parting of the 
 central mountain mass of the Auvergne, until it reached the con- 
 fines of the Rhone Valley. Herp it turned sharply northwards- 
 so as to include within the territory of the Droit Ecrit the whole of 
 the Rhone-Saone valley up to the borders of Burgundy and the 
 Lake of Geneva. The actual line of demarcation passes some 
 distance north of Macon.^ 
 
 Such a division points to several geographical and historical 
 correlations. 
 
 1. It coincides almost exactly with the language division into 
 the Prankish or Germanic Langue d'oil, and the Romance Langue 
 d'oc. 
 
 2. The strong military power based on Paris was able to hold 
 the entire valley of the Loire and its tributaries and to push its 
 culture south beyond the watershed of this valley through the gap 
 of Poitiers. 
 
 3. The division tends to afford additional proof of the fact that 
 the Rhone-Saone Valley was not a main artery of communication 
 until late in the historical period. The lower part was distinctly 
 
 ^ See the map in "General Survey of European Legal History", p. 201. 
 
202 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Mediterranean; the upper part was under the influence of the 
 strong miHtary power of Burgundy, holding the gap of Belfort. 
 
 4. The population of the south was predominantly Roman, 
 that of the north Germanic. The south was the region of Medi- 
 terranean culture, the home of the arts of peace, the north the 
 center of the military power. As the need for military strength 
 grew less urgent with the increasing security of the frontiers, the 
 influence of the southern culture spread further and further north. 
 In legal affairs the Roman law had always been a sort of Common 
 Law to be appealed to in case of necessity even in the region of the 
 customs, and finally, backed by the paramount authority of the 
 writings of Pothier, the Droit Ecrit stamped its influence inefface- 
 ably upon the Code Napoleon. 
 
 5. The division may in a supplementary way be correlated 
 with the agriculture of the Mediterranean region, based primarily 
 upon the cultivation of the olive, i.e. a tree cultivation, and the 
 agriculture of the north, based primarily upon the production 
 of wheat grain and wine. 
 
 § 4. Public and Private Law. The first fact that emerges clearly 
 from this sketch of the legal geography of France is that the dis- 
 tribution of Public Law, confining the term to the constitution and 
 governmental machinery of a state, has little or no relation to the 
 distribution of the Private Law that governs the everyday affairs of 
 men. Contemporary observers would have regarded the French 
 monarchy from the time of Richelieu to that of the Revolution as 
 the most centralized and despotic state in Europe. Though not 
 nearly so strong in reality as in outward seeming, yet on the face of 
 it the central despotism could have abolished by a stroke of the pen 
 a distinction that must have given rise to endless inconveniences 
 in administration. But notwithstanding the ordinances prepared 
 under the influence of Colbert, it never did so. We have the 
 picture of this apparent despotism enforcing within the boundaries 
 of the same realm two distinct systems of private law and numer- 
 ous varieties of customs. The point calls for particular emphasis 
 because even some historians are apt to disregard it, though it 
 affected the life of every subject of the Roi Soleil. 
 
 This principle, so w^ell illustrated by the instance of France, 
 appears to be of very general application. No better modern 
 illustration could be given than the case of British institutions 
 both within and without the Empire. The principles of represen- 
 tative institutions and responsible government have spread from 
 their home in the British Isles to countries such as France and 
 
Chap. VI.] LAW AND GEOGRAPHY 203 
 
 Italy, which have never shown the shghtest indination to adopt 
 the Common Law, and it appears Hkely that they will gradually 
 become operative in Russia where the private law is Sclavonic. 
 Similarly, within the Empire the French and English Laws 
 flourish side by side in the one Dominion of Canada ; the Roman 
 Dutch and the English likewise in the Union of South Africa; 
 and within the limited boundaries of Great Britain itself, Scot- 
 land, after more than two centuries of complete political union, 
 jealously guards its peculiar jurisprudence. The facts that in- 
 fluence the distribution of political institutions are a subject 
 beyond the scope of this essay, but whatever they may be it can 
 be proved to demonstration that they are entirely different from 
 those that govern the geography of private law. 
 
 § 5. Law in Contact and Law in Isolation. From the rise of 
 the historical school of law in Germany under the leadership of 
 Savigny it has gradually been accepted as an axiom that law is a 
 growth conditioned by the national consciousness of each people. 
 The application of the doctrine of evolution to every manifesta- 
 tion of human activity has immensely strengthened the position 
 of this principle, so that today it is rather necessary to point out 
 its limitations. However " natural " the development of law may 
 be, the process is, at any rate, in the more civilized forms, a con- 
 scious growth. Statute law is clearly "made", but the same- 
 observation really applies to the great bulk of the rules in all the 
 great legal systems, i.e. they are definite efforts of the human in- 
 tellect to formulate the rules under which men play the great game 
 of life. 
 
 It is obvious that the nature of these rules will be largely con- 
 ditioned by the social structure of the particular society under 
 observation, and that social structure in its turn will be condi- 
 tioned by the external environment. On broad lines these in- 
 fluences are obvious. It is clear that the maritime law of Peru 
 and Switzerland will be rudimentary; and that the law of a 
 pastoral community will differ from that of an agricultural ; that 
 of one based on tree cultivation from one based on corn raising; 
 and that of industrial and trading communities from all others. 
 The works of Montesquieu and Buckle were based on this notion, 
 except that their ideas of external conditions were largely confined 
 to the consideration of climate. It is not possible to say anything 
 very apposite on this subject within a confined limit of space, 
 but as far as the developed western systems of law are concerned 
 it is scarcely one of primary importance. Europe, broadly speak- 
 
204 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 ing, is fairly uniform in geographical conditions, and is divided 
 into two broad zones only, — the Mediterranean region and the 
 Northern regions — the one being the home of the Roman law 
 and the other of the Germanic laws. 
 
 Of more importance for our immediate purpose is the distinc- 
 tion between Law in Isolation and Law in Contact. The law of 
 an isolated ' community is likely to be a fruitful study from the 
 geographical point of view because such a community is likely 
 to be influenced to a very great degree by the natural conditions, 
 without pressure from surrounding communities, and its law will 
 reflect its social conditions. China is the standard example of 
 isolation rigidly maintained over an immense period of time, 
 but in European history the only instance is the case of Iceland. 
 Its isolation never approached the completeness of that of China, 
 because the Norwegian settlers brought their law with them and 
 communication between its inhabitants and those of the Mother 
 country never ceased. At the same time its law and institutions 
 are of extreme interest, as has been ably shown by Lord Bryce in 
 his " Studies in History and Jurisprudence." From the legal 
 point of view isolation may be effectually maintained apart from 
 and even in spite of physical contact, but such intellectual isola- 
 tion is seldom if ever a matter of law pure and simple, it is almost 
 always founded upon a difference of creed. The instance of the 
 Buddhists and the Mohammedans in India is one that will occur 
 to everyone. 
 
 The legal history of the progressive nations of the world, however, 
 centers round the systems that were continuously in contact 
 with one another, and may be regarded as a study of the condi- 
 tions under which these systems progressed or declined. It has 
 already been pointed out that the mutual action and interaction 
 of the Germanic and Roman laws form the central feature of the 
 legal history of Europe. 
 
 § 6. Law and Darwinism. Given, therefore, two systems of 
 law in contact with one another, upon what external or cultural 
 conditions will their stability depend, or if one expands at the 
 expense of the other, what will be the limiting causes of that 
 expansion or retrogression? 
 
 Of the cultural conditions language is obviously one of the most 
 important. Unfortunately the subject of the geography of lan- 
 guage (if one may use the term) is one the literature of which ap- 
 pears to be non-existent. The relations between language and 
 race have been studied in connection with the controversy on the 
 
Chap. \^.] LAW AND GEOGRAPHY 205 
 
 Aryan question; but the main result has been to demonstrate 
 that the two things are almost entirely independent of one another. 
 The only remarks of much value that the writer has been able to 
 find, occur in a most unexpected place, viz. in Lyell's '' Geo- 
 logical Evidences of the Antiquity of Man." Lyell was a rather 
 late convert to the Darwinian theory, and expounded it from 
 a standpoint that was distinctly original. In doing so he insti- 
 tuted a comparison between the development of languages and 
 species, and demonstrated that every language was constantly 
 '' varying " ; that there was a constant '' struggle for life " going 
 on among the different forms; and that the existing forms were 
 a result of the survival of the fittest. Having proved that no 
 European language was a thousand years old, and that the geo- 
 graphical relations of the living and dead languages favor the 
 hypothesis of the living one having been derived from the extinct, 
 he proceeds to make the following remarks : ^ 
 
 " Although the speakers may be unconscious that any great fluctu- 
 ation is going on in their language, — although when we observe the 
 manner in which new words and phrases are thrown out, as if at 
 random or in sport, while others get into vogue, we may think the 
 process of change to be the result of mere chance, — there are, never- 
 theless, fixed laws in action by which, in the general struggle for 
 existence, some terms and dialects gain the victory over others. The 
 slightest advantage attached to some new mode of pronouncing or 
 spelling, from considerations of brevity or euphony, may turn the 
 scale, or more powerful causes of selection may decide which of two 
 or more rivals shall triumph and which succumb. Among these are 
 fashion, or the influence of an aristocracy, whether of birth or educa- 
 tion, popular writers, orators, preachers, — a centralised government 
 organising its schools expressly to promote uniformity of diction, 
 and to get the better of provincialisms and local dialects. Between 
 these dialects, which may be regarded as so many ' incipient lan- 
 guages ', the competition is always keenest when they are most nearly 
 allied, and the extinction of any one of them destroys some of the 
 links by which a dominant tongue may have been previously con- 
 nected with some other widely distinct one. It is by the perpetual 
 loss of such intermediate forms of speech that the great dissimilarity 
 of the languages which survive is brought about. Thus if Dutch 
 should become a dead language, English and German would be sepa- 
 rated by a wider gap. 
 
 " Some languages which are spoken by millions, and spread over a 
 wide area, will endure much longer than others which have never 
 
 1 4th ed., 1873, pp. 512 et aeq. 
 
206 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 had a wide range, especially if the tendency to incessant change in one 
 of the dominant tongues is arrested for a time by a standard literature. 
 But even this source of stability is insecure, for popular writers them- 
 selves are great innovators, sometimes coining new words, and still 
 oftener new expressions and idioms, to embody their own original 
 conceptions and sentiments, or some peculiar modes of thought and 
 feeling characteristic of their age. Even when a language is regarded 
 with superstitious veneration as the vehicle of divine truth and 
 religious precepts, and which has prevailed for many generations, it 
 will be incapable of permanently maintaining its ground. Hebrew 
 had ceased to be a living language before the Christian era. San- 
 scrit, the sacred language of the Hindoos, shared the same fate, in 
 spite of the veneration in which the Vedas are still held, and in spite 
 of many a Sanscrit poem once popular and national." 
 
 " If the doctrine of gradual transmutation be applicable to lan- 
 guages, all those spoken in historical times must each of them have 
 had a closely allied prototype; and accordingly, whenever we can 
 thoroughly investigate their history, we find in them some internal 
 evidence of successive additions by the invention of new words or 
 the modification of old ones. Proofs also of borrowing are discernible, 
 letters being retained in the spelling of some words which have no 
 longer any meaning as they are now pronounced, — no connection 
 with any corresponding sounds. Such redundant or silent letters, 
 once useful in the parent speech, have been aptly compared by Mr. 
 Darwin to rudimentary organs in living beings, which, as he inter- 
 prets them, have at some former period been more fully developed, 
 having had their proper functions to perform in the organism of a 
 remote progenitor." 
 
 We have ventured to make this long quotation because the whole 
 argument can be used of law with just as great force as it can of 
 language. Among legal systems in contact with one another 
 there is proceeding a continuous struggle for life, and those that 
 survive must be assumed to be the fittest under the actual con- 
 ditions that obtain at any particular time. All kinds of '' in- 
 fluences " political, social, economic, psychological, and geograph- 
 ical may determine '' which of two rivals shall triumph and which 
 succumb." So in law we find " internal evidence of successive 
 additions " and equally of " borrowing ", while every old estab- 
 lished system is full of '' rudiments " that once served a useful 
 purpose, but are now as great a nuisance as the '' rudimentary 
 organs " are to man. 
 
Chap. VI.] LAW AND GEOGRAPHY 207 
 
 § 7. Law and Language. With regard to the particular rela- 
 tions between law and language, the example of France would 
 appear to show that they are of an extremely intimate character. 
 There the linguistic and legal boundaries coincided, the Langue 
 d'oc being coterminous with the Droit Ecrit, and the Langue d'oil 
 with the Droit Coutumier. If this instance stood alone, one could 
 fairly argue either that distribution of law was dependent upon 
 the distribution of language, or else that both were equally af- 
 fected by the same set of causes. 
 
 The position in South Africa is extremely interesting. There, 
 before the coming of the English, the Dutch Taal was the es- 
 tablished language; and the Roman-Dutch the established law. 
 Since that time both have had to maintain a struggle against the 
 later invaders, and English is slowly spreading from the towns 
 to the veldt, just as from the Edwardian conquest onwards it 
 has been slowly spreading from the towns to the mountains of 
 Wales. An analogous struggle is taking place in the legal world. 
 The Roman-Dutch is the recognized law, but the English in- 
 fluence is spreading in upon it, not only by statute but also by 
 judicial decision. Quite recently the typically English doctrine 
 of " consideration " in the law of contract appears to have been 
 acquired in the latter way with perhaps little regard for the " ele- 
 gancies " of jurisprudence. 
 
 On the other hand, if we turn to Great Britain, we find an en- 
 tirely different relation between law and language. Of the Celtic, 
 languages spoken in the country, Welsh is by far the most tena- 
 cious. On the whole it may be a dying tongue, but if so, like 
 Charles II, it takes an unconscionable time in doing it. The Welsh- 
 man is, if anything, more " clannish " or " national " than the 
 Scot. For centuries he has fought a sturdy fight to preserve his 
 own individuality in religion, in modes of thought, ways of life, 
 and especially in language, against the steady pressure of Anglo- 
 Saxon influence. But of the Welsh law not one jot or tittle re- 
 mains alive except some sparse fragnients preserved in the customs 
 of certain manors. For the rest the '* Ancient Laws of Wales " 
 are merely a subject of antiquarian curiosity. The Statute of 
 Rhuddlan, passed to confirm the Edwardian conquest, provided 
 for the continuance of certain Welsh laws in the conquered areas, 
 but apparently by the time of Henry VIII all desire to preserve 
 a distinct system had disappeared, and the Act, often called " the 
 Statute of Wales ", ^ provided for a practically complete assimi- 
 1 27 Henry VIII c. 26. 
 
208 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 lation of the laws of the two countries in the most important 
 matters, though establishing a distinct judicature that lasted 
 until 1830. The language was preserved, but the law was lost. 
 
 In Scotland, on the contrary, the law has been studiously pre- 
 served, the language all but lost. Gaelic is not, like Welsh, a living 
 tongue in the industrial parts of the country; but merely main- 
 tains a precarious existence in the remote highlands and islands. 
 Scots law was definitely preserved by the Act of Union in 1707 
 and remains to this day a system full of vitality and differing 
 in many essentials from the English system. Burns in the eight- 
 eenth century in writing a great patriotic song penned the lines 
 
 " Wha for Scotland's king and law 
 Freedom's sword will strongly draw." 
 
 But no contemporary Welsh poet would have used similar ex- 
 pressions for the simple reason that they would have conveyed 
 no meaning to ninety-nine per cent of his countrymen. 
 
 It would be extremely interesting to discuss at some length 
 the historical and cultural reasons for this great difference be- 
 tween the two countries, but considerations of space prevent one 
 from doing more than mentioning the most prominent : 
 
 (1) The English and Welsh Laws did not differ so greatly from 
 one another at the time of the conquest as the English and Scots 
 did at the time of the Union. Both might be classed as belonging 
 to the Germanic systems, and both existed in a feudalized society. 
 Consequently the obstacles to the assimilation of one by the other 
 were not unduly formidable. 
 
 (2) The English law under Edward I was an organized system 
 in the hands of a trained and educated guild of lawyers. Welsh 
 law possessed no such aids, and the pressure of the stronger system 
 was therefore irresistible. " Taught law is tough law," as Mait- 
 land remarked. 
 
 (3) Scots law at the time of the Union was under the strong 
 protection of the Court of Session (established in 1532) and of the 
 College of Advocates. It had '' received " the Roman law, and 
 therefore differed very greatly from the English. The social 
 conditions in the two countries were also widely different. Con- 
 sequently the law was able to resist the outside influence success- 
 fully. 
 
 To conclude this section ; is it possible to deduce any principle 
 at all from the facts that we have examined? Quite tentatively 
 we think this may be said : Law and language will generally 
 
Chap. VI.] LAW AND GEOGRAPHY 209 
 
 tend to develop independently of one another; subject to this 
 exception, that where a difference of language coincides with a 
 marked difference of general culture, the law will follow the same 
 division, or in other words, the difference of general culture will 
 carry with it a diversity of both language and law. 
 
 § 8. Conquest and Colonization. As under so many of the 
 other headings of this essay nothing more can be attempted at the 
 present moment on this branch of the subject than to suggest 
 lines of research. Law is simply a single manifestation of general 
 culture, and untj[_n_]fflftrp PYhmiRt?vf^~-^m^'"hn'^ been made of the 
 culturai'effects of both conquest and colonization upon both parties 
 to both processes, it is not possible to write to much advantage. 
 Certain generalizations like ** Graecia capta ferum victorem cepit " 
 occur to the mind, but they are mostly deductions from single 
 instances and therefore of small value until their limitations have 
 been defined. We have already seen in the case of the legal and 
 linguistic relations in France, how dangerous it is to deduce large 
 conclusions from insufficient data. We may say, however, that 
 the study will have to be based upon the long histories and vi- 
 cissitudes of the Roman and English legal systems. In the ancient 
 world, in spite of the spreading of Greek culture over the Roman 
 Empire, it was the Roman and not the Greek law that prevailed. 
 This aspect of the matter is discussed to some extent in well-known 
 passages of Maine's '^Ancient Law ", but it ought to be reconsidered 
 in view of our greater knowledge. Subsequent researches have 
 proved that Maine altogether underestimated the value and the 
 position of Greek law; though it is true to say that the Greek 
 genius attained its highest manifestations in the directions of art, 
 pure literature, and philosophy, while the Roman was at its 
 best in administration and law. 
 
 Even more fruitful than the story of classical antiquity will 
 be the long story of the Germanic invasions, how far and why the 
 conquerors succeeded in imposing their own law upon the dif- 
 ferent provinces of the Empire, and how the old legal system rose 
 again and reasserted itself in the western Mediterranean lands and 
 was even " received " in Germany, where the eagles of Rome 
 had never held sway. Equally instructive will Hie the story (well 
 told by Lord Bryce) of the influence of the English system upon 
 the law of India, and the extent of its penetration under the force 
 of circumstances, in spite, one may say, of every effort of the 
 conquerors to hold it back. Not less worthy of study too will 
 be the imposition of the French codes upon the countries con- 
 
210 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 quered by Napoleon, and the conditions that secured their perma- 
 nent survival in some countries after the fall of Napoleon and the 
 withdrawal of the French legions, and their expulsion from others. 
 The Napoleonic conquests were deliberate attempts to spread a 
 culture, they therefore differed essentially from the growth of the 
 British Empire even where the latter was effected by conquest. 
 
 Colonization and conquest stand upon almost the same plane 
 as far as law is concerned. In this connection the standard ex- 
 ample must be that of the British Empire. As a matter of def- 
 inite principle, English colonization has never aimed at the spread- 
 ing of the Common Law ; and it has spread by virtue of its own 
 inherent strength, and its suitability to the surrounding condi- 
 tions. In the countries inhabited by savage tribes only, the 
 English colonist, like the barbarian of the Carolingian epoch, 
 or the Hindu or Mohammedan of today, has carried his law with 
 him as a personal possession, but even then he has carefully pre- 
 served the local customs of the native inhabitants so far as they 
 did not conflict with essential principles of civilized morality. 
 In the colonies acquired by conquest or cession, where a developed 
 law already exists, it has been carefully and even jealously pre- 
 served. In this way the Indian native systems have been treated, 
 likewise the Roman-Dutch law in South Africa and Ceylon, and 
 the French in Lower Canada. Nevertheless, in these places, 
 in spite of the efforts of administrators the laws came into intimate 
 contact with one another, and once they are in contact, the in- 
 evitable '' struggle for life " between the different systems com- 
 mences.^ The story of law in relation to conquest and coloniza- 
 tion does not suffer from want of material, but the material is 
 scattered and uncoordinated. 
 
 § 9. The Inertia of Law. In considering the matters mentioned 
 in the last two or three sections a sentence already quoted from 
 Lyell's " Antiquity of Man " inevitably occurs to the mind, and 
 suggests whether it can be made the basis of one of the principles 
 that govern the relations of legal systems in contact. This is 
 the sentence : " Some languages which are spoken by millions 
 and spread over a wide area, will endure much longer than others 
 which have never had a wide range, especially if the tendency to 
 incessant change in one of these dominant tongues is arrested for 
 a time by a standard literature."^ Substitute in this the word 
 
 1 Upon this subject Sir Frederick Pollock's lectures on **The Expansion 
 of the Common Law" are extremely instructive. 
 
 2 '' Geological Evidences of the Antiquity of Man", 4th ed., p. 513. 
 
Chap. VI.] LAW AND GEOGRAPHY 211 
 
 " law " for the word " language " and it seems to apply with little 
 qualification. The sentence in which Maitland gives the gist of 
 his explanation of the successful resistance of English law to the 
 process of Romanization in the 16th century is to much the same 
 effect. " Taught law and law schools make tough law." Law 
 schools would occupy the same place in preserving a legal system, 
 that a standard literature would in preserving a language. 
 
 The principle that we wish to educe from this can be provi- 
 sionally named by a mechanical metaphor " the Inertia of Law." 
 A body of law that is large, organized, taught, that holds sway 
 over great areas fully populated, may be slow to develop, may be 
 difficult to change, but will be extremely persistent. The spread 
 of Roman law in the world of classical antiquity, and that of 
 English law in modern times, was partly due to the fact that 
 both systems were organized, taught, and the law of a considerable 
 body of energetic people ; and when they came into contact with 
 other less virile systems their very momentum made them pre- 
 vail. 
 
 Then in the Dark Ages when the position was reversed and the 
 once all-conquering Roman Empire w^as itself conquered, the very 
 same vis inertiae preserved it from the submerging flood and en- 
 abled it to maintain its existence and ultimately to reextend its 
 dominion when a smaller system w^ould have utterly succumbed. 
 
 A slightly different aspect of the same matter is presented by the 
 United States. Many have wondered why among such a pro- 
 gressive and energetic people an antiquated criminal and an 
 even more cumbersome equity procedure should persist unaltered, 
 for now nearly half a century, after they have been swept away 
 in the old country from which they were exported, and that in 
 spite of the persistent activity in numerous directions of a multi- 
 tude of legislative bodies. Various explanations have been given, 
 but one of the reasons as we venture to think, is that England is 
 little and America is big, and the inertia of the large population 
 in the huge country makes the law infinitely difficult to alter. 
 
 At the same time this suggested generality must be limited by 
 other considerations. A highly technical system of law, like a 
 peculiar and difficult language, will be unable to exercise great 
 outside influence, but it will probably be regarded by its pos- 
 sessors with great affection and. if so, will be extremely resistant 
 to such influence. The systems that spread must be those that 
 contain a large body of principles of universal application, or they 
 will not be fitted to exercise extensive influence, and like the 
 
212 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 great universal languages they will probably be equally receptive 
 and able to assimilate and digest useful rules from any source. 
 
 § 10. Particular Legal Institutions. Thus far we have been 
 considering the possibilities of the application of the geographical 
 method to legal systems taken as wholes. There is however an 
 equal chance that its most fruitful results may in the end be ob- 
 tained from a study of the distribution of particular rules and 
 institutions and the correlation of that distribution with other 
 factors. One instance that occurs at once in this connection is 
 that of systems of inheritance both as affecting movables and 
 land. The causes that have governed the existence of such 
 diverse rules as primogeniture, ultinogeniture, and equal distri- 
 bution, have always given rise to much speculation, but it cannot 
 be said that the results attained have been very convincing, except 
 to a certain extent in the case of primogeniture as applied to land. 
 It may be left to the expositors of the Law of Nature to say what 
 system of inheritance approaches most nearly to the ideal of 
 absolute justice ; but it is perfectly clear that schemes so utterly 
 diverse must have had their origin in entirely different conditions 
 of society, and it is highly probable that those social conditions 
 themselves rested upon differences of cultivation, mode of life, 
 and so forth, that bore a distinct relation to external conditions. 
 
 To the average civilized man of the present day, the definite 
 legal preference of any particular child whether first-born or last- 
 born, would at first sight appear to be essentially unjust, yet we 
 know that even in England for the last three centuries primo- 
 geniture has been maintained in relation to the great landed 
 estates, not by any method of legal compulsion, but simply by the 
 operation of strict family settlements, i.e. it rested upon a custom 
 implicitly followed by the persons immediately concerned. 
 
 A study of the distribution of customs of inheritance, both testate 
 and intestate, would be a work of enormous labor, but nothing 
 would be likely to throw more light upon the whole course of legal 
 development. 
 
 Another field that gives promise of considerable results is that 
 of the influence of the great trade routes upon the distribution of 
 legal rules. The law of merchants gradually fought its way to 
 recognition in the legal systems of Europe, but only as a result 
 of extreme pressure. Even such an adaptable body as the Eng- 
 lish Common Law only received it with difficulty, and in reading 
 Blackstone one can see that he did not quite know what to do with 
 it, — it was somewhat of a misfit, until the genius of Lord Mans- 
 
Chap. VI.] LAW AND GEOGRAPHY 213 
 
 field sewed up the seams and ironed out the creases. There is 
 no lack of learned monographs on the subject, but a study of its 
 gradual progress century by century illustrated with maps and 
 considered in relation to commercial progress and the lines of the 
 trade routes, would be an undertaking of vast possibilities. 
 
 Then again the geographical method may be a solvent of con- 
 troversies. Every student of jurisprudence is well acquainted 
 with the long dispute between Maine on the one hand and Mc- 
 Lennan and others on the other, as to the Patriarchal system. 
 For a long time it was the custom to decry the views of Maine as 
 utterly old fashioned, but later writers have taken a juster view 
 of his position. As Sir Frederick Pollock remarks,^ " Much trouble 
 and confusion might have been saved if Maine had in the first 
 place expressly confined his thesis, as for all practical purposes 
 it was confined, to the Indo-European family of nations ", instead 
 of laying down that the patriarchal family was the " primitive " 
 organization of mankind generally. It may be possible to deal 
 with this intricate and difficult subject at greater length on another 
 occasion, but for the present it must be sujQBcient to suggest that 
 the application of the methods of geography might be able to 
 place the whole dispute upon another plane. If we can establish 
 the fact that the patriarchal system is not an inevitable stage in 
 human evolution, much less a '* primitive " state, but simply 
 the social organization that results from certain definite condi- 
 tions of life, there would be no controversy remaining. The 
 position would simply be that Maine had chosen his illustrations 
 from tribes and peoples living under these particular conditions, 
 and that Ihs thesis was perfectly sound within such geographical 
 limitations. 
 
 IVIcLennan chose his illustrations from times and places where 
 these conditions did not obtain, and therefore drew different 
 conclusions; but both were probably wrong in affixing the name 
 '* primitive " to their respective pictures of early society. The 
 settlement of this dispute, supposing that such a result could be 
 attained, would of itself be no small triumph for the geographical 
 method. 
 
 § 11. Conclusion. Perhaps in bringing these few and some- 
 what random suggestions to an end, it may not be out of place 
 to utter a word of warning. Some modern exponents of geog- 
 raphy, like those of every new or revived study, are apt to put 
 forward claims on its behalf that a more balanced judgment is 
 ^ Notes to "Ancient Law", p. 27. 
 
214 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 unable to concede. The present writer believes that it can be 
 fairly claimed on behalf of the geographic method that it is likely 
 to throw considerable further light upon many phases of human 
 evolution, and not least upon the phases of culture that are em- 
 bodied in legal rules : but the geographical distribution of insti- 
 tutions is only one aspect of their history, and the influence of 
 external conditions is only one of these that mould the life of man. 
 
Chapter VII 
 
 THE INFLUENCES OF GEOGRAPHIC ENVIRONMENT 
 ON LAW, STATE, AND SOCIETY ^ 
 
 §10. 
 §11. 
 
 §12. 
 
 §13. 
 §14. 
 
 Man a Product of the Earth's 
 Surface. 
 
 Psychical Effects. 
 
 People and Land. 
 
 Land Basis of Society. 
 
 Morgan's Societas. 
 
 Land Bond in Hunter Tribes. 
 
 Land Bond in Fisher Tribes. 
 
 Land Bond in Pastoral Socie- 
 ties. 
 
 Geographical Mark of Low 
 Type Societies. 
 
 Land and the State. 
 
 Strength of the Land Bond in 
 the State. 
 
 Weak Land Tenure of Hunt- 
 ing and Pastoral Tribes. 
 
 Land and Food Supply. 
 
 Advance from Natural to Ar- 
 tificial Basis of Subsistence. 
 
 §15. 
 
 §16. 
 §17. 
 
 §18. 
 
 §19. 
 
 §20. 
 §21. 
 §22. 
 §23. 
 §24. 
 §25. 
 §26. 
 §27. 
 
 §28. 
 
 Land in Relation to Agricul- 
 ture. 
 
 Geographic Checks to Progress. 
 
 Native Animal and Plant Life 
 as Factors. 
 
 Land Holdings under Various 
 Cultural Conditions. 
 
 Density of Population and 
 Government. 
 
 Checks to Population. 
 
 Artificial Checks to Population. 
 
 Polyandry. 
 
 Infanticide. 
 
 Approved by the State. 
 
 Low Valuation of Human Life. 
 
 Extra-Territorial Relations. 
 
 Geography in the Philosophy 
 of History. 
 
 Theory of Progress from the 
 Standpoint of Geography. 
 
 § 1. Man a Product of the Earth's Surface. Man is a product 
 of the earth's surface. This means not merely that he is a child 
 of the earthy <lust of her dust ; but that the earth has mothered 
 him, fed him, set him tasks, directed his thoughts, confronted 
 him with difficulties that have strengthened his body and sharp- 
 ened his wits, given him his problems of navigation or irrigation, 
 and at the same time whispered hints for their solution. She has 
 entered into his bone and tissue, into his mind and soul. On the 
 mountains she has given him leg muscles of iron to climb the slope ; 
 along the coast she has left these weak and flabby, but given him 
 instead vigorous development of chest and arm to handle his 
 paddle or oar. In the river valley she attaches him to the fertile 
 soil, circumscribes his ideas and ambitions by a dull round of calm, 
 exacting duties, narrows his outlook to the cramped horizon of 
 
 1 (By Ellex Churchill Semple. Reprinted from " Influences of Geo- 
 graphic Environment" (pp. 1, 40, 51, 53-67, 461^65, 67-69 — parts 
 omitted), Henry Holt and Company, N. Y., 1911.] 
 
 215 
 
216 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 his farm. Up on the wind-swept plateaus, in the boundless 
 stretch of the grasslands and the waterless tracts of the desert, 
 where he roams with his flocks from pasture to pasture and oasis 
 to oasis, where life knows much hardship but escapes the grind 
 of drudgery, where the watching of grazing herd gives him leisure 
 for contemplation, and the wide-ranging life a big horizon, his 
 ideas take on a certain gigantic simplicity; religion becomes 
 monotheism, God becomes one, unrivaled like the sand of the 
 desert and the grass of the steppe, stretching on and on without 
 break or change. 
 
 § 2. Psychical Effects. More varied and important are the 
 psychical effects of geographic environment. As direct effects 
 they are doubtless bound up in many physiological modifications ; 
 and as influences of climate, they help differentiate peoples and 
 races in point of temperament. They are reflected in man's re- 
 ligion and his literature, in his modes of thought and figures of 
 speech. Blackstone states that *' in the Isle of Man, to take 
 away a horse or ox was no felony, but a trespass, because of the 
 difficulty in that little territory to conceal them or to carry them 
 off ; but to steal a pig or a fowl, which is easily done, was a capital 
 misdemeanour, and the offender punished with death." The 
 judges or deemsters in this island of fishermen swore to execute 
 the laws as impartially " as the herring's backbone doth lie in the 
 middle of the fish." ^ 
 
 ******* 
 
 /| 3. People and Land. Every clan, tribe, state or nation in- 
 cludes two ideas, a people and its land, the first unthinkable 
 without the other. History, sociology, ethnology touch only 
 the inhabited areas of the earth. These areas gain their final 
 significance because of the people who occupy them; their local 
 conditions of climate, soil, natural resources, physical features 
 and geographic situation are important primarily as factors in 
 the development of actual or possible inhabitants. A land is 
 fully comprehended only when studied in the light of its influence 
 upon its people, and a people cannot be understood apart from 
 the field of its activities. More than this, human activities are 
 fully intelligible only in relation to the various geographic condi- 
 
 1 J. Johnson, "Jurisprudence of the Isle of Man", pp. 44, 71. Edin- 
 burgh, 1811. 
 
Chap. Vn.] GEOGRAPHIC ENVIRONMENT 217 
 
 tions which have stimulated them in different parts of the world. 
 The principles of the evolution of navigation, of agriculture, of 
 trade, as also the theory of population, can never reach their 
 correct and final statement, unless the data for the conclusions 
 are drawn from every part of the world, and each fact interpreted 
 in the light of the local conditions whence it sprang. Therefore 
 anthropology, sociology, and Ijistory should be permeated by 
 geography. 
 
 § 4. Land Basis of Society. Most systems of sociology treat 
 man as if he were in some way detached from^the^rth's surface ; 
 they ignore the land basis of society. ^ The anthropo-geographer 
 recognizes the various social forces, economic and psychologic, 
 which sociologists regard as the cement of societies; but he has 
 something to add. He sees in the land occupied by a primitive 
 tribe or a highly organized state the underlying material bond 
 holding society together, the ultimate basis of their fundamental 
 social activities, which are therefore derivatives from the land. 
 He sees the common territory exercising an integrating force, — 
 weak in primitive communities where the group has established 
 only a few slight and temporary relations w^ith its soil, so that 
 this low social complex breaks up readily like its organic counter- 
 part, the low animal organism found in an amoeba; he sees it 
 growing stronger with every advance in civilization involving 
 more complex relations to the land, — with settled habitations, 
 with increased density of population, with a discriminating and 
 highly differentiated use of the soil, with the exploitation of min- 
 eral resources, and finally with that far-reaching exchange of com- 
 modities and ideas which means the establishment of varied 
 extra-territorial relations. Finally, the modern society or state 
 has grown into every foot of its own soil, exploited its every geo- 
 graphic advantage, utilized its geographic location to enrich itself 
 by international trade, and when possible, to absorb outlying 
 territories by means of colonies. The broader this geographic 
 base, the richer, more varied its resources, and the more favorable 
 its climate to their exploitation, the more numerous and complex 
 are the connections which the members of a social group can es- 
 tablish with it, and through it with each other ; or in other words, 
 the greater may be its ultimate historical significance. The polar 
 regions and the subtropical deserts, on the other hand, permit 
 man to form only few and intermittent relations with any one 
 
218 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 spot, restrict economic methods to the lower stages of development, 
 produce only the small, weak, loosely organized horde, which never 
 evolves into a state so long as it remains in that retarding environ- 
 ment. 
 
 § 5. Morgan's Societas. Man in his larger activities, as op- 
 posed to his mere physiological or psychological processes, cannot 
 be studied apart from the land which he inhabits. Whether we 
 consider him singly or in a group — family, clan, tribe or state 
 — we must always consider him or his group in relation to a 
 piece of land. The ancient Irish sept. Highland clan, Russian 
 mir, Cherokee hill-town. Bedouin tribe, and the ancient Helvetian 
 canton, like the political state oFTiistory, have meant always a 
 group of people and a bit of land. The first presupposes the 
 second. In all cases the form and size of the social group, the 
 nature of its activities, the trend and limit of its development 
 will be strongly influenced by the size and nature of its habitat. 
 The land basis is always present, in spite of Morgan's artificial 
 distinction between a theoretically landless societas, held together 
 only by the bond of common blood, and the political civitas based 
 / upon land.^ Though primitive society found its conscious bond 
 ' in common blood, nevertheless the land bond was always there, 
 i and it gradually asserted its fundamental character with the evo- 
 lution of society. 
 
 The savage and barbarous groups which in Morgan's classi- 
 fication would fall under the head, of societas have nevertheless 
 a clear conception of their ownership of the tribal lands which 
 they use in common. This idea is probably of very primitive 
 origin, arising from the association of a group with its habitat, 
 whose food supply they regard as a monopoly.^ This is true even of 
 migratory hunting tribes. They claim a certain area whose bound- 
 aries, however, are often ill-defined and subject to fluctuations, 
 because the lands are not held by permanent occupancy and cul- 
 Xtivation. An exceptional case is that of the Shoshone Indians, 
 inhabiting the barren Utah basin and the upper valleys of the 
 Snake and Salmon Rivers, who are accredited with no sense of 
 ownership of the soil. In their natural state they roved about in 
 small, totally unorganized bands or single families, and changed 
 their locations so widely, that they seemed to lay no claim to any 
 particular portion. The hopeless sterility of the region and its 
 
 ^ Lewis Morgan, "Ancient Society", p. 62. New York, 1878. 
 2 Franklin H. Giddings, " Elements of Sociology", p. 247. New York, 
 1902. 
 
Chap. VII.] GEOGRAPHIC ENVIRONMENT 219 
 
 poverty of game kept its destitute inhabitants constantly on the 
 move to gather in the meager food supply, and often restricted 
 the social group to the family.^ Here the bond between land 
 and tribe, and hence between the members of the tribe, was the 
 weakest possible. 
 
 § 6. Land Bond in Hunter Tribes. The usual type of tribal 
 ownership was presented by the Comanches, nomadic horse J 
 Indians who occupied the grassy plains of northern Texas. They : 
 held their territory and the game upon it as the common property 
 of the tribe, and jealously guarded the integrity of their domain. ^ 
 The chief Algonquin tribes, who occupied the territory between 
 the Ohio River and the Great Lakes, had each its separate domain, 
 within which it shifted its villages every few years ; but its size 
 depended upon the power of the tribe to repel encroachment ^^ 
 upon its hunting grounds. Relying mainly on the chase and 
 fishing, little on agriculture, for their subsistence, their relations 
 to their soil were superficial and transitory, th^r tribal organi- 
 zation in a high degree unstable.^ Students of American eth- 
 nology generally agree that most of the Indian tribes east of the 
 Mississippi were occupying definite areas at the time of the dis- 
 covery, and were to a considerable extent sedentary and agri- 
 cultural. Though nomadic within the tribal territory, as they 
 moved with the season in pursuit of game, they returned to their 
 villages, w^hich were shifted only at relatively long intervals.^ 
 
 The political organization of the native Australians, low as they 
 were in the social scale, seems to have been based chiefly on the I 
 claim of each wretched wandering tribe to a definite territory.^ J 
 In north central Australia, where even a very sparse population 
 has sufficed to saturate the sterile soil, tribal boundaries have 
 become fixed and inviolable, so that even war brings no transfer 
 of territory. Land and people are identified. The bond is 
 cemented by their primitive religion, for the tribe's spirit ances- 
 tors occupied this special territory.^ In a like manner a very 
 
 1 Schoolcraft, " The Indian Tribes of the United States ", Vol. I, pp. 
 198-200, 224. Philadelphia, 1853. 
 
 » Ibid., Vol. I, pp. 231-232, 241. 
 
 « Roosevelt, " The Winning of the West", Vol. I, pp. 70-73, 88. New 
 York, 1895. 
 
 * McGee and Thomas, " Prehistoric North America", pp. 392-393, 408, 
 Vol. XIX, of " History of North America ", edited by Francis W. Thorpe, 
 Philadelphia, 1905. "Eleventh Census Report on the Indians", p. 51. 
 Washington, 1894. 
 
 5 Hans Helmolt, " History of the World", Vol. II, pp. 249-250. New 
 York, 1902-1906. 
 
 « Spencer and Gillen, "Northern Tribes of Central Austraha", pp. 13- 
 15. London, 1904. 
 
220 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 r definite conception of tribal ownership of land prevails among the 
 ' Bushmen and Bechuanas of South Africa; and to the pastoral 
 Hereros the alienation of their land is inconceivable.-^ 
 
 A tribe of hunters can never be more than a small horde, because 
 the simple, monotonous savage economy permits no concentra- 
 tion of population, no division of labor except that between the 
 sexes, and hence no evolution of classes. The common economic 
 level of all is reflected in the simple social organization,^ which 
 necessarily has little cohesion, because the group must be pre- 
 pared to break up and scatter in smaller divisions, when its mem- 
 bers increase or its savage supplies decrease even a little. Such 
 primitive groups cannot grow into larger units, because these 
 would demand more roots sent down into the sustaining soil; 
 but they multiply by fission, like the infusorial monads, and 
 thereafter lead independefnt existences remote from each other. 
 This is the explanation of multiplication of dialects among savage 
 tribes. 
 
 § 7. Land Bond in Fisher Tribes. Fishing tribes have their 
 chief occupation determined by their habitats, which are found 
 along well stocked rivers, lakes, or coastal fishing grounds. Con- 
 ditions here encourage an early adoption of sedentary life, dis- 
 courage wandering except for short periods, and facilitate the 
 introduction of agriculture wherever conditions of climate and 
 soil permit. Hence these fisher folk develop relatively large and 
 permanent social groups, as testified by the ancient lake-villages 
 ^of Switzerland, based upon a concentrated food-supply resulting 
 from a systematic and often varied exploitation of the local re- 
 sources. The cooperation and submission to a leader necessary 
 in pelagic fishing often gives the preliminary training for higher 
 political organization.^ All the primitive stocks of the Brazilian 
 Indians, except the mountain Ges, are fishermen and agriculturists ; 
 hence their annual migrations are kept within narrow limits. 
 'Each linguistic group occupies a fixed and relatively well defined 
 district.^ Stanley found along the Con^o large permanent vil- 
 lages of the natives, who were engaged in fishing and tilling the 
 fruitful soil, but knew little about the country ten miles back 
 
 1 Ratzel, "History of Mankind", Vol. I, p. 126. London, 1896-1898. 
 
 2 Roscher, " National-Oekonomik des Ackerbaues ", p. 24. Stuttgart, 
 1888. 
 
 ^Ratzel, "History of Mankind", Vol. I, p. 131. London, 1896- 
 1898. 
 
 4 Paul Ehrenreich, " Die Einteilung und Verbreitung der Volkerstamme 
 Brasiliens", Peterman's " Geographische Mittheilungen ", Vol. XXXVII, 
 p. 85. Gotha, 1891. 
 
Chap. VII.] GEOGRAPHIC ENVIRONMENT 221 
 
 from the river. These two generous means of subsistence aren 
 everywhere combined in Polynesia, Micronesia and Melanesia; 
 there they are associated with dense populations and often with 
 advanced political organization, as we find it in the feudal mon- 
 archy of Tonga and the savage Fiji Islands.^ Fisher tribes, there- 
 fore, get an early impulse forward in civilization ; ^ and even 
 where conditions do not permit the upward step to agriculture, 
 these tribes have permanent relations with their land, form stable 
 social groups, and often utilize their location on a natural highway 
 to develop systematic trade. For instance, on the northwest 
 coast of British Columbia and Southern Alaska, the Haida, Tlingit 
 and Tsimshean Indians have portioned out all the land about 
 their seaboard villages among the separate families or households 
 as hunting, fishing, and berrying grounds. These are regarded 
 as private property and are handed down from generation to ^ 
 generation. If they are used by anyone other than the owner, - 
 the privilege must be paid for. Every salmon stream has its^ 
 proprietor, whose summer camp can be seen set up at the point j 
 where the run of the fish is greatest. Combined with this private 
 property in land there is a brisk trade up^ and down the coast, 
 and a tendency toward feudalism in the village communities, 
 owing to the association of power and social distinction with wealth 
 and property in land.^ 
 
 § 8. Land Bond in Pastoral Societies. Among pastoral nomads, 
 among whom a systematic use of their territory begins to appear, 
 and therefore a more definite relation between land and people, 
 we find a more distinct notion than among wandering hunters 
 of territorial ownership, the right of communal use, and the dis- 
 tinct obligation of common defense. Hence the social bond is 
 drawn closer. The nomad identifies himself with a certain dis- 
 trict, which belongs to his tribe by tradition or conquest, and has 
 its clearly defined boundaries. Here he roams between its summer 
 and winter pastures, possibly one hundred and fifty miles apart, 
 visits its small arable patches in the spring for his limited agri- 
 cultural ventures, and returns to them in the fall to reap their 
 meager harvest. Its springs, streams, or wells assume enhanced 
 value, are things to be fought for, owing to the prevailing aridity 
 of summer; while the ownership of a certain tract of desert or 
 
 ^ Roscher, " National-Oekonomik des Ackerbaues", p. 26, Note 5. 
 Stuttgart, 1888. 
 
 2 Ibid., p. 27. 
 
 ' Albert Niblack, " The Coast Indians of Southern Alaska and Northern 
 British Columbia", pp. 298-299, 304, 337-339. Washington, 1888. 
 
222 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 grassland carries with it a certain right in the bordering settled 
 district as an arCa of plunder.^ 
 
 The Kara-Kir gh is stock, who have been located since the 
 sixteenth century on Lake Issik-Kul, long ago portioned out the 
 land among the separate families, and determined their limits 
 by natural features of the landscape.^ Sven Hedin found on the 
 Tarim River poles set up to mark the boundary between the Shah- 
 yar and Kuchar tribal pastures.^ John de Piano Carpini, travel- 
 ing over southern Russia in 1246, immediately after the Tartar 
 conquest, found that the Dnieper, Don, Volga and Ural rivers 
 were all boundaries between domains of the various millionaries 
 or thousands, into which the Tartar horde was organized.'* The 
 population of this vast country was distributed according to the 
 different degrees of fertility and the size of the pastoral groups.^ 
 Volney observed the same distinction in the distribution of the 
 Bedouins of Syria. He found the barren cantons held by small, 
 widely scattered tribes, as in the Desert of Suez; but the cul- 
 tivable cantons, like the Hauran and the Pachalic of Aleppo, 
 closely dotted by the encampments of the pastoral owners.^ 
 
 The large range of territory held by a nomadic tribe is all suc- 
 cessively occupied in the course of a year, but each part only for 
 a short period of time. A pastoral use of even a good district 
 necessitates a move of five or ten miles every few weeks. The 
 whole, large as it may be, is absolutely necessary for the annual 
 support of the tribe. Hence any outside encroachment upon their 
 territory calls for the united resistance of the tribe. This joint 
 or social action is dictated by their common interest in pastures 
 and herds. The social administration embodied in the apportion- 
 ment of pastures among the families or clans grows out of the 
 systematic use of their territory, which represents a closer rela- 
 tion between land and people than is found among purely hunting 
 tribes. Overcrowding by men or livestock, on the other hand, 
 puts a strain upon the social bond. When Abraham and Lot, 
 typical nomads, returned from Egypt to Canaan with their large 
 flocks and herds, rivalry for the pastures occasioned conflicts 
 
 1 Ratzel, " History of Mankind ", Vol. Ill, p. 173. London, 1896-1898. 
 
 2 Ibid., Vol. Ill, pp. 173-174. 
 
 3 Sven Hedin, " Central Asia and Tibet", Vol. I, p. 184. New York 
 and London, 1903. 
 
 ^ John de Piano Carpini, ** Journey in 1246", p. 130. Hakluyt 
 Society, London, 1904. 
 
 6 "Journey of William de Rubruquis in 1253", p. 188. Hakluyt 
 Society, London, 1903. 
 
 8 Volney, quoted in Malthus, "Principles of Population", Chap. VII, 
 p. 60. London, 1878. 
 
Chap. Vn.] GEOGRAPHIC ENVIRONMENT 223 
 
 among their shepherds, so the two sheiks decided to separate. 
 Abraham took the hill pastures of Judea, and Lot the plains of 
 Jordan near the settled district of Sodom.^ 
 
 § 9. Geographical Mark of Low T3^e Societies. The larger 
 the amount of territory necessary for the support of a given 
 number of people, whether the proportion be due to permanent 
 poverty of natural resources as in the Eskimo country, or to re- 
 tarded economic development as among the Indians of primitive 
 America or the present Sudanese, the looser is the connection 
 between land and people, and the lower the type of social organi- 
 zation. For such groups the organic theory of society finds an 
 apt description. To quote Spencer, " The original clusters, 
 animal and social, are not only small, but they lack density. 
 Creatures of low type occupy large spaces considering the small 
 quantity of animal substance they contain ; and low-type socie- 
 ties spread over areas that are wide relatively to the number of 
 their component individuals." ^ In common language this means 
 small tribes or even detached families sparsely scattered over 
 wide areas, living in temporary huts or encampments of tepees 
 and tents shifted from place to place, making no effort to modify 
 the surface of the land beyond scratching the soil to raise a nig- 
 gardly crop of grain or tubers, and no investment of labor that 
 might attach to one spot the sparse and migrant population. 
 
 § 10. Land and State. The superiority over this social type 
 of the civilized state lies in the highly organized utilization of its 
 whole geographic basis by the mature community, and in the 
 development of government that has followed the increasing den- 
 sity of population and multiplication of activities growing out 
 of this manifold use of the land. Sedentary agriculture, which 
 forms its initial economic basis, is followed by industrialism and 
 commerce. The migratory life presents only limited accumula- 
 tion of capital, and restricts narrowly its forms. Permanent 
 settlement encourages accumulation in every form, and under 
 growing pressure of population slowly reveals the possibilities of 
 every foot of ground, of every geographic advantage. These 
 are the fibers of the land which become woven into the whole 
 fabric of the nation's life. These are the geographic elements 
 constituting the soil in which empires are rooted ; they rise in the 
 sap of the nation. 
 
 ^ Genesis, xiii, 1-12. 
 
 ^Herbert Spencer, •'Principles of Sociology", Vol. I, p. 457. New 
 York. 
 
224 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 § 11. Strength of the Land Bond in the State. The geographic 
 basis of a state embodies a whole complex of physical conditions 
 which may influence its historical development. The most potent 
 of these are its size and zonal location; its situation, whether 
 continental or insular, inland or maritime, on the open ocean or 
 an inclosed sea ; its boundaries, whether drawn by sea, mountain, 
 desert or the faint demarking line of a river; its forested moun- 
 tains, grassy plains, and arable lowlands ; its climate and drainage 
 system ; finally, its equipment with plant and animal life, whether 
 indigenous or imported, and its mineral resources. When a state 
 has taken advantage of all its natural conditions, the land becomes 
 a constituent part of the state,^ modifying the people which in- 
 habit it, modified by them in turn, till the connection between 
 the two becomes so strong by reciprocal interaction, that the 
 people cannot be understood apart from their land. Any attempt 
 to divide them theoretically reduces the social or political body 
 to a cadaver, valuable for the study of structural anatomy after 
 the method of Herbert Spencer, but throwing little light upon the 
 vital processes. 
 
 § 12. Weak Land Tenure of Hunting and Pastoral Tribes. A 
 people who makes only a transitory or superficial use of its land has 
 'upon it no permanent or secure hold. The power to hold is meas- 
 ured by the power to use ; hence the weak tenure of hunting and 
 pastoral tribes. Between their scattered encampments at any 
 given time are wide interstices, inviting occupation by any settlers 
 who know how to make better use of the soil. This explains 
 the easy intrusion of the English colonists into the sparsely ten- 
 anted territory of the Indians, of the agricultural Chinese into the 
 pasture lands of the Mongols beyond the Great Wall, of the 
 American pioneers into the hunting grounds of the Hudson Bay 
 Company in the disputed Oregon country.^ The frail bonds 
 which unite these lower societies to their soil are easily ruptured 
 and the people themselves dislodged, while their land is appro- 
 priated by the intruder. But who could ever conceive of dis- 
 lodging the Chinese or the close-packed millions of India? A 
 modern state with a given population on a wide area is more vul- 
 nerable than another of like population more closely distributed ; 
 but the former has the advantage of a reserve territory for future 
 
 ^ Heinrich von Treitschke, "Politik", Vol. I, pp. 202-204. Leipzig, 
 1897. 
 
 2 E^ (7^ Semple, " American History and Its Geographic Conditions ", 
 pp. 206-207. Boston, 1903. 
 
Chap. \^I.] GEOGRAPHIC ENVIRONMENT 225 
 
 growth.^ This was the case of Kursachsen and Brandenburg 
 in the sixteenth century, and of the United States throughout 
 its history. But beside the danger of inherent weakness before 
 attack, a condition of relative underpopulation always threatens 
 a retardation of development. Easy-going man needs the prod 
 of a pressing population. 
 
 § 13. Land and Food Supply. Food is the urgent and recurrent 
 need of individuals and of society. It dictates their activities 
 in relation to their land at every stage of economic development, 
 fixes the locality of the encampment or village, and determines the 
 size of the territory from which sustenance is drawn. The length 
 of residence in one place depends upon whether the springs of its 
 food supply are perennial or intermittent, while the abundance 
 of their flow determines how large a population a given piece of 
 land can support. 
 
 § 14. Advance from Natural to Artificial Basis of Subsistence. 
 Hunter and fisher folk, relying almost exclusively upon what their 
 land produces of itself, need a large area and derive from it only an 
 irregular food supply, which in winter diminishes to the verge of 
 famine. The transition to the pastoral stage has meant the sub- 
 stitution of an artificial for a natural basis of subsistence, and 
 therewith a change which more than any other one thing has in- 
 augurated the advance from savagery to civilization.^ From the 
 standpoint of economics, the forward stride has consisted in the 
 application of capital in the form of flocks and herds to the task 
 of feeding the wandering horde ; ^ from the standpoint of alimen- 
 tation, in the guarantee of a more reliable and generally more 
 nutritious food supply, which enables population to grow more 
 steadily and rapidly ; from the standpoint of geography, in the 
 marked reduction in the per capita amount of land necessary to 
 yield an adequate and stable food supply. . . . 
 
 § 15. Land in Relation to Agriculture. With transition to 
 the sedentary life of agriculture, society makes a further gain 
 over nomadism in the closer integration of its social units, due to 
 permanent residence in larger and more compjex g|^oups; in the 
 continuous release of labor from the task of mere food-getting 
 for higher activities, resulting especially in the rapid evolution of 
 
 1 Roscher, " Grundlagen des National-Oekonomie ", Book VI. *' Bevol- 
 kerung", p. 694, note 5. Stuttgart, 1886. 
 
 2 Edward John Payne, ** History of the New World Called America", 
 Vol. I, pp. 303-313. Oxford and New York, 1892. 
 
 ' Roscher, " National-Oekonomik des Ackerbaues ", pp. 31, 52. Stutt- 
 gart, 1888. 
 
226 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the home; and finally in the more elaborate organization in the 
 use of the land, leading to economic differentiation of different 
 localities and to a rapid increase in the population supported by 
 a given area, so that the land becomes the dominant cohesive 
 force in society. 
 
 § 16. Geographic Checks to Progress. The desultory, inter- 
 mittent, extensive use of the land practiced by hunters and nomads 
 tends, under the growing pressure of population, to pass into the 
 systematic, continuous, intensive use practiced by the farmer, 
 except where nature presents positive checks to the transition. 
 The most obvious check consists in adverse conditions of climate 
 and soil. Where agriculture meets insurmountable obstacles like 
 the intense cold of Arctic Siberia and Lapland, or the alkaline 
 soils of Nevada and the Caspian Depression, or the inadequate 
 rainfall of Mongolia and Central Arabia, the land can produce no 
 higher economic and social groups than pastoral hordes. Hence 
 shepherd folk are found in their purest types in deserts and steppes 
 where conditions early crystallized in social form and checked 
 development. 
 
 § 17. Native Animal and Plant Life as Factors. Adverse condi- 
 tions of climate and soil are not the only factors in this retardation. 
 The very unequal native equipment of the several continents 
 with plant and animal forms likely to accelerate the advance to 
 nomadism and agriculture also enters into the equation. In 
 Australia, the lack of a single indigenous mammal fit for domesti- 
 cation and of all cereals blocked from the start the pastoral and 
 agricultural development of the natives. Hence at the arrival 
 of the Europeans, Australia presented the unique spectacle of a 
 whole continent with its population still held in the vise of nature. 
 The Americas had a limited variety of animals susceptible of 
 domestication, but were more meagerly equipped than the Old 
 World. Yet the Eskimo failed to tame and herd the reindeer, 
 though their precarious food-supply furnished a motive for the 
 transition. Moreover, an abundance of grass and reindeer moss 
 (Cladonia rangiferind) , and congenial climatic conditions favored 
 it especially for the Alaskan Eskimo, who had, besides, the near-by 
 example of the Siberian Chukches as reindeer herders.^ The 
 buffalo, whose domesticability has been proved, was never utilized 
 
 ^ Sheldon Jackson, *' Introduction of Domesticated Reindeer into 
 Alaska", pp. 20, 25-29, 127-129. Washington, 1894. 
 
Chap. VII.] GEOGRAPHIC ENVIRONMENT 227 
 
 in this way by the Indians, though the Spaniard Gomara writes 
 of one tribe, living in the sixteenth century in the southwestern 
 part of what is now United States territory, whose chief wealth 
 consisted in herds of tame buffalo.^ North America, at the time 
 of the discovery, saw only the dog hanging about the lodges of 
 the Indians ; but in South America the llama and alpaca, confined 
 to the higher levels of the Andes (10,000 to 15,000 feet elevation) 
 were used in domestic herds only in the mountain-rimmed valleys 
 of ancient Peru, where, owing to the restricted areas of these inter- 
 montane basins, stock-raising early became stationary,^ as we find 
 it in the Alps. 
 
 § 18. Land Holdings. Every advance to a higher state of 
 civilization has meant a progressive decrease in the amount of 
 land necessary for the support of the individual, and a progressive 
 increase in the relations between man and his habitat. The stage 
 of social development remaining the same, the per capita amount 
 of land decreases also from poorer to better endowed geographical 
 districts, and with every invention which brings into use some natu- 
 ral resource. 
 
 § 19. Density of Population and Government. With every 
 increase of the population inhabiting a given area, and with the 
 consequent multiplication and constriction of the bonds uniting 
 society with its land, comes a growing necessity for a more highly 
 organized government, both to reduce friction within and to secure 
 to the people the land on which and by which they live. There- 
 fore protection becomes a prime function of the state. It wards 
 off outside attack which may aim at acquisition of its territory, 
 or an invasion of its rights, or curtailment of its geographical 
 sphere of activity. The modern industrial state, furthermore, 
 with the purpose of strengthening the nation, assists or itself 
 undertakes the construction of highways, canals, and railroads, 
 and the maintenance of steamship lines. These encourage the 
 development of natural resources and of commerce, and hence 
 lay the foundation for an increased population, by multiplying 
 the relations between land and people. 
 
 ^ Quoted in Alexander von Humboldt, " Aspects of Nature in Different 
 Lands", pp. 62, 139. Philadelphia, 1849. 
 
 2 Edward John Payne, *' History of the New World Called America", 
 Vol. I, pp. 311-321, 333-354, 364-366. New York, 1892. 
 
228 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 § 20. Checks to Population. If a state lacks the energy and 
 national purpose for territorial expansion, and accepts its bound- 
 aries as final, the natural increase of population upon a fixed area 
 produces an increased density, unless certain social forces counter- 
 act it. Without these forces, the relation of men to the land would 
 have tended to modify everywhere in the same way. Increase 
 in numbers would have been attended by a corresponding decrease 
 in the amount of land at the disposal of each individual. Those 
 states which, like Norway and Switzerland, cannot expand and 
 which have exploited their natural resources to the utmost, must 
 resign themselves to the emigration of their redundant population. 
 But those which have remained within their own boundaries 
 and have adopted a policy of isolation, like China, feudal Japan, 
 during its two and a half centuries of seclusion, and numerous 
 Polynesian islands, have been forced to war with nature itself 
 by checking the operation of the law of natural increase. All 
 the repulsive devices contributing to this end, whether infanticide, 
 abortion, cannibalism, the sanctioned murder of the aged and in- 
 firm, honorable suicide, polyandry or persistent war, are the social 
 deformities consequent upon suppressed growth. Such artificial 
 checks upon population are more conspicuous in natural regions 
 with sharply defined boundaries, like islands and oases, as Malthus 
 observed ; ^ but they are visible also among savage tribes whose 
 boundaries are fixed not by natural features but by the mutual re- 
 pulsion and rivalry characterizing the stage of development, and 
 whose limit of population is reduced by their low economic status. 
 
 § 21. Artificial Checks to Population. While emigration draws 
 off the surplus population, there tend to develop in islands, as 
 also in barren highlands where population early reaches the point 
 of saturation, various devices to restrict natural increase. The 
 evils of congestion are foreseen and guarded against. Abbe 
 Raynal, writing of islanders in general, remarked as far back as 
 1795, "It is among these people that we trace the origin of that 
 multitude of singular institutions which retards the progress of popu- 
 lation." . . . Malthus, in his Essay on Population, commenting 
 on this statement, notes that the bounds to the number of inhabit- 
 ants on islands, especially small ones, are so narrow and so obvious 
 that no one can ignore them.^ 
 
 1 Malthus, ••Principles of Population", chapters v and vii. London, 
 1878. 
 
 2 Malthus, •• Essay on Population", Book I, chap, v, p. 67. London, 
 1826. This whole chapter on •• Checks to Population in the Islands of 
 the South Seas " is valuable. 
 
Chap. VH.] GEOGRAPHIC ENVIRONMENT 229 
 
 The checks to population practiced on islands are either pre- 
 ventive or positive. The extreme measure to restrict marriage 
 is found among the wretched Budumas who inhabit the small, 
 marshy islands of Lake Chad. Tribal custom allows cnly the 
 chiefs and headmen to have wives. A brass crescent inserted 
 in the ear of a boy indicates the favored one among a chief's sons 
 destined to carry on his race. For his brothers this is made 
 physically impossible; they become big, dull, timid creatures 
 contributing by their fishing to the support of the thinly populated 
 villages. The natives of the Shari River delta on the southern 
 shore of Lake Chad use Budiima as a term of contempt for a 
 man.^ 
 
 § 22. Polyandry. In islands, as in unproductive highlands 
 where hunger stalks abroad, marriage readily takes the form of 
 polyandry. On the Canary Islands, at the time of their conquest 
 in 1402, polyandry existed in Lancerote and possibly in Fuerte Ven- 
 tura, often assigning cne woman to three husbands; but in the 
 other islands of the group monogamy was strictly maintained.^ 
 In Oceanica polygamy, monogamy or polyandry prevails ac- 
 cording to a man's means, the poverty of the islands, and the 
 supply of women. A plurality of wives is always the privilege 
 of the chiefs and the wealthy, but all three forms of marriage 
 may be found on the same island. Scarcity of women gives rise 
 to polyandry in Tahiti,^ and consigns one woman to four or five 
 ^ men. In old Hawaii, where there were four or five men to one 
 woman, a kind cf incipient polyandry arose by the addition of a 
 countenanced paramour to the married couple's establishment.^ 
 Robert Louis Stevenson found the same complaisant arrangement 
 a common one in the Marquesas, where the husband's deputy 
 was designated by the term of pikio in the native vocabulary.^ 
 Polyandry existed in Easter Isle, among whose stunted and des- 
 titute population the men far exceeded the women, and children 
 were few, according to reports of the early visitors.^ Numerous 
 other instances make this connection between island habitat, 
 
 1 Boyd Alexander, *• From the Niger to the Nile ", Vol. II, pp. 108-110. 
 London, 1907. 
 
 2 *' History of the Conquest of the Canaries ", p. xxxix. Hakluyt 
 Society, London, 1872. 
 
 ' Ratzel, "History of Mankind", Vol. I, pp. 273, 299-300. London, 
 1890-98. 
 
 * Ibid., Vol. I, pp. 270, 274-275. Adolf Marcuse, "Die Hawaiischen 
 Inseln", p. 108. Berlin, 1894. 
 
 ^ R. L. Stevenson, " The South Seas", pp. 138-139. New York, 1903. 
 
 8 George Forster, " Voyage Round the World", Vol. I, p. 564, 569, 572, 
 577, 584, 580, 596. London, 1777. 
 
230 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 deficiency of women, need of checking increase, and polyandrous 
 marriages an obvious one.^ 
 
 § 23. Infanticide. This disproportion of the sexes in Oceanica 
 is due to the murder of female infants, too early child-bearing, 
 overwork, privation, licentiousness, and the violence of. the men.^ 
 The imminence of famine dictates certain positive checks to popu- 
 lation among which infanticide and abortion are widespread in 
 Oceanica. In some parts of the New Hebrides and the Solomon 
 groups it is so habitual, that in some families all children are killed 
 and substitutes purchased at will.^ In the well-tilled Fiji Islands, 
 a pregnant girl is strangled and her seducer slain. The women 
 make a practice of drinking medicated waters to produce sterility. 
 Failing in this, the majority kill their children either before or 
 after birth. In the island of Vanua Levu infanticide reaches 
 from one-half to two-thirds of all children conceived ; here it is 
 reduced to a system and gives employment to professional mur- 
 derers of babies, who hover like vultures over every child-bed. 
 All destroyed after birth are females.^ And yet here, as on many 
 other islands of Melanesia and Polynesia, such offspring as are 
 spared are treated with foolish fondness and indulgence.^ The 
 two facts are not incompatible. 
 
 § 24. Approved by the State. Geographic conditions made 
 infanticide a state measure in these crowded communities. On 
 the small coral atolls, where the food supply was scantest, it was 
 enforced by law. On Vaitupu, in the Ellice group, only two chil- 
 dren were allowed to a couple ; on Nukufelau, only one. Any 
 violation of this unique sumptuary law was punished by a fine.^ 
 On the congested Gilbert atolls, a woman rarely had more than 
 two children, never more than three. Abortion, produced by a 
 regular midwife, disposed of any subsequent offspring. Affec- 
 tion for children was very strong here, and infanticide of the living 
 was unknown.^ In Samoa, also, Turner found the practice re- 
 stricted to the period before birth; but in Tahiti and elsewhere 
 was enforced by the tribal village authorities on the born and un- 
 
 1 Westermarck, *' History of Human Marriage", pp. 116, 441, 462-463, 
 450-452, 454, 457. London, 1891. 
 
 2 Ratzel, " History of Mankind", Vol. I, p. 270. London, 1896-1898. 
 
 3 R. H. Codrington, " The Melanesians", p. 229. Oxford, 1891. 
 
 ^ Basil Thomson, "The Fijians", pp. 221-227. London, 1908; Wil- 
 lianis and Calvert, " Fiji and the Fijians ", pp. 132, 142. New York, 1859. 
 
 6 Ibid., p. 130. R. L. Stevenson, " The South Seas ", pp. 38, 40. New 
 York, 1903. 
 
 « Ibid., p. 38. 
 
 ^ J. S. Jenkins, *' United States Exploring Squadron under Capt. 
 Wilkes", 1838-1842, pp. 404-405. New York, 1855. 
 
Chap. VII.] GEOGRAPHIC ENVIRONMENT 231 
 
 born.^ In pre-Christian Hawaii, two-thirds of all children, and 
 especially girls, were killed by their parents either before or after 
 birth. The result was a decay of the maternal instinct and the 
 custom of farming out children to strangers. This contributed 
 to the excess of infant mortality, the degeneration of morals and 
 the instability of the family .^ So in Japan the pressure of popu- 
 lation led to infanticide and the sale of daughters to a life of ig- 
 nominy, which took them out of the child-bearing class. ^ Nor 
 was either custom under the ban. 
 
 § 25. Low Valuation of Human Life. The constant pressure 
 of population upon the limits of subsistence throughout Oceanica 
 has occasioned a low valuation of human life. Among natural 
 peoples the helpless suffer first. The native Hawaiians, though 
 a good-natured folk, were relentless towards the aged, weak, 
 sick, and insane. These were frequently stoned to death or 
 allowed to perish of hunger."* In Fiji, the aged are treated with 
 such contempt, that when decrepitude or illness threatens them, 
 they beg their children to strangle them, unless the children 
 anticipate the request.^ In Vate (or Efate) of the New Hebrides, 
 eld people are buried alive, and their passage to another world 
 duly celebrated by a feast.^ However, in the Tonga Islands 
 and in New Zealand, great respect and consideration are shown 
 the aged as embodying experience.^ The harsher custom recalls 
 an ancient law of Aegean Ceos, which ordained that all persons 
 over sixty years of age should be compelled to drink hemlock, in 
 order that there might be sufficient food for the rest.^ 
 
 § 26. Extra-territorial Relations. There is a great difference 
 between those states whose inhabitants subsist exclusively from 
 the products of their own country and those which rely more or 
 less upon other lands. Great industrial states, like England and 
 Germany, which derive only a portion of their food and raw 
 
 1 Ratzel, " History of Mankind", Vol. I, pp. 270, 299. London, 1896-1898. 
 
 2 Adolf Marcuse, "Die Hawaiischen Inseln", p. 109. Berlin, 1894. 
 
 ^ G. W. Knox, "Japanese Life in Town and Country", p. 188. New 
 York, 1905. 
 
 * Adolf Marcuse, "Die Hawaiischen Inseln", p. 109. Berlin, 1894. 
 
 5 Williams and Calvert, " Fiji and the Fijians ", pp. 144-146. New 
 York. 1859. 
 
 8 Ratzel, " History of Mankind ", Vol. I, p. 330. London, 1896-1898. 
 
 ' William Mariner, "Natives of the Tonga Islands", Vol. II, pp. 95, 
 134-135. Edinburgh, 1827 ; " Capt. Cook's Journal, First Voyage Round 
 the World in the Endeavor", 1768-1771, pp. 220-221. Edited by W. J. 
 L. Wharton. London, 1893. 
 
 * Strabo, Book X, chap, v, 6. 
 
232 FACTORS OF LEGAL EVOLUTION [PArt II. 
 
 material from their own territory, supply their dense populations 
 through international trade. Interruption of such foreign com- 
 merce is disastrous to the population at home; hence the state 
 by a navy protects the lines of . communication with those far- 
 away lands of wheat fields and cattle ranch. This is no purely 
 modern development. Athens in the time of Pericles used her 
 navy not only to secure her political domination in the Aegean, 
 but also her connections with the colonial wheat lands about the 
 Euxine. 
 
 The modern state strives to render this circle of trade both 
 large and permanent by means of commercial treaties, customs- 
 unions, trading-posts and colonies. Thus while society at home 
 is multiplying its relations with its own land, the state is enabling 
 it to multiply also its relations with the whole producing world. 
 While at home the nation is becoming more closely knit together 
 through the common bond of the fatherland, in the world at large 
 humanity is evolving a brotherhood of man by the union of each 
 with all through the common growing bond of the earth. Hence 
 we cannot avoid the question : Are we in process of evolving a 
 social idea vaster than that underlying nationality? Do the 
 Socialists hint to us the geographic basis of this new development, 
 when they describe themselves as an international political party ? 
 § 27. Geography in the Philosophy of History. It is natural 
 that the old philosophy of history should have fixed its attention 
 upon the geographic basis of historical events. Searching for the 
 permanent and common in the outwardly mutable, it found always 
 at the bottom of changing events the same solid earth. Biology 
 has had the same experience. The history of the life forms of the 
 world leads always back to the land on which that life arose, 
 spread, and struggled for existence. The philosophy of history 
 was superior to early sociology, in that its method was one of 
 historical comparison, which inevitably guided it back to the land 
 as the material for the first generalization. Thus it happens that 
 the importance of the land factor in history was approached first 
 from the philosophical side. Montesquieu and Herder had no 
 intention of solving sociological geographical problems, when 
 they considered the relation of peoples and states to their soil ; 
 they wished to understand the purpose and destiny of man as an 
 inhabitant of the earth. 
 
 § 28. Theory of Progress from the Standpoint of Geography. 
 The study of history is always, from one standpoint, a study of 
 progress. Yet after all the century-long investigation of the 
 
Cnxv. VII.] GEOGRAPHIC ENVIRONMENT 233 
 
 history of every people working out its destiny in its given en- 
 vironment, struggling against the difficulties of its habitat, pro- 
 gressing when it overcame them and retrograding when it failed, 
 advancing when it made the most of its opportunities and de- 
 clining when it made less or succumbed to an invader armed with 
 better economic or political methods to exploit the land, it is 
 amazing how little the land, in which all activities finally root, 
 has been taken into account in the discussion of progress. Never- 
 theless, for a theory of progress it offers a solid basis. From the 
 standpoint of the land, social and political organizations, in suc- 
 cessive stages of development, embrace ever increasing areas, 
 and make them support ever denser populations ; and in this 
 concentration of population and intensification of economic de- 
 velopment they assume ever higher forms. It does not suffice 
 that a people, in order to progress, should extend and multiply 
 only its local relations to its land. This would eventuate in 
 arrested development, such as Japan showed at the time of Perry's 
 visit. The ideal basis of progress is the expansion of the world 
 relations of a people, the extension of its field of activity and sphere of 
 influence far beyond the limits of its own territory, by which it ex- 
 changes commodities and ideas with various countries of the world. 
 Universal history shows us that, as the geographical horizon of 
 the known world has widened from gray antiquity to the present, 
 societies and states have expanded their territorial and economic 
 scope ; that they have grown not only in the number of their square 
 miles and in the geographical range of their international inter- 
 course, but in national efficiency, power, and permanence, and 
 especially in that intellectual force which feeds upon the nutri- 
 tious food of wide comparisons. Every great movement which 
 has widened the geographical outlook of a people, such as the 
 Crusades in the Middle Ages, or the colonization of the Americas, 
 has applied an intellectual and economic stimulus. The expand- 
 ing field of advancing history has therefore been an essential 
 concomitant and at the same time a driving force in the progress 
 of every people and of the world. 
 
B. — ECONOMIC FACTORS 
 
 Chapter VIII 
 ECONOMIC FOUNDATIONS OF LAW^ 
 
 I. The Economic Basis of Legal 
 
 Sanctions. 
 II. The Economic Basis of Legal 
 Transformations — an His- 
 torical Demonstration. 
 
 III. The Economic Basis of Di- 
 vers Legal Institutions. 
 
 I. The Economic Basis of Legal Sanctions 
 
 When we come to consider the legal characteristics of the final 
 economy, we find the law reduced to a set of imperati^ve rules, 
 designed to protect the different producers in the enjoyment of 
 the results of their labor, and in the accumulation of its prod- 
 ucts. But, inasmuch as it is to every one's interest in this economy 
 to respect the property of others, the law never has to apply its 
 own penalties, since no one would ever think of violating it. Or 
 if it were ever necessary to resort to legal penalties, it could only 
 be against madmen or fools; for nothing less than aberration or 
 insanity could possibly impel any one to commit illegal acts that 
 clashed with his own interests. 
 
 Locke's proposition : where there is no property there is no in- 
 justice, is as capable of demonstration as those of Euclid; for 
 [the idea of property being a right to something, and the idea 
 we designate under the name of injustice being the invasion or 
 violation of such a right, it is clear that the latter cannot exist 
 without the former] But it is not necessary to go so far as to 
 assume the non-existence of property in order to show the im- 
 possibility of injustice; for \mder an adequate system of private 
 
 1 [By AcHiLLE LoRiA. From the second French edition, translated by 
 Lindley M. Keasby, London, Swan Sonnenschein and Company, Lim., 
 1899, pp. 73-114. The title of the translated volume is "Economic Foun- 
 dations of Society." The work translated is entitled " Les Bases econo- 
 miques de la Constitution sociale."] 
 
 234 
 
CrL\p. Vm.] ECONOMIC FOUNDATIONS OF LAW 235 
 
 property, any violation of the rights of another would be in con- 
 tradiction with the self-interest of the transgressor, since, as we 
 have already seen, it would necessarily react to his own disad- 
 vantaged No violation of another's property rights could occur 
 in a society made up of producers of capital and ordinary laborers 
 all having equal incomes ; for any attempt on the part of one 
 member of the group to usurp the rights of another could only 
 succeed in driving the latter to disrupt the mixed association. 
 This, in turn*, would result in lessening the joint productivity 
 labor, and so diminish the income of the would-be usurper. 
 In such a community, the law would therefore simply consist in 
 the theoretical affirmation of the rights and duties of the indi- 
 vidual, and these would never have to be incorporated into penal 
 sanctions. Utility, which according to Hobbes constitutes the 
 essence of the law in the state of nature, would then form the sole 
 rule of justice; but, instead of leading to the war of all against 
 all, this criterion would naturally and logically result in the re- 
 spect of reciprocal rights and in social peace. 
 
 The logic of this conclusion comes out with still greater clear- 
 ness in the argument drawn e contrario from the legal character- 
 istics of the economic form radically opposed to the above ; namely, 
 the capitalistic economy. It is evident that the law which as- 
 sures to every individual the peaceful enjoyment of his income is 
 no longer so sure of universal observance in a community that 
 tolerates, sanctions, and even accentuates economic inequality, 
 and where one portion of the population grows rich at the expense 
 of the other ; foi/Tt is to the interest of those who possess less to 
 usurp the rights of those who possess more, and those who labor 
 without receiving any revenue have certainly everything to gain 
 from violating the law and appropriating the revenue of the 
 capitalists and non-laboring proprietors/I And although in the 
 free-land economy violations of the law are powerless to augment 
 the welfare of the agent, and in the end only succeed in diminish- 
 ing his prosperity, where land is pre-empted such illegal acts 
 constitute, on the contrary, a very efficacious means of increasing 
 the transgressor's competency. For this reason, the law can no 
 longer confine itself, in this phase of economic evolution, to a 
 mere theoretical affirmation of the economic privileges of the 
 individual, but must arm itself with rigorous penalties to l^-y 
 upon those whose individual interests urge them to violate its 
 rules. 
 
 In the capitalistic society, the real interests of the laborers urge 
 
236 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 them to revolt against the capitalistic class, while the conscious 
 interests of the members of this capitalistic group lead them to 
 resort to reciprocal usurpation among themselves, and to be 
 implacable in their attitude toward the laboring population, 
 although such conduct really results to their ultimate disad- 
 vantage. For this reason, as we have seen, i^e ethics of egoism 
 cannot, under such conditions, lead to social equilibrium, and 
 it is, therefore, necessary to resort to an imperative code of morals/l 
 with a view to vitiating the egoism of both classes by creating 
 an ostensible egoism calculated to detach the poorer classes from 
 their real interests and the well-to-do classes from their conscious 
 interests. In cases where this perversion of egoism is not complete 
 in its results, and where, on this account, the imperative code of 
 morality does not of itself suffice to assure social equilibrium, 
 the law intervenes. Instead of vitiating human egoism, and 
 then allowing the individual to act freely according to the tenets 
 of his perverted interests, the law proceeds either by absolutely 
 forbidding acts that are in conformity with one's own interest, 
 or by subjecting such acts to penalties so severe that their per- 
 formance becomes henceforth anti-egoistic. Morality thus comes 
 to the support of the capitalistic system by means of a fiction; 
 for, even while permitting the individual to follow out his own 
 inclinations, it takes care to vitiate his egoism and direct it in a 
 sense opposed to his interests, real or conscious as the case may 
 be. The law proceeds more explicitly and imposes at once so 
 severe a penalty upon the egoistic act that its performance really 
 becomes contrary to the agent's interest. Morality imposes an 
 ostensible penalty upon him who commits an egoistic act and 
 thus renders the abstention therefrom apparently egoistic; while 
 the law, on the contrary, inflicts its effective punishment upon 
 the self-same act and thus renders the abstention really egoistic. 
 /Morality accordingly vitiates our interests, while the law, on the 
 other hand, alters the conditions under which they are moved and 
 determineHl 
 
 This characteristic of the law has been vaguely comprehended 
 by the more illustrious writers on jurisprudence; but their ig- 
 norance of the economic element has always prevented them 
 from grasping the true nature of the institutions of which we are 
 speaking. Thus Jhering regards the law as a compulsion ex- 
 ercised upon individuals by the collective authority, with a 
 view to deterring them from excesses that would turn to their 
 own disadvantage, which they themselves are unable to fore- 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 237 
 
 see.^ This definition, indeed, exactly describes the characteristics 
 of the law in so far as it applies to the relations existing between 
 the members of the capitalistic group, upon whom the law actually 
 imposes a series of acts that are in conformity with their real in- 
 terests ; but it is not applicable to matters concerning the laborers, 
 for they are obliged by law to act contrary to their real egoism. In 
 the secondplace,.this definition takes no account of the anomalous 
 fact thatlmdividuals have to be constrained to act in conformity 
 with their own interests; and it fails to see that this contradic- 
 tion must necessarily be the result of an abnormal and transitory 
 economic system, under which acts that are in reality useful do 
 not appear so to the individual and must, therefore, be dictated 
 by some superior force. If, however, we turn aside for a moment 
 from the capitalistic economy and fij^ our attention again on the 
 final economic form, we will perceive that, owing to the trans- 
 parent nature of the prevailing social relations, the individual is 
 there able to recognize immediately the personal advantages 
 and disadvantages resulting from the different acts he performs. 
 A spontaneous fulfillment of the egoistic act is thus assured, and 
 there is no longer any reason for psychological absurdity of its 
 enforcement. 
 
 From all this it will be readily recognized that the legal system 
 is much more complicated than the moral code. Morality, in 
 short, requires no special institutions to guarantee its observance 
 since it is left to the persuasions of conscience. But the law, 
 on the other hand, demands a whole series of institutions to secure 
 its fulfillment. Morality, besides, depends upon the work of 
 a relatively restricted number of unproductive laborers whose 
 business It is to preach moderation to the masses and the elite 
 of society ; while the law, on the contrary, employs a triple army 
 of unproductive laborers : one branch to formulate the principles 
 of justice, another to carry out these principles into practice, 
 and the third to assure their execution ; that is to say, there must 
 be jurists, judges and police. From this we must conclude that 
 the law is a phenomenon belonging to a more advanced stage of 
 social evolution than morality, since it is a more complex and 
 heterogeneous institution, corresponding to a more highly de- 
 veloped system of capitalistic civilization. It is also a more 
 costly system, and one to which capital only has recourse after 
 
 ^Jhering, "Zweck im Recht", Leipzig, 1877-83, i., p. 250. 
 [See Husik's translation, under the title, "Law as a Means to an 
 End", "Modern Legal Philosophy Series", Vol. V.] 
 
238 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 it has experienced the inefficacy of the less expensive methods 
 of safeguarding the persistence of property.^ ^_ 
 
 Thus, as a coactive and imperative instruction, jthe law is 
 likewise a necessary product of the capitalistic economy, serving 
 to protect the income-holders from their ^wn importunities and 
 from attacks on the side of the laborers.y It becomes thus at 
 once the complement and the integration of capitalistic morality, 
 wherever the latter proves insufficient. 
 
 This organic connection between the application of the legal 
 sanction and the institution of capitalistic property finds its 
 proof in the entire history of the law. During the long period 
 preceding the institution of the capitalistic regime legal penalties 
 were never incorporated into material acts, and the purely ab- 
 stract nature of the legal system finally gave rise to the theoreti- 
 cal illusion that a law could exist without its corresponding sanc- 
 tion. As a matter of fact, however ,(ialaw deprived of its material 
 sanction is plainly an impossibility, since the essential character- 
 istic of the law, and that which distinguishes it from morality, 
 consists in just this material penalty .( But though Athere cannot 
 be a law without the existence of a corresponding sanction,] one 
 may still admit the possibility of a law without the exercise of its 
 sanction, provided economic circumstances render it feasible to 
 dispense with the necessity of resorting thereto. Now, just such 
 circumstances are to be met with in an economy where equality 
 of conditions prevails. Under such circumstances the applica- 
 tion of the legal sanction is rendered superfluous by the fact that 
 acquiescence in the law is to every one's interest. Under such 
 conditions the law simply amounts to a technical classification 
 of the acts and abstentions that are to be the advantage of the 
 citizens of the State ; and, on this account, respect for the law is 
 assured on the part of such citizens without the necessity of apply- 
 ing any penalties. Thus there is nothing extraordinary in the 
 fact, that the primitive tribunals were simply courts of arbitration 
 which left their verdict to the voluntary execution of the parties. 
 The sanction becoming thus purely theoretical, it ended in being 
 no longer even the object of a threat. 
 
 1 The opposite thesis is upheld by Pellegrini, who regards morahty as 
 the integration of the law, and considers it accordingly as a later develop- 
 ment in the evolution of social ideas (" Diritto sociale," 1891, p. 14). But 
 this is wrong; for the very rigidity, precision and complexity which are 
 the special characteristics of the law, of themselves denote it to be a 
 more advanced institution than morality, and mark it as belonging to a 
 later stage of human development. 
 
 2 CJ. Vanni, "GH studi di Sir H. Maine", 1892, p. 46. 
 
Chap. VHI.] ECONOMIC FOUNDATIONS OF LAW 239 
 
 It is thus easy to explain how the non-exercise of legal penal- 
 ties during this social period came to encourage the belief in the 
 non-existence of such penalties, and consequently caused the 
 jurist to imagine the possibility of the existence of a law without 
 its corresponding sanction. The matter is also explicable from 
 the fact that the non-exercise of the legal sanction continued even 
 after the conditions of economic equality that first rendered this 
 state of things possible ceased to exist. The non-exercise of the 
 legal sanction for so protracted a period, resulted, in fact, in the 
 atrophy of the social organs whose function it was to apply it. 
 Thus at the outset of the capitalistic regime the sanction was but 
 imperfectly applied, because the necessary organs were still inert 
 or imperfectly developed. 
 
 The pcgal sanction was for this reason inadequate ^ during the 
 early days of capitalistic society, and primitive legislators had, 
 therefore, according to Maine's profound observation, to accord 
 to procedure an importance that seems to us out of all proportion, 
 as modern legislators throw the prescriptions of procedure into 
 the background. ' In early times the legislator had, indeed, to 
 exert every effort to assure the rigidity of the legal sanction 
 and to repair the insufficiency resulting from its practical disuse. 
 This very inadequacy of the legal sanction during so protracted 
 a period was, indeed, the cause both of its frequent violation and 
 of its employment by private citizens. The revolts against the 
 constituted judicial authority occurring during the Middle Ages 
 and even in our day in some of the less civilized countries — the 
 camorra and the maffia — are striking examples of the systematic 
 violation of the legal sanction. On the other hand, we find no 
 less remarkable examples of its employment by private citizens 
 in the vendetta, so common during the Middle Ages and still actually 
 in vogue in certain countries, and in the application of lynch-law 
 in the United States. These two lines of phenomena, so diametri- 
 cally opposed to each other, are both but the necessary products 
 of a legal sanction that is inadequate in itself and imperfectly 
 applied by the collective authority. It is only after the course 
 of ages and with a constant improvement in its use that the ap- 
 plication of the legal sanction becomes certain. Rebellion then 
 becomes more rare, and obedience to the law more regular. Thus 
 beginning with that spontaneous submission to the law, arising 
 from conditions of economic equality which made such conduct 
 conformable to the natural interests of the agent, we reach a 
 * Cf. Maine, "Ancient Law", a^n^Vanni, "Maine", p. 61 ff. 
 
240 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 reflex obedience which is the product, not of natural egoism, but 
 of the infalHbiHty of legal penalties, which in turn assures the 
 requisite transformation of egoism demanded by the property 
 system. 
 
 If the law then constitutes the sanction that society, or more 
 strictly, its ruling classes, accords to existing economic condi- 
 tions, it must then of necessity reflect these same conditions, and 
 docilely follow in the train of their successive transformations. 
 iThe law, in other words, proceeds from the economic constitution 
 and changes as it changes J The theory of Savigny and the his- 
 torical school, which regards the law as the product of the national 
 conscience, or the result of the peculiar inheritance and habits 
 of a people, is thus entirely erroneous. On the contrary, the 
 legal systems of the most widely separated races and nations 
 must be the same whenever the prevailing economic conditions 
 are identical. On the other hand, every nation must undergo 
 a change in its legal system when the onward march of its civiliza- 
 tion has brought about radical changes in its economic constitution. 
 
 II. The Economic Basis of Legal Transformations — an Historical 
 
 Demonstration 
 
 Changes in the prevailing economic conditions necessarily 
 involve corresponding alterations in the law. This is a truth 
 that is evident from what we have already said, and the history 
 of law furnishes us, besides, with clear and definite demonstra- 
 tion of the fact. From the early dawn of juristic life, during 
 that primitive period when the law was worked out upon a family 
 and not upon a property basis, mother-right prevailed among the 
 most profoundly different peoples, and in the most widely separated 
 places. The maternal family, with its complicated system of 
 relationships, flourished alike in Asia, Greece, and Africa, as well 
 as in prehistoric America. When we come down to times that are 
 less obscure and to facts that are more definite, we are again 
 struck with amazement at the profound similarity in the legal 
 systems prevailing among the most different peoples during these 
 early historical periods. We know, as a matter of fact, that the 
 ancient laws of the Romans, the Irish, the Gauls, and the Germans 
 were practically the same, or presented but imperceptible diver- 
 gences. Among these different peoples the law shows us the same 
 classification of persons, the same absolute character of marital 
 and paternal authority, a like constitution of the family and an 
 
Chap. \1II.] ECONOMIC FOUNDATIONS OF LAW 241 
 
 identical distinction between the ager publicus and the ager privatus. 
 /In each of these countries the law maintained thej inviolability 
 of private propert}^ determined the boundaries of the patrimo- 
 nial fields, proclaimed the personal nature of an obligation and 
 fixed the rigorous bonds that * shackled the liberty of the debtor 
 and transformed the security pledged into a right of propertyTl 
 In all four cases, finally, the law insisted upon respect for the 
 sacredness of the oath, accorded ample confidence to the witness, 
 and arranged for the intervention of judicial warranties.^ 
 
 Germanic law, it is true, founded property rights in the family, 
 while Roman law accorded such rights to the individual ; but in 
 the primitive Roman law there are also many traces of the earlier 
 family community. That so striking an analogy should exist 
 in the legal systems of two peoples so profoundly different and 
 so widely separated is a highly significant fact and one worthy 
 of serious consideration; on the one hand because it radically 
 reverses the theory that regards the law as an emanation of the 
 national consciousness, and on the other hand because it shows 
 that the law necessarily depends upon existing economic con- 
 ditions. The Romans and the primitive Germans were profoundly 
 different in race and manners and lived under different climatic 
 conditions. Between these two peoples and these two lands 
 there was, indeed, nothing in common beyond the identity of their 
 economic systems ; or, to put it more definitely, there was nothing 
 in common between them except identical territorial conditions, 
 which irresistibly impelled them to adopt an identical economic 
 constitution. It is perfectly evident that this profound analogy 
 in the legal systems of these two peoples could not have been 
 the product of conditions wherein they differed, and must, ac- 
 cordingly, have resulted from the one element common to them 
 both, namely : their economic system. 
 
 Thus the Roman economy and the German economy proceeded 
 together for a certain time at about equal paces along the lines 
 of their respective development. But after the collective economy 
 gave place to the system of capitalistic property, based upon the 
 suppression of the free land, their ways lay apart ; for Germany's 
 free land, being of a low grade of fertility, could be taken from the 
 laborer without resorting to very serious violence, while in South- 
 ern Europe, on the contrary, where the land was of an exuberant 
 fertility, a regime of blood and iron could alone succeed in pre- 
 
 ' " Laferrifere, Histoire du droit Fraii§ais ", Paris, 1846, II., p. 168 flf. ; 
 Maine, "Ancient Law." 
 
242 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 venting the laborers from establishing themselves on the free land. 
 Now this violent suppression of the free land accomplished by 
 means of slavery served in Southern Europe as the foundation 
 for an admirably perfected capitalistic system upon which a cor- 
 responding legal structure had to be raised. The phenomena of 
 redistribution in particular, that is to say, the complex relations 
 prevailing among proprietors, called for legal relations equally 
 as subtle and complex. It is not surprising, therefore, that such 
 economic conditions engendered a system of legal relations and 
 corresponding doctrines that remain to our day a superb monu- 
 ment to Latin genius. 
 
 From this point of view Roman law bears a striking analogy 
 to English political economy. The former was the product of 
 the complex relations prevailing among slave owners, while the 
 latter was the outcome of the no less complicated relations spring- 
 ing up among modern capitalists. Both were the natural fruits 
 of a country where egoism reigned supreme and of a people ac- 
 tuated by none of the softer sentiments. The only difference 
 between the two systems consists in the fact that the Roman law 
 only traces out the technology, while English political economy 
 reveals the very physiology of human egoism. The law accord- 
 ingly presents a more superficial character, corresponding to an 
 earlier stage in the development of scientific thought, which can 
 only proceed to more profound researches on reaching maturity. 
 And just as classical political economy is a reflex of the economic 
 situation surrounding the wage-system, so the Roman law was 
 an ideal product of the economics of slavery. A like legal system 
 could never have arisen out of conditions of economic equality 
 nor could it have been raised upon a patriarchal basis. 
 
 As soon as the slave economy began to disaggregate, the classic 
 law fell into abeyance and another legal system, more in harmony 
 with the new economic form, took its place. This period of legal 
 decomposition and recomposition is of extraordinary importance, 
 and confirms our chosen theory in the most striking manner. 
 We have already observed that the slave economy was never 
 established in all its rigor in Teutonic countries, and that from 
 the very outset the suppression of the free land there assumed 
 the milder form of serfdom. Thus, while the slave economy pre- 
 vailing in Southern Europe engendered one set of legal relations, 
 an absolutely different legal system, based upon serfdom, was 
 established in the countries of the North. The latter legal system 
 differed from that of Rome in three respects: it instituted and 
 
Chap. Vni.] ECONOMIC FOUNDATIONS OF LAW 243 
 
 sanctioned patriarchal relations between property and labor; 
 it protected the serf from arbitrary acts of violence on the part 
 of the proprietor, and it placed respect for the family and the 
 sentiment of solidarity above the mere satisfaction of a brutal 
 egoism.^ In the course of time Southern Europe was also obliged 
 to introduce the serf system, and it then became expedient to 
 substitute the Germanic code, which was the outgrowth of the 
 serf economy, for the classic law of Rome that was the product 
 of slavery. The national law of Italy thus sank into abeyance 
 and came to occupy a subordinate position beside the barbarian 
 codes which were henceforth to prevail.^ This change, as we can 
 readily see, had nothing to do with the victory of one national 
 code over another. It was simply the natural reproduction of 
 a legal system already determined for the purpose, to meet the 
 reappearance of the very economic conditions that had originally 
 given it life. We have thus additional proof of the law's absolute 
 independence of national character, and its exclusive dependence 
 upon the economic structure of society. 
 
 The introduction into mediaeval Italy of economic conditions 
 similar to those prevailing in primitive Germany thus brought 
 with it the barbarian codes of the Teutons. And in a somewhat 
 analogous manner the later institution in Germany of economic 
 relations similar to those formerly prevailing in Rome introduced 
 the Roman law into that country at a subsequent period. This 
 latter phenomenon, which has so puzzled legal historians and 
 still forms a stumbling-block to the Savigny school, loses its 
 anomalous character when regarded in the light of the theory 
 which looks upon legal revolutions as the necessary concomitant 
 of economic change.^ The wage economy that grew out of the 
 old trunk of feudal society engendered, it is true, an absolutely 
 new set of relations between property and labor, and these in 
 turn had consequently to give rise to legal institutions heretofore 
 unknown. But the system of redistribution instituted under 
 
 ^ CJ. Schmidt, "Der principielle Unterschied zwischen den romischeii 
 und germanischen Rechten", Rostock, 1853, pp. 272 fif. 
 
 2 By the twelfth century "Roman jurisprudence and the books of 
 Justinian had fallen into oblivion in Italy, and the code of the Lombards 
 held full sway" {Giannone, "Storia civile del regno di Napoli " (1723), 
 1821, I, pp. 289-91). 
 
 3 Dankwardt very well remarks that the introduction of the Roman law 
 into Germany — which according to some could only have been effected 
 by missionaries after the manner that a new religion is imported and 
 propagated — was really occasioned by an alteration in relations of fact, 
 which made the ancient German code no longer possible (" National-oeko- 
 nomisch-civilistische Studien", Leipzig, 1852, pp. 19-30). 
 
244 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 this new economic form, though it differed widely from that 
 prevailing during the feudal period, offered a profound analogy 
 to that of the slave economy. Thus though the law regulating 
 the labor contract had to be an original creation of the new 
 economic system (or at best an elaboration of the contract of 
 feudal ^ service), the law regulating the relations among proprie- 
 tors could practically be reproduced in its classic Roman form. 
 Now it is exactly these relations between proprietors that con- 
 stitute the essential object, and form, as it were, the organic 
 tissue of the law^ while the relations between property and labor 
 only enter in a subsidiary way. Thus the organic and vital side 
 of the law could be regulated by the principles of the jus romanum. 
 The Roman law accordingly emerged from the tomb where it 
 had so long reposed into the expansion of a new life. The move- 
 ment toward this awakening commenced in Italy where the wage 
 economy first began to develop, following the expropriation of 
 the cultivators. The new and more active economic relations 
 that were springing up in the industrial cities of the Italian pen- 
 insula soon became incompatible with the narrow rigidity of 
 feudal law and communal customs, and accordingly necessitated 
 the institution of a legal system more rapid in its workings and 
 more subtle in its movements, and such a system was found 
 already elaborated in the Roman law.^ 
 
 This renaissance of the Roman law in Italy was thus the natural 
 consequence of the new economic system which introduced re- 
 lations of redistribution analogous to those of the slave society; 
 
 1 In Roman law the contract "locatio eonductio operarum", which was 
 not even protected by an action, was applied in the very rare cases where 
 a freeman hired out his own services, and in the more frequent instances 
 when the slave owner rented the labor of his slaves. But personal 
 relations were more common in feudal law, and we, consequently, come 
 more often upon contracts of service under the feudal system. It was 
 these, therefore, that the new law turned to account ("Handworterbuch 
 der Staatswissenschaften", vgl. " Arbeitsvertrag"). 
 
 2 Cf. Lerminier, "Introduction generale a I'histoire du droit", Brussels, 
 1836, p. 139. Maine likewise ("Ancient Law") sees in the development of 
 economic conditions the cause of the modern renaissance of Roman 
 law and of the substitution of individualistic law for feudal law. Even 
 Savigny recognizes that the earlier re-establishment of the Roman law 
 in Italy "was due to the prosperity and flourishing condition of the 
 cities. This system had, in fact, to be revived in the cities and by the 
 cities. It was not, therefore, by chance but through the necessary 
 course of events that Roman law was re-established in the Italian cities, 
 whence it passed on into France and Germany to correspond to like 
 needs" ("Storia del diritto romano nel medio evo", Turin, 1859, I, p. 130). 
 Truly one could not affirm with greater clearness the economic basis of 
 the law. And in several other passages in his work this illustrious author 
 further recognizes the fact. Thus, for example, in speaking of the legal 
 system established in Italy toward the close of the barbarian invasions, 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 245 
 
 and the successive ramifications of the Roman law from Italy into 
 Germany was again but the necessary corollary of the economic 
 revolution that spread these same conditions throughout northern 
 Europe. 
 
 The introduction of this foreign law into Germany was notT^ 
 however, effected without intense opposition, and it, indeed, 
 contributed not a little to embitter the very economic relations j 
 of which it itself was the product. We find proof of this in the 
 German peasant's intense hatred of the new law, a hatred so 
 deadly and implacable that it recalled to the brilliant civilization 
 of the renaissance the rage with which the German warrior pierced 
 the throat of the Roman jurist after the defeat of Varus, crying, 
 " Now viper, hiss again if you can ! " ^ Nevertheless it would 
 be an unpardonable error to regard the new law as the cause of 
 the modern capitalistic system and all the crying injustices that 
 accompanied its formation, since Ehe new code only sanctioned 
 and gave legal expression to economic conditions that were al- 
 ready in existence77 
 
 Thus legal history shows us that instead of being the product 
 of abstract reason, or the result of national consciousness, or a 
 racial characteristic, the law is simply the necessary outcome 
 of economic conditions.^ For this reason /aT definite legal system 
 may pass on from one nation to another and leap from an earlier 
 to a later century, whenever its corresponding economic system 
 is transmitted from this people to that and from one historical 
 epoch to another. ^ 
 
 After this rapid survey of the history of the law, let us now 
 examine the various juristic institutions, and we shall there find 
 additional confirmation of our main thesis. 
 
 he says: "Had landed property been taken from the Romans, the pres- 
 ervation of the Roman constitution would therewith have become im- 
 possible. From the permanence of the Roman constitution, one has 
 therefore to presume the permanence of landed property among the 
 Romans" {Ibid., i, p. 198). Now in thus affirming that the persistence 
 of economic conditions makes the persistence of legal conditions a matter 
 of certitude, the author practically admits that the latter are the neces- 
 sary product of the former. 
 
 1 Grimm,'' Deutsche Rechtsalterthiimer", Gottingen, 1854, Preface, xi ; 
 Eichhorn, "Deutsche Staats- und Rechtsgeschichte", Gottingen, 1819, 
 iii, p. 337. 
 
 2 "Property is the principal factor in the development of the law." 
 Thus Stf'in expresses himself (" Franzosische Staats- und Rechtsge- 
 schichte", Basel, 1875, p. 15). On page 3(59 of his work Stein, however, 
 introduces an ideal element into this evolution, namely, the idea of the 
 State. 
 
246 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 III. The Economic Basis of Divers Legal Institutions 
 
 Modern law, as we have just seen, is only really modern in its 
 subordinate elements, in that portion, namely, which pertains 
 to the relations between property and labor; and this is due 
 to the fact that these secondary relations now assume a form 
 unknown to former times. In its fundamental lines, however, 
 that is to say, in everything that touches the relations among 
 proprietors, modern law is but a reproduction of the Roman 
 law ; and this is the case, because these more important relations 
 practically reproduce the earlier Latin structure. We have 
 already demonstrated the relation of dependence existing between 
 legal systems and economic conditions, by noting the constant 
 recurrence of the same legal system whenever the corresponding 
 economic conditions were reproduced. If we now make a careful 
 analysis of the various legal institutions we will discover that they, 
 too, are each and every one the necessary product of particular 
 economic conditions. 
 
 (I) — The Law of the Family 
 
 Let us first examine the law of the family. The transition 
 from primitive promiscuity to that earliest form of familial ag- 
 gregation, known as the maternal family, was brought about 
 by an increase of population, and the consequent need of aug- 
 menting the means of subsistence through organised co-operative 
 labor. This necessity of forming an association of labor, however 
 imperfect, inspired in the' mind of the primitive man the idea of 
 uniting into distinct groups individuals, who had up to this been 
 in the habit of wandering at will from place to place. These 
 groups were constituted, and at the same time circumscribed, by 
 forbidding intermarriage among their members, and by compelling 
 the women of each group to select their husbands from a foreign 
 group. Within the familial clans thus constituted, the children 
 always belonged to the clan of the mother, and consequently to a 
 different clan from that of the father. In this way individuals 
 belonging to different clans, but all collected around the same 
 maternal head, were able to establish a primitive labor associa- 
 tion. The maternal family was thus the first means employed to 
 concentrate the labor of several individuals upon a definite terri- 
 tory. It constituted the first limitation placed upon the dispersive 
 tendencies of savage life, and effected the first improvement in 
 productive force. 
 
Chap. VIII.J ECONOMIC FOUNDATIONS OF LAW 247 
 
 But this prehistoric method of associating labor soon gave 
 evidence of its multiple defects. It resulted in the dispersion 
 of the masculine element of each clan over a vast territory, and 
 brought together upon a restricted area a number of men be- 
 longing to different clans who owed obedience to different powers, 
 and consequently were little inclined to work together in harmony. 
 Production was thus confronted with serious obstacles, which 
 became more and more difficult to overcome as the increase of 
 population necessitated greater productive force. In the end, 
 therefore, the maternal system had to give way to the paternal 
 family. Under this latter organisation it was the men who sought 
 their wives among foreign tribes and transmitted their name and 
 descent to their children. 
 
 The institution of the paternal family was also necessitated 
 on other grounds. When subsistence could no longer be pro- 
 cured except by labor, the younger and weaker members of 
 the family finding it impossible to produce enough for their needs 
 were forced to recognise that their very life depended upon the 
 labor of the older and stronger members of the group. The 
 existence of the women and children came, in short, to depend 
 henceforth upon the labor of the man, and he, therefore, naturally 
 acquired economic, and therewith also legal power over those 
 who owed him their life. Henceforward the supervision of the 
 family — which in prehistoric times had rested with the mother 
 — became the privilege of the father, and he acquired therewith 
 a despotic right over his wife and children. The husband now 
 prevented his wife from having any further intercourse with other 
 men (thereby destroying at a blow the primitive polyandry), 
 and subjected her to his authority in all the acts of her life. Over 
 his children likewise the father exercised a limitless patria potestas, 
 and practically assimilated them with his slaves. Now the sover- 
 eignty exercised by the father over the members of his family is 
 in reality but an extension of the prevailing economic relation 
 between property and labor, and for this reason it is bound to 
 become modified as this economic antithesis is softened. Thus 
 in the slave society the wife and children were legally the slaves 
 of the husband and father, while in the feudal ecbnomy they found 
 themselves rather in the position of his serfs and vassals, and in 
 our modern wage economy, and especially among the poorer classes, 
 they assume the position of his employees. Thus as economic 
 relations change, domestic relations have likewise to be modified, 
 and as George Sand has so profoundly observed, proprietors as 
 
248 FACTORS OF LEGAL EVOLUTION [Part H. 
 
 well as laborers carry over into their domestic life the same re- 
 lations of authority which they exercise or submit to in the outside 
 world. 
 
 The institution of private property exerted still another im- 
 portant influence upon the constitution of the family. The 
 complicated system of relationships growing out of the maternal 
 family, which gathered so large a number of individuals about 
 a common head, could only prevail before there was any such 
 thing as private possessions. As soon as the idea of private 
 property arose the bond of relationship ceased to be represented 
 by a community of sentiments and aspirations, and became 
 embodied in the economic relation of hereditary succession. 
 Thus when this institution was once firmly established, the 
 maternal family with its innumerable host of relations became 
 clearly intolerable, since it necessitated the division of the herit- 
 age among an enormous number of consanguins. The institution 
 of private property consequently truncated with a blow the mul- 
 tiple ramifications of relationships growing out of the regime of 
 collective property, and replaced them with a simpler system of 
 consanguinity and a more restricted form of the family.^ 
 
 Finally, succession in the paternal line was necessary in order 
 to allow the father to satisfy his natural desire of transmitting 
 his possessions to his children; for under a system of maternal 
 succession his property must have gone to his brothers, or to his 
 sister's children. For all these reasons, the maternal family 
 constituted the familial form correlative to the system of com- 
 munal property ; while the paternal family arose as the necessary 
 corollary of private property. 
 
 But the influences exerted by economic conditions upon the 
 constitution of the family are not confined to those here indicated. 
 On the contrary, they are so numerous and so deep that a writer 
 who devoted his whole life to the study of this question did not 
 hesitate to declare that every stage in the evolution of the family 
 is determined by considerations of property.^ 
 
 (II) — The Law of Property 
 
 The influence exerted by economic conditions upon the law 
 of property is no less important. Thus the distinction between 
 
 1 Cj. Morgan, "Ancient Society", London, 1877, pp. 168 ff. 
 
 2 McLennan, "Studies in Ancient History", London, 1886, pp. 136, 
 377. 
 
Chap. Vm.] ECONOMIC FOUNDATIONS OF LAW 249 
 
 the ager puhlicus and the ager privatiis, to be met with both in 
 primitive German law and in the Roman law, was but a survival 
 of the era of coTlective property, from which these two peoples 
 had but recently emerged. The absence at this time of any 
 distinction between movable and immovable property was the 
 result of the unlimited extent of free land which allowed culti- 
 vated soil to be compared exactly with any other product 
 of labor. And ^the rigorous law of property enforced during 
 Rome's best days was again the product of the then prevailing 
 economic conditionsT] But after production had received so serious 
 a check as tha\ imposed by slavery, it became more than ever 
 necessary to exclude all other institutions tending to restrict the 
 product, for a situation that was already unsatisfactory could 
 not well be aggravated. It was inexpedient, therefore, to load 
 the right of property with legal limitations, for these only offered 
 further obstacles to the productivity of labor. In the end, there- 
 fore, property came to assume the character of an absolute right. 
 This essentially economic reason for the existence of Quiri- 
 tarian property appears also e contrario from the fact that the 
 Roman law did not hesitate to place rigorous limitations upon 
 the right of property whenever such action was rendered neces- 
 sary in the interests of production. It was with this end in view 
 that legal servitudes were established, as they afforded an op- 
 portunity of developing rural production. It was in the same 
 sj)irit that permission was given to hunt over private estates, 
 because the chase benefited extensive agriculture by destroying 
 the wild animals that were wont to injure the fields. According 
 to Jhering the peculiar provision of the Roman law which allowed 
 him who had appropriated an object to return its price instead of 
 restorijg-it in kind, also rested on economic grounds, (in order 
 to encourage the cultivation of the soil, it was further arranged 
 that he who cleared an uncultivated area should become the 
 proprietor thereof after a lapse of ten years./ And it was also 
 with an economic^nd in view that the iisiccapio was introduced, 
 which aimed atkewarding the spirit of industrial initiative by 
 punishing absenteeism among landlords. \l The essentially economic 
 character of this latter institution comes out still more clearly 
 from the fact that it did not exist in countries where economic 
 conditions rendered it unnecessary. The exigencies of Roman 
 production, which had already become relatively intensive in 
 character, made it expedient for the law to recognize such a right 
 of property in him who had devoted his labor to a certain piece 
 
250 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 of land for a long period of time ; but the agricultural conditions 
 of the Orient, that were much more extensive in character and 
 facilitated besides by the exuberance of nature, made no such 
 demands, as production could proceed in a very satisfactory 
 way without according any right of this kind. Thus in solemn 
 contrast to the usucaption of the Romans stood the Jewish Jubilee, 
 which disregarded everything that time and labor had added to 
 the value of property, and assured its periodic return to the idle 
 or absent landlord. 
 
 Even in the Roman economy the limitations laid upon the 
 rights of property with a view to increasing the rights of labor 
 were affected by degrees, and only increased in number as pro- 
 duction itself became more intensive in character. We can 
 accordingly account for the gradual prevalence of the theories 
 of the Proculians, who maintained that the property right in 
 the thing manufactured out of materials belonging to another 
 was lodged in the maker, over those of the Sabinian-&, who ac- 
 corded this right to the owner of the original materials. This 
 very prevalence betrayed, however, a prejudice in favor of the 
 exigencies of production, and this prejudice also became more 
 marked as production became more intensive.^ Primitive Roman 
 law furthermore allowed the possessor in good faith of another's 
 estate to be ejected by the rightful owner and even deprived of 
 his property in the fruits. We can readily understand, however, 
 what difficulties a rigorous application of this law would, in the 
 course of time, place in the way of agricultural progress, and how 
 it must have become necessary to guard the interests of the cul- 
 tivator by some milder form of legislation. For this reason it 
 was later provided that the fruits should remain the property 
 of him who held in good faith.^ We can also recall another in- 
 cident of the same order. The rigorous provisions of primitive 
 Roman law that permitted and even encouraged the most signal 
 bad faith on the part of contractual parties, became with economic 
 and commercial progress a serious obstacle to all business trans- 
 actions, because they gave rise to numerous tricks and subter- 
 fuges that prevented honest men from entering into contracts 
 at all. With the growth of capitalistic property, the necessity was, 
 therefore, felt of exacting good faith on the part of those entering 
 
 1 Oertmann, "Die Wirtschaftslehre des Corpus Juris Civilis", Berlin, 
 1891, pp. 27, 60, 71, 119, etc. 
 
 2 Dankwardt, " National-oekonomie und Jurisprudenz", Rostock, 1857, 
 I, p. 49. 
 
Chap. Vm.] ECONOMIC FOUNDATIONS OF LAW 251 
 
 into a contract, and of departing from the rules of the primitive 
 strictum jus upon this subject.^ 
 
 In general we may say that the jus gentium of the Romans 
 was, in its entirety, the product of the development of their inten- 
 sive economy, which compelled them to p|ay continually greater 
 consideration to the producer's capital. 'Later on, during the 
 days of the feudal economy, the liens placed upon property in favor 
 of labor were provided simply with the idea of favoring production, 
 which at that time required the employment of assiduous, effica- 
 cious and, consequently, well-paid labor?; A like thought in- 
 spired that set of servitudes, emphyteuses, quit-rents and the 
 like, which encumbered property during the Middle Ages — and 
 so true is this that the moment these provisions became an obstacle 
 to production they were at once abandoned. Thus in mediaeval 
 England, the right of pasturage upon the uncultivated lands of 
 "Ehe^seigniorial demesne formed an integral part of the feudal 
 lord's grant, because without the exercise of this right the cultiva- 
 tion of land was impossible. But with a c hange jn agrarian 
 conditions, this right, instead of favoring agriculture, became an 
 obstacle in its path, and it was accordingly abolished. ^ In short, 
 all those strange rights attached to feudal property constituting 
 what are spoken of as banalities (moulin banal, four banal, etc.), 
 the right of chase, and others of a like nature, were but products 
 of conditions inherent in the mediaeval economy, for, seeing their 
 incojiie constantly curtailed, property owners had to arrogate to 
 themselves all sorts of lucrative rights and privileges in order to 
 'increase their revenue. 
 
 (Ill) — The Law of Inheritance 
 
 The influence exerted by economic conditions upon the right 
 of succession is still more interesting. When regarded from 
 the economic standpoint the singular evolutions of this law are 
 not so difficult to follow. The fundamental principle that has 
 determined the course of hereditary succession is as follows : 
 
 During the primitive period when property belonged to the 
 family, succession was necessarily ab intestato as the several mem- 
 bers of the family group already enjoyed a right of property 
 
 ^ Schmidt, **Der principielle Unterschied zwischen den rom. und germ. 
 Rechten", p. 268. 
 
 ^ Blackslone, "Commentaries on the Laws of England", London, 1854, 
 II, p. 36. 
 
252 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 or condominium in the common possessions. But the motive 
 that led to inheritance ah intestate disappeared upon the insti- 
 tution of the slave economy and the introduction of private 
 property. Other reasons also argued in favor of according the 
 proprietor the right of disposing of his goods upon his death. 
 Slavery, as we have seen, placed serious obstacles in the way of 
 production and accumulation, and these obstructions had to be 
 overcome by the creation of some counteracting force equally 
 as powerful. Among the forces applied to this purpose nothing 
 was so effective as the right of testation, which excited the desire 
 of accumulation and finally rendered it insatiable. Thus the 
 individualistic character of slave property and the bounds it set 
 to production together resulted in the appearance of the testament. 
 But continued accumulation aroused all the antagonism in- 
 herent in the slave system and ultimately threatened universal 
 impoverishment. Thus there was no longer any reason to stim- 
 ulate production, and the desire arose to confine the opportu- 
 nities for accumulation within narrower bounds. Numerous 
 exceptions were therefore made to the freedom of testation, 
 and the right was further limited to a part of the testator's pos- 
 sessions. At a later period, when slavery was succeeded by 
 serfdom, some of the conditions of the primitive economy were 
 reproduced. Holdings of serf-lands were not granted to the 
 individual but to the family, to be handed down undivided to 
 succeeding generations. This was due to the necessity of 
 allowing the soil that had been so exhausted by slavery to 
 recuperate through continuous and careful cultivation. Thus 
 the exigencies of agriculture necessitated inheritance ah intestato 
 for peasant holdings. , The political nature of feudal property 
 introduced a like necessity for seigniorial holdings, since the 
 jurisdiction accompanying the property right of the early 
 Middle Ages rendered it necessary that the estate should not 
 pass out of the family, inasmuch as the family was the depositary 
 of political sovereignty and answerable for the same to the 
 king.' Sovereignty, moreover, was essentially monarchical and 
 could not be divided among a number of lords. ''Thus the 
 property right which constituted the basis of such sovereignty 
 had likewise to be transmitted to but one of the sons or descend- 
 antsc Hence the right of primogeniture, so general during the 
 Middle Ages, was, as Adam Smith remarked, the product of the 
 political power inherent in property. Its end was in no wise to 
 deprive some members of the family of their share in the common 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 253 
 
 heritage, but simply to entrust one of them with its administra- 
 tion and jurisdiction.^ 
 
 And even after the right of property ceased to carry with it 
 poHtical power, other reasons entered in to limit the heritage 
 of landed property to a single descendant. Collective inher- 
 itance ab intestato was compatible enough with the primordial 
 economy, where the several members of the family worked to- 
 gether and jointly administered their common possessions, but 
 the arrangement became intolerable (after the growing spirit 
 of individualism had induced the several co-heirs to dismember 
 the family heritage to the injury of production and economic 
 life in general. The necessity then arose of immobilizing the 
 land in the hands of one of the descendants. f Herein also lies 
 the explanation of the survival of the right of primogeniture, 
 and of the fidei commissa after the downfall of the feudal 
 system, and the tenacious persistence of these two forms for 
 so long a period. In this connection it is also interesting 
 to note that while the evolution of inheritance ab intestato pro- 
 ceeds from institutions that tend to dismember property (by 
 dividing it up among the legitimate heirs) and makes for 
 institutions, like the fidei commissa that succeed in concentrat- 
 ing it, the course of inheritance by testament, on the contrary, 
 proceeds from institutions that tend toward the concentration 
 of fortunes (by transmitting them to a single heir), and makes for 
 institutions that tend toward their disintegration, by dividing 
 up the legal reservation among all the nearest descendants. 
 
 Inheritance ab intestato was thus the prevailing form of 
 succession in the serf economy, because the advantages of the 
 testament in encouraging accumulation were far outweighed 
 by the advantages secured through inheritance ab intestato, which 
 favored a restorative cultivation of the soil and transmitted 
 political power uninterruptedly in a definite family group. But 
 the reasons that led to inheritance ab intestato vanished with the 
 disappearance of the serf economy. After the laborer had been 
 deprived of the possession of the soil he cultivated, and there was 
 no longer any connection between property and labor, the trans- 
 mission of the holding within the proprietor's family circle was of 
 no further interest to the producer, and consequently carried 
 with it no advantages to rural production; Like other produc- 
 
 1 Adam Smith, "Wealth of Nations" (standard edition), p. 305. Mias- 
 kowski, "Das Erbrecht und die Grundeigenthumsvertheilungen im 
 Deutschen Reich", Leipzig, 1885, II, pp. 44, 201, 253, etc. 
 
254 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 live enterprises, agriculture found itself benefited by the testa- 
 ment, which was at that time encouraging capitalistic production 
 and accumulation. \lt is thus easy to understand why the right 
 of testation was revived with the institution of the wage economy, 
 and became the normal corollary of the property system, for the 
 accumulation of wealth and its subsequent concentration in the 
 hands of the few proceeded more rapidly under this impulsion^ 
 But as was the case in the slave economy before, so now the pro- 
 cess of accumulation under the wage system came in time upon 
 obstacles which it could not surmount without provoking general 
 disaster. It was thus to the public's advantage to set bounds 
 to capitalization and enrichment. For this reason freedom of 
 testament had again to be limited, because it encouraged too 
 much accumulation. It was at this juncture, accordingly, that 
 the institution of the legitime was re-established, which had origi- 
 nally been instituted toward the close of the slave economy. 
 
 This alternate development of inheritance ah intestato and the 
 testament is written indelibly in the history of the law. Thus 
 in primitive Germany inheritance was ah intestato, and the her- 
 itage was handed down ipso jure to all the members of the family. 
 Inheritance ah intestato was likewise the rule in primitive Roman 
 law, and the testament — which in itself was an exceptional 
 act needing a special law to validate it — was resorted to in the 
 early days simply with the view of assuring a portion of the family 
 heritage to the emancipated sons, who, according to the strict 
 law, would otherwise have been excluded.^ Even to-day in Russia 
 the peasants recognize nothing but inheritance ah intestato, because 
 all the members of the family jointly cultivate the paternal prop- 
 erty and regard themselves in consequence as the possessors of 
 a right of condominium in the estate. But in western Europe 
 the introduction of the slave economy gave rise to testamentary 
 institutions. Upon the decline of this economic system, however, 
 and with the decomposition of the capitalistic economy, these 
 institutions, in turn, came to be limited by the institution of the 
 Falcidian portion. \JAs the slave economy gave rise to testamentary 
 succession in Italy, so the serf economy revived inheritance ah 
 intestato in Germany, and grafted on to this old trunk the right of 
 primogeniture and the fidei commissa. These latter institutions 
 afterwards spread out over the Latin world as well, when the 
 serf economy took root there among the ruins of slavery. 
 
 When the free land could be suppressed automatically, serf- 
 1 Maine, "Ancient Law." 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 255 
 
 dom finally made way for the wage system, and the testament 
 appeared again in Italy to start on a fresh course of development. 
 The barbarians themselves adopted all the provisions of the 
 Roman law relative to testation with the single exception of the 
 Falcidian 'portion, which, it should be remarked, they emphatically 
 repudiated.^ And why was this ? Simply because this provision 
 was an expedient to check dangerous and excessive accumulation, 
 and it had therefore to be thrown aside at an epoch when, as was 
 the case during the early days of the development of the wage 
 economy, the normal process of accumulation was barely sufficient 
 to satisfy the needs of production. From Italy the testament 
 passed on into Germany, where the older feudal relations were 
 likewise undergoing a process of disintegration to make way for 
 the institution of the wage economy. This process continued 
 until the growth of an abundant fund of capital — always an 
 element of crises and disasters — made it necessary to impose 
 a series of progressive checks upon accumulation. Limits were 
 then set to the right of testation, and more stress came to be laid 
 upon the importance of inheritance ah intestato through the in- 
 stitution of the legitime. 
 
 Economic science thus furnishes the simplest and most 
 natural explanation of the evolution of the law of inheritance; 
 while legal philosophers, too often ignorant of economic prin- 
 ciples, have never succeeded in making it accord with their systems. 
 
 The theories of Gans and Lassalle are the most ingenious legal 
 philosophy has to offer us on this subject. 
 
 Gans regards inheritance ab intestato as the result of necessity 
 and the testament as the product of liberty. The former system 
 thus predominated in the east, where the seeds of liberty never 
 germinated, and it also prevailed in the early days of Rome be- 
 fore liberty was born. But as soon as the ideal of liberty took 
 root and spread, it caused testamentary institutions to bloom 
 throughout the Latin world. But this theory fails to explain 
 how it was that the Germanic world — which according to Gans 
 himself represented the completest expression of liberty — so 
 long ignored the right of testation. Nor does it explain why, 
 upon the abolition of slavery, this right was also suppressed in 
 the Latin world itself.^ 
 
 1 Glasson, "Histoire du droit [etc.] de la France", 1887, III, p. 188. 
 
 2 Gans ("Das Erbrecht in seiner weltgeschichtlichen Entwicklung ", 
 Stuttgart, 1835, iv, p. 214 ff.), it is true, says that the German system of 
 inheritance constituted a step in progress in comparison with the Roman 
 system, because in the former the will of the individual no longer operated 
 
256 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Lassalle, on the other hand, looks upon the testament as a 
 phenomenon pecuHar to ancient Rome, a product, in other words, 
 of the psychological stage that this nation was then passing 
 through. The religious concept peculiar to this epoch was the 
 immortality of the will, symbolized in the myth of the God Lar, 
 or the idea of the continuance of the spirit of the defunct in the 
 house after his death. But the carrying out of the deceased's 
 wishes must have given rise to an impossible condition by subject- 
 ing the patrimony to the will of the dead, thus paralyzing all 
 effort on the part of the living. To obviate this difficulty the 
 institution of the testament was interposed, whereby the defunct 
 abdicated his rights over patrimonial affairs and invested them 
 in his heir. It was thus the latter who was left to carry out the 
 wishes of the deceased and prolong as it were the original indi- 
 viduality.^ But, adds Lassalle, the human mind, in the course 
 of its evolution, finally broke away from its earlier belief in the 
 immortality of the will, and rose to the higher conception of faith 
 in the immortality of the soul. Now this new faith excluded all 
 desires on the part of the deceased in regard to earthly things, 
 and thus severed the connection that the testament had established 
 between the will of the testator and the heritage. This at once 
 demonstrated the absurdity of desires that were supposed to cease 
 with this life continuing to direct and command temporal affairs 
 after their own extinction. Thus the historical and psychological 
 reasons for the testament disappeared, and henceforth inheritance 
 had by the very nature of things to be ah intestato. Such, ac- 
 cordingly, was the system which was established and became 
 general throughout the Germanic world. But why then was the 
 testament re-established in Germany toward the close of the 
 Middle Ages ? This, Lassalle concludes, was entirely due to an 
 error on the part of the jurists of the time, and to a false applica- 
 tion of the Roman law which the human mind when better informed 
 must sooner or later set aside. ^ 
 
 Thus according to this ingenious philosopher the modern will 
 
 against the sacred rights of family, and only exercised itself after family 
 rights had been satisfied. But this does not interfere with the fact that 
 the system countenanced a backward step in the freedom of the testator, 
 and by no means constituted a factor of progress in his direction. 
 
 1 Lassalle, "System der erworbenen Rechte", Leipzig, 1861, II, p. 10 ff. 
 "Fustel de Coulanges" [see Vol. II of this Series, p. 542] also deduces the 
 testament from religious concepts, and declares that it was unknown in 
 the early days of Rome simply because it was incompatible with the 
 primitive religious beliefs of the Roman people ("La cite antique", Paris, 
 1890, p. 87). 
 
 2 Lassalle, loc. oil., II, p. 497. 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 257 
 
 is the result of the error of some sage. This all-important institu- 
 tion, entering so closely into the economic life of the people, had 
 its origin in the caprice or ignorance of some doctor of law ! Such 
 are the conclusions and such the absurdities to which we are led 
 by following a theory that endeavors to deduce the law from the 
 nebulous regions of myth instead of allowing it to proceed natu- 
 rally from the prosaic but real world of econbmic fact. 
 
 (IV) — The Law of Contract 
 
 Passing on from the law of inheritance to the law of contract, 
 we come upon fresh proof of the law's dependence upon economic 
 conditions. The personal basis of obligations, the sanctity of 
 the oath, and the absolute faith in the testimony of the witness, 
 were, as we have said, common characteristics of German and 
 early Roman law. Now the personal basis of obligations was 
 rendered necessary from the existence of free land, which ex- 
 cluded the possibility of the wage system, and, consequently, 
 compelled the capitalist to take advantage of his debtor's in- 
 solvency in order to reduce him to a condition of servitude and 
 so obtain his profits. This important legal phenomenon has, 
 accordingly, been reproduced among all peoples possessing an 
 abundance of unoccupied fertile land. It prevails today in 
 Africa, where the law makes the insolvent debtor and his de- 
 scendants the slaves of the creditor so long as the debt remains 
 unpaid.^ The probative force of oral declarations was, on the 
 other hand, a product of the open brutality and the absence of 
 all fiction prevailing in the slave economy. In the midst of 
 the wage economy falsehood, indeed, reigns supreme and covers 
 with a mantle of justice the injustices inherent in such economic 
 conditions ; but fiction was unknown to the slave society, whose 
 economic relations were openly based upon force. It is thus 
 easy to explain why so great faith was accorded to the given 
 word in this society, and how evidence came to be accepted as 
 proof. ^ 
 
 A still more suggestive comparison next demands our atten- 
 
 ^ Post, "Afrikanische Jurisprudenz", Leipzig, 1887, I, p. 90. 
 
 2 Jhering ("Zweckim Recht", Vol. II, p. 608) has judiciously remarked 
 that the lie is only punished when it is socially injurious, and that it is 
 not so, for example, under the despotic regime, because lying is then a 
 necessary condition of social existence and individual tranquillity. But 
 the economic despotism that is founded upon the exclusive appropri- 
 ation of the soil hkewise makes lying a condition precedent to individual 
 and social existence, and therefore leads also to its impunity. 
 
258 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 tion. Even a superficial study of the rent-contract reveals a 
 substantial difference between the condition of the Roman ten- 
 ant, who only held a jus ad rem (which was, however, somewhat 
 enlarged during the later days of Rome through the action of 
 the prsetor), and that of the modern tenant, who possesses (at 
 least according to a well-recognized authority) a jus in re. Now 
 the cause of this difference lies in the dissimilarity of conditions 
 existing in the slave economy and the wage economy. In the 
 slave economy only the most fertile lands were reduced to cul- 
 tivation, and this practically excluded economic rent. Hence 
 it was impossible that a progressive increase of the revenue from 
 this source should ever induce the landlord to evict his tenant 
 in order to obtain a higher rent. Upon the introduction of the 
 wage economy, however, a difference arose in the fertility of the 
 different lands under cultivation, and economic rent consequently 
 entered in. The upward tendency of this return offered an in- 
 ducement to the proprietor to break the contract with his tenant 
 as soon as the amount of the economic rent exceeded the amount 
 stipulated in the lease. The condition of the tenant was thus 
 rendered precarious, and the uncertainty affected cultivation 
 injuriously. The necessity thus arose of providing for the ex- 
 igencies of production by assuring the tenant a position that 
 was securer and less exposed to the arbitrary acts of the 
 landlord. We notice the first timid manifestation of this tendr 
 ency in the provisions of the Code Napoleon which accorded 
 the tenant a jus in re. In England and Ireland still stronger 
 provisions were adopted for the purpose. Thus English legis- 
 lation recognizes a right of compensation in the tenant for improve- 
 ments worked into the land, while in Ireland the redemption of 
 the rent-charge is allowed, that is to say, the substitution of the 
 tenant for the proprietor. In this manner the legal form of the 
 rent-contract was substantially altered under the pressure of 
 economic conditions, which rendered the ancient form no longer 
 compatible with the normal advance of production. At first 
 exposed to the arbitrary will of the landlord, the tenant came 
 gradually to encroach upon the position of the proprietor and 
 threaten his rights. 
 
 Economic evolution has, moreover, long since resulted in 
 the application of the principle of redemption to the perpetual 
 lease or emphyteusis. Indeed, the greater the augmentation 
 of production, the smaller became the proportion that the fixed 
 rent bore to the total income of the estate. The economic 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 259 
 
 power of the emphyteuta thus increased at the expense of 
 the proprietor, and it thus became comparatively easy for him 
 to have the right of redemption introduced by statutory 
 enactment. This right of redemption was besides vigorously 
 demanded in the interests of production, as agriculture was 
 otherwise fettered by a perpetual lien that burdened the soil and 
 interfered with the liberty of contract. With the increase of 
 population and economic progress this antagonism became more 
 marked, until at last it determined the destruction of the an- 
 cient legal form and introduced a new practice and a new 
 theory of the perpetual lease. 
 
 It would be easy to show in a more general way how all the 
 important and really fruitful legal reforms have been carried 
 through with a view to advancing economic evolution. Thus, 
 beside the redemption of the rent-charge that we have just 
 been speaking of, the abolition of a legal rate of interest, and 
 of imprisonment for debt, the publicity of the mortgage, and 
 the free alienation of land, were all legal reforms rendered neces- 
 sary by a change in economic conditions. But though it be a 
 fact that the law is thus metamorphosed with every readjust- 
 ment of economic relations, it is nevertheless true that this trans- 
 formation is effected very slowly and only after a considerable 
 interval has elapsed. Thus our present legal system has already 
 grown rigid, and seems, as it were, to be stricken with a kind of 
 paralysis. This is simply due to the fact that it is no longer 
 inspired with economic life, and thus fails to respond with sufficient 
 readiness to modern demands. Frequent contradictions are thus 
 apt to occur in applying the law of the past to the present economic 
 situation. The new conditions today entering into rural industry 
 call for agrarian contracts that are more elastic and more favorable 
 to the laborer, but the law, wrapped in its dark mantle of Roman 
 formalism, still holds fast to legal forms that have long since 
 ceased to be applicable. This legal system, which is in large 
 part the product of a past age, is even being applied in all its 
 rigor to new colonial lands. It is also the present desire to con- 
 fine the contracts on the Bourse within the narrow limits of the 
 Roman law. The German system of the land register, an in- 
 vention so well adapted to facilitate the free alienation of the 
 soil and the raising of mortgages, is frowned upon by jurists 
 because, forsooth, it does not enter into their traditional for- 
 mulas. The landlord's legal rights over the tenant's farming im- 
 plements likewise constitute a serious obstacle to the introduc- 
 
260 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 tion of an agricultural credit system. The Code Napoleon (as 
 Pelegrino Rossi has already remarked) and the Italian Code 
 both evince an unjust partiality in favor of landed property, 
 according it an excessive importance no longer compatible with 
 the development of personal wealth. 
 
 There is thus a sorry contrast between economics and our 
 modern legal system, which no longer answers readily enough to 
 the exigencies of economic evolution. The law is thus defeating 
 its own ends; for instead of facilitating the existing relations 
 among proprietors and favoring the development of property, 
 it often places obstacles in the way of its own expansion. 
 
 (V) — The Law Regulating the Relations between Masters and 
 
 Workmen 
 
 The legal forms thus far mentioned deal exclusively with mat- 
 ters pertaining to the redistribution of wealth. It is the object 
 of these provisions to repress all violations of the right of property 
 arising among the owning classes, and establish such relations 
 among proprietors as are calculated to favor the extension of 
 capitalistic property. Now this part of the law presents a deep 
 impress of equity, and thus gives countenance for the moment 
 to the idea that the law is indeed the realization of justice. But 
 this is simply due to the fact that these legal provisions regulate 
 the affairs of men who are economically equal — or at least enjoy 
 a liberty of choice — and among whom usurpation is excluded. 
 But as soon as we turn our attention to the legal provisions regu- 
 lating the relations between proprietors and non-proprietors, we 
 perceive at once that our former concept was but an infantile 
 delusion ; for this side of the law shows us an obstinate, impudent 
 and thorough consecration of privilege and a decisive preference 
 for property rights. 
 
 So long as property was founded upon slavery, the usurpatory 
 character of the law was not accentuated, because the laborer 
 was excluded entirely from legal relations, which then only took 
 account of the affairs of proprietors. We may therefore look in 
 vain through Roman law for the exhibition of any hostile intent 
 toward the laborer. And yet the law brutally proclaimed its 
 inherent character by affirming the entire institution of slavery 
 to be contrary to the laws of nature. In our modern epoch, on 
 the contrary, capitalistic property is based upon the exclusive 
 appropriation of the soil, and accordingly has no motive in sup- 
 
Chap. VIII.J ECONOMIC FOUNDATIONS OF L,\W 261 
 
 pressing the legal personality of the laborer. Modern law thus 
 reflects the usurpatory nature of its origin and clearly betrays 
 its emanation from capital. This fact appears very clearly from 
 the law's unremitting care for the fortunes of the masters, and 
 from its no less constant abandonment of the workmen's interests. 
 The truth is shown again in the complete liberty that the law 
 accords to property in its dealings w4th labor, in striking contrast 
 with the multiple checks it places upon the reciprocal relations of 
 proprietors. 
 
 In regard to the general principles of the law our criticism 
 would be still sharper. In general we should say that all legal 
 aphorisms have been drawn up in the interests of the rich and 
 strong and in contempt of justice and equity.^ We might even 
 add that the law in its entirety vindicates the assertions of Saint 
 Simon de Championiere (who was himself a jurist) and other 
 impartial writers who regard lawyers as the most implacable 
 enemies of the laboring classes and the most zealous defenders 
 of feudal and capitalistic usurpation. 
 
 (VI) — Criminal Law 
 
 In passing on, finally, from civil to criminal legislation, we 
 find the influences exerted by economic conditions upon these 
 legal phenomena are, if anything, still more sharply accentuated. 
 We should also note that economic conditions here operate at 
 once, and with equal force, upon the crime itself and upon its 
 punishment. A lengthy demonstration is scarcely necessary 
 to establish the fact that a very important class of crimes, namely, 
 those against property, are the result of economic conditions 
 and proceed directly from the misery that weighs so heavily 
 upon the larger proportion of the population in our richest and 
 most civilized countries.^ And crimes which at first sight offer 
 
 ^ On these points cf. Menger's very important work, "Das biirgerliche 
 Recht und die besitzlosen Classen" ("Aj-chiv fiir soziale Gesetzgebung 
 und Statistik", 1889, 1890). Salvioli, "I difetti sociali del codice civile", 
 Palermo, 1891. Bechaux, "Le droit et les faits ^conomiques", Paris, 
 1889, pp. 101, 156, 171, etc., and for the opposite point of view cf. Nani, 
 "II soeialismo nel codice civile", Turin, 1892. 
 
 2 Baudrillarl has discovered that the greatest criminality and the 
 greatest frequency of felonious thefts occur in the Department of the 
 Eure, which is one of the most intellectual and richest departments of 
 France ("La Normandie et la Bretagne", 1885). "With the diffusion of 
 manufactures the number of crimes against persons diminish while those 
 
262 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 but slight evidence of correlation with the economic condition 
 of the criminal, such as crimes against the person and crimes 
 committed by the rich, upon more careful analysis also reveal 
 their economic essence. It has been remarked, however, that 
 crimes against the person are more frequent during periods when 
 living is cheap and prosperity more general. The conservative 
 school has hastened to conclude from this that a large number of 
 crimes are independent of the economic condition of the criminal 
 and the general distribution of wealth.^ But the error of this 
 deduction becomes apparent when account is taken of the fact 
 that an augmentation of material wealth only leads to foolish 
 waste or criminal design when prosperity is precarious. Thus 
 if the laborer profits by a rise in his wages to employ his funds in 
 an illegitimate manner, or if, as Toynbee said, an augmentation 
 of wages simply means an increase of crime, this is true only 
 because the increase of wages comes in the way of an act of munifi- 
 cence from the upper classes, and its essentially transitory char- 
 acter renders any wiser employment irrational. But the result 
 would be very different if we had to do with a really lasting amelio- 
 ration in the condition of the lower ranks of society. A better- 
 ment of this kind would have the inevitable result of raising the 
 general standard of morality, and this in turn would introduce 
 a greater power of resistance to deleterious appetites.^ As for 
 the criminal acts of the rich, we must bear in mind that economic 
 
 against property increase" ("An Inquiry into the State of the Manu- 
 facturing Population", London, 1831, p. 9). Del Mar ("History of the 
 Precious Metals", London, 1880, p. 342) furnishes eloquent facts upon 
 the influence exerted by the discovery of gold mines upon the increase 
 of crime (and upon the increase of suicides as well). Levasseur ("La 
 population fran§aise", II, pp. 46, 129) shows that the constant increase 
 of second offenses (and also of suicide) is the result of economic causes. 
 
 1 Ferri, "Das Verbrechen in seiner Abhangigkeit von dem jahrlichen 
 Temperaturwechseln ", Berlin, 1882. The fact alleged in the text has been 
 recently contested by Silioy Cortes ("Ecole positive", February, 1892), 
 who shows by figures taken from Spanish statistics that there is a constant 
 parallelism between crimes against persons and crimes against property. 
 Lux (" Archiv fiir soziale Gesetzgebung", 1892, p. 277 ff.), on his side, has 
 established the fact that in Germany economic depression has not only 
 added to the crimes against property but also to those against morality, 
 by rendering classes less resistant to deleterious impulses. Cf. also the 
 striking remarks of Tarde, "La criminalite comparee", Paris, 1886, 
 pT). 66-72 [and Bonger, " Criminality and Economic Conditions " (Modern 
 Criminal Science Series, Boston, 1916). — Eds.]. 
 
 2 " Chaque citoyen possede-t-il quelque bien dans un Etat, le desir de 
 la conservation est, sans contredit, le voeu general de la nation. Le 
 grand nombre, au contraire, y vit-il sans propriete, le vol devient le voeu 
 general de cette m^me nation" (Helvetius, "De I'homme", sect, vi, eh. 
 vii). See on this subject Ferri' s excellent work, "Sociologia criminale", 
 Turin, Bocca, 1892, p. 246 [translated in the Modern Criminal Science 
 Series, Boston, 1917. — Eds.]. 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 263 
 
 conditions exert a corrupting influence upon morals, not only- 
 through an excess of misery but also by a superabundance of 
 wealth. The criminality of the rich is, therefore, not so in- 
 dependent of the influence of the economic environment as one 
 would think. 
 
 But the anthropologists insist — and their argument is the 
 strongest of all — upon the existence of a distinct criminal class, 
 made up of born criminals. These natural criminals are driven 
 to crime, they say, by reason of their physiological constitutions, 
 and no mere change in economic environment could accordingly 
 have any ameliorating effect.^ These attempts to deduce crim- 
 inal phenomena from anthropological antecedents give evidence, 
 however, of an incomplete study of the facts. A more independent 
 examination of the subject will show that these phenomena, in- 
 stead of being the result of individual causes, are rather the outcome 
 of general conditions acting upon society as a whole. And a little 
 further study must convince even those who wish to premise a 
 criminal type, that the physical characteristics of the criminal 
 are by no means the product of natural and unavoidable necessity, 
 but rather the work of economic causes that have operated long 
 enough to bring about degeneration in the criminal or in his an- 
 cestors. Prolonged poverty, hard labor performed by women 
 during the period of pregnancy, malodorous and unhealthful 
 dwellings, insufficient and anti-hygienic alimentation, alcoholism 
 (the fatal corollary of idleness among the rich as well as among 
 the poor), spasmodic work for varying and uncertain wages, the 
 dissolvent influences of indolent and inactive wealth — all these 
 prepare the way for deep degradation which, lasting through a 
 number of generations, can perfectly well manifest itself in external 
 characteristics and anthropological anomalies, inevitably leading 
 to crime. Criminal anthropologists, and in particular their illus- 
 trious master Lombroso, look no farther than the asymmetrical 
 cranium, or the projecting ear, or epilepsy, and attribute crimi- 
 nality to these factors. The imperfection of the logical process is 
 apparent, for it does not inquire into the causes that led to the 
 asymmetrical skull and the other anthropological peculiarities, 
 which they are content to regard as mysterious phenomena derived 
 from some atavic reversion more mythical than the Indian Tri- 
 
 ^ Mayheio has remarked : "It is noticeable that the dangerous classes 
 of our cities, who are indeed vagabonds and savages, present the same 
 anthropological characteristics as nomad tribes, like the Kafirs, the 
 Fellahs, etc. ; and especially in that their skulls show a large development 
 of the jaw-bone" ("London Labour and London Poor", p. 4). 
 
264 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 murti. The theory fails, in short, to recognize that these an- 
 thropological phenomena constitute simply the last detritus and 
 external indications of a long erosive process worked out by eco- 
 nomic conditions, mercilessly operating upon human life. 
 
 Crime being a morbid emanation of capitalistic conditions, 
 tends to interfere with their normal functions, and the punish- 
 ment of crime is thus the legal means employed to consolidate 
 and protect these same relations. Penal sanctions have, accord- 
 ingly, followed the alternate prevalence of the different forms 
 of ownership and favored the entire evolution of property. Thus 
 an agricultural state metes out its heaviest penalties to crimes 
 against landed property, while a commercial state punishes most 
 severely the crime of issuing false money. Severity against theft, 
 again, is an indication of the prevalence of movable over fixed 
 property. For this reason primitive Roman law proceeded with 
 great severity against thieves, while under the code of Justinian 
 the rigor of the early law was considerably modified. And in gen- 
 eral each state proceeds most severely against the crimes that 
 injure its predominant interests.^ 
 
 But though the law varies thus in its predilections toward 
 different forms of property at different epochs, it is nevertheless 
 always constant in its partiality toward proprietors. It is, in- 
 deed, scarcely necessary to insist upon this point, as the best 
 criminalists have already vigorously denounced the essentially 
 capitalistic character of the law of punishment, with its constant 
 solicitude for the privileges of property and its total abandon- 
 ment of the poorer classes. To be sure, jurists now recall with 
 indignation that under the Salic law the punishment for the 
 theft of animals was visited more severely upon the poor than 
 upon the rich ; ^ some sociologists also regard it as an enormity 
 that savages should punish theft more severely than homicide ; * 
 and an Italian traveler has recently recounted with horror how 
 theft and brigandage go unpunished among the Somali if com- 
 mitted on a large enough scale. But when we notice what is 
 going on round about us, honesty compels us to admit that, 
 in the matter of legal morality, we Europeans are not much above 
 
 ^Wilman, "Die Rezeption des romischen Rechts und die sozialle 
 Frage", Leipzig, 1890, p. 40. 
 
 ^Glasson, "Histoire du droit [etc.] de la France", 1887, ii., p. 567. 
 Among the Marea, likewise, an African tribe, the thief, if he be a noble, 
 is only obliged to return the thing stolen ; but if he be a man of the people, 
 he is condemned to give up everything that he possesses {post, loc. cit.^ 
 ii, p. 89). 
 
 ^ De Greef, "Introduction a la sociologie", Brussels, 1886, II, 267. 
 
Chap. VIII.] ECONOMIC FOUNDATIONS OF LAW 265 
 
 the Somali. Pelegrino Rossi has, indeed, deplored the fact that 
 in a civilized country like England the indulgence of the law toward 
 assassins should offer so striking a contrast with its severity toward 
 thieves. But the same contrast is to be met with among all modern 
 nations, and the system of punishments generally in force in the 
 most civilized countries of the world certainly deserves no less 
 decisive condemnation. Bismarck also deplored the fact that 
 in matters of money the law shows an absolute rigor, contrasting 
 strangely with its relative indifference to questions of health, 
 life, and honor. The Italian code, likewise, inflicts very severe 
 penalties upon theft and proceeds with vigor against strikers; 
 while it treats with manifest indulgence a large number of crimes 
 especially characteristic of the richer classes. On this point the 
 learned criminalist Ellero has expressed himself as follows : '* Theft 
 under certain aggravating circumstances has to be expiated by 
 twenty years in the galleys, while for swindling five years in 
 prison suffice, one year is the penalty for violation of the domicile, 
 and six months for outrages of chastity, while under certain 
 cu'cumstances these crimes are merely punished by a fine of five 
 hundred francs.^ I understand full well that swindlers deserve 
 all the consideration possible — especially when they become 
 millionaires — but it would seem, nevertheless, as though domestic 
 peace and modesty — even though these things are good only 
 for the miserable — should be rated a little higher than five 
 hundred francs. And how does it happen that the petty thief 
 has to expiate a fault that may presuppose great degradation, 
 but not necessarily perversity of character, much more severely 
 than the dastard who tramples upon the most sacred joys of 
 humanity. In short, the entire civil code is in favor of the rich 
 and in opposition to the poor; it guarantees the bourgeoisie and 
 abandons the proletariat." P. Rossi also has remarked : ** The 
 upper classes of society simply look upon criminal justice as an 
 instrument to be directed against those whom they speak of as 
 the multitude or herd — in other words, the people," ^ and a 
 writer of our day concludes : *' The office of criminal law up to 
 the present has not been to protect society as a whole with all 
 the various classes that compose it, but more particularly to de- 
 
 ^ These facts are taken from the penalties laid down in th© Sardinian 
 Code. The new Italian Code has reduced the punishment for felonious 
 theft to eight years of confinement, and raised the penalty for outrage 
 of chastity and for violation of the domicile to thirty months. 
 
 2 1 borrow these quotations from Colajatmi's substantial book on 
 "Criminal Sociology", Catania, 1889, Vol. II, pp. 648, 658-61. 
 
266 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 fend the interests of those under the favor of the constituted 
 political authority, or in other words, the proprietors." ^ 
 
 Thus under all its varied forms the law constitutes a very 
 powerful means of preventing reaction among laborers and of 
 assuring the continued existence of property. It follows from 
 this that the decomposition of the capitalistic economy must 
 involve a corresponding crisis in the legal system. At every 
 period of social decomposition a dissolvent, accordingly, works 
 its way into the law and changes its elements. 
 
 To sum up in a few words what we have set forth in this portion 
 of our work : the law is really derived from economic conditions, 
 and it is only in the light of the latter that we are able to under- 
 stand the genesis of legal sanctions, the history of the law, and 
 the real structure of its various institutions; the law is also a 
 monopoly of wealth, and in the temple of Themis there is no place 
 reserved for the laborer. 
 
 1 Vaccaroy "Genesi e funzione delle leggi penali !', Rome, 1889, p. 101. 
 
C — BIOLOGIC FACTORS 
 
 Chapter IX 
 ANIMAL SOCIETIES AND PRIMITIVE HUMAN SOCIETIES 
 
 § 1. 
 
 § 2. 
 
 § 3. 
 
 § 4. 
 
 § 5. 
 
 § 6. 
 
 § 7. 
 
 § 8. 
 
 § 9. 
 
 § 10. 
 
 Nature of Society. 
 
 Society is Vital Expansion. 
 
 Society a Permanent Associa- 
 tion. 
 
 Forms of Imperfect Associa- 
 tion. 
 
 Features of Rudimentary An- 
 imal Groups. 
 
 Characteristics of Society. 
 
 Societies Based on Family 
 Life. 
 
 Paternal Domestic Societies. 
 
 Monogamous Societies. 
 
 Larger Social Groups. 
 
 §11. 
 §-12. 
 §13. 
 
 §14. 
 §15. 
 
 §16. 
 
 §17. 
 
 §18. 
 
 Mammals. 
 
 Types of Family Union. 
 
 Societies Based on a Life of 
 Relation. 
 
 Superior Vertebrates. 
 
 Function of the Male in 
 Social Life. 
 
 Animal Societies Analogous 
 to Primitive Human Socie- 
 ties. 
 
 Chieftainry in Animal Socie- 
 ties. 
 
 Conclusion. 
 
 § 1. Nature of Society. Society in its highest and most com- 
 plicated manifestation, that is to say, human, political society, 
 appears as a complete whole, having a purpose of its own, an 
 entity, and, as we may say, living being. Recent investigation 
 in sociology has brought to light this view of society, which, more- 
 over, is that of the law and political science. But society regarded 
 as an " irreducible phenomenon sui generis ", using the language 
 of Comte, involves a series of problems analogous at foundation 
 to those which are met in the study of man as an individual, con- 
 sidered as an intelligent being. Are the physiological and psy- 
 chological bases of human society absolutely specific? Is not 
 social philosophy, after all, a complete or incomplete natural 
 philosophy ? 
 
 § 2. Society is Vital Expansion.^ [Societies are products of 
 relations of individuals. The primary base of the social phe- 
 
 ^ [By Adolfo Posada, Professor of Comparative Municipal Law, 
 Facultad de Derecho y de Ciencias Sociales, Universidad Central de 
 Espaiia (Madrid). Translated from " Annales de I'lnstitut International 
 de Sociologie" (Paris), Vol. Ill, pp. 271-318; by Albert Kocourek.] 
 
 2 (The bracketed text which follows is a condensed free translation of 
 (original) pp. 272-290.] 
 
 267 
 
268 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 nomenon rests, as, moreover, does every vital phenomenon, on 
 the necessity (Guyau calls it the tendency) of expansion. Society, 
 in effect, is a great combination of vital expansions ; it is the re- 
 sultant of all the needs experienced by the individuals which 
 compose it. Social instinct and reflex social will are the forms of 
 manifestation of individual activity tending to the satisfaction of 
 wants which the individual is not able to provide for alone. 
 
 Social (or in Spencerian terminology, super-organic) evolution 
 should not be limited to human societies. The concept of sociality 
 cannot be fully exploited by a study simply of superior verte- 
 brates. On the contrary, Espinas ^ (relying on Aristotle) points 
 out the correct principle — '^ to study living phenomena by com- 
 mencing with the most rudimentary, is to adopt in politics, as in 
 all the sciences, the best method." Or, as Letourneau ^ has 
 put it, '' the study of human sociology logically ought to have 
 as preamble, a corresponding study of animal sociology."] 
 
 § 3. Society a Permanent Association. [Society as designation 
 of a concrete object is properly confined to that form called by 
 Spencer super-organic ; although animal life may be described in 
 terms which confuse it with society.^ Society in an exact sense 
 implies, as Espinas^ has remarked, " the idea of a permanent as- 
 sociation which isolated living beings employ for common action." 
 
 It is necessary to be on guard, as Letourneau has pointed out, 
 against an excessive extension of sense which may be given to the 
 term society. '' Some sociologists," says the author,^ '' especially 
 those who have studied animal societies, frequently have con- 
 founded the notion of society with the simple fact of grouping. . . . 
 The idea, society, implies necessarily active and conscious union." 
 Moreover, a society tends always to establish reciprocal influence 
 among its members until it acquires (apparently contrary to the 
 fact) genuine and effective existence in concrete form. It is for 
 this reason that we regard societies as real, as living organisms; 
 a society being the more perfect, as we find in it more of the 
 features proper to an organism. Human societies thus justly 
 are entitled to be called actual persons.^ 
 
 1 "Des Societes animales", p. 121. 
 
 2 "L'fivolution du mariage et de la famille", p. 3. 
 
 3 This view has inspired many sociologists who from this standpoint 
 reason by analogy ; thus, Spencer, Schaeffle, Lilienfeld, Fouillee. 
 
 ^ "Des Societes animales", p. 157. 
 
 5 "L'Evolution politique", p. 3. 
 
 8 Suggesting in philosophy the "organic tendency which is very promi- 
 nent in Schelling and in Krause. Its antecedents are found in Plato and 
 in Aristotle. 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 269 
 
 Even though the term society implies the conditions stated, if 
 we find in an examination of the nature of social phenomena cer- 
 tain manifestations of imperfection, but yet including any of the 
 essential elements, they will be serviceable in arriving at the idea 
 of society. As we have already said, the characteristic and 
 fundamental feature of any society is a permanent association of 
 individual efforts tending to the realization of a common purpose. 
 At that moment there is the beginning of what Espinas calls "the 
 life of the many " which implies the presence of beings contribut- 
 ing to this life and rendering reciprocal services which are the 
 unique means of complete satisfaction.] 
 
 § 4. Forms of Imperfect Association. [Among groups of beings 
 which exhibit certain features of permanence and which are not 
 perfect associations, but rather material unions of advantage on 
 one side, or perhaps on both, we may note those called by Es- 
 pinas "abnormal" societies. They embrace the following types: 
 1, parasitism ; 2, commensalism ; 3, mutualism ; 4, domesticism. 
 
 1. These four kinds of union are phases of increasing social 
 differentiation. It is difficult to see an association in parasitism. 
 The host of the parasite does not receive any direct benefit from 
 the service which he renders to the parasite. 
 
 2. The commensal has a more independent existence. We notice 
 here the, beginning of the idea of cooperation. Commensalism 
 has numerous degrees from the case where the purveyor invites 
 in the relation a serious danger to himself, to those instances 
 where a kind of service is rendered by the commensal when he 
 is nourished by life or by substances noxious for the purveyor. 
 
 3. From the moment that cooperation, however imperfect, 
 appears, there is mutualism. *Here the social form is most ex- 
 plicitly shown ; and here, the idea of society has its base. The 
 determining cause of society is the necessity of a life of relation- 
 ship which fulfills the object of each member. In combination, 
 these ends beget appropriate functions, and develop special or- 
 gans. In mutualism we find a rough outline of a society, neces- 
 sity and cooperation ; but there is wanting a life of relationship 
 which in the long run brings about a social state with appropriate 
 functions and forms. Generally, the unions of mutualism are 
 occasioned by resulting advantages, but there is lacking a reci- 
 procity of services habitually rendered. Says Espinas, " the 
 members unite in the form of mutualism by force of identity of 
 their desires and fears." For this reason, in these unions, it is of 
 little significance whether the members are of the same species. 
 
270 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 It is enough that there is among them no cause of rivalry. Most 
 frequently, this rudimentary social form is seen among birds which 
 unite for the advantage which large numbers provide against 
 dangers. 
 
 4. Domesticism creates special relations among its members. It 
 is superior to mutualism because there is found in it the organizing 
 social element in a more advanced and more complex form. This 
 relation involves (except at its beginning) in effect an exchange of 
 services; but it is only when the animal has become completely 
 domesticated, to the point where it transmits its character by 
 heredity, that there is created the most perfect social form which 
 may exist between creatures of different species.] 
 
 § 5. Features of Rudimentary Animal Groups. [Without at- 
 tempting here a psychological analysis of animal life the following 
 points may be noted : 
 
 1. The ideal progress attained in an evolution from the rudi- 
 mentary forms of society, from our point of view of the character 
 of social life. It appears that proceeding from a union on a purely 
 material basis there is reached by successive degrees a type of 
 selected and rational union. 
 
 2. The correlation which exists between the different forms of 
 incomplete societies and the psychological nature of the beings 
 which constitute them. It suffices to compare the individuals 
 living in a state of parasitism with those in a state of domesticism. 
 
 3. The obstacles presented in these incomplete or imperfect 
 unions by the diversity of species which constitute them. But 
 for such obstacles, they would be true societies. In the first 
 three imperfect unions, utility is the dominant cause ; in the fourth, 
 sympathy plays a certain part. Utility and sympathy are needs 
 which cannot be satisfied except in a union more or less social. 
 
 4. The internal forces which determine the formation of these 
 unions, and which (important to note) are : (a) purely unilateral 
 egoistic utility (among parasites) ; (b) inoffensive egoistic utility ; 
 (c) reciprocal utility; (d) domination of the stronger or more 
 intelligent (man and perhaps ants) resulting in reciprocal utility. 
 
 These are the great forces of life. Human society even in its 
 most complicated forms is based on these elementary energies of 
 the four imperfect societies. There are, in fact, forms of human 
 society in which the pure egoism of the parasite may be seen ; 
 others disclose the appearance of commensalism ; and, again, in 
 others, the dual interest of reciprocal utility dominates. There 
 are finally more elevated forms in which domesticism disappears 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 271 
 
 replaced by coercive subordination, and from which there arises 
 a union based on moral and disinterested sympathy.] 
 
 § 6. Characteristics of Society. [Society, whether of the true 
 sort, or whether in its imperfect forms, is a vehicle for the sat- 
 isfaction of the essential necessities of the beings which constitute 
 it. If it is asked, what is the cause of the tendency which brings 
 satisfaction by the aid of social organization, we are forced to resort 
 to instincts which produce sociability. Without attempting to 
 investigate the psycho-physiological nature of instinct, we may 
 state among many others, the following elements disclosed by 
 examination of the mechanics of social facts : 
 
 1. An aspiration, a need of a being, which operates in such 
 manner that all the manifestations of its nature depend upon 
 realization of the need ; 
 
 2. A constitutive energy of a being which permits internal sat- 
 isfaction of the demands of its nature ; 
 
 3. Concrete external movement; 
 
 4. A realization of ends. 
 
 A society is supported more by the feeling of duty than by that 
 of egoism ; but the sympathy which in a developed society in- 
 duces sacrifices, and the performance of spontaneous services, is 
 not an original bond in the evolution of society. This sympathy 
 develops with the course of time from social relations. The 
 simpler and less coherent types of society, brought into being by 
 fundamental needs, are only material associations based on the 
 satisfaction of material necessities. The altruistic sentiment of 
 sympathy becomes a special psychical need and development of 
 a later and more complex form of society. 
 
 Espinas has noted three basic necessities which determine the 
 existence of a society : nutrition, reproduction, and a life of 
 relation. This idea requires that societies be considered as true 
 organisms in which necessity creates function. Of these three 
 elements, the most important is that of nutrition which is uni- 
 versal and fundamental. The want of reproduction is not so ex- 
 tensive, and the third (a life of relation) presupposes the other two 
 wants as well as others not of a primary character.] 
 
 § 7. Societies Based on Family Life. [Unions founded on the 
 primary need of reproduction bring about a constant growth of 
 psychological cohesion. Of the infinite gradations of forms of 
 family unions, Espinas has outlined three phases: 1. conjugal 
 societies having reproduction as their sole and exclusive ob- 
 ject; 2. maternal domestic societies (for example among in- 
 
272 FACTORS OF LEGAL EVOLUTION [Pakt II. 
 
 sects) ; 3. paternal domestic societies (fish, reptiles, birds, mam- 
 mals). 
 
 These societies permit an imperfect view of human society. 
 In the first place, the most important phenomena which they 
 present are sexual attraction which brings the separate sexes into 
 association either temporarily or for definite periods of time; 
 and, in the second place, the love of offspring which determines 
 the institution of the family. In some societies sexual attraction 
 is the dominating force ; in others it is the tie which unites mother 
 and offspring ; and, finally, in others, it is fortified by the appear- 
 ance of an interest in the male for his offspring, which in the end 
 is transformed into sympathy and affection.^] 
 
 § 8. Paternal Domestic Societies. The domestic societies 
 where the male parent enters as a factor of collective life, and 
 not merely as a factor of sexual union, present a degree of socio- 
 logical complication in advance of the societies already considered. 
 
 While it will not be possible here to enter into the last detail, 
 it is desirable nevertheless to point out the different stages of 
 paternal intervention, as well as the different forms of domestic 
 association which arise from the various relations of male and 
 female (or females). Espinas notes,^ with reference to the stages 
 now under consideration, that the intervention of the male parent 
 produces a simple form of social structure as compared with the 
 higher forms of maternal domestic societies (ants, etc.). The 
 society being reduced, says he, to a single individual who by his 
 own will assures the future of the offspring, the paternal element 
 absorbs, as it were, the entire family from the moment that he en- 
 ters. But observation of these societies should not be limited 
 to the simple manifestations of the paternal function ; it is neces- 
 sary to inquire how the collaboration of the male and female 
 produces an organism of very complicated psychological and 
 physiological relations. 
 
 To consider only the most conspicuous facts, a very remarkable 
 phenomenon is established of which human societies only illus- 
 trate a particular case. This is the accumulation of simultaneous 
 social functions which only appear in inferior societies in suc- 
 
 1 [The author here states that modern investigations with reference to 
 conjugal and domestic relations among animals — and especially among 
 ants and bees — have disclosed not only the texture of superorganie 
 society but many of the psychic qualities found in the life of man. In 
 this connection he recalls the well-known observations in this field of 
 Spencer ("Principles of Sociology", Vol. I, p. 9), and Lubbock ("Ants, 
 Bees, and Wasps", 1883, "The Senses and Instincts of Animals", 1891),] 
 
 2 "Des societes animales", p. 398. 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 273 
 
 cession, ^^^le^e the sexes are separated among distinct individuals, 
 it is necessary to obviate this separation, that there be unions 
 among these individuals. But in certain social forms, this union 
 does not endure. Among insects, for example, the male grows 
 indifferent after the union, and, in consequence, the female alone 
 maintains social connection with the progeny. Among certain 
 species of fish, the male assumes this duty. Beginning with 
 batrachians and birds, the paternal and maternal functions come 
 together, producing a very complicated social synthesis, and a 
 class of relations and of forms of life unknown to the most highly 
 developed societies of insects. Relative to the necessities which 
 determine the existence of a society, it may be affirmed of the more 
 developed levels of society, as already suggested, that the members 
 of each group experience necessities, invariably in combination, 
 which in other levels occur successively, or which perhaps do not 
 occur at all. 
 
 Passing over the species of animals in which paternal domestic 
 society is limited to periods of impregnation or of birth, and con- 
 sidering only those where, as among certain reptiles and birds, 
 social cooperation endures for the nourishment and uprearing of 
 the young, we find a constant relation to exist between the clearly 
 defined character of the social group resulting from a reduction in 
 its membership, and the high intelligence of the members. For 
 this reason social life gains an intensity which is lost in extension 
 hi certain types such as domestic societies. It happens, never- 
 theless, that the same intensity exists in groups of large numbers, 
 such as human civilized societies which in consequence must be 
 regarded as those where the greatest extensive force is found 
 united with the greatest intensive power. 
 
 § 9. Monogamous Societies. But, before investigating the social 
 synthesis implied by humanity, it is necessary to point out how so- 
 cieties based on family reach what may be called an ideal evolution, 
 to the point of mauifesting an exclusive tendency, resulting (as in 
 the case of the maternal society, among ants and bees) in a specific 
 form opposed in appearance to every other social organization, re 
 sponding to special needs, and presupposing new kinds of relations. 
 
 To this purpose, the solution of certain sociologists may be stated, 
 which has been formulated by Letourneau ^ as follows : " there is 
 antagonism between the family instinct and establishment of large 
 animal societies." Zanetti, cited by Giraud-Toulon,^ inclines to 
 
 ^ "L'Evolution politique", p. 22. 
 
 * In his study entitled "Origines du mariage et de la famille." 
 
274 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the same opinion. According to him, the most remarkable feature 
 among all species of animals is that where the society is highly de- 
 veloped, the family is at a low ebb ; and that, on the contrary, where 
 the family is characteristic of the species, the instinct of sociality 
 declines to the point of complete disappearance in certain cases. 
 
 It does not seem to me possible to speak of antagonism between 
 these two kinds of groups when distinct species are concerned, one 
 having the instinct of family union, and the other that of sociality. 
 But it is evident that the two instincts may clash in isolation, or 
 be truly combined in the same species. Thus the domestic so- 
 ciety constituted by the differences, already discussed, of the two 
 sexes, and maintained by the tie of affection for, and the care of, 
 the progeny, is found among birds, particularly parrakeets, spar- 
 rows, palmipedes, etc. It may be affirmed that the family based 
 on the elements which give it its most definitive expression among 
 men, that is to say, the monogamous family, attains its highest 
 development and its greatest perfection among these species of 
 birds. Also sex attraction which is the foundation of the union 
 of male and female and which is the stimulant of procreation, is 
 found intensely developed among certain birds. Furthermore, 
 there is seen among them the second essential of the monogamous 
 family, the love of offspring, which is adequate to produce a life 
 of social relations. Bird life exhibits remarkable instances of 
 parental education, or at least training, of the young. And this 
 is not all ; monogamous families of birds in certain cases have a 
 domicile, or, more correctly, an abode which is industriously fash- 
 ioned, frequently with extraordinary complication. There is 
 found, therefore, in this family, material expression of the ex- 
 ternal, due to the combined action of the community and of na- 
 ture ; the second aids the first in the satisfaction of its necessities, 
 that is to say, the need of property, of a hearth. 
 
 But the same perfection realized in the monogamous type of 
 family society resulting, perhaps, from the limitation of its social 
 wants, appears to raise an obstacle to the immediate creation of 
 other groups based on ties other than that of sexual attraction, or 
 the bond of blood. Common social life does not last indefinitely 
 among birds. Many of them reunite in small groups, but only 
 temporarily ; because, at the mating season, couples form, isolate 
 themselves, and create a family equally temporary. In fact, as 
 to all these creatures, it is found that there is wanting the psy- 
 chological elements which permit coexistence of a life of relation 
 and family life. 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 275 
 
 ■ § 10. Larger Social Groups. The monogamous type of family, 
 as it is presented in its highest point of perfection, does not favor 
 the immediate institution of extended societies having the char- 
 acter of permanence and embracing a large number of individuals. 
 Many sociologists think that the polygamous type is necessary 
 for the creation of a social form more extended, more adaptable, 
 and more complex than that of the domestic family. This does 
 not imply, however, that there may not be considerable societies 
 except by virtue of a union of families. Societies are formed by 
 causes independent of the domestic bond or the tie of blood in the 
 life of relation which springs into being in response to the necessity 
 of defense. 
 
 Nevertheless, the societies whose sphere of action extends be- 
 yond the narrow limits of the family and which become really 
 organized, have precisely as their integral elements, family groups ; 
 and the greater their cohesion and their complexity, the more 
 persistent and more clearly defined are the domestic societies of 
 which they are composed. For this reason, although family and 
 society seem in certain instances to be reciprocally exclusive, 
 this fact does not account for beings whose social character is 
 such that they may synthetize, by an accumulation of functions, 
 social ideas which in principle appear to be unassimilable. 
 
 § 11. Mammals. If we investigate mammals, we shall find 
 that in spite of the exclusively maternal nature of the family in 
 many species, little by little, by a process of evolution hitherto 
 unexplained, the role of the male increases in importance and be- 
 comes specialized, until it exercises a dominant influence upon the 
 group. This function exactly characterizes the social life of mam- 
 mals ; and it is that which gives form and purpose both to polyg- 
 amy and monogamy. 
 
 It may be concluded from this, that it is not to be admitted 
 without reservation, either that the female is alone the base of 
 family life, that the male is an obstruction to it, or that the male 
 is the creator of social life in the horde or the tribe. 
 
 It is certain that among many mammals, the family is consti- 
 tuted in so inconstant a fashion, and with such complete absence 
 of relations on the part of the male with the progeny, that the 
 mother alone creates domestic society. The family acquires a 
 more definite character when, even though temporarily, the male 
 enters in it as an integral part. What we have discovered among 
 birds is found again, and more frequently, among mammals. The 
 intervention of the male as we shall see is an essential condition 
 
276 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 which completes domestic society and which determines its dis- 
 tinct forms. 
 
 § 12. Types of Family Union. Let us see first of all what are 
 these forms. On one hand, we see the male by reason of his special 
 situation face to face with nature, on account of his particular 
 type of life, the force with which jealousy lays hold of him, the 
 exclusive and limited character of his wants, the limited and con- 
 crete nature of his procreative needs, unite with a single female, 
 thus creating a monogamous family. On the other hand, per- 
 haps by reason of a large number of females, the necessity of large 
 groups for purposes of defense, the male unites with a number of 
 females, or makes them his own, thus establishing polygamy. 
 
 These two types of family union perhaps have not as large an 
 importance as is claimed by certain sociologists (Letourneau, 
 Zanetti, etc.), for bringing about or hindering the formation of the 
 horde or the tribe. It is assuredly not easy to mark out a relation 
 of dependence between the more and less in the development of 
 mental faculties, and the manner in which each individual realizes 
 his social life. The elephant, which is perhaps next to man the 
 most intelligent animal, lives in small groups under the tyrannical 
 dominion of a leader.^ " The family of elephants," says Brehm,^ 
 *' is very limited. No other elephant is admitted. The leader 
 is the most prudent member of the band, and may be either a 
 male or female." The last point is to be noted, because it shows 
 that even in societies based on sex (e.g. family and domestic 
 societies), a necessity distinct from the need of reproduction may 
 be the predominant tie which holds the members together. 
 
 It is necessary to recall, as pointed out by Espinas, that there 
 is no regular order in the creation of societies among mammals. 
 " The most strange anomalies are presented which render impos- 
 sible all sociological classification, unless one is resolved to dis- 
 regard all that is accidental, and if, at the same time, it is not 
 admitted that the relation which exists between social aptitude 
 and organic perfection may vary considerably under the influence 
 of accidental causes. Thus, to follow the genealogical classifica- 
 tion of Haeckel, the hippopotamus is probably monogamous and 
 the ancestors attributed to it were polygamous ; deer, which are 
 closely related to goats, and are at least of the same ancestors as 
 reindeer, show the same differences, but, in this case, inversely; 
 
 1 Darwin, "Descent of Man." 
 
 2 Espinas remarks that the word family here has a very indefinite 
 meaning; "Des societes animales", p. 449. See Brehm, "Vie des ani- 
 maux", No. 2, p. 172. 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 277 
 
 and the peccary with white jaws lives in troops while the ring- 
 necked peccary lives in couples." ^ 
 
 According to Topinard,^ " the gorilla and the chimpanzee are 
 monogamous and very jealous of the fidelity of their spouses." 
 Espinas remarks that like man, certain chimpanzees are monog- 
 amous, and others are polygamous, which is confirmed by Hart- 
 mann at least so far as concerns the diversity of social forms among 
 simians. " The chimpanzee," says he,^ " lives in isolated families, 
 or in groups of a number of families." 
 
 In view of these facts, it is not adventurous to affirm that domes- 
 tic societies are determined in large part by the father, or rather 
 by the male ; that is to say, by his procreative nature, and by the 
 circumstances in which his desire of reproduction and his capacity 
 to communicate it, are manifested. Moreover, it may be stated, 
 that these forms do not have a decisive importance in the creation 
 of the horde, or in influencing or obstructing its formation. 
 
 § 13. Societies Based on a Life of Relation. This brings us to 
 consider social life extended to a relational degree. If it should 
 be admitted that the horde or the tribe is constituted of polyg- 
 amous and not monogamous families, it will be proved : 
 
 1. That among vertebrates inferior to man there is absolute 
 incompatibility between the monogamous family and the horde, 
 by virtue of which no monogamous animal can become a part of 
 the horde ; 
 
 2. That the establishment of the horde, based on ties distinct 
 from those of blood, arises directly either from a natural extension 
 of the polygamous family, or from a union of different polygamous 
 families. 
 
 It falls to remark that among animals a sufiicient reason for the 
 family is the procreative desire ; and that among superior verte- 
 brates the family is already established and maintained by the 
 force of jealousy, which perhaps isolates it, and by virtue also of 
 the power with which the male asserts and defends his sexual 
 claims ; it being of course understood that it is the maternal func- 
 tions of the female which give to the family its great cohesion. 
 It may further be said, that this adequate reason for the existence 
 of the family holds as well for the polygamous as for the monog- 
 amous family. 
 
 The horde and the tribe, societies composed of individuals 
 
 1 "Des soci^t^s animales", p. 443. 
 
 2 "Anthropologie", p. 163. 
 
 3 "Les singes anthropoides et rhomme", p. 179. 
 
278 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 which are not united by the bond of blood, presuppose a union 
 created under an influence of the moment or repeated because of a 
 necessity which affects all the members from a similarity of interest. 
 Permanent unions of individuals belonging to different species 
 arise from the same cause, as do likewise those wholly accidental 
 unions which spring up from external causes, where more or less 
 permanently, they attempt to satisfy a necessity. In order to 
 explain the relations between family types already established, 
 and the more extended forms of society, it is necessary to 
 consider the nature of the necessity of each group, as well as the 
 manner in which the want is experienced by the members of these 
 unions. 
 
 Sometimes the procreative instinct and that of affection for 
 offspring are opposed to needs which determine and perpetuate 
 extended social formations ; sometimes they are harmonized with 
 them ; and, again, sometimes they simply coexist. Let us note 
 that in the solution of these conflicts, it makes little difference 
 whether the members are monogamous or polygamous. Neither 
 is it allowable to say that the male produces social life and that 
 the female creates the family. Without doubt, the opposition 
 which exists between the creative necessities of the family and 
 those which establish society, is one of the most general phenomena 
 of the animal world with the exception of superior species. Among 
 birds and mammals, we find societies constituted of monogamous 
 families which are successively created and which are mutually 
 exclusive, and societies made up of polygamous families. 
 
 There are many kinds of birds, the birds of the sea, which 
 live in troops during the period of reproduction, and education of 
 the young. This is the explanation of those aggregations of birds 
 which spread over the countries of the north and over deserted 
 islands. These societies are not organized and permanent. But 
 it is seen that harmony is produced here among wants because 
 these birds have found that they are better able to resist an enemy 
 by union of their forces, and that they are more easily able to 
 procure food. Probably, also, a more harmonious distribution 
 of the sexes contributes there in hindering the forcible display of 
 jealousy. Most birds, although they unite and live in groups 
 more or less extensive, separate from the group at the mating 
 season. Those birds which organize into monogamous families 
 with a kind of exclusivism, have not yet attained the psychological 
 development which permits others to bring their wants to a 
 common point at these fixed periods ; but when the mating season 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 279 
 
 is over there is no hindrance to the formation of social groups for 
 a life of relation of interest. 
 
 Among mammals, for the very reason that they are animals 
 of greater physiological and psychological perfection, there is 
 seen in the superior species, excluding man, a situation which im- 
 plies a certain incompatibility between the monogamous type 
 and the composition of the horde. In the first place, we may call 
 attention to the wolf which, as stated by Brehm, lives alone or in 
 couples in the spring, in families during the autumn, and in troops 
 of greater or lesser size in the winter, according to the nature of the 
 country and the abundance of game. In the spring, when two 
 of these animals are encountered they are usually male and female ; 
 when they are seen in groups, the males are more numerous than 
 the females ; and when they are united in large troops, all operate 
 in common giving to each other reciprocal assistance.^ 
 
 § 14. Superior Vertebrates. A study of the social life of su- 
 perior vertebrates, for our purpose, has greater interest than the 
 facts already examined. Even if we do not consider them as 
 ancestors of man, they present the most indisputable and the most 
 striking analogies to him equally from the physiological and from 
 the psychological point of view. 
 
 The different species of anthropoid apes (gorilla, orang-outang, 
 chimpanzee, gibbon) show notable differences according to the 
 intensity of their social life.^ Brehm says that they unite in large 
 troops. It appears, however, that at the beginning these troops 
 are not always large, that they do not always have as their element 
 the same family type, and that the same species does not always 
 have complete uniformity of social habits. It seems that social 
 organization depends largely upon external conditions. Accord- 
 ing to Hartmann, the gorilla creates a community consisting of the 
 father, the mother, and of the young in variable number, who 
 live in the most impenetrable part of the forest. 
 
 Savage says that the gorilla lives in troops not so large as among 
 chimpanzees. In each of them the females are more numerous 
 than the males. The male gorilla, according to Houzeau,^ sur- 
 rounds himself with a certain number of females and of young 
 gorillas. I have already shown the opinion of Hartmann on the 
 
 1 Brehm, "Vid des aniraaux", Vol. T, p. 28 (Spanish translation). 
 
 2 See the works of Brehm, Darwin, Hartmann, E spinas, and Houzeau. 
 
 3 "Faculties mentales des animaux",' Vol. II, p. 388. 
 
280 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 chimpanzee which lives sometimes in isolated families and at other 
 times in small groups of many families. "One cannot say," 
 writes Savage, " that the chimpanzee lives in society, because 
 only rarely five, or ten at the most, are seen together. Supported 
 by the most reliable witnesses, I am able to state that when they 
 unite in larger groups, it is for the purpose of play. One of the 
 persons whom I interrogated assured me that he had seen on an 
 occasion about fifty together who were diverting themselves with 
 joyous cries and in beating the drum upon the old trunks of trees. 
 The orang-outang is less sociable. Wallace declares that he has 
 never seen two adults together. However the male and female are 
 sometimes accompanied by a considerable train of young." ^ 
 
 According to Miiller and Schlegel the old males live in isolation 
 except at the mating period. The adult females and the young 
 males unite in a troop of two or three individuals. The females 
 are generally accompanied by their young. Among the gibbons, 
 social life is various. On the authority of Devancel " these 
 siamangs frequently gather in large troops conducted by a leader 
 whom the Malays believe invulnerable; no doubt because he is 
 stronger and more agile than the others, and that he does not 
 permit himself to be captured. In case of danger, however exten- 
 sive the band, each member looks only to his own, safety." The 
 hulock, according to Owen, is found in bands of a hundred to a 
 hundred fifty individuals. The wauwau, according to Hartmann, 
 appears to live more often in couples than in bands. 
 
 Concerning all this we may join in the conclusions of Espinas 
 although our own may be somewhat different. Says this author : 
 
 " Monkeys live either in limited families or in large bands. The 
 reason of this difference cannot be explained without a profound 
 study of the habits of each species and of the foundation species if 
 the theory of Darwin is admitted. Perhaps in other times and in 
 more favorable circumstances, some species were social ; for example, 
 gorillas, which inhabit the forest continually traversed by numerous 
 black tribes, live in seclusion or in small families. The chimpanzee 
 appears to form groups more or less extensive according to the degree 
 of security enjoyed. One species, the indigenous sako, forms groups 
 of several couples (or monogamous families) and inhabits the most 
 retired part of the forest, five or six huts of foliage being found on 
 the same tree." 
 
 It may be affirmed, we think, in what concerns these creatures, 
 and more especially superior vertebrates, which most closely ap- 
 1 Brehm, op. cit., t. 1°, p. "32 ; Hartmann, op. cit., p. 185. 
 
Chap. IX.J ANIMAL AND PRIMITIVE HUMAN SOCIETIES 281 
 
 proach primitive man, that the social life of relation is not abso- 
 lutely opposed to the existence of the monogamous family. The 
 facts stated, and many others, permit the following conclusions : 
 
 1. Monogamy and polygamy may be found in the same species ; 
 
 2. Absolute superiority cannot be claimed for either of these 
 two t>T)es of family among animals ; 
 
 3. Extended forms of society do not necessarily depend on the 
 form of domestic life of the constituent members. 
 
 § 15. Function of the Male in Social Life. The development 
 relative to which the preceding problems have been treated, per- 
 mits in part a reduction of the statement necessary to the principal 
 object of this study. 
 
 The higher we mount in the animal scale, the more do w^e dis- 
 cover that the forces of animal life create syntheses more and more 
 complex and integrated, and cause, also, as a very important 
 variety of internal elements, a superior cohesion among the mem- 
 bers, without ascribing to these forces a process of simple quantita- 
 tive development. This observation obliges us to inquire, in 
 investigating the formation of society, how we are to understand 
 the evolution of divers social organisms which are externally 
 differentiated by a greater or less extension of their sphere. 
 
 We have described the differences presented by various species 
 of social animals, differences which arise from the extent of the 
 development among them of the social phenomenon. In its origin, 
 society is indeterminate and confused. When it takes on a fixed 
 character, the social forms which are created conformably to a 
 greater number of needs, only represent the line of social activity. 
 We thus find in the various species, social types unique in their 
 beginnings. There are creatures which unite solely for coopera- 
 tion, and defense of their own individuality. Some cooperate 
 only as members of domestic societies. Others attain distinct 
 social types, but in succession ; certain organisms accumulate 
 a variety of wants which their psycho-physiological nature does 
 not permit them to realize simultaneously. 
 
 Finally there are those which attain simultaneously different 
 social types. It is therefore necessary to resolve the question how 
 each social type becomes more complex and its sphere more ex- 
 tensive. 
 
 But for this purpose, it is necessary at once to be on guard against 
 the false interpretations which arise from the existing character 
 of human societies, and which imply that the couple, the monog- 
 amous family, the unit of social life, may have produced by sue- 
 
282 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 cessive spontaneous creations all social groups, the association of 
 families, the tribe or gens, the clan, and, lastly, territorial com- 
 munities such as municipalities, republics, empires, etc. Such a 
 supposed process in the evolution of human races is inadmissible ; 
 its application to animal societies is more so. In view of the 
 given facts, it is impossible to admit a regular order of social forms, 
 where each type may reach a superior level by a process of in- 
 creasing extension. 
 
 It is necessary, for this reason, to avoid regarding the different 
 kinds of societies as the resultants of a progressive formation dis- 
 posed in echelon array, but rather to consider each of them as the 
 direct, effect of a necessity of life. Nevertheless, this does not 
 require disregard of a certain influence by an inferior social type 
 upon the superior type. In fact, the combination of this in- 
 fluence, which may become hereditary, with that of fundamental 
 necessity, produces the highest degree, not only of quantitative, 
 but, also, of qualitative complication in each superior social form. 
 
 If we apply this theory to our point of inquiry, we may conclude 
 that a life of social relation in the horde, in the tribe, and in all 
 the types which are called, perhaps inexactly, ethnic, is not the 
 result of the appearance of the family. On the contrary, groups 
 have a reason for existence arising out of a variety of circum- 
 stances. Sometimes they grow out of the necessity of common 
 defense, sometimes they are the product of common action, and 
 sometimes they are generated by the psychic pleasure of seeing 
 one's fellow-creatures. This fact, as Espinas notes, does not im- 
 peach the further fact that if young animals were not trained for 
 social life after their birth, they would never form either a horde 
 or a troop, no matter in what level of the zoological scale they 
 are found. Social life being an expansive manifestation of forces 
 which tend to cooperation and which likewise occasion exchange 
 of services, it creates different kinds of relations which present 
 differences of character according to the case. Moreover, this 
 same common origin of all social forms explains how there is 
 created among animals a series of reciprocal influences which 
 frequently prevents the possibility of distinguishing with pre- 
 cision each social form. 
 
 If we recall the facts already noted we are forced to acknowledge 
 that if the form based on family ties, and the social form are often 
 found separated, yet they are not exclusive of each other. On the 
 contrary, if we regard nature as an organism, we see the harmoniz- 
 ing trend triumphing among superior animals, which has created 
 
CH.4.P. IX.] ANIMAL AXD PRIMITIVE HUMAN SOCIETIES 283 
 
 the still rudimentary syntheses of certain anthropoids, and those 
 far more complex and more conscious ones of man who by virtue 
 of his more complex psycho-physiological character realizes social 
 life, accumulating with more or less discernment the domestic, 
 and the ethnic and territorial, forms of social organization. 
 
 § 16. Animal Societies analogous to Primitive Human Societies. 
 Observation of the special relations which exist in the animal 
 world between the psycho-physical character of each individual 
 and the more or less complex social forms, is a matter of great 
 interest; because in taking account of human social life in its 
 historical manifestations, we may infer, or at least conjecture, 
 what has been the social life of primitive man. Nevertheless, a 
 determination of the nature of the intervention of the male in 
 family and social life is not less interesting, especially among the 
 mammals which occupy the highest point of elevation in the 
 zoological scale. Some investigations of this kind have already 
 been made in observation of family types, but which have been 
 studied for an entirely different purpose. The facts of family 
 life protest against the statement of Zanetti, according to whom 
 the role of the male is opposed to the creation of the family. This 
 is so certain and evident, that it is not surprising to find H. S. 
 Maine ^ taking shelter in zoological sociology for defense of the 
 hypothesis of primitive patriarchy, combated by McLennan 
 and by Morgan. Without for the moment declaring adhesion 
 or opposition to the patriarchal theory, we believe that upon this 
 point a number of distinctions must be made,^ and that in attempt- 
 ing to conjecture the social character of primitive man (assuming 
 progress and not retrogression), we should not lose sight of the 
 antecedent facts to which we now refer. 
 
 The observation of Maine, inspired by Darw^in, is of great weight. 
 This celebrated historian of ancient law says : " when man had 
 most of the animal in him he belonged to the highest animals." 
 Is it audacious to think that man bordering on the nature of the 
 animal has similarities in fundamental characteristics? This is 
 not the place to insist on this point of view which is only of sec- 
 ondary importance. We have only to determine the role of the male 
 in social life. A distinguished sociologist, M. G. Le Bon, expresses 
 the following opinion which appears to be the most logical one 
 
 1 "Dissertations on Early Law and Custom", pp. 274, 89. 
 
 2 See Star eke, "The Primitive Family"; also my work entitled 
 "Theories modernes sur les origines de la famille, de la societe, et de 
 I'etat" (" Biblioth^que Sociologique Internationale": French transla- 
 tion). 
 
284 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 which may be drawn from the facts : " In animal societies which 
 most nearly approach our own species, we see animals, whether 
 monogamous or polygamous, very jealous of their sexual preroga- 
 tives, and defending them energetically during the period of 
 union, that is to say, at least during the period necessary for the 
 education of the progeny." ^ 
 
 Thus, if we seek to find the nature of the family among animals 
 in which domestic union is maintained during the time of education 
 of the offspring, we see the male and the female (or females) con- 
 stituting a vigorous and coherent whole of which the male is the 
 dynamic center. It cannot be denied that the mother, strictly 
 speaking, creates the most universal internal bond of the family ; 
 but, on the other hand, it cannot be disregarded that a complete 
 animal family, whether monogamous or polygamous, maintains its 
 unity and cohesion by reason of the part taken by the male. More- 
 over, if we study the evolution of the family in the animal domain, 
 we shall be forced to the conclusion, that the dominant tendency 
 which finally triumphs is that which introduces the hegemony of 
 the male. 
 
 On these grounds, while we recognize the distinct origins of 
 family and society, nevertheless it is impossible to regard (1) the 
 male as an obstruction to the creation of the family, and (2) the 
 male as more adapted to social life. In the first place, among the 
 species where the male cooperates in domestic life (principally 
 among mammals), it is he who, in the last analysis, characterizes 
 the family; his jealousy isolates it; his force nourishes it; and 
 his vigilance protects it. The male, therefore, is the principal 
 element of its cohesion, and in a degree the force which gives it 
 its individuality as against other similar unions. 
 
 There appears to be a certain confusion in the manner of inter- 
 preting and of explaining certain zoological facts. Thus, for 
 example, on account of the way in which the sentiment which 
 leads to the family and society is manifested, certain sociologists 
 (e.g. Sales y Ferre following in this regard Zanetti, Letourneau, 
 and Espinas) affirm that, " instead of society being derived from 
 the family, there lies between them a certain antagonism." The 
 Spanish sociologist ^ also adds that if we disregard the sentiment 
 of sympathy (which, according to him, originates with society) 
 
 ' "L'homme et les societes", t. II, p. 289. 
 
 2 Sales y Ferre says that " society is the inheritance of man, the family 
 that of woman." This is confirmed in the present day if we mean by 
 society the State ; but can this be said of primitive man ? 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 285 
 
 and " if we proceed from the family based on an empire of sexual 
 jealousy, we shall never arrive at a society. The male will not 
 fail to unbridle his wrath on those who come near and are able 
 to make an attempt on the privileges which he has arrogated to 
 himself. Since he has the power to compel it, the female remains 
 attached to him.^ " This is not other than express recognition of 
 the importance of the male in the family. How, in the face of 
 this, can it be said that the male is an obstruction to its creation ? 
 If it is thought that the jealousy of the male w^ill play the role in 
 society of a dissolvent, to use the language of Sales y Ferre, by 
 reviving struggle among the males and by creating couples which 
 tend to become separated from the rest, is it permissible to state 
 that the male is more adapted for the family than for society ? 
 
 § 17. Chief tainry in Animal Societies. If we apply ourselves 
 to the facts, some of which we have set out, there is clearly seen 
 the preponderance of the male in the family, principally in the 
 situation which presents the strongest analogy to primitive man. 
 Without reproducing all the available data concerning the nature 
 of the family among anthropoid apes, we ought to emphasize the 
 importance there of the male, as well as the possibility of society 
 being constituted of families as among chimpanzees and other 
 animals. The description of Brehm is evidence of the signifi- 
 cance of the male in all social life. It may be remarked, as in 
 fact Espinas has done, that in the same way that " we discover 
 families of monkeys obeying a chief, in like manner we see the 
 troop or the horde becoming organized. Each mother watches 
 over her young, and the leader watches over all." 
 
 The description of Brehm follows : 
 
 " The social life of monkeys is very curious. A few of the species 
 live in isolation ; but most of them gather in large groups and each 
 one chooses a more or less extended fixed abode. When the troop has 
 selected the place where it is to remain, the real life of the monkey com- 
 mences, with its pleasures, distractions, disputes, needs, and miseries. 
 The strongest male of the tribe establishes himself as the chieftain and 
 guide. He does not acquire this dignity by the choice of the others, 
 but only by force of struggles and combats with other old males, his 
 rivals. The longest teeth and the strongest arms decide the victory 
 among monkeys as among men. Whoever does not submit willingly is 
 compelled to yield by force ; so that the power which appertains to the 
 strongest and wisest individual is that which has the longest canines. 
 The chief exacts absolute obedience, and always gets it. He shows 
 
 1 ••Tratado de Sociologia", p. 233. 
 
286 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 little chivalry in what we may call the foible of sex. The ' jus primse 
 noctis ^ is his. He becomes the patriarch of all the people and his 
 family increases as the sands of the ocean. A jealous and brutal 
 Sultan, he arrogates to himself exclusive power over all females. He 
 reriloves those which are not amiable enough, and is regarded as the 
 father of the tribe. When the colony becomes too large, a part be- 
 comes detached under the leadership of another male who thinks 
 himself strong enough to resist the chieftain. Then begins a new 
 quarrel for the command of the new troop. The chief or leader 
 suitably performs his function. The esteem which he acquires ex- 
 cites his self-conceit, and gives him a certain superiority which denies 
 to subordinates the things favorable to him. On the other hand, the 
 old chief for the safety of all, and he is the most circumspect of the 
 band, turns his attention without stop in all directions ; his mistrust 
 extends to all ; and he nearly always discovers in time the danger 
 which threatens his tribe." 
 
 We may quote also Espinas : 
 
 " It is known that in a wild state new troops of horses are formed 
 by the necessity under which young horses create the family outside 
 of existing groups where the old males will not suffer them to abide." 
 
 Many other illustrations could be given ; but what has been set 
 out is sufficient to show that in the family, the horde, the troop, 
 or tribe of animals inferior, although analogous, to man, the role 
 of the male is very important. Moreover, in certain species the 
 two forms of social grouping, the family and society, appear to be 
 perfectly compatible, without implying either diminution of the 
 power of the male or the disappearance of jealousy. On the other 
 hand, given the habits and the force with which the male defends 
 his position, promiscuity is not possible, and it is not easy to 
 explain the family as based on the female. 
 
 § 18. Conclusion. Having shown that among animals the 
 predominance of the male coincides with superior psychic develop- 
 ment and with a physiological development greatly resembling 
 that of man, is it possible to believe that when we reach the 
 stage of primitive man, the ideal evolution breaks with the prin- 
 ciples which have guided it ; that the coincidence stops ; that jeal- 
 ousy disappears ; that the male loses his power ; and that the female 
 becomes the sole bond which holds the family together, the male 
 not having any influence on the primitive development of do- 
 mestic life? Is it not more logical to think that the passions 
 which in civilized man are restrained and controlled are without 
 check in primitive man, especially when we see them manifested 
 
Chap. IX.] ANIMAL AND PRIMITIVE HUMAN SOCIETIES 2S7 
 
 with brutal intensity in those beings which from other points of 
 view resemble us ? 
 
 This question cannot be resolved without a thorough study of 
 primitive man,^ But this preparatory sociological study was neces- 
 sary as basis of that series of investigations ; and it is now possible 
 to maintain the following propositions as conclusions of the present 
 study and as points of departure for further investigation : 
 
 1 . If we consider social phenomena at once in their entirety and 
 in their development, it becomes very clear that there is a tend- 
 ency in the constitutive elements of different societies to evolve 
 toward a constantly increasing complexity. 
 
 2. This tendency is manifested by progressively widening syn- 
 theses whose formations imply simultaneous accumulation of 
 social constructions derived from more rudimentary phases of 
 growth. These forms appear to be contradictory, and they are 
 produced in succession. This tendency may be denominated that 
 of progressive social syntheses. 
 
 If we strike out from this hypothesis, of which we have found the 
 basis in the animal world, for the purpose of drawing conclusions rel- 
 ative to man, we may assert that since he is a being superior to 
 other animals from the psychic point of view, he must have tended to 
 create social life by a complex means of increasing synthesis. If, as 
 we have stated, the different forms of society were established in obe- 
 dience to natural wants, it is logical to suppose that primitive socie- 
 ties were organized in such manner as to satisfy these necessities in 
 the measure that the circumstances demanded or made possible. 
 
 This applies to human society in general. If we fix our attention 
 on the form of society which may be considered as primordial, that 
 is to say, on the familj^, we will find in it a fact characteristic of 
 animals most closely related to man — the increasing predominance 
 of the male as the leader, which is an element of domestic life and 
 of life in the tribe. This predisposes to the recognition of the im- 
 portance of the male in the formation and the development of 
 primitive societies. 
 
 In a word, to render more concrete the results of this investiga- 
 tion, the sociologist may, by way of preliminary induction, draw 
 from animal sociology two main conclusions, useful for study of 
 human society : (1) the possible, perhaps even necessary, con- 
 currence of different social forms among primitive men; (2) the 
 primary importance of the male in primitive societies. 
 
 ^ See my essay, "Theories modernes sur les origines de la famille, de la 
 soci^te, et de I'^tat" ("Bib. Sociologique Internationale"). 
 
Chapter X 
 
 NATURAL ORIGIN OF PROPERTY AMONG BIRDS, 
 BEASTS, AND FISHES ^ 
 
 I. General Characteristics of the 
 Phenomenon of Property. 
 
 Property is a Natural Fact. 
 Property as an Instinctive 
 
 Fact Common to Mankind. 
 Original Character of the 
 
 Phenomenon. 
 The Earliest Manifestations 
 
 of Life. 
 
 II. Phenomena of Property among 
 Plants. 
 
 Importance and Nature of 
 
 Plant Organization. 
 Plants Attain Expression of 
 Property. 
 § 7. Biological Origin of Property. 
 § 8. Vegetal Defense of Territory. 
 § 9. Forms of Plant Life. 
 
 III. Forms of Property among 
 
 Fish. 
 § 10. The Temporary Shelter and 
 the Abode. 
 
 §1. 
 §2. 
 
 §3. 
 
 §4. 
 
 §5. 
 
 §6. 
 
 11. 
 
 Nest-Building as a Fact of 
 Property. 
 
 Social Organization of the 
 Stickleback. 
 
 Other Forms of Property. 
 The Earliest Forms of Prop- 
 erty Among Men. 
 
 Primitive Man. 
 
 Tools and Weapons. 
 
 Tools and Weapons as In- 
 dividual Property. 
 
 Clothing. 
 
 Food Reserves. 
 
 Hunting Land. 
 
 Primitive Pastoral Tribes. 
 
 Comparison of the Condi- 
 tions which Reflect the 
 Phenomena of Property in 
 Man and Animals. 
 V. Conclusions. 
 
 § 22. Essential Principles of the 
 Phenomena of Property. 
 
 §12. 
 
 §13. 
 IV. 
 
 §14. 
 §15. 
 §16. 
 
 §17. 
 
 §18. 
 §19. 
 §20. 
 §21. 
 
 I. General Characteristics of the Phenomenon of Property 
 
 § 1. Property is a Natural Fact. Property is a fact of nature 
 antecedent to all legal organization. It receives from it the sanction 
 by which the facts as they exist are recognized and formulated. 
 Among the various theories advanced in political economy, con- 
 cerning the right of property, the weakest, by general consent, 
 is certainly that which ascribes its creation to the law. Property 
 is the result of a tendency all the more instinctive as it has its 
 origin in the very nature of man, in the forms of his activity, and 
 in his sense of sociality. The close connection which it bears to 
 these qualities which do not appertain to man alone, indicates 
 that we ought to search for its beginning in the animal world. 
 
 1 [By R. Petrucci. Translated from "Les Origines naturelles de la 
 Propriete : essai de sociologie comparee" ("Travaux de I'lnstitut de 
 Sociologie" [Solvay Institution], I, Notes et Memoires, Fasc. 3, Brussels, 
 1905), pp. 1-3, 5, 7, 9-11, 14-16, 22, 23, 25, 28, 81-90, 180-191, 209-218, 
 223-228. The work contains many valuable pictorial illustrations. 
 
 This translation is by Albert Kocourek.] 
 
 288 
 
Chap. X.l NATURAL ORIGIN OF PROPERTY 289 
 
 § 2. Property as an Instinctive Fact Common to Mankind. 
 It is necessary at first to limit, at least provisionally, the phenom- 
 enon of property to human society. It is there that it is pre- 
 sented in an incontestable form. It is there that we are able to 
 establish principles with the hope of their general acceptance. 
 If we examine the origin of property from this point of view, it 
 will not be possible thenceforth to refuse it the character of an 
 instinctive fact, common to all mankind. In its beginnings, also, 
 we shall find that it is established in two distinct types, which 
 today again do service in furnishing the base of political and 
 social schools of thought. It is worth noting that these two 
 types, the individual and the collective, are the result of the 
 physical and mental structure of man. . . . 
 
 With an extension of his muscular activity by invention and 
 art, of implements and arms which permit him to increase the 
 utilization of his powers and faculties, man creates objects which 
 are external to him, but which are closely connected to him, be- 
 cause they provide a means of attack, of defense, and of protec- 
 tion. 
 
 Constructed according to the individual type, when he creates 
 an implement, he establishes over it possession impressed with 
 an individualistic character in which is reflected his own nature. 
 This is what may be called the embryo of private property. On 
 the other hand, possessing an instinct which drives him into the 
 life of a group, to the end of defending his species, and of main- 
 taining it against the hostility of the external world, he organizes 
 according to a social type which has its immediate reflection in 
 the possession of territories of the chase, of regions explored by 
 the tribe or the clan, and which the tribe and the clan defend 
 with ferocity against appropriation by any group of strangers. 
 This is the origin of collective property, the direct result of the 
 instinct of sociality, and, in consequence, of the mental nature 
 of man linked by a narrow bond to the necessities of adaptation 
 to surrounding conditions. 
 
 If property is a fact which responds to the necessities of adapta- 
 tion, and is not a creation of the law ; if it is a natural fact, and 
 instinctive, preceding all regulation, and all reflection (as put by 
 Leroy-Beaulieu), or preferably (in the language of psychology), 
 the fact of consciousness, we must conclude that neither the 
 
290 FACTORS OF LEGAL EVOLUTION [Pakt II. 
 
 individual type nor' the instinct of sociality is limited to the human 
 species. Consequently we must search for the true origin of 
 property even in the depths of the animal world. We will there 
 be able to determine the conditions which will remove the ob- 
 scurities in the essential character of this phenomenon. . . . 
 Finally, we may investigate if this phenomenon is realized even 
 in a more primary degree in the vegetal reign, and even in the 
 inorganic world. 
 
 § 3. Original Character of the Phenomenon of Property. For 
 precision of idea, it is necessary at the outset to fix the limits of 
 the application of the concept property, and to find what it means. 
 Property is not the same thing as occupation. That term is too 
 vague; and one might say, for example, of any thing, that it is 
 proprietor of the space which it occupies. It is necessary also 
 that there be possession; that is to say, that the being or the 
 group, organic or inorganic, make application of forces to the end 
 of reserving to itself the exclusive control of that which it occu- 
 pies and which it exploits to its own profit either in a temporary 
 or permanent fashion.^ 
 
 § 4. The Earliest Manifestations of Life. The most primitive 
 form of property certainly is that of the prey of animals, which 
 arises from the most pervasive and indispensable of needs — that 
 of nutrition. This need is encountered beginning with mono- 
 cellular life, but there is also found at this stage of biological 
 activity a secondary form of property in the refuge which the 
 •animal itself makes, and in the envelope which becomes a non- 
 living annex to the living individual, and which is produced by a 
 transformation of materials taken by it from its surroundings. 
 The foraminifera, for example, may serve as a type of this early 
 manifestation of property in a shelter ; although the cystic forms, 
 for the greater part momentary, and confined to the activity of 
 reproduction, often conceal the character of the shelter which 
 serves for protection of a large number of individuals, and fur- 
 nishes the primitive form of property of the family or collective 
 type. This collective form of property exists in fact in, and is 
 copied from, the permanent or transitory colonial organization 
 of monocellular animals. 
 
 It is seen, therefore, in the most elementary manifestations of 
 life, that property regarded as an instinctive fact is already fash- 
 ioned in two types, individual and collective, which are inter- 
 
 1 [At this point, the author considers the phenomena of property and I 
 possession in physical and chemical substances, and especially crystals.] 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 291 
 
 mingled in the general evolution of the organic world, and that 
 they there express the law of protection of the individual as well 
 as of the species. 
 
 II. Phenomena of Property among Plants 
 
 § 5. Importance and Nature of Plant Organization. It may 
 appear strange that we apply ourselves to a study of the phenomena 
 of property among plants. On first impression, the individual 
 plant exhibits so much of passiveness, that we should avoid any 
 such effort. Nevertheless, if the fact of property begins as soon 
 as the first activities of living matter arise, and as a manifestation 
 of these activities, it will be singular if it should be absent in a 
 plan of organization as vast and as complex as the vegetal 
 world. The adaptations there are as diverse, numerous, and 
 flexible, if not more so, than those of the animal kingdom. . . . 
 
 It is necessary, at the very first, to inquire into the nature of 
 the vegetal individual. If its character is colonial, it will realize 
 the proprietary expression demanded by this structure. If, on 
 the contrary, it indicates a personal individuality, it will attain 
 an individual or collective form of property, according to the 
 phenomena of association which predominate in the life of the 
 isolated plant. 
 
 From this point of view, the inhibitory phenomena and the 
 phenomena of communication among plants show a nervous 
 activity exercised by means of connections established between 
 the cells and arising from the nature of a nervous system based 
 on the consecutive differentiation brought about in a division of 
 labor. It is never an organ of sense, among plants, which reacts, 
 but another part of the plant from which excitations are trans- 
 mitted. The examples are characteristic and numerous.^ They 
 show clearly that the plant is a complete whole, and that its parts 
 have a reciprocal dependence. . . . Plants show the peculiarity of 
 an individual nature closely approaching a colonial organization. 
 Nevertheless, from the position taken here, the parts of a plant 
 are sufficiently consolidated by the total of actions and reactions, 
 that we may regard it as an entire individual. . . . 
 
 § 6. Plants Attain Expression of Property. It is our task now 
 to determine exactly the conditions under which plants realize 
 the fact of property, and to see if we are justified in ascribing to 
 them in this particular field certain of these activities. 
 
 1 [Examples follow.] 
 
292 FACTOKS OF LEGAL EVOLUTION [Part II. 
 
 Nutrition is an essential element in the life of all organized 
 beings. It is that which most of the time governs the adaptations 
 of the individual and the phenomena of property which are the 
 result of these adaptations. In the beginning, plants obtain their 
 nourishment by regular exploitation of the soil; afterwards, by 
 branches which carry certain organs which draw the materials of 
 nutrition from the surrounding atmosphere. 
 
 Plants do not occupy the soil ; they possess it. When a seed is 
 once established and begins its development, or a plant is wholly 
 matured, it possesses a definite space which is occupied by its roots. 
 Neither the plant nor the grain is limited by this occupation of 
 the soil. They defend it from the first with life itself, and later 
 also by active resistance. Moreover, they constantly exploit 
 the soil which, by reason of this and in consequence of their labor, 
 receives a permanant productivity. The occupation, the ex- 
 ploitation of nutritive ground, presents the essential character of 
 a fact of property. 
 
 The greatest differences are found in the conditions under which 
 plants occupy and defend the territory upon which they realize the 
 fact of property. Certain species live as individuals, more or less 
 isolated among other species. These are the solitary plants. 
 Others are social, occupying an extended space, and drive out all 
 other plants from the territory which they exploit. 
 
 § 7. Biological Origin of Property. Property goes back to a 
 far beginning and has its source in the organization of the in- 
 dividual plant. We may follow in substance the transition, 
 almost imperceptible, from that which is peculiar to the individual, 
 and integral in its structure, to the point where it becomes external 
 and becomes realized in a concrete phenomenon. These pecu- 
 liarities are of the greatest interest, because, while, at first, special 
 to the individual, they later become general traits ; and, further- 
 more, because animal life shows the same conditions, in this, that 
 the facts of property realized among animals are as among plants, 
 a sort of reflection in the external world, of a particular and of an 
 internal organization, which in the end are materialized in phe- 
 nomena distinct from the individual. This origin which bases a 
 fact considered as social upon a biological datum, and which is 
 of considerable importance, is emphasized in connection with 
 plant life where the simplicity of the activities presented permits 
 their detachment for purpose of study. 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 293 
 
 Plants establish a reserve of nutrition. The sap does not suf- 
 fice to nourish a plant at the time of germination, of flowering, or 
 of fructification. At these periods there is necessity for consump- 
 tion of much aliment, in preparation for which the plant makes 
 ready a reserve. 
 
 On first view, this phenomenon is quite different as between 
 plants and animals. Nevertheless, a closer inspection of the 
 essential character of the principle will disclose that the fact of 
 property found in a nutritive reserve presents elements of simi- 
 larity in both. 
 
 Before the active periods of nutrition, the animal accumulates 
 an excess of aliment which later, during the phases of denutrition, 
 is utilized. The hump of the camel or the large accumulation of 
 fat of the seal, the fatty tissue stored up in the summer and uti- 
 lized in the winter by hibernating animals, are examples too 
 evident and too familiar to require extended remark. We shall 
 deal with the nutritive reserve only as it is found external to the 
 individual, and when, in consequence, it becomes a fact of property. 
 But, if organic adaptation determines it, it is clear that it consti- 
 tutes part of the animal itself. 
 
 However, certain phenomena show a transition between the 
 nutritive reserve created by an organism and the nutritive re- 
 serve external to the organism. The social stomach of ants, for 
 example, is a provisional storehouse, brought about by adapta- 
 tion, in the body of the insect itself. It is collective property. 
 This individual storehouse carries a nutritive reserve of honey 
 which belongs to the community, and which, considered from the 
 point of view of social life, is a form of property external to the 
 individuals composing the group. Finally, among bees which 
 construct a storehouse for honey, and of cells for the brood with 
 wax secreted by their wax glands, we see a direct phase of pro- 
 longation of the organism in property external to the insect and 
 collective in form. In fact, the honey-comb, which is a form of 
 collective property external to the individual, is made by a secre- 
 tion which is a product of the individual organism. For the rest, 
 it is after organic development among the members of the colony, 
 that there is provided the nutritive reserve itself, the store of 
 honey. Passing, lastly, to the tunnels dug by certain rodents, 
 to the dens made by certain birds, and to the storehouses provided 
 by certain species of ants for accumulation of a food reserve, 
 originating, however, like organic reserves, from exploitation of 
 an environment, we reach the fact of property realized solely by 
 
294 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the industry of the animal, exclusive of all direct contribution and 
 of all organic elaboration. 
 
 We see in this series of phenomena an evolutionary chain start- 
 ing with a food reserve prepared by the organism and stored in 
 its body. This stage leads to the intermediate forms which in 
 general are found among the honey ants with the phenomenon of 
 a social stomach, and among bees which construct cells by means 
 of an organic secretion. Lastly, we reach the stage of animals 
 which construct shelters and hiding places for their food reserves 
 which represent materials external to the individual organism. 
 
 This demonstrates the singular rhythmic action with which the 
 organization, or rather the structure, of the animal is prolonged 
 into its industry. The facts of property which it realizes are its 
 reflection. They are molded in a manner so fitting the nature of 
 the animal that they express its various adaptations and evolution. 
 
 Plants show analogous features in their accumulation of a food 
 reserve. These features are there found even more developed, 
 due to an inferior concentration of individuality, and to the plas- 
 ticity and greater independence of the various parts of the plant. 
 There are from the beginning differentiations which create food 
 reserves in the midst of the plant's own tissues ; and later adapta- 
 tions which provide outside of the vegetal structure, the sources 
 of nutrition on which it draws for maintenance of its existence.^ 
 
 § 8. Vegetal Defense of Territory. In the search of nutritive 
 ground, plants exhibit a phenomenon similar to that found among 
 animals. Among animals which live in solitude, or in pairs, pos- 
 sessing a certain domain for the hunt or for fishery, as soon as 
 the young reach an age when they can maintain themselves and 
 search out a domain of their own, the parents drive them away 
 to a considerable distance from themselves. It is the same among 
 plants. 
 
 The plant mother possesses a definite territory which she ex- 
 ploits and upon which she maintains herself. She does not reach 
 the point of possession of the soil except by virtue of a struggle. 
 She must stifle other plants too near to herself, and must exert an 
 activity to the end that precedence is established in her favor, 
 and that neither the light nor the mineral elements of the soil 
 which are necessary will be abstracted to her detriment. The 
 life of a plant is bound up with an exclusive possession of the soil 
 which it exploits. This possession is still maintained at the period 
 of reproduction. 
 
 1 [Illustrations and specific descriptions follow.] 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 295 
 
 If the seeds fall too near the plant mother, they will germinate 
 in an impoverished soil ; their leaves will not receive sufficient 
 light ; they will not find the resources necessary to their life ; and 
 they will contest, but without profit, those necessary for the life 
 of the plant mother. Individual possession of the soil is, therefore, 
 as necessary to the plant as it is perhaps to a solitary animal of 
 the chase. As in the case of animals, only those species which 
 do not come into immediate competition are able to subsist with 
 it on this territory. Plants thus realize conditions analogous to 
 those of birds ; they live under the cantonment of the lion. There- 
 fore the adaptations of the plant lead to a dispersion of the seeds. 
 The species is thus established in a territory more or less widely 
 extended which also makes secure its future, and the destiny of 
 the individuals. 
 
 Certain plants project their seeds. This projection may be 
 caused by desiccation, turgescence, or by drops of rain the force of 
 which carries the seeds a small distance from the plant mother. 
 Certain seeds are transported by water ; sometimes seeds issuing 
 from ripe fruits which open are set adrift; and sometimes the 
 fruit itself becomes detached and the seeds fall away one by one 
 subject to the hazards of a stream. The wind also is an important 
 factor in disseminating the reproductive elements of plants. In 
 such case, the seeds are very small as are the microscopic spores 
 of the mushroom, or they are provided with wings or aigrettes 
 which permit them to travel over considerable distances. Animals, 
 too, play their part in the dispersion of seeds. Finally, certain 
 plants themselves bury their fruits. This is the case with " arachis 
 hypogsea " whose stem enlarges, bends back, and penetrates the 
 earth with its pericarp. The same is true, also, of *' trifolium 
 subterraneum " which enlarges its stem as soon as its flowers have 
 become fertilized, turns down, and thus tends to bury its seeds. 
 
 § 9. Forms of Plant Life. The manifestations of property" 
 among plants which we have examined have been of the individual 
 type. The explanation is that their structure, their adaptations, 
 and their conditions of life have put them in isolation, and have 
 scarcely made possible any tendency toward association in the 
 very simple and temporary phenomenon of fecundation. Fecun- 
 dation among these types is produced, except in rare instances, by 
 the displacement and union of procreative germs. For the larger 
 part, this is effected by external phenomena which do not require 
 any eft'ort on the part of the individuals concerned. More often 
 than among animals, the associative tendency among solitary 
 
296 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 plants is expressed faintly, in an embryonic fashion, and hardly 
 distinguishable. 
 
 Nevertheless, there are species among plants where the associa- 
 tive impulse prevails over the individual. This leads to the 
 creation of true social groups. These types are not solely deter- 
 mined by coexistence of a large number of individuals which form 
 a colony; but they lead to such conditions and in a manner so 
 definite that we are justified in considering them as realizing a 
 distinct predominance of the associative tendency. 
 
 Certain species, therefore, do not live as indifferent individuals 
 more or less scattered among themselves and in the midst of other 
 species. These plants appropriate exclusively, or nearly so, 
 extended spaces. They exclude all other plants, but they permit 
 some to live with them. The first are called social species, the 
 second are satellite species. 
 
 Social plants respond to types which are either constant or 
 inconstant. The social type is constant when the species lives 
 exclusively under a social form; it is inconstant when the indi- 
 viduals may live either in isolation or in association. It is uni- 
 social when it includes only one species; it is pluri-social when 
 it includes two or more species. Satellite plants depend for their 
 existence on the society to which they are attached. They live 
 under its shelter, if it is arborescent, and within its cluster, if it 
 is herbaceous. This association fashions the life of the satellite 
 to such an extent that when it is broken, the satellite is unable to 
 maintain himself. A social phenomenon guides its life and hems 
 in its cycle of existence.^ 
 
 III. Forms of Property among Fish 
 
 § 10. The Temporary Shelter and the Abode. At the outset, 
 'we see that among fish the facts of possession are essentially 
 individual. They keep the hunters in isolation, and sometimes 
 these facts have a connection with protective conditions. Some 
 fish hide in the sand to watch for their prey, but this occupation 
 of the earth is temporary, variable, and does not establish, either 
 by way of industry or relative importance, an instinctive fact of 
 property. Property in its first stage is encountered among eels 
 which, when they hide themselves in the slime, remain in the holes 
 which they excavate along river-banks. It is also seen among 
 
 1 [Here, as elsewhere, following a general statement, specific descrip- 
 tions are given. The whole work is pictorially illustrated.] 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 297 
 
 conger eels, which when they do not profit by the refuge afforded 
 by rocks, dig cavities in the sand or mud. At the beginning of 
 the dry season the gymnate electric eel by revolving about digs 
 a deep hole in the mud. It takes refuge there when the water of 
 the pond in which it lives threatens to recede. The protopterans, 
 likewise, pass the dry season in the mud where they dig themselves 
 in, becoming enveloped in a cocoon formed by a mucous secretion, 
 which makes a protective sheath for their bodies. 
 
 Thus beginning with a phenomenon essentially temporary, as 
 is the case where the animal half buries itself in the sand to wait 
 for its prey, we reach phenomena which have the character of 
 permanence and where industry of the individual plays its part. 
 There is an adjustment of the materials of the outer world and 
 adaptation to a habitat clearly defined. An elementary fact of 
 property is thus established. It is here essentially individual. 
 
 § 11. Nest- Building as a Fact of Property. The property 
 phenomenon becomes more complex when we reach the nest- 
 building stage among fish. Here it alread}^ assumes a social 
 form ; it is more distinct and less embryonic. Nests are built 
 at the spawning season and they have the object of perpetuating 
 the species. The greater part of the time, the eggs being de- 
 posited, it is the male who watches over the nest and defends it 
 against danger. The female does not give any care to the off- 
 spring nor does she take any part in the building of the nest. 
 Xevertheless, the phenomenon of property resulting from in- 
 dustry, the employment of materials borrowed from the external 
 world, and the defense of what is created, have a close connection 
 with perpetuation of the species in accord with the fundamental 
 fact which makes the basis of the family. However spiritless, 
 inconsistent, or transitory it may be, the fact exists none the less ; 
 and it suflfices to give a primary social character to the fact of 
 property. 
 
 Several stages are here to be noticed. In the first, the eggs are 
 abandoned, left to the protection of their shelter. The social 
 character of property does not exist in this case and is not in ques- 
 tion except virtually, so to speak, in power, and not in realization, 
 being a sort of transitory, fugitive, and uncertain attempt in that 
 direction. We find, for example, in an elementary stage, among 
 trout that they are content to burrow a hole in which they deposit 
 their eggs ; and we also find in a more advanced stage evidence 
 of industry already developed, as among the antennariinae which 
 hide in weeds and there establish a permanent habitat. These 
 
298 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 latter fish construct true nests made of sea-weed. They gather 
 with their fins bunches of algae upon which they deposit their 
 eggs. They secrete a viscous substance which is used to give 
 greater permanence to their constructions. These rounded, 
 floating nests which are of the bulk of a cocoanut are abandoned 
 on the floor of the ocean where the young are born, and where 
 during the earliest period of their lives they find a safe asylum. 
 
 A higher level is seen when the male remains and watches over 
 the eggs. At this point, the fact of property becomes evident. 
 It does not waver between the individual who constructs the 
 refuge and then abandons it, and the eggs and the young which 
 occupy it. It becomes realized in all its conditions where the 
 material thing which is put together is defended against all attack 
 and all usurpation. 
 
 ' If we compare the habits cf the bull-head cf the river with those 
 of the trout, we will see the essential difference which divides two 
 facts substantially analogous. The bull-head male digs a cavity 
 in the sand under a rock, causes the female to lay her eggs in the 
 nest, and guards the eggs with extreme vigilance until they are 
 hatched. Gessner recounts that the variegated labrus shows a 
 special affection for his progeny. The female makes a cavity at 
 the entrance, and the male installs himself where he watches 
 until the eggs hatch. The cyclopteridse, likewise, place their 
 eggs in the fissures of rocks near large algae, where the male 
 establishes himself alongside the openings and defends against 
 all attacks, even the most ferocious. When the eggs are hatched, 
 the young attach themselves to him, and he returns to the lower 
 levels of the ocean. 
 
 In the facts which we are examining the scope of constructive 
 effort is quite rudimentary. It develops and becomes organized 
 among the superior types. Certain blenniidse are oviparous; 
 they construct nests, and give the most particular care to their 
 progeny. Some of the siluridse exhibit the same habits. Ac- 
 cording to Hancock the callichthyidse and the doradinae construct 
 nests of leaves which they often locate in cavities of a river-bank. 
 The male and female remain close to the nest and defend it w^ith 
 the greatest vigor until the young are hatched. The cooperation 
 here of the two parents is very interesting. It is' seen from the 
 facts collected, that this is exceptional. This cooperation is an 
 affirmation of the family, and as a result of the social aspect of 
 the phenomena which appear at the spawning season when the 
 construction of the nest becomes a fact of property. This activity 
 
CliAP. X.J NATURAL ORIGIN OF PROPERTY 299 
 
 cannot possibly be regarded as purely individual ; it has a family 
 character, and is, therefore, in a certain measure, a collective 
 phenomenon. On the other hand, it is transitory, because it is 
 governed by the conditions which establish the family. It is 
 limited to the period of incubation ; each year the work is renewed 
 and also destroyed ; and the fact of property which reflects the 
 structure of this family collectivity (the most elementary of all) 
 follows its destiny, coming into existence with it, and disappearing 
 when it disappears. 
 
 All of these facts show sufficiently in what case constructive 
 activity among fish marks out the limitations of the instinctive 
 facts of property. That which is very interesting, nevertheless, 
 is what has appeared for the first time — the dependence in which 
 these facts are found on the existence of the family produced by 
 the most simple social group, consisting of the male, the female, 
 or one of these, and the offspring. These phenomena arise from 
 the pressure of the sexual and famil}^ instinct, and from the tend- 
 ency toward the protection of the species, which determine the 
 facts of property, the collective character of which already appears 
 in a rudimentary way. For the rest, these phenomena are limited 
 to the period of development of the eggs. We see them produced 
 under the same conditions for the protection of a more complex 
 social structure as presented by the stickleback. In this respect, 
 this species exhibits the highest point of development found among 
 fish. 
 
 § 12. Social Organization of the Stickleback. The stickleback 
 shows some very curious habits. It lives in troops which defend 
 in common against their enemies. There is realized in these 
 facts a kind of grouping in a tribe in which certain individuals 
 sometimes assume a tyrannical authority. They have been very 
 carefully observed in captivity. When they are placed in an 
 aquarium sufficiently large and abundantly provided with water, 
 " they swim from the beginning in troops, and examine each nook 
 and corner," says Savage. " Suddenly, one of them takes pos- 
 session of a shelter which no doubt suits him better than any other, 
 and then begins a desperate combat between the first proprietor 
 occupant and the intruder. . . . Frequently, the struggle lasts 
 several minutes before one of the combatants avows himself de- 
 feated. The conqueror then shows the liveliest anger ; he swims 
 behind the vanquished fighter chasing him from place to place 
 
SOO FACTORS OF LEGAL EVOLUTION [Part II. 
 
 until, exhausted, he is not able to go farther and seeks refuge in 
 the mire. The stickleback uses his spines with such violence 
 that often his adversary is run through from side to side, and at 
 once falls dead. After a while each has chosen the place which 
 suits him ; and it happens that in the same basin many cf these 
 little tyrants maintain a surveillance over each other ; and if one 
 of them quits the place which he ought to occupy and approaches 
 that of a neighbor, the combat begins anew in a fashion more 
 lively and ferocious than ever." 
 
 Evers reports that the females, especially, torment and attack 
 the fish in the basin which they occupy. Taking a position near 
 the top of the aquarium, they observe, attentively, all that goes 
 on around them. If two males approach in combat, they pre- 
 cipitate themselves with rage upon the fighters, sometimes to drive 
 back the fugitive and to compel him to accept battle, sometimes 
 to attack the victor. In all quarrels they are promoters of the 
 combat. Evers particularly noted that two females of unusual 
 size were sovereigns of the aquarium. They did not attack each 
 other, but they inspired such terror in other females who inhabited 
 the same basin that these latter fish hid themselves to find food, 
 leaving the tyrants to possess themselves of the lion's share. The 
 males, likewise, had to submit to them, and they were always 
 attacked and chased away when, pursued by other males, they 
 came near them to seek a refuge. The despotism of these two 
 megairse was such that Evers had to withdraw them from the 
 aquarium which they literally had terrorized. 
 
 When the stickleback is confronted by an enemy he brings to 
 bear all his energies against him. When Evers put a perch in 
 their aquarium, '' they mustered in troops and surveyed the enemy 
 with all their spines bristling. Their internal dissensions were 
 for the moment forgotten, and as long as the perch, their common 
 enemy, remained in the same tank, they did not quarrel among 
 themselves. ..." 
 
 In the spawning season, in May, June, and July, the stickleback 
 builds his nest. Among the broad-tail species, the male selects 
 a place where he digs into the mud, and finishes by digging himself 
 in. He turns around until he forms a cavity which is surrounded 
 by rock material which has been cast aside. He then rams down 
 grass which he has matted and agglutinated with a mucous sub- 
 stance which is excreted from the sides. He chooses his materials 
 with an attentive care, rejecting those which because of their size 
 or form cannot be utilized. He builds over the bottom of the 
 
Chap. X.J NATURAL ORIGIN OF PROPERTY 301 
 
 trench carpeted with grass, a wall of branches pressed down and 
 heaped one upon the other, and adds a roof. 
 
 These facts" show a series of very interesting phenomena. In 
 the cantonment of the stickleback, which chooses a special residence 
 which he maintains and where he does not permit any other to 
 approach without combat, we find the fact of individual property 
 all the more notable in that it is realized in the bosom of the colony. 
 The stickleback, in effect, constitutes a tribe. Uniting against 
 a common enemy, they attack as a troop. The individuals as- 
 sociate, forgetting their rivalries, when menaced by danger. . . . 
 
 On the other hand, the competition of individuals is very pro- 
 nounced. Predominance of the fact of association is not suffi- 
 ciently established to prevail over individual activity. This 
 activity is not grounded on the necessities of the group except in 
 cases of great violence which threaten the colony. When this 
 menace disappears the interests of the individuals are reasserted. 
 The individual strongly maintains his independence within the 
 collective organization which is yet indefinite. He chooses a 
 retreat which he appropriates, and which he defends with force, 
 thus realizing a fact of individual property. He seeks to estab- 
 lish his authority over the entire colony, and his individual activity 
 is manifested by the numerous combats which are habitual to him. 
 Predominance of the individual over the group tendency is such, 
 that outside of the family organization, property is individual in 
 form. This predominance is an inversion of that among certain 
 hymenoptera where the form is collective. 
 
 § 13. Other Forms of Property. The individual note also pre- 
 dominates in part in the matter of nest-building in the spawning 
 season. It is the male and only the male who constructs the nest. 
 He realizes the fact of property by appropriation of materials and 
 by the exercise of industry. In this the female does not take any 
 share. Attracted by the male, she deposits her eggs in the nest 
 and goes away. The male cares for the progeny. He defends 
 them with the same inveteracy as he safeguards the nest during 
 the period of construction. The fact of property generated under 
 the influence of reproduction, and of the sex and family instinct, 
 takes a more definite form than it had before among individuals 
 living in the midst of the colony. It becomes a place openly 
 selected which furnishes a habitual retreat, and which the stickle- 
 back defends against all other members of the colony. There 
 
302 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 is here no evidence of preparation or of industry. It is a fact of 
 individual property rudimentary in form and realized simply 
 by occupation. A series of such possessions coexist within the 
 group. Nevertheless, a new fact arises with the union of all in- 
 dividuals and the obliteration of the rivalries which precede the 
 appearance of an enemy. The group so conducts itself that there 
 is realized the fact of collective property based upon a series of 
 individual ownerships, by the possession of an area more or less 
 defined in which the presence of a stranger is not tolerated. 
 
 In this social formation, family property appears with the phe- 
 nomenon of nest-building. It is another form, in certain respects 
 more elementary, of collective property, because it is limited to 
 the individuals which constitute the family. Yet, it must be 
 noticed, that it is limited to the male and the eggs, or the offspring, 
 since the mother is expelled when she has deposited the eggs. 
 The family itself is of a rudimentary form. It is transitory and 
 the family possession is as transitory as itself. It is inferior in 
 form, for example, to that of the doradinse where the female 
 cooperates with the male in the creation of a more complex form of 
 family life. But the family type of the stickleback presents the 
 very interesting feature that it coexists with the somewhat in- 
 distinct and rudimentary forms of individual and collective prop- 
 erty; and that it arises in a grouping which shows the essential 
 elements of a colony. This makes part of a complex ensemble 
 which is not discovered among other species of fish. 
 
 IV. The Earliest Forms of Property among Men 
 
 § 14. Primitive Man. The nature of this investigation ex- 
 eludes any people whose social organization has in it any elements 
 of complexity. Since the phenomena of property are in the 
 animal a reflection of its activities, its impulses, its structure, 
 and its habits, these phenomena will be comparable to those 
 which are manifested in the nature of man, on condition that 
 his activities, impulses, structure, and habits are similar in 
 nature. In activity and structure, man is a mammal, but in 
 his impulses and habits, having attained a certain degree of evolu- 
 tion, he far surpasses animals the most highly developed in the 
 social scale. It is easy to point out stages of human development 
 where the complexities are too pronounced to permit of their 
 consideration for our purpose ; and it will suffice to stop at a 
 point in the scale of development, where human society assumes 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 303 
 
 a definite form in a variety of adaptations which surpass those 
 found in the animal world. 
 
 Animal study shows individuals and groups or colonies of hunters 
 and fishers. Likewise, among primitive men, there are some who 
 live exclusively by the chase and by fishery. The means of sub- 
 sistence and the process by which the animal maintains itself are 
 reflected in its habits. The same statement holds for man, and, 
 therefore, within the limits of hunting and fishing peoples, a com- 
 paris6n with animals will be admissible. 
 
 There are found among animals those which live not only by 
 hunting and fishing, but which subsist on vegetable products. 
 This kind of activity is represented among uncivilized men in the 
 earliest pastoral and agricultural pursuits. Pastoral people sub-v 
 sist on the products of their herds and flocks ; and the habits of 
 these herds and flocks are reflected in their various adaptations. 
 These adaptations are directly comparable to those of herbivorous 
 animals which live in bands and exploit a definite common terri- 
 tory. Lastly, the cultivators of the soil in the most primitive 
 stage, where the earth is not modified by any artificial or complex 
 processes of industry, also are comparable to animals which sub- 
 sist on the vegetal world and exploit without modification a def- 
 inite territory. However, we shall confine our attention to a 
 stage of development far removed from that of agriculture in order 
 that we may remain within limits which permit the strictest ap- 
 plication of the comparative method. 
 
 § 15. Tools and Weapons. If primitive man appears directly 
 comparable to the animal in the generality of his habits, there is, 
 nevertheless, one very characteristic aspect in which he is greatly 
 superior — in the making, use, and possession of tools, weapons, , 
 and garments. 
 
 An important factor of evolution springs up out of this activity 
 of man. In virtue of it, he becomes able to establish himself in 
 hostile surroundings, to struggle victoriously against other species 
 of animals, and to react upon the external world and to modify 
 it to his advantage. Weapons and tools, which in the beginning 
 are not differentiated, are the most important elements which 
 have affected the development of primitive man. Clothing gives 
 him a superior resistance to his surroundings without drawing too > 
 heavily on his vital forces. In this regard, animals are subjected 
 to the necessity of sluggish and almost constant adaptations. A 
 modification of the body itself becomes a tool, a weapon, and a 
 defense. The most formidable weapons carried by insects — 
 
304 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 pincers, scissors, tongs — are adaptations or modifications of their 
 bodies. The envelope which incases the body is a cuirass. Among 
 certain animals, their hanging cheeks are a veritable small 
 storehouse for food, and certain rodents carry in their distended 
 mouths the vegetable products which they accumulate against 
 the winter. The pouch of the pelican has a similar function. 
 The stomach of ruminants is adapted to form a kind of storehouse 
 where food is stored up which may be later again masticated. 
 Lastly, we see in the trunk of the elephant, or in the hand of the 
 ape, a prehensile organ which is particularly developed in man 
 and by means of which he prolongs his activity in the creation of 
 weapons and tools. 
 
 There appears to be a transient utilization of things among 
 animals in the sense of tools and weapons. Apes throw certain 
 projectiles — rocks, cocoanuts, branches, shells — in self-defense. 
 It is claimed that certain bears know how to throw rocks, and that 
 certain anthropoids make use of a staff. We have only imperfect 
 knowledge of primitive tools. The study of M. Rutot on the 
 eolithic age shows the ancestor of man using flints scarcely modi- 
 fied by his industry and not employed as permanent tools. There 
 is a point of transition between the tool used momentarily by 
 an animal and then immediately thrown away, and the earliest 
 weapons or tools of flint which characterize primitive man. 
 
 It is seen that the use of weapons and tools does not distinguish 
 man from the animal. Nevertheless, when they are introduced 
 in a permanent fashion in human activity they exhibit a fact 
 with a twofold interest ; first, from the point of view of the his- 
 tory of civilization, and, second, from the standpoint of property. 
 The second of these alone comes under consideration here. 
 
 , § 16. Tools and Weapons as Individual Property. The weapons 
 V^l and tools of primitive man are in fact objects of individual owner- 
 
 1 ship. They are a prolongation of the individual himself, created 
 
 ' by his powers and his perceptions as a kind of added force to his 
 personality. Created by man out of materials taken from the 
 external world, and modified and used in view of a given end, 
 
 \ they present beyond doubt all the character of a fact of property. 
 
 /But they are facts of individual property because they remain 
 
 / connected with the personality of the maker. It is only when tools 
 
 become complex that they take on a scope other than individual ; 
 
 it is only when social life has become somewhat developed that a 
 
 J 
 
Ch.\p. X.] NATURAL ORIGIN OF PROPERTY 305 
 
 part of them is collectively owned. The weapons or tools (the 
 two are not distinguished) of primitive man are as necessary to his 
 life and its security as the hand, the legs, or the arm. They re- 
 main personal to the owner and are so far identified with him that 
 among primitive men when the owner dies they are placed at his 
 side in order that he may not be unprovided with such implements 
 in the next world, or they are broken up so that their spirit may ac- 
 company that of the dead person. . . . The conclusion follows that 
 no more among men than among animals does individual owner- 
 ship appear to have a social origin ; that it is foreign to all ideas of 
 that type ; and that it is simply a phenomenon which goes with 
 the individual in the midst of phenomena of association. 
 
 Weapons and tools exhibit considerable development, from the 
 standpoint of ownership, among primitive men; and it is in this 
 development alone that he is distinguished from animals. There 
 is established in the case of primitive man a new and more com- 
 plex fact of property ; it takes so definite a form that it follows the 
 owner even after his death, and so that neither another individual 
 of the group nor even the group itself can inherit. The social 
 attribute is entirely absent. It is only later that inheritance gives 
 property a social quality. In its earliest stages property is not 
 based on anything other than the expression of man's nature as it 
 also expresses the nature of the animal. Property for man as for^ 
 the animal is a prolongation of personality. J 
 
 § 17. Clothing. It is not difficult to see that the same observa- 
 tions apply to clothing. When it is not fashioned for the complex 
 purpose of religious ornament, when the necessity of organic pro- 
 tection against the outer world commands its creation and use, 
 it constitutes, whether we consider the simple raiment of the 
 Fuegian or the ornate dress of the Eskimo, an adaptation of mate- 
 rials of the external world by means of man's industry ; and this 
 adaptation being individual, the fact of property .which springs, 
 from it is also individual. -^ 
 
 In this respect, man is not differentiated from the animal as 
 completely as in the use of implements. Among mollusks (e.g. 
 the gaping limidse), among crustaceans (e.g. the dromia), among 
 a number of worms which excrete a substance which envelops 
 the body, and larvae which spin a cocoon, there is realized a 
 fact which from the standpoint of organic protection has all the 
 qualities of what is properly called clothing. 
 
 The same bonds of connection in the evolution of man and 
 animals which governed the use of tools and weapons are found in 
 
 y 
 
306 FACTORS OF LEGAL EVOLUTION [Pabt II. 
 
 the use of clothing. The employment of a cover for organic pro- 
 tection is found among animals either as a permanent device or 
 in outline as a temporary resort. Examples of the first are suf- 
 ficiently evident among men. Of the second an interesting illus- 
 tration is furnished in certain parts of the Congo where the 
 natives use herbage to cover themselves from rain, and make a 
 shelter which is as temporary as certain phenomena of the same 
 class among animals. 
 
 § 18. Food Reserves. We have already seen to what extent 
 among birds the phenomena of foresight and ownership are con- 
 nected with the accumulation of stores of food. The same form 
 of property was also found established among mammals. In 
 this regard, primitive man shows an organization sensibly inferior 
 to these two classes of animals. 
 
 It is, indeed, rare that peoples which live by the chase and by 
 fishery store up food. They are absolutely bound to the resources 
 of their habitat, and their faculties of prevision scarcely go beyond 
 the present hour. It is only when the rudiments of civilization 
 I -begin to appear, or, rather, when the inclination toward a fixed 
 > place of abode asserts itself, that primitive man lays up a reserve 
 of food materials. We may instance as examples the Eskimos 
 and the Aleuts who when the fishing season is over dry and pre- 
 serve their supplies of fish. . . . 
 
 These food reserves take the form either of family property or 
 (of collective property. They are generally deposited at the side 
 /of the habitat and belong then to the family grouped in the midst 
 of the shelter. Sometimes the entire people work in common in 
 the creation of a food reserve, and, as was the case with the gran- 
 aries of the Indians of the Yosemite Valley^ these food reserves are 
 collective property in which are reflected a coordination of efl^orts 
 toward a common end. Thus, among the Iroquois, which prac- 
 ticed the system of common habitations, the supplies of food also 
 were collective in form of ownership. Lastly, among the pastoral 
 Todas, which exhibit a very interesting social organization, the 
 food supplies are the common property of the village. 
 
 It is especially with the appearance of civilization, when primi- 
 tive man becomes settled and exploits the soil, more or less habit- 
 ually, that regard for the future springs up and becomes marked 
 in provision for a reserve of food. Permanence of habitat is the 
 condition essential for solidifying this form of property. It is 
 dominated here by the same conditions which govern in the ani- 
 mal world. 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 307 
 
 § 19. Hunting Land. We have already seen how the hunting 
 land is clearly marked out among animals. We meet the same 
 phenomenon among primitive men, but as is the case among 
 animals, we also find nomadic peoples which present the very 
 simple qualities of the hunting animal and which show the most 
 complete subjection to the conditions of its life. 
 
 The Bushmen are essentially nomads.- They wander at random 
 in the desert of Kalahari in little bands of fifteen or twenty in- 
 dividuals. They settle for several days at points where they do 
 not encounter enemies. They construct rudimentary shelters 
 which are more like screens than abodes. They use rude vessels 
 made of clay and of wood. Apart from dogs, they do not raise 
 any domestic animals. The habits of wild animals are well 
 known to them; they follow them in their migrations, as the 
 lion habitually tracks the nomadic peoples of oriental Soudan, 
 from the steppes to the forest, or as the flitter-mouse sometimes 
 follows troops of cattle in their wanderings. 
 
 Nomadic peoples, however, have a cantonment limited by their 
 surroundings. Sometimes this territory is limited by the presence 
 of superior peoples who are around them and who keep them con- 
 fined to a certain habitat ; and sometimes this territory represents 
 a positive idea of possession which nomadic tribes defend against 
 occupation by others. 
 
 The Australian savage is a hunter ; he roves about and scarcely 
 thinks of constructing a substantial dwelling. When night over- 
 takes him, he hastily erects a shelter consisting of branches driven 
 into the earth. A couch is made of banana or palm leaves or of 
 long herbs. Often, if the night is mild, he cuts down a tree and 
 sleeps among the branches. Australians travel usually in small 
 groups and all the families encamp at the same place. But there 
 are territories of the chase which are strictly delimited, and where 
 a violation of the boundaries involves war between the tribes.^ ^ 
 
 The preceding observations relate to hunting and fishing peoples ; 
 that is to say, to those whose conditions of life and whose pursuit 
 of subsistence approaches most closely the habits of roving or 
 non-roving animals. There are scarcely yet to be found among 
 the types discussed any peoples which begin to practice even the 
 
 ^ [At this point the author describes the habits of Pygmies, the Veddahs, 
 Eskimos, Botocudos, and various other tribes and peoples, exhibiting 
 types of family and collective property.] 
 
308 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 earliest arts of agriculture alongside hunting and fishing. Never- 
 theless, in groupings of uncivilized peoples, there are discovered 
 the three forms of property which undergo a process of integraticn 
 and superaddition as in the animal world. Individual ownership 
 is shown in weapons, tools, and clothing, which is as much an 
 expression of the individual himself, as the direct result of his 
 presence within the social group. Next, family ownership is mani- 
 fested, generally in the shelter, and sometimes in hunting land 
 I whose limits are more or less clearly defined. Lastly, collective 
 i ownership is shown in a common territory within the limits of 
 which individuals and famil}^ groups have their play. It is well 
 I to note that as in the case of animals, the group among primitive 
 men is sometimes limited by the family. 
 
 § 20. Primitive Pastoral Tribes. We had already found in 
 our consideration of mammals ^ that the habits of ungulates 
 living in troops depend from the property point of view on the 
 manner in which they find their subsistence. Some of them, such 
 as the equidae of the steppes of Asia and Africa, rove in bands of 
 greater or less numbers and continually range over a widely ex- 
 tended terrain in search of pasturage . They never remain anywhere 
 for a fixed period. But there are others like the horses of the 
 pampas, the bison, and the elk which become identified with a 
 definite territory where they possess the domain occupied, either 
 in a permanent or temporary aspect, and change their residence 
 only when its resources have become exploited or exhausted. 
 
 We have already had occasion to point out how among pastoral 
 peoples social organization is maintained by adaptation to the 
 habitats of the animals upon which they depend for existence. An 
 attempt will be made here to demonstrate this statement and to 
 show how there is repeated in the structure of human society the 
 same type of organization which is found in colonies of herbivo- 
 rous animals. 
 
 The fjeld I>apps led by reindeer show to what degree of sub- 
 jection the pastoral world may lead primitive man whose exist- 
 ence depends on exploitation of a herd. " What kind of a life is 
 this I " exclaims Brehm. " They do not have any will of their 
 own. They are led by their herds. The reindeer go where they 
 please; the Lapps follow. The fjeld Lapp is a veritable drg. 
 For a month at a time, for nearly the whole journey, he remains 
 in open air, suffering in summer with the mosquitos, and in win- 
 ter with the frost, against which he is unable to defend himself. 
 
 1 [Not translated.] 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 309 
 
 Sometimes, he endures hunger because he is unwilling to will it 
 otherwise. He never bathes, and lives upon the coarsest foods. 
 His type of life renders him half animal." These conditions are 
 comparable to those of Bushmen hunters who follow herds of 
 animals in order to find a beast to kill. The difference lies in 
 the method of subsistence, which in the pastoral type of man ex- 
 hibits a very close connection of dependence tending to become 
 reciprocal between man and animal. Here, however, we see the 
 most humble, the most miserable state of man, where the animal 
 seems to be more favored, and where man lives at its expense.^ 
 
 § 21. Comparison of the Conditions which Reflect the Phenom- 
 enon of Property in Man and Animals. Summary. We have 
 attempted to show that the customs of primitive man are directly 
 comparable to the habits of animals, and that the associations 
 which severally arise among them are abstractions resulting from 
 the complex relations which come from the use of weapons, tools, 
 and clothing, and that they exhibit homologous and sometimes 
 corresponding stages of evolution. Nevertheless, there are prin- 
 ciples derived from this investigation which it will be profitable 
 to emphasize. They have a direct bearing on the phenomena 
 of property, because they are realized in identical form when the 
 same external conditions predominate and govern the adapta- 
 tions of man and animals. 
 
 A number of animals construct ha])itations for the winter and 
 other habitations for the summer. This brings to light a dual 
 fact of property by which animals express their own nature in 
 reaction cr in adaptation to modifications in the external world. 
 Examples are found all the way from crustaceans to mammals. 
 
 The same phenomenon is found in the life of primitive man, 
 especially in the extreme north, where the differences betweeni 
 winter and summer are so pronounced that each season requires 
 a special adaptation to the climatic situation. Among animals 
 these adaptations may bring about a hibernating period. Man, 
 however, takes positive measures to combat these climatic varia- 
 tions. These measures for the greater part of the world take the 
 form of changes of dress. 
 
 1 [The author next examines with some detail a variety of tribes show- 
 ing periodical occupation of pasture land, integration of family ownership 
 in collective ownership of land, regular migrations of uncivilized men 
 compared with similar habits among animals, the predominance of family 
 and collective ownership in the shelter, but with the occasional appear- 
 ance of individual ownership in the midst of family ownership of the 
 abode, and family ownership of the abode connected with family owner- 
 ship of cultivated land, and collective ownership of hunting land.] 
 
310 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 An examination of the kinds of adaptations made respectively 
 by man and animals does not disclose that the efforts of man are 
 appreciably superior to those of animals in combating climatic 
 changes. A comparison of the winter and summer habitations of 
 man and animal shows that both react by the same method to 
 external conditions. Stage for stage in their development both 
 are linked in a chain of evolution of which the parts are similar 
 and directly comparable. 
 
 The importance of the rendezvous especially among primitive 
 wandering or nomadic tribes is well known. Among the Aus- 
 tralians it is by means of a rendezvous that small scattered bands 
 gather for certain fetes, dances, religious observances, " corrob- 
 orees '^ and also for settlement of their differences. Often two 
 or three hundred negroes of different tribes gather together on a 
 fixed day. This custom brings into existence the principle of 
 concentration as the expression of collective personality period- 
 ically asserted. This principle has a transitory life disappearing 
 when the groups separate and return to their nomadic habits. 
 This principle which has no effective marks represented by occupa- 
 tion of land becomes fixed when primitive man shows any tendency 
 to become settled. 
 
 The Botocudos in their more permanent encampments arrange 
 their huts in a half -circle about an open space which is their place 
 of meeting. When the village becomes organized, when customs 
 develop, and the activities of the group become more definite, 
 the place of rendezvous assumes a determinate form and becomes 
 a true expression of social personality. . . . There is seen in this 
 phenomenon, evolving originally from the rendezvous of nomadic 
 tribes, the earliest form of the public place of our cities, the forum 
 of the ancient city, and the great place of our villages which still 
 remains a factor of collective life. 
 
 This evolution is very ancient. In truth, its beginnings are not 
 found in the history of mankind, but reach back into the animal 
 domain. It is there found to present the same attributes of a 
 fixed place integrated with an association ; it is a true village. 
 Here, again, social organization reflected in facts of property pre- 
 sents a situation which is similar and comparable among men and 
 animals.^ 
 
 1 [A number of striking descriptions of the animal world follow which 
 bear out the author's claim of similarity in these phenomena in the human 
 sphere and the animal domain.] 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 311 
 
 Sometimes there appear within the social group among primitive 
 men and among animals other forms of property. They are due 
 to isolation of the individual in the midst of the colony. In their 
 wavering form, they affect the habits of the animal without giving 
 place to a fact of property ; but they modify the abode when they 
 spring up in a more complex totality of adaptations in such manner 
 as to impress on them a special type. 
 
 Among various species of animals which live in bands, the young 
 males at a certain age are expelled from the group. They follow 
 the troop from which they have been ejected until they are able 
 to form a band of their own by attracting from the outside young 
 females. Savage horses, the " equus hemionus ", the wild ass, 
 and certain ruminants furnish characteristic examples. . . . 
 
 Primitive customs represent a permanent inheritance of animal 
 habits and are of a social type essentially comparable. Among 
 animals there is seen the existence of group property in the midst I 
 of collective ownership, in the abode, in hunting land, and in j 
 pasturage. A corresponding phenomenon is discovered among a 
 number of peoples which practice the system of using a^mmop 
 abode, as, for example, the Pueblo Indians where the families ,' 
 occupy special compartments^nd the unmarried persons lodge 7 
 apart in a common space. Sometimes common abodes are found 
 where outside the family habitaJ:ions of the village the boys are 
 grouped in one place and the girls in another. It is thus, for 
 example, among one of the tribes of the Andaman Islands where 
 the boys and the_girls,_livejn special houses and never pass the 
 night in the habitation of the married persons. . . . 
 
 It will be useless to extend the enumeration of facts which show 
 how the customs of primitive man are essentially analogous to 
 the habits of animals. We find that food reserves, hunting lands, , 
 and ownership of the abode are disposed according to the same > 
 individual, family, and collective forms. When we pass from 
 societies of hymenoptera and ants, we do not discover that power- 
 ful concentration of collective personality which effaces all that 
 is individual in character and which reacts upon the anatomical 
 and physiological structure of the animal itself. When we arrive 
 at vertebrate life — fish, birds, mammals, and lastly man — we 
 see the forms of association stratified in a series more and more 
 extended from a collective point of view, and employing the 
 elements with which the animal has realized its various activities. 
 By a process in which individual or family ownership is integrated 
 within the folds of collective property without ceasing to exist. 
 
312 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 man's industry in the making of weapons, tools, and clothing 
 results in the creation of analogous forms of ownership where 
 property takes on a social form and at the same time remains 
 ineffaceably individual. This study then shows that we cannot 
 disregard the animal world in an investigation of the social origins 
 of man. In analogous circumstances, what is experienced in the 
 very diverse stages of organic evolution of the animal itself has 
 its counterpart in the social life of the animal kingdom. But the 
 fact of sociality is not connected with animal evolution ; it is dis- 
 tinct from it ; and it has laws of its own, which do not depend on 
 the biological perfection of this or that species. . . . 
 
 V. Conclusions 
 
 §22. Essential Principles of the Phenomenon of Property. 
 
 The preceding investigation makes it possible now to state in an 
 exact and positive manner the qualities of the phenomenon of 
 property, as follows : 
 
 1. Property is a phenomenon connected with the earliest 
 manifestations of life ; 
 
 2. In the beginning it is the expression of physiological struc- 
 ture and of adaptation; 
 
 3. It takes individual form, when so required by biological 
 necessity for the protection of the individual ; 
 
 4. It takes family form when so required for the protection 
 of the species, based on the instinct of sex ; 
 
 5. It takes collective form when that form is necessary for 
 the protection of the species, based on phenomena of association 
 considered as a generalization and abstraction of the family 
 grouping ; 
 
 6. The individual, family, and collective forms of property 
 are specifically distinct each from the other : 
 
 {a) The individual form is characterized by the fact that 
 it reflects the special structure and the activities of the animal 
 in isolation ; 
 
 (6) The family form is characterized by the predominance 
 of the associative tendency limited by a direct parental con- . 
 nection ; 
 
 (c) The collective form is characterized by the prepon- 
 derance of the associative tendency unlimited by any other 
 bond of connection. 
 
Chap. X.] NATURAL ORIGIN OF PROPERTY 313 
 
 Numerous examples show that when the family is instituted, 
 the group dissolves, and that as a result, it is [frequently] estab- 
 lished t ) the detriment of group cohesion. Among birds, this 
 phenomenon is often found, as well as among mammals, and par- 
 ticularly among cetaceans, which are social when living in troops 
 and which separate by couples at the mating season. 
 
 These facts demonstrate that there is not always social unity 
 in the midst of the phenomenon of collectivity. The family 
 sometimes stands in opposition to society. This opposition is 
 sufficiently potent at the time of sex attraction to disintegrate 
 the band or colony. The colony is formed again only when the 
 young of the families have become adults. The family is then 
 broken. There is then an equilibrium between the social tend- 
 ency and the family tendency. * These two tendencies may 
 operate to the same end ; in that case the family is integrated within 
 society ; or they work at cross purposes, and then the family is 
 in opposition to society. 
 
 It follows that in the animal world, and, in consequence, also, 
 among men, the family form of life constitutes a type of its own ; 
 that it is sometimes destructive of association and is not subor- 
 dinated to it ; that it may predominate over the association ; 
 and that it is only when a series of influences, converging in char- 
 acter, operate upon it that it will integrate within the social group 
 without destroying it. This shows at once that the specific 
 quality above given to family property and to collective property 
 is justified. But it demonstrates also that the old notion which 
 gave to the family the value of a social group or of social unity 
 is not well founded. There may be society without the existence 
 of family organization. This is the situation among all animal 
 colonies which are not formed until the family formation has dis- 
 appeared. 
 
 The family then is not essential to the organization of society. 
 The clan sometimes is an extension of the family, but among cer- 
 tain animal species, as among men also, it is not always the direct 
 parental connection which forms the basis of the group. Somer 
 times, also, the group cannot become established until the family 
 disappears. There is an antagonism between these two types. 
 There are numerous examples among certain species of mammals 
 where the females after impregnation form a separate troop while 
 the males form another. Association exists, but not the family. 
 
 The family cannot therefore be regarded as a social unity. 
 Society is not a grouping of families, the associative tendency 
 
314 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 which arises from the sexual instinct often being opposed by the 
 associative tendency which springs from protection of the species. 
 The family is not even an intermediate form ; it is entirely dis- 
 tinctive and singular in itself. . . . 
 
 When certain primitive societies among men are compared to 
 animal societies, there will be found among the latter some which 
 are superior to the former. Even among animals the most closely 
 related species are separated from each other, from the social 
 viewpoint, so widely that the distance seems insurmountable. 
 Lastly we find that collective society, realized in its highest degree 
 of concentration among insects and not at all in the evolution of 
 vertebrates, does not appear to lead to a similar social formation. 
 It is at the point where social evolution among vertebrates attains 
 a special sort of tendency that individual and family forms become 
 in a measure integrated with the collective form; whilst among 
 insects social evolution leads to maternal societies and to the most 
 powerful collective concentration which may be accomplished in 
 the domain embraced by comparative sociology. 
 
 It is not possible to attribute a direct connection between social 
 phenomena and mental phenomena. Animals such as the beaver, 
 the marmot, or the penguin which attain very complex social organ- 
 izations are less dowered from the viewpoint of intelligence than 
 other neighboring species which live in isolation. Especially the 
 adaptations which are reflected in the social structure, and external 
 facts such as the manner of hunting food, or the care of the young 
 at their birth, cr the conditions of the habitat, have more of a part 
 for or against the institution of societies than this or that intel- 
 lectual phenomenon. The curve of sociological perfection is far 
 from coincident with the curve of animal development. . . . 
 
 Manifestly superior forms of organization have a connection 
 in some measure with intelligence. But may we predicate a dif- 
 ference based on nervous structure between bees, for example, 
 where the permanence cf society extends beyond the life of the 
 individual, and wasps where the society created in the spring 
 by the mother is destroyed by the frost of the next winter ? The 
 permanence of the society rests on the chances of the winter 
 season, upon an external fact, perhaps upon a fact of industry, 
 but not upon mental superiority. How far is this factor derived 
 from the social fact itself? It may be the cause, but it may per- 
 haps also be the consequence. Among primitive men, we find 
 certain peoples living by the chase and by fishery but with a plain 
 tendency toward civilization. They are held back by their con^ 
 
( iL\p. X.] NATURAL ORIGIN OF PROPERTY 315 
 
 ditions of life and perhaps by struggles with enemy tribes which 
 surround them. Nevertheless, whatever may be the obstacles, 
 they hold to a certain fixed inclination. The simple fact of adop- 
 tion of the process of production in preference to hunting or fish- 
 ing gives evidence of a capacity for considerable mental develop- 
 ment. Agricultural life will therefore be the first step in psychic 
 evolution. It will be derived from' the social form by which it 
 has been favored. 
 
 The social atmosphere is reflected upon intellectual development. 
 INIodern man is so far modified by his surroundings that he cannot 
 be thought of apart from them. The cerebral system has become 
 subjected to fixed adaptations derived from heredity. They are 
 of such a nature that the mental activities of modern man cannot 
 be considered as analogous or comparable to the mental operations 
 of a solitary animal. Can a separation ever be made in the human 
 mind of that which is individual and that which is social ? Who 
 would dare to affirm it in the present state of knowledge? This 
 is a problem open to investigation; it is one so complex that it 
 will be long before it can be resolved. 
 
 ^Yhat is stated indicates the perils of a sociology which is ex- 
 clusively based on psychology. There is found, therefore, in this 
 peculiar way of treating the matter, the phenomenon of causality 
 regarded as derived from its own derivative. The last years 
 have witnessed a variety of books infected in a high degree with 
 this essential vice. The interest awakened by ingenious specu- 
 lations -too quickly invented, in the name of laws, in contemporary 
 sociology, compels the belief that further efforts without issue, in 
 the same direction, will not be wanting. At the same time, how- 
 ever, the necessity of a genuine science of sociology makes itself 
 more urgently felt. 
 
Chapter XI ^ 
 
 RUDIMENTARY SOCIETY AMONG BOYS 
 
 § 1. Land Tenure. i § 3. Judicial Procedure. 
 
 § 2. Boy Legislation. | § 4. Boy Economy. 
 
 EDITORIAL INTRODUCTION 
 
 When the publication of the Johns Hopkins University Studies began, 
 it was not anticipated by the editor that any contributor would descend 
 lower in the scale of institutional subjects than towns, parishes, manors, 
 etc. But Mr. John Johnson, Jr., after contributing to the first series 
 a valuable paper on "Old Maryland Manors", which was noticed by Sir 
 Henry Maine and by the Saturday Review, June 30, 1883, yielded to the 
 influence of a teacher's environment, upon a farm-school for boys, and 
 began to study the agrarian customs and institutional instincts of rudi- 
 mentary citizens of our larger republic. At first sight, such a study of 
 juvenile society may appear boyish and somewhat trivial, but a nearer 
 view of the customs and institutions of the McDonogh boys will con- 
 vince the reader that they are worthy of scientific observation. So 
 curiously picturesque, however, is the life of this juvenile society that 
 some readers may suspect Mr. Johnson of having written a kind of politi- 
 cal romance with a socialistic moral. But his statements are all matters 
 of the strictest fact, recorded with the conscientiousness and painstaking 
 fidelity of a local historian. Modern students are finding historical and 
 sociological materials in such imaginative writings as Plato's Republic, 
 More's Utopia and Bacon's Nova Atlantis, but there are few scholars 
 who have thought it worth while to utilize the wealth of fact and illustra- 
 tion for institutional history which lies at our very doors. Mr. Johnson 
 has perhaps taken the initiative in a new and most interesting field, 
 "Rudimentary Society among Boys." A preliminary study upon this 
 general subject was first published by him in -the Overland Monthly for 
 October, 1883, and received an appreciative notice from an American 
 psychologist in the Notes of The Nation, January 17, 1884. An article 
 on "Judicial Procedure among Boys" was also published in the Overland 
 Monthly for July, 1884. Mr. Johnson's work, originally prepared for 
 this university series, has now been entirely recast and is presented in 
 the present number of the studies, with the hope that it may suggest 
 similar investigations elsewhere. 
 
 The editor begs leave to call attention to the sociological and institu- 
 tional significance of this monograph. Upon an old Maryland plantation, 
 itself connected historically with that system of manorial land-tenure 
 which supplanted primitive democracy and ancient land community, 
 a plantation once the home of slaves and tenants, who did the bidding of 
 their lord and master, and who now lie buried in the lord's waste land, a 
 
 1 [By John Hemsley Johnson. 
 
 Reprinted (including the editorial note which follows) from Johns Hop- 
 kins University Studies in Historical and Political Science (1884), Vol. II, 
 No. XL] 
 
 316 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 317 
 
 fresh and juvenile society has now sprung into being. Although still 
 under the authority of a master — the principal of McDonogh school, — 
 the boys have reverted to a kind of primitive democracy, and are passing 
 through much the same cycle of agrarian history as that through which 
 branches of the great Aryan race have passed again and again, Jirst 
 came a system of land community among those fifty boys inhabiting the 
 eight hundred acres, remnant of that old plantation of three thousand 
 acres, a part of which was purchased for the Institute of John McDonogh, 
 who is now worshipped as the eponymous hero of the McDonogh clan 
 of small boys. He is the tutelary founder of that school-boy micropolis. 
 While the principle of patriarchal sovereignty endures in the headship 
 of the school, thfe boys still represent in many respects the survival of 
 primitive democracy. And yet chiefs, or elders, arose from time to time 
 among the McDonogh boys and arrogated to themselves by reason of 
 their superior strength, ago, or ability, the control of the public land for 
 hunting and fishing, for rabbit- trapping and bird-nesting. Primitive 
 democracy is now in danger of that subversion which has been the un- 
 happy lot of the small farmers in England. But now comes a socialistic 
 party once niore demanding, so to speak, the communization of land. 
 The landholding aristocracy yield very slowly and urge the commoners 
 to accept certain distant, as it were colonial, tracts of land for squirrel- 
 hunting and rabbit-trapping. Here, in miniature, is the agrarian history 
 of the English race of hunters, trappers, and enterprising colonists ; nay, 
 it is the agrarian history of our Aryan race. Mr. Johnson, in his picture 
 of McDonogh institute, has shown us a microcosm, not only of the agra- 
 rian, but of the political and economic history of society. 
 
 Boys from the age of youth to adolescence repeat the history of their 
 ancestors and of the race itself. As in the changes of the egg, every 
 embryologist recognizes certain rudimentary features of structure which 
 disappear before birth, so the sociologist and student of human institu- 
 tions may discover in a company of lads not only the rudiments of primi- 
 tive society, but the germs of its development. Every school-boy and 
 college-student in his upward way to real manhood represents the evolu- 
 tion of a primitive savage into a civilized being. Every school and 
 college reproduces the developmental process of human society in some 
 of its most interesting aspects, such as government and law. There are 
 all stages of social development in the student-class, from actual savagery, 
 which frequently crops out in the very best schools and colleges, to effemi- 
 nate forms of modern civilization. There are all degrees of institutional 
 government, from total anarchy and patriarchal despotism to Roman 
 imperialism and constitutional government; although it must be ad- 
 mitted that self-government among the student-class — said to obtain 
 in some American schools and colleges — is not yet a chartered right. 
 The regulation of student-society by itself, or by the powers that be, 
 presents all phases of judicature, from the most savage ordeals to the 
 most humane. Student-customs are full of ancient survivals, and some 
 editions of "college laws" are almost as archaic as the code of Manu. 
 One of these days we shall perhaps find men investigating college juris- 
 prudence, college government, and college politics from the comparative 
 point of view, and writing the natural history of the student-class. 
 
 The school and college world is still unexplored by scientific discoveries ; 
 yet how fruitful is the field here offered to the sociologist and the student 
 of comparative politics ! Why should not our college graduates interest 
 themselves in the history of student institutions? While at college we 
 grappled in public on the stage with such great questions as the spirit 
 of English liberty, the fallacies of Herbert Spencer, and the advantages 
 of free trade ; what is the harm in undertaking a little graduate work of 
 a more microscopic character? Sir John Lubbock, not content with 
 writing in early life concerning pre-historic times and the early history 
 of civilization, has more lately studied such a comparatively insignificant 
 theme as the habits and instincts of ants. Charles Darwin devoted 
 a considerable part of his life to the study of earth worms; and the 
 germ of his epoch-making theory may be found in his study of the birds 
 
318 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 and reptiles of the Galapagos Islands. Scientific men the world over, 
 from the laboratory of Dohrn at Naples to that of Mitsukm-i in the 
 University of Tokio, are pursuing the most minute objects of investiga- 
 tion. The infinitely little may be as wonderful as the infinitely great; 
 for universal truth may appear in atoms as well as in systems of worlds. 
 "After such great matters as religion and politics," said Bagehot, "it 
 may seem trifling to illustrate the subject ['Nation-Making'] from little 
 -boys. But it is not trifling. The bane of Philosophy is pomposity: 
 people will not see that small things are the miniatures of greater, and 
 it seems a loss of abstract dignity to freshen their minds by object-lessons 
 from what they know" : (Physics and Politics). 
 
 The world already possesses a pretty large stock of* great principles, 
 and it now needs fresh collections of fact in order to prove all things and 
 hold fast that which is good. Aristotle long ago said that "the right 
 method of investigating anything is to reduce it to its elements" (Pol. I. 
 cap. 3). He began his great treatise on politics with a discussion of the 
 primary elements of the State, the family in its elementary parts; the 
 village community composed of a group of householders; and the city 
 or commonwealth formed by an association of villages. From such 
 elements as these, not only political science, but practical politics must 
 be perpetually reconstructed. The Reverend Samuel W. Dike has lately 
 emphasized, in the Princeton Review (March, 1884), and elsewhere, the 
 significant idea that the family, oldest of institutions, perpetually repro- 
 duces the ethical history of man, and continually reconstructs the con- 
 stitution of society. All students of sociology should grasp the same 
 radical truth, and should also remember that school and college, town 
 and city, state and nation, are after all but modified types of family in- 
 stitutions, and that a study of the individual elements of social and politi- 
 cal life is a true method of advancing sociology and politics in general. 
 Johns Hopkins University, 
 November 1, 1884. 
 
 I. Land Tenure 
 
 At the top of one of the low, fertile hills that cover much of the 
 country to the north and west of Baltimore, stands the McDonogh 
 School. Around it stretch the eight hundred acres of the school 
 farm. As the visitor stands upon the northern portico of the 
 principal's house and looks out over the fields of corn, wheat, and 
 clover, whose ample breadths fall gradually away toward the water- 
 course below, his eyes find relief from the glancing, undulating 
 light of the hot, open ground in the dark, quiet, yet various green 
 of the woods that crown the summer hills. On the high eminence 
 far to the north-east stands the Garrison Forest church, whose 
 foundation goes back to the first half of the last century, when the 
 Reverend Benedict Bourdillon suggested the building of a '' chapel 
 of ease for the accommodation of the forest inhabitants." A few 
 miles to the eastward is the small stone fort, with its loop-holes 
 for muskets, which was garrisoned by Captain John Risteau, 
 High Sheriff of the county, when the raids of the fierce Susque- 
 hannoughs kept the border in fear. From this building the region 
 takes the first part of its name of Garrison Forest. The latter 
 portion is accounted for by the great abundance of woodland yet 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 319 
 
 uncleared, which is only a remnant of the unbroken expanse of 
 trees that a hundred and forty years ago gave the surrounding 
 district the name of the Forest. 
 
 To the south of the school, through a heavily wooded valley, 
 flows the stream called the Horsehead, once famous for its trout, 
 but now unfrequented by the fish by reason of the cultivation of 
 the . land along its upper tributaries. But though its former 
 reputation has departed, the '' Forest '^ still grows along its banks, 
 from which not all the game has yet been driven. The Elkridge 
 hounds can still find a fox there as they hunt across the country ; 
 flights of pigeons still feed there in winter upon the swamp acorns ; 
 raccoons leave the sharp imprint of their claws in the soft mud 
 along the stream; musk-rats scatter the mussel shells over the 
 shallows ; and the opossums, whose tender juicy flesh is grateful 
 to the bacon-eating negroes, are still caught there on moonlit 
 autumn nights. 
 
 Nor is Horsehead wood the only part of the McDonogh Farm 
 where animal life is abundant; other pieces of woodland being 
 almost equally favored. Red and gray squirrels abound every- 
 where in the trees, and in September these spendthrifts scatter 
 bushels of partially gnawed hickory nuts upon the brown and 
 yellow leaves. Ground squirrels hurry along all the fences, shrilly 
 whistling as they dive into their dens. In the stubble fields one 
 cannot go far without putting into rapid flight before him a snowy- 
 tufted " cotton-tail." An indolent ornithologist of the neighbor- 
 hood has identified one hundred and thirty species without ex- 
 hausting the resources of the fields and woods. 
 
 Over these teeming eight hundred acres the " McDonogh boys " 
 roam at will, each according to his ability striving to become a 
 mighty hunter in the earth. During the first spring after the 
 opening of the school the boys found the woods abounding with 
 birds' eggs and squirrels, which they might have for the trouble 
 of taking. -During the autumn they gathered chestnuts and 
 walnuts and stored them away to be cracked and eaten before the 
 big fire in the school-room. Whether in spring or in autumn, all 
 who went to the labor of searching were rewarded with an abun- 
 dance. When the frost had killed the green shoots and troubled 
 the rabbits to get a living, every boy that chose to do so set traps 
 in the swamps and ditches, and baited them with sweet-smelling 
 apples, or more pungent and effective onions. 
 
 The ground was then regarded as the property of the com- 
 munity, and while, like the ancient Teutonic villager, each " Me- 
 
320 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Donogh boy " took pains to exclude strangers from the Mark, 
 each regarded himself with the rest as a joint owner of the harvest 
 of nuts, and all had equal rights of hunting and trapping in the 
 waste. As in the precursors of those Aryan villages of the east, 
 recently studied by Phear, " land was not conceived of as property 
 in the modern sense, or as belonging to any individual." ^ The 
 whole was common to them all, and every boy had a right to a 
 portion of the fruits of the ground. 
 
 This idea of common property, if not the same as, is quite like, 
 that which has prevailed in many primitive conmunities, " in 
 Germany and ancient Italy, in Peru and China, in Mexico and 
 India, among the Scandinavians and the Arabs." ^ Among the 
 " McDonogh boys", as among many savage societies, the begin- 
 ning of property in land is seen as " the collective ownership of the 
 soil by groups of persons." ^ I had almost continued the quota- 
 tion to make it include the words, " groups believing or assuming 
 that they are " united in blood relationship. But while such a 
 statement here would be untrue, the feeling of union among the 
 *' McDonogh boys " is of a very striking intensity. They become 
 greatly indignant, and even have a sense of wrong done them when 
 they discover a youngster from the neighborhood trapping game 
 upon " our farm." This sentiment they have sometimes mani- 
 fested in attempts to prevent the children of the men employed 
 on the farm from gathering eggs in the woods; and the school- 
 boys regard their few competitors in hunting with an aversion 
 often put into words and sometimes into acts. 
 
 This esprit du corps is perhaps the counterpart of the feeling 
 that formed the bond of union in primitive societies. At the 
 present day, among the members of the Hindoo joint undivided 
 family, as well as among the villagers in the Russian Mir, it as- 
 sumes the form of a belief in their descent from a common ancestor."* 
 In other groups it took other forms, varying with the condition of 
 the society in which it existed, often getting far away from its 
 original form — that of a feeling of blood relationship. Thus 
 among the Romans, '' the stranger who had been adopted . . . 
 became the agnate of the one adopting him, and even of the whole 
 family." ^ This feeling of brotherhood is so deep and lasting that, 
 similarly, it might be said of the '' new boy", on his admission 
 
 1 Sir /. B. Phear, ''The Aryan Village in India and Ceylon", p. 236. 
 
 2 De Laveleye, "Primitive Property", p. 2. 
 
 3 Maine, "Early History of Institutions", p. 1. 
 
 4 Maine, "Early History of Institutions", p. 7. 
 
 5 Fustel de Coulanges, "The Ancient City", p. 75, 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 321 
 
 into the ]\IcDonogh School, " in sacra transiit." The feeling of 
 the boys is well shown in their conception of their rights to the 
 property of the school, many of them regarding themselves as 
 the legatees of John iMcDonogh, the philanthropist who gave his 
 fortune to Baltimore in trust for the education of poor boys. He 
 fills the niche once occupied in the minds of their Aryan progeni- 
 tors by the common ancestor, from whom all the members of the 
 primitive community thought themselves to have sprung. For 
 the primitive fiction of common descent they have substituted the 
 real bond of school fellowship and the pretended bond of succes- 
 sion. As they sometimes express it, " McDonogh left his property 
 to us " ; and the idea that any other than " McDonogh boys " 
 have any rights over the property, they do not easily accept. 
 This feeling is clearly displayed in their attitude toward one of the 
 rules of the school. They are not permitted to pluck the fruit in 
 the orchards, and some of them are honestly unable to see the 
 justice of such a regulation. The fact that the fruit is given to 
 them after it is gathered does not at all satisfy them. Con- 
 scientious boys have often said in my hearing that, as they owned 
 the fruit, no one had a right to prevent them from pulling it. 
 They are, however, debarred from carrying this idea into practice, 
 and the truth has often been pointed out to them ; so this notion 
 is not universal among them. But as no one has interfered to 
 dispel their belief that they have property in the nuts, eggs, and 
 squirrels, they have made this a cardinal doctrine of their politics. 
 
 With this feeling of ownership constantly in mind, the boys 
 that entered the school at its opening went peering through the 
 high grass of the meadows in search of bobolink's eggs; and 
 climbed the rough pin-oaks to the nests of the hawks. The first 
 score of urchins were able to get as much as they desired from the 
 fields and w^oods; but when the school grew in numbers, and 
 fifty adventurers had boxes of bran to be filled with oological 
 specimens, and bins holding each ten bushels to be stored with 
 walnuts, the demand for these treasures began to exceed the supply. 
 Then competition set in and disputes arose, out of which, with the 
 aid of an apparent instinct for politics, the boys were able to 
 bring custom and law, and a system of property which was odd 
 and unexpected, yet orderly and intelligible. 
 
 Sir Henry jMaine has said that among primitive Teutonic races 
 the proprietary equality of the families composing the land-own- 
 ing group was at first secured by a periodical re-distribution of 
 the land. This custom he considers as marking an important 
 
322 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 stage in the transition from collective to individual propert}^, 
 and so wide-spread does he believe it to have been that to him, 
 " there appears to be no country inhabited by an Aryan race in 
 which traces do not remain of the ancient periodical re-distribu- 
 tion. It has continued to our own day in the Russian villages. 
 Among the Hindoo villagers there are widely extending traditions 
 of the practice, and it was doubtless the source of certain usages", 
 surviving to our own day in England and Germany.^ 
 
 The stage of economic development in which re-distribution of 
 the common land is practiced is the stage which the " McDonogh 
 boys " have reached in their evolution of the conception of owner- 
 ship of the walnut crop. To understand their position in the line 
 of progress, however, we must first see how they now gather the 
 crop, and how they formerly harvested it. Just after midnight 
 some morning early in October, when the first frosts of the season 
 have loosened the grasp of the nuts upon the limbs, parties of two 
 or three boys might be seen (if any one were sufficiently interested 
 to leave his bed at such an untimely hour) rushing at full speed 
 over the wet fields. When the swiftest party has reached a walnut 
 tree, one of the number climbs up rapidly, shakes off half a bushel 
 of the nuts and scrambles down again. Then off the boys go to 
 the next tree, where the process is repeated unless the tree is oc- 
 cupied by other boys doing likewise. This activity continues 
 during play-hours until all the walnut trees on the place have 
 been appropriated. Nut-hunters coming to the tree after the first 
 party has been there, and wishing to shake the tree still further, 
 are required by custom to pile up all the nuts that lie under the 
 tree. Until this is done the unwritten law does not permit their 
 shaking any more nuts upon the ground. Any one that violated 
 this provision and shook the nuts from a tree before piling up those 
 beneath, would be universally regarded as dishonest, and every 
 boy's hand would be against him. To collect all these nuts into 
 a pile requires no small labor, and rather than undergo this the 
 second party will usually go off in search of another tree. Con- 
 sequently the partial shaking commonly enables the boy that 
 first climbs a tree to get possession of all its fruit. 
 
 A certain justice underlies this custom. Labor has been ex- 
 pended in the first shaking. If another comes and shakes more 
 nuts to the ground before picking up those already there, the 
 fruit of the first boy's labor will be mixed with that of the second, 
 and thus the first comer will lose some of his work. The moral 
 ^ Maine, "Village Communities", p. 82. 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 323 
 
 sense of the community agrees that no part of the labor shall be 
 lost to him that performs it, and to prevent such a result the 
 present regulation seems effectual. In what notions, ethical or 
 other, this practice of seizing trees was begun, we cannot now dis- 
 cover; but all analogies indicate that the justice of the matter 
 was not the sole consideration. But if it is hard to discover the 
 origin of this custom in the moral nature of the boys, we may yet 
 see how it illustrates their views of property. Inasmuch as a tree 
 is the property of a boy and his partners only so long as his nuts 
 remain unpiled on the ground ; and since the trees may be shaken 
 again by any boy who chooses to pile up the nuts : it is evident 
 that in the eyes of the boys the trees belong to all of them. The 
 simple expedient for re-distributing the trees at intervals of a 
 year is to cause all titles to expire at the end of the harvest. A 
 boy's right to a tree lasts no longer than a single autumn. If 
 in all that time he does not remove his crop, and if no one else 
 piles up the nuts a,nd gathers the rest of the yield, still his right 
 expires by limitation ; and at the opening of the next season the 
 first comer has a right to establish a title for himself. 
 
 It may be said that permitting each boy to seize such trees 
 as he can, is hardly to be called an equitable method of re-dis- 
 tribution, but, as I desire to establish only the fact of re-distribu- 
 tion, this is not a valid objection. It is, however, true that efforts 
 have been made looking toward a fair division. The keen com- 
 petition for walnuts led many boys to shake trees in the middle 
 of September, and thus to acquire a title to them long before the 
 fruit was ripe. When baseball was still the main idea of the ma- 
 jority, perhaps a fortnight before the first frost (everywhere rec- 
 ognized as marking the ripening of the crop), the greediest or the 
 most enterprising boys would set out to seize and shake as many 
 trees as possible. Having no competitors they would be able in 
 a few days to take possession of a whole crop of nuts. To alle- 
 viate this evil a day in October was fixed as the date of the be- 
 ginning of harvest. An assembly of the boys, where all may take 
 part, is the body which determined and still determines the open- 
 ing of the season. The meaning of this public act is evident. It 
 was felt that the few had seized what the many owned, and to 
 prevent the recurrence of this robbery it was made unlawful 
 to gather any part of the crop before all knew it was ripe. By 
 fixing a day when the harvest should begin, the boys did what they 
 could toward equalizing the shares of each. They at least put all 
 upon the same footing as regards the time of gathering, and they 
 
324 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 made each boy know when he must enter upon the competition. 
 Though not all the starters could have the inside track, all got 
 away together. 
 
 The idea of common ownership shown in this regulation is 
 apparently the same as that which led to those periodical re- 
 distributions of the land, of which, according to Maine, traces 
 are found in all countries inhabited by people of Aryan descent. 
 When the Russian Mir makes an allotment of arable land to each 
 household proportioned to the number of its members, and fixes 
 the date of the harvest ; when the Dutch Haagespraak, or village 
 assembly, fixes the day on which the horn shall blow to mark the 
 time for cutting the corn on the village land,^ the object is the same 
 as that of the assembly at McDonogh.- Equality in the shares 
 of the fruit of the common domain is the desired result. In the 
 adult communities the body making the re-distribution is well 
 organized, and in arable land equal shares can be easily laid off; 
 while among the boys their political machinery is imperfect, and 
 the walnut trees are too far apart and too irregular in value to 
 permit a fair division. The differences, however, seem to be 
 differences of degree only. 
 
 While the community thus does what it can to give each member 
 a fair chance, no effort has been made to equalize the industry of 
 the competitors. The hardest workers still gather the biggest 
 crop. The day for the opening of harvest is reckoned to begin 
 at midnight, and the boys that are most in earnest stay awake 
 till twelve, and then, issuing from their beds into the chilly moon- 
 light of the October fields, they seize such trees as they desire. 
 
 The same feeling of common ownership of the woodland and 
 the same attempt at re-distribution, which appear in the custom 
 of gathering the walnut crop, are apparent in the usages of the 
 school on the subjects of egg-gathering and squirrel-hunting. As 
 eggs grew scarce and the boys grew numerous, those who most 
 desired the eggs worked hardest to get them, climbing higher 
 trees and wading through muddier swamps. As the more in- 
 dustrious boys saw the birds building nests over their heads, 
 what was more natural than a desire to possess them before the 
 laying began, and thus to acquire a title to the eggs ? A boy who 
 had spent hours in a weary search and had at last found a nest, 
 felt that his labor gave him a right to it. Accordingly some boys 
 began to invent ways of marking the trees in which they had found 
 
 1 De Laveleye, "Primitive Property", p. 285 ; Wallace, "Russia", Vol. I, 
 p. 208. 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 325 
 
 nests, and to claim ownership, not of the eggs, which were not then 
 laid, but of the tree in which they knew the eggs would soon be 
 brought forth. Commonly when a boy found a nest, he laid a 
 dead limb against the trunk as a warning to others that the tree 
 had become his, and was no longer common property, to be taken 
 by any one passing by. Rights thus acquired were not always 
 respected by the covetous, and eggs were so often taken from 
 marked nests as to lead to an intolerable condition of quarreling 
 and fighting. The community then interfered to regulate the use 
 of the Mark. After much angry discussion the assembly adopted 
 the plan of nailing upon the trees a ticket bearing the finder's 
 name and the date of the discovery. This ticket gave to the boy 
 whose name it bore a right of property during the rest of that 
 year to all the nests that might be made in that tree and to all 
 their contents. On the last day of December all titles were to 
 lapse, to be renewed only by the new ticket. 
 
 Before the first bluebird has laid her pale azure eggs in the 
 leafless orchards, the egg-hunters, in conformity with this statute, 
 provide themselves with strips of paper bearing their name and 
 the date, thus : 
 
 Miller & Crook, 
 
 1884. 
 
 These tickets and some tacks they take with them whenever 
 they go into the woods. Where a hollow limb presages the birth 
 of a brood of squirrels, one of these labels is nailed upon the trunk 
 beneath, and another is placed under every crow's nest building 
 in the branches. During the year 1884 no other honest boy will 
 take eggs or squirrels, from a tree thus appropriated, and Masters 
 Miller and Crook may go at leisure and collect the new laid speci- 
 mens for their cabinets or the weak-eyed pets for their pockets. 
 In the immediate neighborhood of the schoolhouse little boxes 
 are placed for the birds to build in, and serve the double purpose 
 of insuring the making of a nest and of marking it as private 
 property. When a boy has put into a tree one of these traps for 
 unsuspecting maternity, no other boy is permitted to use the tree 
 for the same purpose. A case lately occurred where, amid general 
 approbation, the second box was destroyed by the owner of the 
 first. The boys regret that the official discountenance prevents 
 the full development of this interesting custom. 
 
326 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 In placing his tickets a boy is at liberty to use his discretion as 
 to time and place, and he may put up as many of them as he likes 
 even before the snow has melted. Often of course the tickets are 
 liberally distributed in promising parts of the woods as early as 
 February, and thus an energetic fellow obtains possession of scores 
 of trees. The likeness here to the custom of seizing the walnuts 
 is evident. The day for the opening of the season, January 1, 
 has, however, been fixed once for all, while the date of the begin- 
 ning of the walnut harvest is a matter for yearly consideration. 
 The two usages differ in one other point also. A boy's title to a 
 walnut tree that he has shaken is valid only until some one has 
 piled up his nuts; after that is done, any one may take the rest 
 of the fruit of the tree. But the right to a tree marked with a 
 ticket is good for the rest of the year, if the ticket is not blown 
 down and out of sight. Hence, if we regard the woods as land 
 devoted to the production of squirrels and eggs, we may say that 
 a boy marking a tree has obtained a share of this land for a year 
 in severalty. At the end of that time the woodland again becomes 
 common and there is a distribution by seizure. 
 
 This usage closely resembles the custom of temporary owner- 
 ship in vogue in the Russian Mir.^ M. de Laveleye has de- 
 scribed in these words the same practice as it appears among many 
 primitive peoples. " The cultivated land is divided into parcels 
 which are distributed by lot among the several families, a mere 
 temporary occupation being thus allowed to the individual. The 
 
 1 The following description of the distribution of common land in the 
 Russian Mir is taken from Wallace, "Russia", Vol. I, p. 207. 14: serves as 
 a living example of the resemblance between the customs of McDonogh 
 and those of primitive society. "The whole of the communal arable 
 land is first of all divided into three fields, to suit the triennial rotation 
 of the crops already described, and each field is divided into a number 
 of long, narrow strips — corresponding to the number of male members in 
 the commune — as nearly as possible equal to each other in area and 
 quality. Sometimes it is necessary to divide a field into several por- 
 tions, according to the quality of the soil, and then to subdivide each of 
 these portions into the requisite number of strips. Thus in all cases 
 every household possesses a strip in each field ; and in those cases where 
 subdivision is necessary, 6very householder possesses a strip in each of 
 the portions into which the field is subdivided. This complicated proc- 
 ess of division and subdivision is accomplished by the peasants them- 
 selves, with the aid of simple measuring rods, and the accuracy of the 
 result is truly marvelous. 
 
 "The meadow, which is reserved for the production of hay, is divided 
 into the same number of shares as the arable land. There, however, the 
 division and distribution take place, not at irregular intervals, but annu- 
 ally. Every year, on a day fixed by the assembly, the villagers proceed 
 in a body to this part of their property and divide it into the requisite 
 number of portions. Lots are then cast, and each family at once mows 
 the portion allotted to it." 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 327 
 
 soil still remains the collective property of the clan, to whom it 
 returns from time to time that a new partition may be effected. 
 This is the system still in force in the Russian commune and was, 
 in the time of Tacitus, that of the German tribe." ^ 
 
 Beside this temporary ownership of trees, permanent individual 
 property in land frequented by rabbits has been developed. The 
 process of development is somewhat similar to that which has been 
 offered by several writers as an explanation of the growth of in- 
 dividual ownership among men. We can see clearly the suc- 
 cessive stages of common landholding; of temporary individual 
 ownership ; of permanent individual ownership ; of land monop- 
 oly ; and last of all, the rise of a socialistic party clamoring for a 
 re-distribution of land. 
 
 When the explorations of the boys revealed the presence of 
 nuts, eggs, and squirrels, numbers of rabbits were also discovered. 
 Attempts were at once made upon the lives of these animals, for 
 the purpose of adding a delicacy to the commonplace round of 
 boarding-school fare. Every boy that chose to do so, made traps 
 and set them at such spots as struck his fancy, for at the start the 
 equal rights of all to the woods and game were fully recognized. 
 But ownership in severalty was soon established on the ruins of 
 the system of common property. 
 
 Clearly to understand this economic revolution, we must con- 
 sider it historically. The rabbit trapping season begins about 
 the middle of October and ends early in December. Its opening 
 depends upon the weather, and not like the walnut harvest, upon 
 the legislation of the boys. If there is an early autumn, the rabbits 
 may be induced by the scarcity of food to enter the traps sooner 
 than if the warm weather continues till late. 
 
 In the first autumn after the opening of the school, each boy 
 that chose to do so, made a box of planks, fitted one end with a 
 door that would fall at the touch of a trigger, and having found a 
 promising spot, there set his trap. The hungry rabbits were 
 tempted with fragrant apples and appetizing onions, and a few 
 victims were enticed within the fatal door. At that time no boy 
 set more than half a dozen traps, and almost the whole school 
 enjoyed the delightful anticipation of having rabbit for break- 
 fast on some future morning. 
 
 But the spots where rabbits can be caught on eight hundred 
 acres are comparatively few, and hence the closeness of the traps 
 interfered with the amount of the catch. It is a habit with rabbits 
 ' De Laveleye, "Primitive Property", p. 4. 
 
328 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 to move about in well-marked paths, and the boys usually set their 
 traps in these places. Generally a rabbit will enter the first trap 
 in his path, and boys often complained that their traps were 
 rendered useless by the proximity of others. After a year or two 
 of this unsatisfactory state of affairs, a large boy, who had set his 
 traps rather earlier than the rest, began dropping heavy stones 
 upon all traps set closer to his own than he thought desirable. 
 In such a society as we are studying, a hard-fisted fellow of fifteen 
 is a great personage, and has much the same influence as a great 
 warrior in a primitive village. The example of this boy-magnate 
 was imitated by all who dared ; and by common consent, or per- 
 haps by common submission, a limited distance between traps 
 was agreed on. Within a circle about forty yards in diameter, 
 drawn about a trap already set as a centre, no other trap was to 
 be placed. For the season the owner of the trap first placed on 
 any given piece of ground either assumed or was entrusted with 
 authority to break any trap placed within the specified distance 
 of his own. Thus all persons were prevented from trapping in 
 the protected spots. 
 
 Here we come upon another case of temporary individual 
 ownership. If there was any serious opposition to it in the be- 
 ginning, tradition has preserved no account of it. As the rights 
 thus acquired lasted only for a year, each boy felt that next year 
 he would have a chance to set traps in the appropriated spots, 
 and to obtain sole ownership for himself. Cupidity moved those 
 not moved by fear to consent to the scheme of the innovators. 
 As the result proves, such compliance was highly injudicious. We 
 have already seen how the custom of seizing trees became the 
 means whereby some boys were able to get possession of more than 
 a fair share of the walnut crop. A like selfishness was not absent 
 from the breasts of the trappers. Some grasping spirits among 
 them, dissatisfied with their nearly equal shares of ''rabbit land", 
 desired a greater catch than was made by the rest. Accordingly, 
 a few of these " pushing young particles " combined, or rather 
 conspired, in early autumn to make fifty traps and set them at 
 intervals over a valuable rabbit district. The customary law did 
 not permit a trap to be placed near one already set, and conse- 
 quently, when the next party of trappers went to the place, they 
 found it already occupied. It was dotted with traps. The 
 ground around each belonged to the owner of the trap, and each 
 trap was set so close to the succeeding one that another could not 
 lawfully be put between them. The woods thus filled with traps 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS o29 
 
 became for the season the property of the greedy fellows who had 
 contrived the plan of overreaching their schoolmates. The fact 
 that they had gained possession by a trick did not in their own 
 eyes invalidate their title. The law had been literally complied 
 with, and the victims had no remedy but force. But as the 
 monopolists were big and united, the force was all on their side, 
 and they easily overawed their plundered rivals. 
 
 Thus temporary individual ownership of the soil came to be 
 permitted and to be abused at McDonogh. It was to prevent 
 the latter result in the village communities described by Maine 
 that a periodical re-distribution of land was instituted. Such a 
 custom, to give additional examples, was followed in the ancient 
 Teutonic villages, among the Hindoos, and among the Dutch; 
 and as there was a system of re-distribution of the trees, so there 
 was theoretically a re-distribution of the " rabbit land." Just 
 as the right to a marked tree ceased at the end of the year during 
 which the label was put up, so the right to land covered with traps 
 expired at the close of the season. But while paper labels are 
 perishable things, unlikely to remain on the tree during the winter, 
 the heavy wooden boxes used as rabbit traps will continue in good 
 condition for years in the same spot. Hence, a trap placed in a 
 good situation gave its owner a great advantage the next year 
 in renewing his claim. By re-setting his old trap he again became 
 proprietor of the ground, and he could re-set it much more easily 
 than another boy could bring a trap there and displace him. It 
 was the old story of the odds on the side of capital. When 
 trapping was over for the autumn in which these events occurred, 
 the monopolists left their traps upon the spots where they had 
 been set, and the following autumn the same boys had merely to 
 walk leisurely over the ground and set them once more. Thus it 
 was easy for these boys to be the first in the field and again prevent 
 othei-s from trapping in the best places. When this occurred 
 most of the other boys ceased to compete with these rapacious 
 squatters. Some who persisted had to be content with spots so 
 poor in game that they had not excited the cupidity of the monopo- 
 lists. By this process, continued from year to year, the land fell 
 into the hands of a few. The old system of common enjoyment 
 disappeared, and, in its place, came permanent individual property. 
 
 When the custom of private property in land had been in force 
 for several years, a new industry was introduced at IMcDonogh. 
 Three boys learned how to trap musk-rats, and engaged in the 
 enterprise so assiduously that in a few weeks they had snares set 
 
330 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 at short intervals for a mile along the principal stream flowing 
 through the school farm. Their success induced three others to 
 make the same venture. It was then agreed by the two parties 
 to divide the stream between them, the last comers trapping only 
 along that part of the banks where the first made no lodgment ; 
 and it was further agreed to support each other in maintaining 
 exclusive rights to the banks. Thus six boys, who were among the 
 largest in the school, and three of whom already owned large 
 tracts of " rabbit land", were enabled to seize upon a franchise 
 to which all the other scholars had an equal claim. No attempt 
 was made to resist them and their ownership of the banks remained 
 undisputed. 
 
 ' If we attempt to account for the last developments of the customs 
 we are studying, our task becomes easy enough. Whatever may 
 have been the origin elsewhere of inequality of landed property, 
 it is clear that at McDonogh its source was the selfishness of the 
 strong. The fact that in Herbert Spencer's words these boys had 
 " like claims to pursue the objects of their desires " ; that their 
 world was " adapted to the gratification of those desires " ; that 
 they were similarly brought into their world and the consequent 
 fact that they had " equal rights to the use of this world ", — these 
 facts did not in the least interfere with the satisfaction with which 
 the monopolizing landowners ate the rabbits that rewarded their 
 iniquitous industry. On the contrary, they proceeded, with no 
 qualms of conscience, to develop to the utmost their new powers 
 of ownership. 
 
 In the usual cpurse of progress we should expect rights of devise 
 to follow the appearance of rights of private ownership. " Origi- 
 nally," says M. de Laveleye, " testamentary disposition was com- 
 pletely unknown; primitive nations did not understand how the 
 mere wish of an individual, taking effect after his death, could 
 decide the ownership of property . . ." ^ The opposition to the 
 right of devise has in almost all cases, however, yielded to other 
 considerations, and wills have been permitted. Thus, among the 
 ancient Irish, the influence of the church was paramount in 
 disputes over the validity of devises. In Lower Bengal, after the 
 break-up of the village system, wifls were successfully introduced 
 through the influence of English law.^ In like manner, after the 
 establishment of individual property at McDonogh, testamentary 
 
 1 De Laveleye, "Primitive Property", p. 178. 
 
 2 Maine, "Village Communities", p. 40; "Early History of Institu- 
 tions", p. 56. 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 331 
 
 rights were firmly implanted. The necessary decease of the prop- 
 erty holder is represented by his departure from the school ; 
 by regulation of the board of trustees the boys leaving the institu- 
 tion on reaching their seventeenth year. When the time came for 
 some of the monopolists to die, they could not carry with them 
 their ill-acquired rights, but none the less did they continue to 
 take an interest in what they were about to lose. They bethought 
 themselves of leaving their possessions to their friends. Two or 
 three boys were commonly associated in the trapping enterprise, 
 and when one departed he left his land to his partners. The 
 remaining shareholders maintained the testamentary rights thus 
 created. In this manner the title to the land was not only taken 
 from the community and put into the hands of individuals, but 
 the wishes of the individual owners were sufficient to establish 
 the new legal principle of testamentary disposition. 
 
 When the system of individual ownership had been in operation 
 two or three years, it had come about through judicious purchases 
 and devises that all the land available for catching rabbits had 
 fallen into the hands of three owners. They found it impossible, 
 although they got up at three o'clock every morning, to visit all 
 their traps, and, to relieve themselves of the burden, they began 
 to sell portions of their land and to lease others. A swamp famous 
 for its game they let in consideration of the payment of half the 
 rabbits caught in it. On another occasion a lucky fellow found 
 the greatest treasure obtainable by an egg-hunter — the delicate 
 downy nest and pearly eggs of a humming bird. These, together 
 with some minor articles, he gave up to a monopolist for a piece 
 of land. 
 
 The landlords have always kept enough land in their posses- 
 sion to supply themselves plentifully with game, and it must be 
 said to their credit that they display remarkable energy and in- 
 dustry in tending their traps. On the coldest morning of Novem- 
 ber, they will leave their beds before daylight, and, lantern in 
 hand, trudge off two or three miles through wet fields and dense 
 bushes to the rabbit paths in the swamps, and the " gnaws " 
 along the fences, where their traps are set ; then back in time for 
 chapel at half-past six. The walk is weary enough at times, but 
 when they return with a rabbit dangling from either hand they 
 feel amply repaid for all their toils. In the course of a single 
 autumn the catch often amounts to a hundred and the possession 
 of these delicacies makes the favor of the trappers much sought 
 after by some of the boys. From this cause they are at times 
 
332 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 attended by several vassals, ready for most services required of 
 them. These vassals will often visit such traps as their lords 
 cannot well reach, and are rewarded with savory morsels. The 
 principes and comites are not generally troublesome members of 
 society; their rights are established, and, as long as society lets 
 them alone, they have every reason not to quarrel with society. 
 
 Some restless busybodies have at times cavilled at the privi- 
 leges of the landed aristocracy, although they have been so long 
 established ; and there has recently been some fear of an agrarian 
 revolution. Until lately all the most productive land was in the 
 hands of three boys ; and at length, envy of their prosperity caused 
 the rise of a socialistic party. These reformers desired that a re- 
 distribution should take place, and that every boy entering the 
 school should have an equal share with those already there. " The 
 land," said, in substance, the leader of the agitation, " belongs 
 to all of us. Every boy here has the right to catch rabbits. Boys 
 that leave the school have no right to give away their land. It 
 belongs to those that come to take their places. We are forty- 
 seven to three. We must combine and force these robbers to 
 divide." 
 
 These demands were so vehemently urged, that the monopolists 
 found it necessary to make some concession. Accordingly they 
 picked out some of the least productive ditches, and gave them to 
 members of the agrarian party. This had the effect of quieting 
 the agitation for a time, but it was soon renewed. The three 
 boys who held most of the land had promised to devise it at their 
 departure from the school, to a single owner, one of their retainers. 
 No sooner was this known than the socialists returned to the attack. 
 A dread of revolution took possession of the landlords, and they 
 yielded to the popular clamor so far as to forego their intention of 
 appointing a sole legatee. One-third of their property they sold 
 to a firm of three members ; another part they sold to two boys ; 
 and the remainder they gave to another firm of three, one of whom 
 was the boy they had proposed making lord of the manor. About 
 the same time the socialistic leader became engaged with five others 
 in the aforesaid monopoly of musk-rat catching. These circum- 
 stances cooled the. zeal of the reformers and the agitation died out. 
 
 2. Boy Legislation 
 
 The legislation of the boys has been already referred to in speak- 
 ing of the growth of ideas of property in nests and trees. W^e 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 333 
 
 have seen how the school-fellows fixed the date of the walnut 
 harvest, and determined that nests should not be taken from trees 
 marked with a ticket. No account, however, was given of the 
 legislative body and its procedure. The former resembles in the 
 extent of its powers the primitive assembly, or village council. 
 Its origin, however, was entirely independent, and not the result 
 of any imitation. The boys have never the faintest notion that 
 they are reproducing one of the most ancient institutions. They 
 do what seems good in their own eyes, with no reference to the 
 outside world, and with no intention of imitating anything belong- 
 ing there. Yet the account given by Wallace might almost be 
 taken for a description of the boy assembly at McDonogh.^ Each 
 of the assemblies is democratic and primary ; each legislates ; as 
 will presently appear, each judges ; each is guided by an unwritten 
 law ; each exerts itself to make as nearly as possible a fair division 
 of the communal property ; each fixes the date of the opening of 
 harvest. The informality of the Russian assembly is naturally 
 exceeded amongst the schoolboys. In the Russian body, every 
 man is so independent that the village elder has only the semblance 
 of a presiding officer's authority, without the power even to call 
 a member to order. At McDonogh no president is known. Who- 
 ever is most influential takes the lead in despatching the business 
 
 1 I quote here the liveliest description of such a body that I am ac- 
 quainted with. "The commune is, in fact, a living institution, whose 
 spontaneous vitality enables it to dispense with the assistance and guid- 
 ance of the written law. . . . All the real authority resides in the As- 
 sembly, of which all the heads of households are members. 
 
 '•The simple procedure, or rather absence of all formal procedure, at 
 the assemblies illustrates admirably the essentially practical character 
 of the institution. The meetings are held in the open air. . . . Any 
 open space, where there is sufficient room and little mud, serves as a 
 forum. The discussions are occasionally very animated, but there is 
 rarely any attempt at speech-making. . . . The whole assemblage has 
 the appearance of a crowd of people who have accidentally come together, 
 and are discussing in little groups subjects of local interest. Gradually 
 some one group, containing two or three peasants who have more moral 
 influence than their fellows, attracts the others and the discussion be- 
 comes general. Two or more peasants may speak at a time and interrupt 
 each other freely, using plain, unvarnished language, not at all parlia- 
 mentary, and the discussion may become for a few moments a confused, 
 unintelligible noise, 'a din to fright a monster's ear'; but at the moment 
 when the spectator imagines that the consultation is about to be trans- 
 formed into a promiscuous fight, the tumult spontaneously subsides, or 
 perhaps a general roar of laughter announces that some one has been 
 successfully hit by a strong argwmentum ad hominem, or biting personal 
 remark. . . . Communal measures are generally carried in this way;by 
 acclamation. 
 
 " The assembly discusses all matters affecting the communal welfare. 
 ... It fixes the time for making hay, and for commencing the plowing 
 of the fallow field ; . . . above all it divides and allots the communal land » 
 among the members as it thinks fit." — Wallace, " Russia ", Vol. I, p. 193. 
 
334 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 of the moment. It is not, however, necessary to break the wind 
 of our comparison by driving it too far; all that is desired is to 
 point out the general similarity of the assembly at McDonogh to 
 a typical village council. 
 
 The entire informality of the proceedings of the boys and the 
 principles that underlie their actions are well brought out in the 
 accounts they have given me of the passage of their more important 
 laws. When attempts were first made at exclusive ownership of 
 trees containing birds' nests and squirrels' dens, the community 
 took notice of the matter. Some boys had the habit of marking 
 a tree by laying a piece of wood at the foot, and others by writing 
 their names upon a piece of paper and fastening this upon the bark. 
 The conservative boys desired that no system of marking should 
 be permitted. The debate on the question of what should be 
 done was not held on a fixed day, or in a settled place, or even in 
 the presence of the whole body. School work and play were too 
 pressing for all to gather at once. On the contrary, the subject 
 was talked over wherever several boys came together. Traditions 
 vary as to whether a meeting of all the boys was held to make the 
 final test of a vote ; and whether the time of voting was extended 
 over a whole day or even several days. But whatever may have 
 been the details, the essential facts are clearly enough described 
 in all the accounts. 
 
 After much debate, three resolutions respectively embodying 
 the views of the three parties were written out and pasted upon the 
 wall of the school room. The vote was then taken, and each boy 
 signed his name beneath the proposition that he favored, where it 
 was in full view of everyone. Upon counting the signatures, a 
 majority was found to be for permitting the placing of tickets 
 upon trees as evidence that they were claimed by individuals. 
 This " rule " (which is the term the boys apply to their enact- 
 ments) immediately went into effect, and has ever since been the 
 law. The decision was by most voices as it would have been at 
 Washington or Westminster. In that lies the cardinal fact. 
 Whether by imitation or by instinct, the boys hit upon the prin- 
 ciple that hinges all " government by discussion." 
 
 Some years after the passage of the law providing for the ticket- 
 ing of trees as a means of taking possession, it was found that 
 labels tacked upon the trunks occasionally fell to the ground; 
 whereupon a passer-by, although he might see the label lying at 
 his feet, would take possession of the eggs that it was intended to 
 protect. A strict adherence to the letter of the law is counted 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 335 
 
 as righteousness among primitive peoples, and our boys are yet 
 in the savage state of morality. In order to improve the security 
 of property, a meeting was held at which, I understand, but few 
 boys were present. It was agreed by them without any of the 
 formality of a written vote, that it should thereafter be unlawful 
 to disturb any nest where the label intended to mark it could be 
 seen lying upon the ground. After this assembly broke up, the 
 consent of a sufficient number of other boys, who had been absent, 
 was obtained by going about and asking them to agree to the 
 " new rule." The informality of the passage of this statute seems 
 to have caused no remark, and it is still part of the law. Upon its 
 application turned an interesting cause to be hereafter described. 
 
 Some incidents seem to point to the downfall of the popular 
 system of law-making. The fact that a small number of boys 
 have sometimes agreed upon a " rule ", and afterwards obtained 
 the consent of a sufficient number of the rest to put it into opera- 
 tion is a constant temptation to the stronger and more influential 
 boys to propose laws and declare them adopted without the con- 
 sent of a majority. The land monopolists take the lead in this 
 revolutionary measure and their course is skilfully chosen. They 
 are careful to make such regulations as meet with general approval. 
 A small body of large boys may easily avoid a collision with the 
 others and yet impose laws without the formality of consulting the 
 rest. The next and easy step is to an oligarchical government. 
 There are indications that before many years it will be taken, and 
 that equality of political rights will share the fate of the equality 
 of property. 
 
 3. Judicial Procedure 
 
 Inquiries into the customs of the " McDonogh boys " cannot 
 be carried far before one is struck with the peace and good order 
 generally prevalent in the community. Fights between angry 
 boys do sometimes occur, to be sure, but the belief of the authorities 
 of the school is that the number of these combats has steadily 
 decreased with the lengthening life of the institution. Little 
 fellows who have not lived at the school long enough to have be- 
 come imbued with the general feeling often tug and strike im- 
 potently at each other ; but the older boys so seldom ask the de- 
 cision of the fist that a fight between two of them is an event never 
 to be forgotten, which tradition hands down with greater em- 
 bellishment at each succeeding year. When a combat does begin 
 it rarely happens now that the matter at issue is connected in any 
 
336 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 way with rights of property. Insults and bullying may lead to 
 fights, but disputes over nests or trees usually come to a peaceable 
 end. Yet this result has not been reached by active efforts on 
 the part of the principal and his assistants to prevent fighting, or 
 even greatly to discourage it. No boy has ever been punished 
 because he was the bearer of a pair of blackened eyes ; and further 
 than to prevent exhibitions of violence in their immediate presence, 
 the teachers have not interfered with any arrangement for settling 
 quarrels that might be made by pupils. In spite of the objections 
 that may be offered to this official apathy by the sentimental 
 reader, a close approach has been made among the members of 
 a quite heterogeneous body to the desirable state of peace and 
 good will. No control having been exercised by the faculty, the 
 boys themselves have regulated the matter. 
 
 The custom of the school from the earliest days has been, when 
 a fight is in progress, to form a ring of excited and vociferous specta- 
 tors around the enraged pair, and to regard the struggle as a gladia- 
 torial exhibition for the entertainment of the throng. The fighters, 
 thus made the center of the public interest, are usually impelled 
 by self-respect to desperate efforts ; but where this is not so, the 
 lookers-on, feeling themselves defrauded of a proper gratification, 
 will often insist upon a continuance of the struggle until one or 
 the other of the combatants is thoroughly beaten. Every boy, 
 therefore, feels he must beware of entrance to a fight, and all other 
 possible measures are usually tried before an appeal is made to 
 force. 
 
 I should give a very incorrect impression, however, if I per- 
 mitted it to be thought that the McDonogh boys never yield to 
 ill temper. As will presently appear, they are in possession of an 
 effective means for settling quarrels over the title to property, 
 but the punishment of offenders is left to the injured person and 
 his friends. When, in the autumn of 1883, a boy from the neigh- 
 borhood was detected in robbing rabbit traps, the owners of the 
 game summarily and successively gave him a beating, without the 
 least formality or authorization. A case has also come to my knowl- 
 edge where a debtor, who had made an assignment of his property 
 which proved insufficient to meet all demands, w^as trounced very 
 soundly by an angry creditor. Another debtor had exhausted 
 the patience of his creditors by unfulfilled promises to pay, and 
 was plainly told by them at last that unless his debts were liqui- 
 dated within two weeks, he must fight them all in succession. 
 
 While such deeds of violence stand out in the reader's mind, 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 337 
 
 in the daily life of the boys they bear the same insignificant ratio 
 to the quiet whole that the murders held up to daily horror in the 
 press bear to the humdrum life of the world. This peaceful con- 
 dition appears in a more striking light when one considers the 
 great number cf questions for dispute certain to arise in the daily 
 life of the '' McDonogh boy." He often hears discussions over 
 the rights of the rabbit trappers to the possession of the land; 
 he can hardly fail to weigh the arguments by which their practice 
 is attacked and defended ; and he is sure to take sides either for 
 or against them. The perplexing questions of the advantages 
 and disadvantages of a system of individual land-holding are not 
 the only difficulties with which his sympathies and his reason have 
 to deal ; for the working of the customs of the school frequently 
 forces upon his notice intricate problems of right and usage. It is 
 apparent that in the operation of the somewhat complicated 
 system of property heretofore described, it is impossible to avoid 
 disputes, and other causes of contention are not wanting. 
 
 The inconvenience of fighting over all these matters has led the 
 boys to invent an archaic judicial system, which presents almost 
 as many analogies to primitive usage as do the customs of land 
 tenure already described. Perhaps no savage usage is more wide- 
 spread than that of an appeal to chance to decide questions of fact. 
 " The almost universal test among savages of guilt or innocence, 
 where there is a want or conflict of evidence, is the ordeal," says 
 P'arrer.^ The same author remarks that some of these tests 
 " decide guilt not by an appeal to the fear of falsehood as an oath 
 does, but by what is really an appeal to the verdict of chance." 
 The pages of travellers teem with instances of this custom. When 
 the natives of the Gold Coast decide the guilt or innocence of the 
 accused by the facility with which he draws a greased fowl's 
 feather through his tongue, or a cock's quill from a clod of earth,^ 
 the result is left entirely to accident. An equally unreasonable 
 form of procedure is followed at McDonogh to decide many trivial 
 questions. That reverence for luck to which attention has been 
 called by Bagehot as so strong among children and savages, holds 
 its own there. 
 
 In the game of marbles, a very intricate game as played at 
 McDonogh, with endless opportunities for difference of opinion, 
 almost all questions of fact are settled by a sort of ordeal. Sup- 
 pose, for instance, that Edwards, Taylor, and Fergusson are play- 
 
 1 Farrer, "Primitive Manners and Customs", p. 173. 
 * Bosman, quoted by Farrer, ibid., p. 175. 
 
338 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 ing, and that but one marble remains in the ring. When this is 
 shot out by Edwards, each of the others cries " second." Ap- 
 parently^, they utter the word simultaneously, but each claims the 
 right to shoot next after Edwards in the next round. '' I had 
 second ! " says Taylor. 
 
 " No, you didn't : I had it ! " declares Fergusson. 
 
 Taylor then thrusts his hand into his pocket, and brings it out 
 closed over one or two marbles. 
 
 " Odd or even ? " he asks his opponent. The other guesses and 
 answers : if his guess is right, he has the second shot ; if he fails, 
 Taylor precedes him. Some boys that I questioned, regarded this 
 as nothing but a device to avoid quarrels ; but others thought that 
 " something would make a fellow guess right if he deserved to." 
 
 Luck is also permitted to decide questions of ownership. In 
 the spring the boys usually form partnerships of two or three 
 and put all the eggs they find into a common box. In the fall 
 they dissolve these firms, and as they always divide the stock of 
 eggs by " drawing straws " for the first choice and alternately 
 choosing the eggs, they reach a very unfair result. The boy 
 who draws the longest straw chooses the best egg each time it is 
 his turn to choose, while his companions get the next best. At 
 the end of the division there is usually a second drawing for the 
 odd egg. In this drawing the boy who before had the luck to get 
 the first choice is on as good a footing as the others, and of course it 
 often happens that after having chosen the best eggs he also gets 
 one egg more than the others. 
 
 I am conscious of a feeling that these facts look petty. I am 
 aware that some of my readers will say : *' There is nothing re- 
 markable here. Luck enters more or less into every game. Why 
 call attention to a thing everyone has seen? " I can best answer 
 this in Mr. Bagehot's words : " Persons who stand up for the 
 dignity of philosophy, if any such there still are, will say I ought 
 not to mention this because it seems trivial ; but the more modest 
 spirit of modern thought plainly teaches, if it teaches anything, 
 the cardinal value of occasional little facts." ^ The very univer- 
 sality of this regard for luck, which is admitted in the objection, 
 is itself proof of the proposition I desire to advance, viz., that 
 one of the striking resemblances between children and savages 
 appears in their constant appeals to chance. If everyone has in 
 his own experience a fact going to support this, the proof is so 
 much the stronger. 
 
 1 Bagehot, "Physics and Politics", p. 130 (Eng. ed., 1876). 
 
Chap. XI. J RUDIMENTARY SOCIETY AMONG BOYS 339 
 
 An appeal to a bystander to settle a quarrel in order to prevent 
 an appeal to force is so common among all boys, that everyone 
 must have in mind instances of its occurrence. When two Mc- 
 Donogh boys quarrel over a rule of marbles, some one near is 
 often asked to settle the dispute. A little fellow told me that they 
 liked to ask the mediation of " a big boy who could whip the 
 others." Sir Henry Maine thinks he has traced to this universal 
 habit of arbitration the origin of the Roman legis actio sacramenti. 
 " Its venerable forms pre-suppose a quarrel and celebrate the 
 mode of settling it. It is a passing arbitrator whose interposition 
 is simulated by the prajtor." The expedient of laying a wager 
 to seciu-e the postponement of a quarrel (very common among 
 McDonogh boys), the same authority, with an apology for the 
 seeming triviality of his suggestion, supposes " to be the true 
 significance of the sjponsio and restipulatio, which we know^ to have 
 been of the essence of the ancient Roman condictio and of the 
 agreement to appear before the praetor in thirty days." ^ 
 
 Arbitration, the ordeal, and the wager are not the only modes of 
 settling quarrels practised at McDonogh. All the boys near the 
 scene of a dispute are sometimes appealed to for the decision of 
 a controversy. The simplest instance of the exercise of judicial 
 power, by a number of boys together, occurs when several of 
 them are inconvenienced by some wrongful act of one. They 
 summarily decide his guilt, fix his punishment, and execute the 
 sentence upon him. During the summer vacation the boys re- 
 main at the school except for a few days, and their time is spent in 
 light work upon the farm. It sometimes happens, when a squad 
 of boys is sent into the harvest field, that one of the number is 
 told off to bring them water to drink during the heat of the day. 
 The part of water-carrier is usually assigned to the smallest boy 
 present, and in his frequent trips between the spring and the wheat 
 field he may succumb to the temptation to wander off after a 
 bird's nest or to lie down in the shade. If he is detected in such 
 a misdeed by his companions, they seize his arms and legs, lift 
 him from the ground, and swing his body against the nearest tree 
 — a punishment known at McDonogh by the name of " bumping." 
 Any neglect of duty by which a number of boys are inconvenienced 
 is likely to be followed by this penalty. A boy whose business it 
 was to bring the butter for meals from the dairy to the dining room 
 was once " bumped " because his thoughtlessness forced the whole 
 school to breakfast without that pleasant emollient. 
 
 * Maine, "Early History of Institutions", pp. 259, 260. 
 
340 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Disputes arising from their peculiar customs of ownership are 
 settled by boys assembling at the place where the controversy is 
 carried on. Most commonly this is in the play-room where they 
 can be free from observation. When Black and Landreth found 
 the nest of a dove in the pines, seeing no mark of prior owners upon 
 the tree, they took the eggs and brought them to the house. As 
 they sat in the play-room with needles and straws, preparing the 
 eggs for their cabinet, Delphey overheard their talk, and questioned 
 them about the spot where the nest was discovered. He soon 
 convinced himself that the nest was one that he had found but a 
 few days before, and on which he had placed the mark of himself 
 and his partners. When he was satisfied on that point he at once 
 laid claim to the eggs. Landreth and Black angrily refused to give 
 them up, and they were soon hot in dispute. Under the law made 
 for such cases the question of ownership is a nice one. 1% is granted 
 on both sides that if Delphey, the first finder, is to retain a good 
 title, his label must either remain upon the trunk of the tree, or 
 else lie in sight upon the ground beneath, where it has fallen by 
 accident. If neither alternative is complied with, any subsequent 
 finder may either take the nest or mark the tree with his own 
 label. 
 
 By this time a knot of a dozen boys, who had been idling about, 
 had formed around Delphey, listening intently. In a few moments 
 he called Duvall, his partner, for confirmation, and with the ut- 
 most particularity related the circumstances in which he had found 
 the nest. Delphey told of the route they took over the stream, 
 through the swamp, and up the hill ; and mentioned the boys 
 they met on the way, whom he compelled to corroborate his as- 
 sertions. By the time Duvall takes up the account, the ring 
 surrounding them has become larger ; perhaps twenty boys have 
 gathered, and they listen with strained attention. He proceeds 
 to describe the tree in which the nest was placed, and dwells with 
 convincing minuteness upon its exact situation, upon the color of 
 the bark, the broken limb, the knot half way up the trunk, and the 
 nailing of the label upon it. To all of his statements it may be 
 that his adversaries, Landreth and Black, assent, only interject- 
 ing at intervals the words : " But there wasn't any mark on the 
 tree when we were there." The declarations of either party are 
 addressed as much to the throng around as to their opponents, 
 and it is evident, in the heightened color of the bystanders, in 
 their sparkling eyes, and in their tense muscles, that to them the 
 question is of absorbing interest. Now that the argument of the 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 341 
 
 plaintiffs has been heard in full, there can be no doubt that they 
 marked the nest as they declare ; and yet there is nothing to in- 
 dicate that the defendants have any intention of restoring the 
 property. 
 
 Seeing the angry looks and threatening gestures of all the 
 group, one who does not know the school may judge that blows 
 will follow next, and that a general conflict is about to ensue 
 between the partisans of the claimants. Nothing could be farther 
 from the truth. What has occurred is but the ordinary proceed- 
 ing of a very primitive court of justice. Delphey knows that 
 Black's arms are strong, his fists hard, and his blows rapid. Lan- 
 dreth has no desire to risk the destruction of his treasure in a struggle 
 where, even if he retains it, he is sure to do so at the cost of bruises 
 and blood. As he rises angrily from his seat and pushes through 
 the crowd, he is not seeking space in which to fight, but a witness 
 to establish his title. This body of spectators, who seem intent 
 upon hearing the whole matter and sifting it to the bottom, is — 
 if the name will serve — the folk-moot, the assembly of the people, 
 met to see justice done according to law. Each boy standing in 
 the ring around the orators knows that to-morrow he may be there 
 to maintain his rights before a similar body, in which the plaintiff 
 and the defendant of to-day wdll alike have a voice to decide upon 
 his claims. He has a feeling that a decision contrary to estab- 
 lished custom, however it may accord with his momentary sym- 
 pathies, will be treated as a precedent to overthrow his most 
 cherished interests, and to prevent the operation of rules upon 
 which he has confidently counted in every venture in which he is 
 engaged. Every boy there is determined upon the entire preserva- 
 tion of the system of law upon which he has based all his hopes 
 of filling his egg-cabinet. 
 
 We have turned aside a moment from following the actions of 
 the litigants. The clamor of voices rose louder as Landreth moved 
 oft', but it subsided somewhat as he reappeared, accompanied by 
 Miller, on whose testimony he relied. The newcomer rapidly 
 explained to those around that he, too, had seen the nest on the 
 day Landreth took it ; he had examined the tree, and Delphey 's 
 mark was not upon it ; he had searched the ground beneath, and 
 could not find the label there ; he would himself have carried off 
 the find, but for the fact that he saw only a single egg, and thought 
 it better to put his own claim-mark upon the trunk, and wait till 
 more eggs were laid ; when he had intended to return and get 
 them. It had happened, however, that during his previous search 
 
342 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 for nests he had, in marking other discoveries, used up all the labels 
 that he had brought with him, and he had therefore been unable 
 to appropriate the tree at the time. It was after he had gone away, 
 and before he could return with a label, that Landreth had found 
 the nest and possessed himself of its contents, which had mean- 
 while been increased to two eggs by the industrious bird. 
 
 This evidence ended the trial. Loud cries arose from all parts 
 of the throng. " It's Doggie's nest. It wasn't marked when he 
 found it", said one member of the tumultuous court. " Your 
 mark was blown away, Rufie", exclaimed another ; " It's Doggie's 
 nest." No opposition of importance was made, and, the decision 
 being rendered, Delphey and his partner saw their case was lost 
 and slowly walked away. Landreth and Black, who retained the 
 eggs, returned to their work of blowing them with straws. The 
 making of the claim, the trial and the decision, occupied less than 
 half an hour. If not sure, this justice is at least swift. 
 
 A word may here be given to the ethical questions brought up 
 by this decision. It was admitted by all parties that two boys 
 had found the nest before Landreth and Black had seen it. Lan- 
 dreth's claims in the view of equity would have to yield to Del- 
 phey 's, who not only found the nest but marked it, and who, 
 in so far as prior discovery gives any rights, clearly had them all. 
 Landreth's title rested upon a purely technical ground. Yet, 
 with a characteristic analogy to primitive habits of thought, it 
 was considered that the perfect title was obtained by a literal 
 fulfilment of the words of the law, by an exact compliance with its 
 minutest provisions. The law provided that no one should take 
 a nest when the mark was on the trunk beneath, or in sight upon 
 the ground. As it had been proved by Miller's testimony that 
 Landreth could not have seen Delphey's label, Delphey's rights 
 vanished. 
 
 There can be little doubt that the negligent driving of a tack 
 was all that made Landreth the better owner than Delphey, and 
 that Landreth was perfectly aware of this fact. When the suitors 
 and judges were questioned as to why such a decision was given, 
 the only reply to be obtained was, '' That's the rule." Like 
 Shy lock, Landreth might have said: ''I stand here for law", 
 and his determination was to maintain to the full every legal 
 privilege. The idea that the law might give advantages, the use 
 of which morality could not sanction, is so late of development 
 in the legal history of mankind that we must not regard the ab- 
 sence of such a conception among these boys as an indication of 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 343 
 
 an abnormally low state of moral culture. To look for exalted 
 views of right and wrong among them would be to expect them to 
 reverse the usual processes of mental progress. 
 
 I have treated this incident at such length because of its typical 
 character, and of its likeness to primitive usage. If it was an 
 event of rare occurrence, its significance would be less ; but it is, 
 in fact, an example of what occurs almost daily at McDonogh. 
 The crowd of boys assembled about the contestants, whose verdict 
 decides the controversy, is, in many respects, the counterpart of 
 a primitive assembly of the people in the folk-moot. 'Every boy 
 has the right to express an opinion and every boy present exercises 
 his privilege, though personal prowess and great experience in 
 matters of law have their full share of influence on the minds of 
 the judges. The primitive idea that dispensing justice is a public 
 trust, which the community itself must fulfil towards its members, 
 is embodied in this usage of the " McDonogh boys." The judges 
 are not arbitrators chosen by the disputants, nor are they public 
 functionaries, whose sole business is to preside over the courts, 
 but the w^hole body of the population declares by word of mouth 
 the right and wrong of the matter. This tumultuous body of 
 school-fellows, giving decisions in quarrels and determining ques- 
 tions of custom, reproduces with remarkable fidelity, the essential 
 character of the primitive assembly. 
 
 4. Boy Economy 
 
 It accords with the analogies heretofore drawn in this sketch, 
 that barter is common in the trade of the boy-community, and the 
 staples of the hunting stage of culture are much dealt in. When a 
 boy finds the white eggs of a pewee he is seldom content with once 
 despoiling the mother of her treasures ; and, by putting into the 
 empty nest a marble or a round, white stone, he often succeeds 
 in inducing the credulous bird to repeat her maternal function. 
 Not that he desires to hoard more than two or three specimens of 
 a kind ; but there is a certain exchange value attached to every 
 egg, which enables its possessor to buy others he may lack. For 
 example, a hunter and trader has told me of the egg of a wood- 
 pewee and the egg of a bee-martin having been given for a single 
 egg of a yellow-throated vireo. Again, while one partridge egg 
 passes for one of the red-headed woodpecker, and two chickadee 
 eggs have been paid for one of the great red-shouldered buzzard, 
 no fewer than seven eggs of the sandy mocking-bird are required 
 
344 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 to buy one rare kildeer's egg. By means of these exchanges a 
 hunter is able to round off his collection, and to give it a complete- 
 ness unattainable if he relied solely upon his own trophies. Among 
 other natural products forming subjects of barter may be men- 
 tioned cherries, raspberries, apples, blackberries, and grapes. 
 These are collected in considerable quantities ; and are exchanged 
 with the housewives of the neighborhood according to an equitable 
 scale of prices, hot pies being taken in return for fruit. After a 
 similar manner the rabbit trappers, unable to consume all their 
 game, put a portion of it upon the market ; where they receive in 
 payment any convenient articles of boy-merchandise, such as a 
 knife or a top. The successful squirrel-hunters obtain more of 
 these pets than their affection is capable of covering, and the sur- 
 plus they exchange with such boys as have not the agility and 
 daring necessary to reach the aerial nurseries. 
 
 At the same time, passing from the hunting to the pastoral 
 stage, they build pens for their captives, where they confine the 
 animals, rearing and training them for weeks. The attention 
 thus required sometimes exceeds the ability of the owners, and 
 they find it needful to employ an assistant. I quote from The 
 Week, the little newspaper in which the boys chronicle their doings, 
 the following note of a contract of this sort between master and 
 servant : 
 
 " April 14, Miller and I made a bargain with Cook about feed- 
 ing our squirrels. We told him we would give him a healthy 
 young gray squirrel if he would feed all the squirrels we got this 
 year. We furnish the food, milk for the young ones and nuts for 
 the older ones. He feeds them from three to five times a day. 
 H. C." I hope I shall not be thought to trifle with a grave sub- 
 ject if I suggest that in this use of domestic animals as a means 
 of paying wages we come upon a reproduction of that old form of 
 money, whose character is indicated in the supposed etymology 
 of our English word fee, (German Vieh, cattle), so long a standing 
 illustration with economists.^ 
 
 Commonly the primary object of the hunters is to obtain a 
 handsome collection of curiosities, and to enjoy the satisfaction 
 of possession along with the esteem inspired by success; but oc- 
 casionally a boy hunts with a purely commercial end in view. I 
 have been told of one who made a practice of exchanging all the 
 eggs he found for the allowance of butter given to his companions 
 
 1 Roscher, "Political Economy", I, p. 352. See also Maine, "Early 
 Hist, Inst.", "feud", "fief" from Vieh; cf. pecunia, pecus. 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 345 
 
 at meals. This latter is dealt out to the boys in approximately 
 equal portions of an ounce weight, and is frequently used by them 
 as a means of exchange and measure of value. A flying squirrel 
 has been known to bring fifteen '' butters " ; and a sling, five 
 '* butters." The unit is subdivided once, the fractional piece 
 being known as the " half-butter", and having a purchasing power 
 about equal to that of one cent. Some boys who entered upon the 
 manufacture of taffy obtained the needed butter by buying it 
 from the rest at the price of two cents for one '' butter ", payment 
 being made, at the option of the seller, either in money or in taffy. 
 
 Their transactions are often so complicated that the boys find 
 it desirable to lessen the number of payments of this novel currency, 
 and they employ for this purpose a system of verbally transfer- 
 ring their claims from one to another, somewhat as merchants use 
 negotiable notes. Perhaps A buys a knife from B for ten " but- 
 ters." B has an outstanding debt of the same amount for marbles ; 
 and he transfers to his creditor C, his claim against A ; who pays 
 to C, or to anyone else whom C may designate. 
 
 At first glance this use of butter as money seems laughably odd ; 
 but in fact it could be easily paralleled by long lists of articles 
 equally far removed from the gold, silver, and paper of our own 
 currency, which have yet served as money in different parts of the 
 world. The wampum of the early Indians is familiar to all readers, 
 and Jevons and Roscher enumerate, among many other substances 
 that have been so used, corn, wolf-skins, whales' teeth, and straw 
 mats.^ The former of these distinguished authors remarks, that 
 *' it is entirely a question of degree what commodities will in any 
 given state of society form the most convenient currency " ; and 
 our boy-state being in a condition where butter served the purpose, 
 its citizens adopted that commodity as their money.^ 
 
 1 Jevons, "Money and the Mechanism of Exchange", pp. 19-29. 
 Roscher, "Political Economy", I, Section cxviii. 
 
 2 At Phillips Exeter Academy, New Hampshire, in my day, there was a 
 pie-currency in vogue among the boys who boarded in Abbott Hall. Pie 
 was something of a luxury, for it was furnished by "Burnham", the stew- 
 ard, only twice a week. The idea of value in exchange was naturally 
 connected with our Saturday and Sunday allowance of pie ; in fact there 
 was a constant trading of different sorts of pie, a boy offering his mince 
 or custard pie of one week for the apple or pumpkin pie that was to come 
 the next week. Pie-debts were, moreover, incurred in a variety of ways, 
 chiefly for services rendered, e.g. by one's chum in making the fire on a 
 cold morning, when it was not his turn ; or by one student aiding another 
 in his lessons, etc. Boys would wager their pie sustenance for a week, 
 and sometimes for a month, on a match game of ball. These young bar- 
 barians, at their ball play, used to rival the ancient Germans, who, as 
 Tacitus describes, sometimes staked not only their property, but their 
 very freedom in games of chance. What could be greater recklessness 
 
346 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 The agricultural stage of progress is scarcely to be discerned in 
 the history of the boy-community, the explanation perhaps being 
 that the boys have so much agricultural labor to perform in their 
 daily tasks that they have but little taste for it during their hours 
 of freedom. At any rate, further than to admit the ownership 
 of a few neglected gardens, they seldom take any independent 
 part in tilling the ground. In the manufacturing stage they are 
 much more advanced, and some of them have carried on the mak- 
 ing of taffy with considerable profit. There being no competing 
 shop within a mile's walk, a little molasses, a little butter, a tin 
 pan, and the borrowed stove of a friendly cook, or even an im- 
 provised furnace of stray bricks, formed all the capital required 
 for the successful prosecution of this enterprise. The market for 
 the product was immediate, the demand pressing, and nothing but 
 legal money was taken in payment. It was easy to treble the in- 
 vestment at each venture, and capitalists who before had counted 
 their possessions in cents soon began to reckon in dollars. Nat- 
 urally a fierce competition set in, andgamprovements were made 
 in the manufacture : pulled tafi^y was^ubstituted for the crude, 
 dark product ; and the making of caramel was attempted. As a 
 means of attracting customers, sales upon credit were made, the 
 time of payment being extended to the next holiday, when sup- 
 plies of cash might reasonably be looked for. It was not long 
 before a large part of the community w^as deeply in debt ; and a 
 most interesting commercial crisis might easily have followed these 
 events; but knowledge of the state of affairs coming to the su- 
 preme government, the further sale of confectionery was prohibited. 
 Such a measure was not nearly so disastrous to the commercial 
 part of the community as might have been the case in the adult 
 world; for the juvenile manufacturer, when cut off from any 
 market, is able to consume his wares in his own person, with the 
 result, perhaps, of only a slight internal disturbance. In order 
 to prevent any temptation to engage in the illegal traffic, the sale 
 of confectionery was made a government monopoly, like that of 
 
 for a hungry boy than to risk his pie for a month on the issue of a game 
 of base-ball? In ordinary transactions the unit of pie- value at Exeter 
 was the ''piece", which was served us on a special plate; but there were 
 as many standards of value as there were sorts of pie, so that in the set- 
 tlement of a small debt of one or two "pieces", boys sometimes sought 
 to pay their creditors in pie of an inferior or less marketable quality. 
 Poor pie was like trade dollars. Sometimes a creditor would find him- 
 self with an embarrassment of riches. If his debtors insisted in paying 
 off their obligations on one day in one sort of pie, he would be obliged 
 to eat up all his perishable substance at once, or to dispose of it at a 
 considerable sacrifice. — Ed. 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 347 
 
 tobacco in Germany, and sweets were retailed to the citizens at 
 wholesale prices. 
 
 While despotic interference, as in the matter of the taffy trade, 
 may prevent the natural development of many interesting usages, 
 it has also given rise to a new institution of the highest importance, 
 whose subsequent history cannot be neglected. The regulation 
 of the out-door work of the boys has led to the use of still another 
 form of currency, and to the establishment of a banking system. 
 When the school was opened it was found necessary to devise some 
 means of punishing many petty offences. Xone of the ordinary 
 penalties, such as writing '' lines ", or any other sedentary torture, 
 commended itself to those in charge; but as the school was in 
 possession of a large farm, and as farm labor provided vigorous 
 out-of-door exercise, while it w^as at the same time unpleasant 
 enough for the purpose in view, it was decided to put the culprits 
 to work at hoeing and weeding, picking stones, and such like tasks. 
 For neglect to blacken his shoes before breakfast a careless urchin 
 was compelled to spend an hour and a half, hoe in hand, among 
 the cabbages, while his more heedful companions played baseball 
 or marbles. A record of each boy's misdeeds was entered in a 
 book and called his " debits " ; and one " debit " was cancelled 
 when the evil doer had spent the required time in labor and had 
 thus earned a *' credit." After his penance, his sins were no longer 
 remembered against him.^ 
 
 It was felt that farm work afforded so valuable an industrial 
 training, together wdth such excellent hygienic results, that it 
 would be well to make a systematic out-door employment part 
 of the education of every boy. With this view the whole school 
 was made to husk corn and do all other light farm work affording 
 employment for all of them together. When there was not enough 
 work to keep all busy, only those were compelled to labor who had 
 peccadilloes charged against them, or to use the slang of the school, 
 those who had " got on the work list." At the same time the 
 principal concluded to pay wages for the work thus done. It 
 was then decided to give each boy, whether charged with any 
 fault or not, a " credit " for every hour and a half he spent at 
 work. If he had no misdeeds to clear off, the " credit " would 
 
 ^ This system of making manual labor a punishment was not begun 
 without some fear lest it might make the boys feel that labor was degrad- 
 ing. Happily no such idea obtains among them, perhaps because the 
 ofifences thus punished are rather the result of boyish heedlessness than 
 of any moral turpitude. Work is felt to be an evil to be avoided, but 
 the habit of industry never suffers. 
 
348 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 indicate that he had performed a work of supererogation, enti- 
 tling him to impunity for a future offence. 
 
 " Credits " were of Httle value in the eyes of the boys until 
 they were made transferable. This happened very soon and, in a 
 measure, through the action of the boys themselves. A little 
 fellow who had a faculty of getting into trouble, excited the pity 
 of a big schoolmate by having such a score that he could apparently 
 never balance it by his own efforts. The older boy was allowed 
 to transfer to the younger's account a portion of his wages saved, 
 and afterward any boy having more " credits " than " debits '^ 
 was freely permitted to dispose of the excess as he wished. This 
 gave an exchange value to the " credit '' which at once, and im- 
 mensely, increased its importance. A boy who '' had got on ten 
 days " had only to induce some one to transfer ten '' credits '* 
 to his account, and he was saved the discomfort of spending ten 
 of his afternoons, axe in hand, at the wood-pile. The inducement 
 for the transfer he could provide in cake, apples, a top, a sling, 
 or any other article of juvenile merchandise. Conversely, a boy 
 having a number of " credits " could buy many desirable articles 
 from those " on the work list." " Credits " at once became 
 currency, transferring and measuring value. Like all currency 
 as yet invented, the " credit " is unstable in purchasing power, 
 but the prices here quoted will give a reasonably accurate idea 
 of the worth of the unit. During the autumn of 1884, twelve 
 plain " pewee " marbles sold for one " credit " ; as did two of the 
 more esteemed '' potashes." Formerly four ginger snaps fetched 
 the same price, or one stick of cocoanut candy, or one large " life- 
 preserver " ginger cake. Two '' credits " will buy a plate of 
 dessert ; " credits " were the wages of a boy hired to help in the 
 walnut harvest ; ten were given to another for shaking a chestnut 
 tree; twenty-five for wading into a tank of water in search of a 
 lost ring ; and sixty for a valise. The transfer of '' credits " is 
 effected by means of a written check in the following form : 
 
 McDoNOGH, January 1, 1884. 
 Mr. Lyle: 
 
 Please give BouUt ten of my credits. 
 
 Gilmor. 
 
 This is hung upon a nail driven into the wall of the school 
 room, and each morning the boy in charge of the " work-list 
 book " makes the proper entry of the transfer in his accounts. 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 349 
 
 This boy is, as it were, the banker for the whole school. He keeps 
 his accounts with scrupulous accuracy, and it is to the honor of 
 the school that no charge of corruption has ever been made against 
 the custodian of a great part of the wealth of the community. 
 
 In the autumn, during the corn harvest, the whole school is 
 at work for a part of each afternoon, and almost the whole of 
 Saturday. " Credits " are regularly paid for this labor, and be- 
 come so plentiful that the total volume of the currency sometimes 
 reaches as high as two thousand. The purchasing power then 
 decreases, for whether a boy has '* credits ", or is " on the work- 
 list", he is compelled to work. This period of inflation is usually 
 a time of great extravagance, as many boys have not sufficient 
 forethought to consider that winter is approaching, when only 
 those " on the work-list " must work. They recklessly incur 
 " debits " by neglect of their dress, and, until the prohibition of 
 the traffic, they squandered their earnings in apples, candy, and 
 the large ginger cakes known as '"life-preservers" : now they buy 
 butter, marbles, rabbits, or another boy's share of dessert. Specu- 
 lators in these wares rapidly make a fortune, and secure for them- 
 selves a winter of ease. As the supreme government always claims 
 a prior lien for its demands upon the property of its subjects, 
 every boy is required first to apply his ** credits " to the payment 
 of his fines, or " debits " ; and whatever debts he may owe, he must 
 defer settlement until he has balanced his account with the State. 
 The consequence of this regulation is that the boys sell only for 
 cash, and refuse entirely to deal with those who are " on the work- 
 list." While they are thus never in debt to one another, many 
 boys entirely fail to accumulate any surplus, spending for trifles 
 all '' credits " left after paying their fines. Presently work ceases, 
 and " credits " are no longer earned so rapidly : in a few weeks, 
 the more pressing labor of the harvest being over, no one is sent into 
 the fields who has cancelled all his misdeeds. Many boys, how- 
 ever, fail to behave with such immaculate propriety as to cease 
 incurring '' debits " at the same time their wages stop. Having 
 laid up no capital by the exercise of a reasonable frugality, it is 
 not long before they are compelled to pay their fines by manual 
 labor ; and, as cold weather approaches, they begin to feel like the 
 grasshopper in the fable. Then the difference between the owners 
 of '* credits " and those who are '' on the work-list " becomes 
 evident. The rich spend their afternoons in skating or sledding, 
 while the poor are grinding corn for the cattle or chopping wood 
 for fires. 
 
350 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 The problem of " progress and poverty " thus presented itself 
 to the rulers of our boy-community. The proletarian class, how- 
 ever, obtained an excellent discipline from its misfortunes, and 
 no effort was made to change its condition. On the other hand the 
 growth of a class of wealthy speculators, whose opulence enabled 
 them, to break the laws with impunity, was an evil requiring cor- 
 rection. After some years it was found that the older boys 
 amassed such fortunes that they no longer regarded a debit as a 
 punishment ; for the owner of two hundred '' credits " was not 
 greatly incommoded by the loss of half of one per cent of his 
 property. So large a capitalist could safely commit one hundred 
 and fifty minor offences before running the risk of having to work 
 as a penalty. The supreme authority then began to regulate the 
 acquisition of wealth by exacting that no boy in any of the three 
 higher classes should receive ^' credits " from any other boy, 
 but all might still give " credits " away. This threatened to 
 deprive the older boys of all use of " credits " as currency in their 
 sales, and they cast about for some legal means of retaining the 
 use of this convenient money. They saw that the only object 
 in making the regulation was to compel them to work like the 
 others in penance for their misdeeds, and that this could be accom- 
 plished as long as the " credits " they obtained by purchase stood 
 UDon the book, not in their own name, but in the name of some boy 
 in one of the lower classes. They then invented an ingenious 
 bank of deposit, by which their hampered commerce was much 
 assisted. Welsh, in the first class, wishing to make a sale, and 
 being unable to receive "credits", in his own name, as payment, 
 arranged with the buyer to make his check payable to Cook, a 
 fourth classman, with whom Welsh had an understanding. When 
 next Welsh desired to make a purchase, he sent his creditor to 
 Cook, with an order, and the banker made the payment demanded, 
 by means of a check in his own name. When the authorities 
 learned of this arrangement, they made no objection, for, however 
 large a fortune Welsh might accumulate in trade, he could not 
 use his balance at his banker's as a means of evading punishment. 
 
 The extravagance of some of the boys has led to the devel- 
 opment of savings banks. A youngster, whom I will call Stevens, 
 found it impossible, as long, as his earnings remained in his own 
 immediate possession, to accumulate any large sums. Having a 
 friend in whose integrity he confided, he made a practice of trans- 
 ferring his *' credits " to his friend's account, keeping only a small 
 balance in his own name. In this way he seemed to himself always 
 
Chap. XI.] RUDIMENTARY SOCIETY AMONG BOYS 351 
 
 poorer than he really was, and he was thus able to restrain his 
 extravagance and *' save up " for any important object. The 
 banker makes a profit from these transactions, because when only 
 a portion of the school can be employed in the afternoon, the poorer 
 part is taken, and as the banker, with his aggregation of deposits, 
 appears to be rich, he is excused from duty. 
 
 While the monetary system thus appears to have reached a 
 high degree of excellence it should be remembered that the ma- 
 chinery by which it operates is all furnished by the authorities of 
 the school, as was the initial idea. If we wish to see the point 
 to which boys can carry, unaided, a commercial invention, we 
 must return to the " butter " money. In its use we find only 
 verbal demands for payment, and verbal transfers of claims. In 
 the nature of the material there is a bar to an accumulation of cur- 
 rency, though an accumulation of debts is frequent. The perfection 
 of the "credit*' system, invented by the teachers, is to be taken 
 rather as a contrast to the imperfection of the " butter " system, 
 of the boys' devising. It is, however, possible that if United 
 States money was altogether absent from the community, necessity, 
 the great mother of invention, might have compelled the boys to 
 use as currency some less defective material than butter. 
 
 These observations have been confined to a field so narrow, 
 that they afford an insufficient basis for generalization; and 
 they are recorded here merely for the sake of their suggestiveness 
 as an indication of a new field of study. A review of our facts 
 shows that in the IMcDonogh School land tenure, legislation, 
 judicial procedure, and industry are all of a primitive character. 
 Psychological resemblances between children and savages have 
 been noted before, and their importance has been pointed out by 
 both Lubbock and Gal ton. The former omnispective savant 
 some years ago remarked : " The opinion is rapidly gaining ground 
 among naturalists that the development of the individual is an 
 epitome of that of the species — a conclusion which, if fully borne 
 out, will evidently prove most instructive. Already many facts 
 are on record which make it, to say the least, highly probable. . . . 
 Regarded "from this point of view, the similarity existing between 
 savages and children assumes a singular importance. . . ."^ To 
 show a decided resemblance between barbarian political institu- 
 tions and those of communities of civilized children, would be a 
 long step towards founding a science of social embryology. 
 
 ^ Lubbock, "Origin of Civilization", pp. 505, 506. 
 
D.— RACIAL FACTORS 
 
 Chapter XII 
 
 Section 1. INTERNAL AND EXTERNAL FACTORS OF 
 LEGAL DEVELOPMENT! 
 
 1. The Importance of Race. 
 
 2. No Convergence of Legal 
 
 Political Development. 
 
 § 3. Method. 
 
 § L The Importance of Race. Race pr blood is of first im- 
 portance among all other important factors, in the evolution of 
 peoples. Climate, geographical situation, habits of life, and 
 educational influences, — all these, in comparison, are secondary. 
 Even legal institutions and religious beliefs are more dependent 
 on race than race is dependent on them. 
 
 The contrary view which is held in chief by Montesquieu, and 
 also by Buckle, is easily refuted by the fact that the same coun- 
 tries without any change of climatic or geographical condition, 
 as for example Asia Minor and Greece, have had entirely dif- 
 ferent civilizations in accordance with the difference of races 
 which have inhabited these countries. 
 
 It is true that surrounding nature has exerted a very powerful 
 influence in the physical and psychical development of mankind ; 
 although, in the Darwinian sense, according to which, each species 
 and each human race is a complex of adaptations. Yet the be- 
 ginning of this complex of adaptations through continuous ac- 
 cumulations and transfers of qualities acquired by adaptation, in 
 comparison with the relatively short span of the historical period, 
 goes back almost to endless time. 
 
 The loss of acquired qualities, however, through panmixia, is 
 a matter of relatively short duration. The commonplace saying 
 
 1 [By LuDWiG KuHLENBECK, Profcssor of Law in the University of 
 Lausanne. 
 
 Translated from "Natiirliche Grundlagen des Rechts und der Politik" 
 (pp. 115, 129, 200 seq.), Thiiringische Verlags-Anstalt Eisenach u. Leip- 
 zig (date not stated), by Albert Kocourek.] 
 
 352 
 
Chap. XII, § 1.] RACIAL FACTORS 353 
 
 that it is difficult to acquire wealth but easy to lose it, is here 
 confirmed. A thoroughgoing psychology of races indispensable 
 for sociology founded on natural science may at once accept with 
 Gobineau the existing race types as a positive datum, and may 
 consider race, as Le Bon has put it, ''a permanent entity, emanci- 
 pated from time." Therefore the difficult question of the bio- 
 genetic and phylogenetic origin of races may be put in the back- 
 ground for sociological purposes. . . . 
 
 § 2. No Convergence of Legal Development. In large outline 
 the political and legal history of each people is nothing else than 
 an expression of its constantly changing national character which 
 in turn is determined by its predominant race character. Thus, 
 the conspicuous trait of character of Homo Alpinus tending in the 
 direction of uniformity is found in a leveling civilization which, 
 in an evolution of a thousand years, has marked the Latin nations, 
 and especially the French. . . . 
 
 In the sphere of private law an abstract evolutionary theory 
 derived superficially from the supposed discoveries of a so-called 
 science of comparative law, has fallen into discredit, and has 
 been completely refuted, especially, by Tarde. This abstract, 
 and everywhere .uniform, development presupposed by the theory 
 of evolution as represented chiefly by Bachofen, Spencer, Starke, 
 and Maine, overlooks entirely the difference of races. 
 
 It puts at the head of the evolution of all races a herd life with 
 promiscuity of sex relations ; it assumes, as a primary institution, 
 matriarchy followed, without any suggestion of a change of 
 circumstances, by patriarchy, and this in its turn transformed by 
 an appreciable attenuation among modern peoples, into paternal 
 and parental power. 
 
 In the law of things it starts with the universality of commu- 
 nism, at least with respect to the use of land, from which there 
 gradually developed everjnvhere, by virtue of certain immanent 
 laws of evolution, the forms of individual dealing and private 
 ownership. The theory apparently manipulates its dubious ideas 
 in such manner that by force of a dialectic process of world events, 
 so to say, this last capitalistic economic form necessarily must be 
 followed by a more perfect stage of socialism such as predicted by 
 Marx. 
 
 An evolutionary process with such uniforming is not, however, 
 in the least confirmed by critical legal history. Furthermore, it 
 will be seen on closer investigation that this theory is contradicted 
 by the discoveries made in the field of evolution the laws of which 
 
354 FACTORS OF LEGAL EVOLUTION [Part LI. 
 
 in consequence of the extraordinary differences of operation of 
 inheritance, variation, struggle for existence, and, above all, 
 tradition, give an entirely individual imprint to the legal devel- 
 opment of every race. Again, regressive selection is never ex- 
 cluded from the process of historical growth. . . . 
 
 Evolutionary doctrine [Darwinism] does not stand or fall on 
 the acceptance of a uniform origin of life ; its laws remain unim- 
 paired even though there is proof of a multiple starting point. 
 Hercy as elsewhere, science must be on guard against two varieties 
 of error : first, against over- valuation of external conditions ; 
 and, second, against over-emphasis of a necessary and machine- 
 patterned or deterministic internal evolutionary process. 
 
 Jhering has aptly remarked that 
 
 " The same law which obtains in the physical world holds also in 
 the spiritual world : life is a receiving from without and a taking 
 from within — adaptation. Reception and assimilation are the 
 two fundamental functions upon whose existence and equal impor- 
 tance the permanence and vigor of every living organism depends. 
 To deny to the organism appropriation from without and to condemn 
 it to develop from within means death — expansion from within 
 first begins with the corpse." ^ 
 
 Roman private law would have remained perpetually jus civile 
 Qiiiritium if the wars and conquests of Rome had not brought 
 it into fruitful and stimulating contact with foreign peoples and 
 races; whereby, at first, the praetor peregrinus was brought 
 into association with foreign legal ideas. These ideas finally 
 in the shape of jus gentium influenced the praetor urbanus and 
 led to a regeneration, or if one prefers, a progressive development 
 of the law of the XII Tables, culminating in the creation of classical 
 Roman law which will never lose its traditional value for legal 
 culture. On the other hand, however, this development would 
 not have been possible without the predestination of Roman race 
 character and race sense for the law already manifest in the 
 ancient civil law. 
 
 A race which lacks every endowment for legal construction is 
 in danger of losing completely its legal system on contact with 
 other races, and of becoming dominated by a foreign tradition. 
 While the Berbers (the Guanches) of the Canary Islands, retained 
 up to the time of their discovery in the 1500 s the social customs of 
 the Stone Age, and were the contemporaries in point of develop- 
 1 "Geist des rom. Rechts", I, 5. 
 
CllAT. XII, § 2.] RACIAL FACTORS 355 
 
 ment of the Cro-Magnon race, whose descendants they have often 
 been supposed to be, the African Berber tribes at that period had 
 attained a quite modern legal establishment after having been 
 overrun in turn by Egyptian, Phoenician, and Roman civilization. 
 For instance, while the wife among the Guanches was only like a 
 beast of burden, among the Tuaregs the wife had become so far 
 emancipated that she exerted an indirect dominion over the 
 male comparable alone to the lofty position of a lady in central 
 Europe, in her salon.^ 
 
 § 3. Method. To set forth the spirit of the law which will 
 present all the individual internal and external factors of develop- 
 ment of all peoples, a genuine comparative universal legal history, 
 is a task worthy of the noblest, but it would transcend the powers 
 of the greatest intellect. It can only be accomplished by the 
 unified labors in many generations of learned investigations. 
 
 Section 2. THE RACE FACTOR IN LEGAL EVOLUTION 2 
 
 § L Importance of Race. 
 
 § 2. Influence of Race Character 
 on Legal Institutions as 
 Shown by Rome. 
 
 § 3. Moral Character and Analyti- 
 cal Power of the Romans — 
 Roman, Greek, and Ger- 
 
 manic Law Compared — 
 Individuality of Legal Sys- 
 tems. 
 
 § 4. Greeks and Romans — Further 
 Comparison — The Family. 
 
 § 5. Scientific Confusion. 
 
 § 1. Importance of Race. Nothing is so convincing as the 
 consciousness of the possession of race. The man who belongs 
 to a distinct, pure race, never loses the sense of it. The guardian 
 angel of his lineage is ever at his side, supporting him where he 
 loses his foothold, warning him like the Socratic Daemon where 
 he is in danger of going astray, compelling obedience, and forcing 
 him to undertakings which, deeming them impossible, he would 
 never have dared to attempt. Weak and erring, like all that is 
 human, a man of this stamp recognizes himself, as others recog- 
 nize him, by the sureness of his character, and by the fact that his 
 actions are marked by a certain simple and peculiar greatness, 
 which finds its explanation in his distinctly typical and super- 
 personal qualities. Race lifts a man above himself: it endows 
 him with extraordinary — I might almost say supernatural — 
 
 ^ C/. Tarde, "Les transformations du droit", p. 164. 
 
 2 [By Houston Stewart Chamberlain. 
 
 Reprinted from " Foundations of the Nineteenth Century" (trans, 
 from the German by Lees), Vol. I, pp. 269-271, 106-110, 145-152, 155- 
 160, 258-259, John Lane Company, N. Y., 1912.] 
 
356 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 powers, so entirely does it distinguish him from the individual 
 who springs from the chaotic jumble of peoples drawn from all 
 parts of the world : and should this man of pure origin be per- 
 chance gifted above his fellows, then the fact of race strengthens 
 and elevates him on every hand, and he becomes a genius tower- 
 ing over the rest of mankind, not because he has been thrown upon 
 the earth like a flaming meteor by a freak of nature, but because 
 he soars heavenward like some strong and stately tree, nourished 
 by thousands and thousands of roots — no solitary individual, 
 but the living sum of untold souls striving for the same goal. He 
 who has eyes to see at once detects race in animals. It shows 
 itself in the whole habit of the beast, and proclaims itself in a 
 hundred peculiarities which defy analysis : nay more, it proves 
 itself by achievements, for its possession invariably leads to 
 something excessive and out of the common — even to that 
 which is exaggerated and not free from bias. Goethe's dictum, 
 " only that which is extravagant (* iiberschwanglich ') makes 
 greatness ", is well known.^ That is the very quality which a 
 thoroughbred race reared from superior materials bestows upon 
 its individual descendants — something '' extravagant " — and, 
 indeed, what we learn from every race-horse, every thoroughbred 
 fox-terrier, every Cochin China fowl, is the very lesson which the 
 history of mankind so eloquently teaches us! Is not the Greek 
 in the fulness of his glory an unparalleled example of the " ex- 
 travagance " ? And do we not see this '' extravagance " first 
 make its appearance when immigration from the North has 
 ceased, and the various strong breeds of men, isolated on the 
 peninsula once for all, begin to fuse into a new race, brighter and 
 more brilliant, where, as in Athens, the racial blood flows from 
 many sources — simpler and more resisting, where, as in Lace- 
 daemon, even this mixture of blood had been barred out. Is the 
 race not, as it were, extinguished, as soon as fate wrests the land 
 from its proud exclusiveness and incorporates it in a greater whole ? ^ 
 
 1 "Materialien zur Geschichte der Farbenlehre " ; the part dealing 
 with Newton's personality. 
 
 2 It is well known that it was but gradually extinguished, and that in 
 spite of a political situation, which must assuredly have brought speedy 
 destruction on everything Hellenic, had not race qualities here had a 
 decisive influence. Till late in the Christian era, Athens remained the 
 center of intellectual life for mankind ; Alexandria was more talked of, 
 the strong Semitic contingent saw to that ; but any one who wished to 
 study in earnest traveled to Athens, till Christian narrow-mindedness 
 forever closed the schools there in the year 529, and we learn that as 
 late as this even the man of the people was distinguished in Athens "by 
 the liveliness of his intellect, the correctness of his language and the sure- 
 
Chap. XII, § 2.] RACIAL FACTORS 357 
 
 Does not Rome teach us the same lesson? Has not in this case 
 also a special mixture of blood produced an absolutely new race, 
 similar in qualities and capacities to no later one, endowed with 
 exuberant power? And does not victory in this case effect what 
 disaster did in that, but only much more quickly? Like a cata- 
 ract the stream of strange blood overfiooded the almost depopu- 
 lated Rome and at once the Romans ceased to be. 
 
 § 2. Influence of Race Character on Legal Institutions as 
 Shown by Rome. The Romans did not invent marriage, they 
 did not invent law, they did not invent the constitutional freedom- 
 giving State; all that grows out of human nature and is found 
 everywhere in some form and to some degree; but what the 
 Aryan races had conceived under these notions as the bases of all 
 morality and culture had nowhere been firmly established till the 
 Romans established it.^ Had the Hellenes got too near Asia? 
 Were they too suddenly civilized? Had the Celts, who were by 
 nature endowed with almost as much fire, become so savage in 
 the wild North, that they were no longer able to construct any- 
 thing, to organize anything, or to found a State? Or was it not 
 rather that blood-mixtures within the common mother race, and 
 at the same time the artificial selection necessitated by geographical 
 and historical conditions tended to produce abnormal gifts (nat- 
 urally with accompanying phenomena of reversion) ? I do not 
 know. Certain it is, however, that previous to the Romans there 
 was no sacred, worthy, and at the same time practical regulation 
 of matters relating to marriage and family ; no more was there a 
 rational law resting on a sure foundation capable of being widened, 
 or a political organization able to resist the storms of a chaotic 
 
 ness of his taste" : {Gibbon, chap. xl). There is in George Finlay's book 
 "Medieval Greece", chap, i, a complete and very interesting and clear, 
 account of the gradual destruction of the Hellenic race by foreign im- 
 migration. One after the other colonies of Roman soldiers from all parts 
 of the Empire, then Celts, Teutonic peoples, Slavonians, Bulgarians, 
 Wallachians, Albanesians, etc., had moved into the country and mixed 
 with the original population. The Zaconians, who were numerous even 
 in the fifteenth century, but have now almost died out, are said to be the 
 only pure Hellenes. 
 
 1 For the Aryan peoples in particular, see LeisVs excellent "Graco- 
 italische Rechtsgeschichte " (1884), and his "Altarisches Jus civile" 
 (189G) ; also Jhering's " Vorgeschichte der Indoeuropaer." The ethnical 
 investigations of the last years have, however, shown more and more that 
 marriage, law, and State exist in some form everywhere, even among 
 the savages of least mental development. And this must be strongly 
 emphasized, for the evolution mania and the pseudo-scientific dogmatism 
 of our century have brought into most of our popular books absolutely 
 invented descriptions, which are very difficult to remove from them, in 
 spite of the sure results of exact research : and from here these descrip- 
 tions also force their way into valuable and serious books. 
 
358 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 time. Though the simply constructed mechanism of the old 
 Roman State might frequently be awkward in its working and 
 require thorough repairs, it was yet a splendid structure well 
 adapted to the time and to its purpose. In Rome, from the first, 
 the idea of law had been finely conceived and finely carried into 
 effect; moreover its limitations were in keeping with the condi- 
 tions. Still more was this the case with the family. This insti- 
 tution was to be found in Rome alone — and in a form more 
 beautiful than the world has ever since seen ! Every Roman 
 citizen, whether Patrician or Plebeian, was lord, yea, king in his 
 house : his will extended even beyond death by the unconditional 
 freedom of bequest, and the sanctity of the last testament ; his 
 home was assured against official interference by more solid rights 
 than ours ; in contrast to the Semitic patriarchate he had intro- 
 duced the principle of agnation and thereby swept entirely aside 
 the interference of mothers-in-law and women as a whole ; on the 
 other hand, the materfamilias was honored, treasured, loved 
 like a queen. Where was there anything to compare with this in 
 the world at that time? Outside of civilization perhaps; inside 
 it nowhere. And so it was that the Roman loved his home with 
 such enduring love and gave his heart's blood for it. Rome was 
 for him the family and the law, a rocky eminence of human dig- 
 nity in the midst of a surging sea. 
 
 § 3. Moral Character and Analytical Power of the Romans — 
 Roman, Greek, and Germanic Law Compared — Individuality of 
 Legal Systems. If law is not an inborn principle nor an exact 
 science capable of investigation, but a useful adaptation of human 
 capabilities to the building up of a society fitted for civilization, 
 then it is clear from the first that there will be and must be codes 
 of law varying very much in value. Fundamentally a law will 
 be influenced principally by two forces from which it will receive 
 its characteristic coloring : first, by the moral character of the 
 people in whose midst it comes into force, and, secondly, by the 
 analytical acuteness of that people. By the happy union of 
 both — a union occurring only once in the history of the world — 
 the Roman people found themselves in a position to build up a 
 legal code of great perfection.^ Mere egoism, the greed of pos- 
 
 ^ The assertion that history constantly repeats itself belongs to the 
 countless untruths which are in circulation as wisdom among the "nono- 
 centists." Never in history — as far as our knowledge goes — has any- 
 thing repeated itself, never! Where is the repetition of Athens and 
 Sparta? of Rome? of Egypt? Where has the second Alexander 
 flourished? Where a second Homer? Neither nations nor their great 
 
Chap. XII, § 2.] RACIAL FACTORS 359 
 
 session, will never suffice to found a lasting code of law. We have 
 rather learned from the Romans that the inviolable respect for 
 the claims of others to freedom and possession is the moral foun- 
 dation upon which alone we can build for all time. One of the 
 most important authorities on the Roman law and people, Karl 
 Esmarch, writes : *' The conscience of the Italian Aryans in re- 
 gard to right and wrong is strong and unadulterated ; in self-con- 
 trol and, when necessary, self-sacrifice, that virtue of theirs which 
 springs from inner impulse and is supported by a most profound 
 inner nature, reaches its culmination." Because he knew how to 
 rule himself the Roman was qualified to rule the world and to de- 
 velop a strong idea of the State ; by the fact that he could sacri- 
 fice his own interests to the universal weal, he proved his capacity 
 to establish valid principles in regard to the rights of private prop- 
 erty and of individual freedom. But these high moral qualities 
 had to be supported by exceptional intellectual qualities. The 
 Romans, quite insignificant in philosophy, were the greatest 
 masters in the abstraction of firm principles from the experiences 
 of life — a mastery which becomes specially remarkable when we 
 compare other nations with them, as, for example, the Athenians, 
 who, though marvelously gifted, and delighting in legal quarrels 
 and sophistical law riddles, never were anything but blunderers 
 in this branch of thought.^ This peculiar capacity to elevate 
 definite practical relations to clearly defined principles implies a 
 great intellectual achievement; for the first time order and lu- 
 cidity of arrangement were brought into social conditions, just as 
 language, by the formation of abstract collective words, had made 
 higher systematic thinking possible. It is no longer a question 
 of vague instincts nor of obscure and changing conceptions of 
 justice and injustice ; all relations stand definitely grouped before 
 our eyes, and these relations are to be regulated by the invention 
 of new legal rules or the further development of those already 
 existing. And since life gradually widens experience, or itself 
 assumes more complicated forms, the Roman acuteness little by 
 
 men return again. And so mankind does not become wiser by "experi- 
 ence"; the past offers it no paradigm for the present to form its judg- 
 ment; it is made worse or better, wiser or more foolish, simply by the 
 influences that are brought to bear on its intellect and character. Gutzkow's 
 "Ben Akiba" was fundamentally wrong in his' famous remark, "All has 
 occurred before!" Such an ass as he himself never lived before, and, it 
 is to be hoped, will never appear again. And even if this were so, it 
 would only be the repetition of the individual who under new circum- 
 stances would commit new follies for our amusement. 
 
 ' Cf. Leist, " Graco-italisehe Rechtsgeschichte", p. 694, and for the 
 following quotation, p. 682. 
 
360 FACTORS OF LEGAL EVOLUTION [Part II, 
 
 little inside the individual " groups " discovers the " species." 
 " In point of fine, carefully pondered ideas of right, Roman law 
 is and will remain the permanent teacher of the civilised world," 
 says Professor Leist, the very man who has done more than any 
 other to prove that the universities should give up the present 
 one-sided Roman standpoint of history of law and should teach 
 students to recognize Roman law as a link in the chain, as one of 
 the steps " which the Aryan mind has mounted in the clearing up 
 of legal conceptions." The more carefully we study the nu- 
 merous attempts at legislation previous to and contemporary with 
 the Roman, the more we recognize what incomparable services 
 were rendered by Roman law and realize that it did not fall from 
 heaven but was the creation of the intellects of grand and sturdy 
 men. One thing must not be overlooked : in addition to the qual- 
 ities of self-control, of abstraction, and the finest analysis, the 
 Roman possessed a special gift of plastic shaping. Here appears 
 their relationship to Hellenism, which we seek in vain elsewhere. 
 The Roman too is an artist of mighty creative power — an artist 
 in the clear, plastic shaping of the complicated machine of State. 
 No theorist in the world could have thought out such an organism 
 of State, which perhaps should rather be pointed to as a work of 
 art than as a work of reason. He is still more an artist in the 
 plastic working out of his conceptions of law. Highly character- 
 istic too is the manner in which the Roman strives to give visible 
 expression to his artistically moulded conceptions even in legal 
 actions, everywhere " to give an outward expression to the inner 
 diversity, to bring what is inward, so to speak, to the surface." ^ 
 Here we have a decidedly artistic instinct, the outcome of specifi- 
 cally Indo-European tendencies. In this artistic element too 
 lies the magic power of the Roman legacy ; that is, the indestructi- 
 ble and ever incomparable part of it. 
 
 On one point indeed we must be quite clear: Roman law 
 is just as incomparable and inimitable as Hellenic art. Our 
 ridiculous Germanomania will make no change in that. People 
 tell marvels about a " German law ", supposed to have been stolen 
 from us by the introduction of the Roman ; but there never was 
 
 1 For examples, read the splendid chapter "Plastik des Rechtes", in 
 Jhering's "Geist des romischen Rechtes", §23. Of the modern un- 
 dramatic life of law, Jhering says : *' One would have liked to give law, 
 instead of a sword, a quill as its attribute, for the feathers were scarcely 
 more necessary to the bird than to it, except that in the case of law the 
 attribute produced the opposite effects and speed stood in converse re- 
 lation to the amount of feathers employed." 
 
CiLlP. XII, § 2.] RACIAL FACTORS 361 
 
 a German law, but merely a chaos of rude contradictory laws, a 
 special one for each tribe. It is also absolutely inaccurate to 
 speak of " adopting " Roman law between the thirteenth and the 
 sixteenth centuries ; for the Teutonic peoples have '' adopted " 
 continuously from the time when they first came into contact 
 with the Roman Empire. Burgundians and East Goths as early 
 as the fifth century of the Christian era (or at the very beginning 
 of the sixth) introduced modified (corrupted) forms of Roman 
 law,^ and the oldest sources of Saxon, Prankish, Bavarian, and 
 Alemannic law, etc., are so interlarded with Latin words and 
 half-understood principles, that the need of a reasoned codification 
 of law is only too apparent. One might well relegate German 
 law as an ideal to the future, but to seek it in the past is hypo- 
 critical twaddle.^ Another hindrance to the proper estimation of 
 Roman law is due to the frenzy produced by the dogma of evolu- 
 tion, which has led to such confusion of thought in the nineteenth 
 century. The feeling for the individual, the established view 
 that the individual alone has everlasting importance, has been 
 seriously injured by it. Although the only effective powers that 
 history reveals are absolutely individualized nations and great 
 personalities that never recur, the theory of evolution leads to 
 the idea that capacities and beginnings were everywhere identical 
 and that essentially analogous structures must " develop " from 
 these same germs. The fact that this never happens and that 
 Roman law, for example, came into being once for all, does not 
 disturb our dogmatists in the least. With this is connected the 
 further conception of unceasing progress towards " perfection ", 
 ill consequence of which our law must as a matter of course sur- 
 pass the Roman, because it is later, and yet nature never offers 
 an example of development taking place in anything living without 
 entailing a corresponding loss. Our civilization stands high above 
 the Roman ; in respect of the vividness of our legal sense, on the 
 other hand, an educated man of the nineteenth century can cer- 
 tainly not come up to a Roman peasant of the year 500 B.C. No 
 one who has any thinking power and knowledge will dispute that. 
 I said in relation to law, not to justice. When Leist writes, 
 
 1 Savigny, "Geschichte des romischen Rechts im Mittelalter", chap. i. 
 
 2 I know no more conclusive proof of the original incapacity of the 
 Teutonic peoples to judge acutely in questions of law than that such a 
 man as Otto the Great could not decide, otherwise than by a duel, the 
 fundamental question whether descendants should inherit or not; this 
 judgment of Heaven was then adopted as a piece of law for good by a 
 pactum scmpiternum ! (See Grimm, "Rechtsaltertiimer", 3d ed., p. 471.) 
 
362 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 " The unprejudiced inquirer will not find that the present age as 
 compared with the Roman has made such glorious advance in 
 the practice or even in the knowledge of real justice 'V he makes 
 a remark well worth taking to heart; but I quote these words 
 to make it clear that I do not here speak of justice, but of law, 
 and to ensure that the difference between the two may be ob- 
 vious. Our noble conception of the duties of humanity points, 
 I am sure, to more enlightened ideas with regard to justice ; the 
 legal sense is, however, quite a different thing and is neither proved 
 nor promoted even by the possession of the most perfect and 
 yet imported systems of law. 
 
 To understand how incomparable was the achievement of the 
 Romans, one circumstance must certainly not be overlooked : 
 the Justinian corpus juris with which we are familiar is only the 
 embalmed corpse of Roman law.^ For centuries skilled legal au- 
 thorities kept in it a semblance of life by galvanic means ; now all 
 civilized nations have worked out a law of their own ; but this 
 would not have been possible without the Roman ; we all lack the 
 necessary talent. A single observation will suffice to show the 
 cleft between the Romans and ourselves : Roman law of the real 
 heroic period was firm as a rock but nevertheless incredibly elas- 
 tic — " incredibly ", I mean, to our modern, timid conceptions, 
 for we have taken everything from that law except its living 
 character. The Roman law was always " in a state of growth ", 
 and capable, thanks to certain brilliant contrivances, of adapting 
 itself to the changing needs of the times. The law, which in the 
 fifth century B.C. was in its general outlines engraved in bronze 
 tables by the decemvirs nominated for that purpose, was not a 
 new and improvised code, nor one which from that time forth was 
 immutable, but was more or less a codification of already existing 
 laws which had grown up historically ; the Romans knew how to 
 invent ways and means to keep it even then from crystallizing. 
 In dealing with the Twelve Tables, for example, the officials did 
 good service by their acumen in " interpreting " — not with the 
 object of twisting the statutes to suit some special purpose, but of 
 adapting them half-automatically to wider conditions; brilliant 
 inventions — as, for example, that of the legal " fiction ", by which 
 means were found (if I may express myself as a layman) of put- 
 
 1 " Graco-italische Rechtsgeschichte", p. 441. 
 
 2 Francis Bacon points out how inferior the corpus juris of Justinian 
 is to the genuine Roman law, and blames so "dark an age" for taking 
 the liberty of laying hands upon the work of so "brilliant an age" in 
 order to improve it. (See the dedication of the "Law Tracts.") 
 
Chap. XII, § 2.J RACIAL FACTORS 363 
 
 ting to use existing legal norms to forestall others that were not 
 yet existent — and constitutional arrangements, like those of the 
 praetors, by which a place was assured to that law of custom 
 which is so necessary in a living organism, till the best law has 
 been provided by practice, arrangements by means of w'hich 
 the jus gentium also gradually developed in close touch with the 
 narrower Roman jus civile — all these things brought about a 
 fresh pulsating life in law — a life which no one can appreciate 
 unless he has studied law, inasmuch as we have nothing of the 
 kind, absolutely nothing.^ Moreover, in order to estimate the 
 gulf between us and the Romans, we must remember that real 
 scholarly and trained jurists did not come into existence till the 
 end of the republic, and that this splendid, and in most parts 
 most delicately chiselled product of legal applied art is the work 
 of peasants and rude warriors. The reader should try to make 
 clear to an average philistine of the present day the juristical dif- 
 ference between property and possession, to bring home to him that 
 a thief is the legal possessor of the stolen object, and as such en- 
 joys legal protection for his possession, as does also the pawnbroker, 
 and the hereditary landlord ; he will not succeed, I know it from 
 experience; I purposely choose this as a simple example. The 
 Roman peasant, on the other hand, who could neither read nor 
 write, knew all this quite accurately five hundred years before 
 Christ.^ He certainly did not know much more, but his law he 
 knew and employed with as exact knowledge as he did his plough 
 or his oxen ; and by knowing it and thinking about it,^ by striving 
 to obtain for himself, his possessions, and his relatives an ever 
 firmer and more definite legal protection, he built up that legal 
 structure, under which at a later time other races found shelter 
 in stormy days, and which we at the present day with more or 
 less success, with more or less changes, seek to extend, finish, and 
 perfect. No people but the Romans could of themselves have 
 created and built it up, for nowhere else was there present the 
 necessary conjunction of qualities of character and of intellect, 
 and this law had to be lived before it was thought, before the 
 arrival of those worthies who could tell us so much that was 
 edifying in regard to a " natural law ", and thought it com- 
 
 1 Especially of the annual edicts of the prsBtors. Leist says that they 
 had become "the principal moment in the finer development of Roman 
 Law" (as quoted above, p. 622). 
 
 2 See the clear distinction between property and possession in Table 
 VII, clause 11. 
 
 3 In Cicero's time every boy still learned the Twelve Tables by heart. 
 
364 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 parable to the geometry which the scholar puzzles out in his 
 lonely room. 
 
 § 4. Greeks and Romans — Further Comparison — The 
 Family. Another national comparison with regard to the for- 
 mation of law between the Hellenes and the Romans reveals the 
 essence of Roman law, the one point to which I may call special 
 attention. It will make us feel how deeply our civilisation is in- 
 debted to the Roman legacy. . . . 
 
 Every educated person knows that the Greeks were not only 
 great politicians but at the same time great theorists of law. The 
 " lawsuit about the shadow of the ass " ^ is an ancient Attic witti- 
 cism which satirizes excellently the love of this thoughtless, liti- 
 gious people for actions at law. I recall too the Wasps of Aris- 
 tophanes with the heartrending prayers of Philocleon when shut 
 in by his son : " Let me out, let me out — to judge ! " But we 
 should look further around. Homer has a court scene repre- 
 sented on the shield of Achilles (" Iliad ", xviii. 497 ff.) ; Plato's 
 largest works are on politics and the theory of law (the " Republic " 
 and the " Laws ") 5 Aristotle's " Rhetoric " is in parts simply a 
 handbook for advocates beginning their profession ; notice, for 
 example, how in chap, xv of the first book he expounds a detailed 
 theory of deceptive sophistry for hedge-lawyers, gives them hints 
 how to twist the law to the advantage of their clients, and ad- 
 vises them to let their clients swear false oaths in court, when- 
 ever it is to their advantage.^ . . . We see that, except in Sparta 
 (where according to Plutarch's assurance there were absolutely 
 no cases), the Hellenic atmosphere was charged with questions 
 of law. The Romans, always ready to recognise the merits of 
 others, had, from time immemorial, recourse to the Greeks, par- 
 ticularly to the Athenians, for advice in the development of their 
 law. Even when they were about to fix their fundamental legal 
 principles (in the Twelve Tables) for the first time, they sent a 
 commission to Greece, and in the final editing of this earliest 
 monument, an Ephesian, Hermodorus, who was banished from 
 his native city, is said to have been of considerable service. Time 
 made no change in this. The great authorities on law, a Mucins 
 Scsevola, a Servius Sulpicius, have a thorough knowledge of 
 Hellenic legal enactments ; Cicero, and all that this name stands 
 
 ^ An Athenian hires an ass to carry his baggage to Megara. At a 
 resting-place he sits down in the shadow of it; the driver will not per- 
 mit this without extra payment, as he had hired the ass but not its shadow. 
 
 2 This belongs, according to the great philosopher, to "the means of 
 persuasion that lie outside of art." 
 
Chap. XII, § 2.] RACIAL FACTORS 365 
 
 for, derives his obscure remarks on divine justice, natural law, 
 etc., from Greek philosophers : in the pseudo-Platonic Minos he 
 might have read that law is the discovery of an objective thing, 
 not a human invention, and from Aristotle he quotes the words, 
 " The universal law, because it is the natural law, never changes, 
 but the written law, on the other hand, often does." ^ In the 
 later period of the imperial decay, w^hen the Roman people had 
 disappeared from the face of the earth, the so-called " classical 
 jurisprudence " was founded and put into shape almost entirely 
 by Greeks more or less of Semitic descent. There is a remarkable 
 want of information with regard to the antecedents and history 
 of the most famous teachers of law in the later Roman ages ; all 
 of a sudden they appear in office and dignity, no one knowing 
 whence they have come.^ But at the beginning of the Imperial 
 rule with its inevitable influence upon the life of law the passionate 
 struggle between Labeo, the irrepressible, free old plebeian, and 
 Capito, the upstart, who is striving for wealth and honor, is truly 
 pathetic ; it is the struggle for organic free development in oppo- 
 sition to the faith in authority and dogma. And dogma con- 
 quered in the legal sphere as in that of religion. But in the 
 meantime, as we have said, the practical Romans had learned a 
 great deal in Greece, especially from Solon, who had, as a builder 
 of states, achieved little that lasted, but accomplished all the 
 more in the sphere of law. Whether Solon was the originator of 
 written legislation and the momentous principle of actiones (the 
 division of suits according to definite principles), or w^hether he 
 merely systematized and fixed them — I know not : at any rate 
 both are derived from Athens.^ This I mention only as an in- 
 stance of the great importance of Greece in the development of 
 Roman law. Later, when all Hellenic countries were under 
 Roman administration, the Greek cities contributed most to the 
 
 1 Up to the present day one finds this passage quoted in juristical 
 works, but with little justification, as Aristotle is here giving merely a 
 rhetorical trick for use in court and on the next page teaches the use of 
 the opposite assertion. Still less to the point is the passage from the 
 "Nicomachean Ethics", v, 7, which culminates in the sentence, "Law is 
 the mean between a certain advantage and a certain disadvantage." 
 How great does Democritus show himself here as always when he says, 
 with that clear insight characteristic of him, that "laws are the fruits of 
 human thinking in contrast to the things of nature" ("Diogenes Laertius", 
 IX, 45). 
 
 2 With regard to the predominantly Semitic and Sjrrian race-connec- 
 tion of the later codifiers and embalmers of the Roman law, for whom we 
 have shown too much admiration, see Leonhard, " Roms Vergangenheit 
 und Deutschlands Recht", 1889, p. 91. 
 
 ' Leist, "Graco-italische Rechtsgeschichte", p. 585. 
 
366 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 formation of the jus gentium and in that way to the perfecting of 
 Roman law. Here we may ask, how is it that the Hellenes, so 
 superior intellectually to the Romans, created nothing in the 
 branch of knowledge that was lasting or perfect, but shared in 
 the great civilizing work of the formation of law solely through the 
 medium of the Romans? 
 
 A single but fatal mistake was at the bottom of it : The Roman 
 started from the family, on which basis he erected State and law ; 
 the Greek, on the other hand, took as his starting-point the State, 
 his ideal being always the organisation of the '^ polls", while family 
 and law remained subordinate. All Greek history and literature 
 prove the correctness of this assertion, and the fact that the 
 greatest Hellene of post-Homeric times, Plato, considered the 
 complete abolition of the family in the upper classes a desirable 
 aim, shows to what fatal confusions such a fundamental error 
 must in time lead. With perfect right Giordano Bruno says, 
 " The very smallest mistake in the way in which a thing is at- 
 tacked leads finally to the very greatest erroneous discrepancies ; 
 thus the most trifling mistake in the ramification of thought can 
 grow as an acorn does into an oak.'' ^ And this was not '^ the very 
 smallest mistake " but a very great one^ Herein lies all the misery 
 of the Hellenic peoples ; here we have to seek the reason of their 
 inability to develop either State or law in a lasting and ideal 
 manner. If we take up a careful individual account, for example, 
 Aristotle's book " The Athenian Constitution ", discovered a few 
 years ago, this succession of constitutions, all different and all 
 breathing an essentially different spirit, makes us giddy : the pre- 
 Draconian, those of Draco, Solon, Cleisthenes, Aristeides, Pericles, 
 the Four Hundred, etc., etc., all within two hundred and fifty 
 years ! Such a state of things would have been impossible where 
 there existed a firmly knit family life. Without that it was easy 
 for the Greeks to arrive at that characteristically unhistorical view 
 of theirs, that law was a subject for free speculation ; and so they 
 lost all feeling for the fact that in order to live, law must grow out 
 of actual conditions.^ And how striking it is that even the most 
 important questions of family law are regarded as subordinate, 
 
 1 The above words are perhaps from one of the very free translations 
 by Kuhlenbeck. In Bruno's "De Immenso et Innumerabilibus", I 
 found the following remark (Bk. II, chap, i) : "Parvus error in principio, 
 magnus in fine est." 
 
 2 J. Jacques Rousseau makes an excellent remark in this connection : 
 **Si quelquefois les lois influent sur les mceurs, c'est quand elles en tirent 
 leur force" ("Lettre a d'Alembert "). 
 
Chap. XII, § 2.] RACIAL FACTORS ^ 367 
 
 that Solon, for example, the most prominent Athenian as a lawyer, 
 leaves the law of inheritance so obscure, that it is left to the ca- 
 price of the law-courts to interpret it (Aristotle, as above, division 
 IX). With Rome it was different. The strong tendency to 
 discipline here finds its first expression in the firm organisation 
 of the family. The sons remain under the control of the father, 
 not merely till their fourteenth year, as in Greece, but till the 
 death of the father; by the exclusion cf relationship on the 
 mother's side, by the legal recognition of the unlimited power of 
 the paterfamilias y even in regard to the life and death of his chil- 
 dren (although his son might have risen in the meantime to the 
 highest offices in the State), by the greatest freedom and the. most 
 accurate individual enactments in reference to the law of wills 
 and legacies, by the strictest protection of all- the father's rights 
 of property and legal claims (for he alone possessed a right to 
 property and was a ^persona sui juris, i.e. a person with full rights 
 at law) — by these things and many more the family became in 
 Rome an impregnably firm, indissoluble unity, and it is essentially 
 to this that we are indebted for the particular form of the Roman 
 State and Roman law. One can easily imagine how such a strict 
 conception of the family must affect the whole life, the morals of 
 the men, the character of the children, the anxiety to retain and 
 to bequeath what had been acquired, the love of country, which 
 did not need to be artificially nourished, as in Greece : for the 
 citizen fought for what was assured to him forever, he fought for 
 his sacred home,' for the future of his children, for peace and 
 order. 
 
 § 5. Scientific Confusion. . . . The ethnographer Ratzel as- 
 serts that the fusion of all mankind should be kept before us as our 
 " aim and duty, hope and wish." Do we not rather deduce from 
 the example of Hellas and Rome, on the one hand, and of the 
 pseudo-Roman empire on the other, as well as from many ether 
 examples in history, that man can only attain his zenith within 
 those limits in which sharply defined, individualistic national types 
 are produced ? Is the present condition of things in Europe with 
 its many fully formed idioms, each with its own peculiar poetry 
 and literature, each the expression of a definite, characteristic 
 national soul — is this state of things really a retrograde step in 
 comparison with the time, when Latin and Greek, as a kind of 
 twin Volapiik, formed a bond of union between all those Roman 
 subjects who had no fatherland to call their own ? Is community 
 of blood nothing? Can community of memory and of faith be 
 
368 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 replaced by abstract ideals? Above all, is the question one to 
 be settled by each as he pleases ; is there no clearly distinguishable 
 natural law, according to which we must fit our judgment? Do 
 not the biological sciences teach us that in the whole animal and 
 vegetable kingdoms preeminently noble races — that is, races 
 endowed with exceptional strength and vitality — are produced 
 only under definite conditions, which restrict the begetting of new 
 individuals? Is it not possible, in view of all these human and 
 non-human phenomena, to find a clear answer to the question, 
 What is race ? And shall we not be able, from the consciousness 
 of what race is, to say at once what the absence of definite races 
 must mean for history ? 
 
Chapter XIII 
 
 INFLUENCE OF NATIONAL CHARACTER AND HIS- 
 TORICAL ENVIRONMENT ON THE DEVELOPMENT OF 
 THE COMMON LAW^ 
 
 § 1. Distinguishing Characteristics 
 of the Common Law. 
 
 § 2. The Race Factor in the Devel- 
 opment of the Common Law. 
 
 § 3. The Geographical Factor in 
 the Common Law. 
 
 § L Distinguishing Characteristics of the Common Law. 
 Wliat would a skilled observer select as the distinguishing quali- 
 ties, the peculiar and characteristic notes of the Common Law? 
 
 First, its firm grasp of the rights of the individual citizen. He 
 is conceived of, he is dealt with, as a center of force, an active 
 atom, a person in whom there inhere certain powers and capacities, 
 which he is entitled to assert and make effective, not only against 
 other citizens, but against all other citizens taken together ; that 
 is, as against the State itself and its organ, the executive govern- 
 ment. 
 
 Secondly, its recognition of the State and the executive as 
 clothed with the authority of the whole community, as being an 
 effective power, entitled to require and compel the obedience of 
 the individual wherever and whenever it does not trespass on the 
 rights which are legally secured to him. To be effective, law 
 must have not only executive force behind it, but also the prin- 
 ciple of legitimate authority, the sense in every citizen that his 
 individual free will has its limits, and can be exerted only within 
 the sphere allotted to it. . . . 
 
 These two principles go together. The one is a safeguard 
 against tyranny, i.e. the absolute and capricious will of the gov- 
 erning powei*; the other against anarchy, i.e. that unrestrained 
 
 ^ [By James Bryce. 
 
 Annual Address to American Bar Association, 1907. Reprinted from 
 A. B. A. Rep., XXXI, pp. 444-459.] 
 
 369 
 
370 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 and unlimited exercise of the will of each and every citizen which 
 must result in collision and disorder. 
 
 It may be suggested that these two principles are not peculiar 
 to the Common Law, because no law could grow up, no State could 
 prosper, without both of them. That is true. But there have 
 been systems of law in which sometimes the one, sometimes the 
 other principle, was imperfectly developed, and (so to speak) 
 overweighed by the other. The former principle especially (viz., 
 the recognition of the rights of the citizen) has often been quite 
 too weak to secure due protection to the individual man. It is 
 the clearness with which both have been recognized, the fullness 
 with which both have been developed, in the mediaeval and post- 
 mediaeval English law that constitutes its highest merit. 
 
 From the equal recognition of these two principles there fol- 
 lows a third characteristic. If principles apparently antagonistic 
 are to be reconciled, there must be a precise delimitation of their 
 respective bounds and limits. The law must be definite and 
 exact. Now precision, definiteness, exactitude are features of 
 the Common Law so conspicuous that the unlearned laity some- 
 times think they have been developed to an inordinate degree. 
 They have made the law, not only very minute, but very tech- 
 nical. 
 
 With the love of precision there naturally goes a love of cer- 
 tainty and fixity. The spirit of the Common Law is a conserva- 
 tive spirit, which stands upon what exists, distrusting change, 
 and refusing change until change has obviously become neces- 
 sary. "Stare super antiquas vias '\' " nolumus leges Angliae 
 mutari " ; " it is better that the law should be certain than that 
 the law should be just " : these were favorite dicta among the 
 lawyers of the old school in England. 
 
 The respect for what has been settled, and the desire that what 
 has been settled should be definite in its terms, import a deference 
 to precedent. No legal system, not even the Mussulman law, 
 grounded on Koranic interpretation and traditions, has ever gone 
 so far as the Common Law in basing itself on cases judicially 
 determined and recorded. 
 
 With the love of certainty and definiteness there goes a respect 
 for the forms of legal proceedings and for the precise verbal ex- 
 pression given to rules. This is a quality which belongs to most 
 legal systems in their earlier stages. In the Common Law it 
 
Chap. XIII.] RACE AND ENVIRONMENT AND THE COMMON LAW 371 
 
 held its ground with great pertinacity till very recently both in 
 England, and here. . . . 
 
 You may think that among the features that characterize our 
 Common Law I ought to name the love of justice and also the 
 fondness for subtle distinctions. I do not, however, dwell on the 
 latter of these, because it belongs to all legal systems that reach 
 a certain point of development, and is even more evident in some 
 others than in our own. The robust common sense which is 
 inherent in the Common Law seldom encouraged fine distinctions 
 to go beyond a certain point. As for the love of justice, it be- 
 longs to mankind generally, and to all systems of law. Such dif- 
 ferences as may be noted between different peoples consist not in 
 the reality of the wish to give every man his due — suum cuiqiie 
 tribuere — but in the self-control which prevents emotional im- 
 pulses from overriding justice, in the practical sense which per- 
 ceives that to allow the forms of law to be neglected or unusually 
 harsh treatment to be inflicted where a cause or a person happens 
 to be unpopular, is really to injure the community by impairing 
 the respect for law itself and the confidence in its administration. . . . 
 
 The foregoing characteristics of our Common Law are submitted 
 for your consideration, not as being the only ones which belong 
 to it, for others might be added, but as being characteristics so 
 broad and salient as to make it comparatively easy to discuss 
 them, and to endeavor to account for them. Some are found in 
 all systems that have reached a high level of scientific develop- 
 ment, being indeed qualities without which no system could be 
 deemed excellent. Only one other system, the Roman, possesses 
 them in so large a measure as to deserve comparison. 
 
 § 2. The Race Factor in the Common Law. To what are we 
 to ascribe these features distinctive of the Common Law? The 
 in-dwelling qualities of the race of men who built it up must have 
 been a principal and indeed the primary cause. The mind and 
 character of a people are indeed more exactly and adequately 
 expressed in and through its law and institutions than they are 
 through its literature or its art. For books and paintings are the 
 work of individual men, many of whom may have been greatly 
 influenced by foreign ideas or foreign models ; and some of whom, 
 powerful enough to influence their successors, may not have been 
 typical representatives of the national genius. But laws are the 
 work of the nation as a whole, framed indeed by the ruling class, 
 and shaped in their details by a professional class, but to a large 
 extent created by other classes also; because (except in those 
 
372 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 few cases where a conqueror imposes his own law on the vanquished) 
 the rules which govern the relations of the ordinary citizen must 
 be such as fit and express the wishes of the ordinary citizen, being 
 in harmony with his feelings and fitted to meet the needs of his 
 daily life. They are the offspring of custom, and custom is the 
 child of the people. Thus not only the constructive intellect of 
 the educated and professional class but the half-conscious thought 
 and sentiment of the average man go to the making and moulding 
 of the law. It is the outcome of what German philosophers call 
 the legal mind (" Rechtsbewusstsein ", or legal consciousness) of 
 a nation. 
 
 But law is the product not of one or two generations but of 
 many. National character is always insensibly changing, and 
 changing more rapidly the more advanced in civilisation the 
 nation becomes, the greater the vicissitudes in its fortunes, the 
 more constant its intercourse with other nations. Hence institu- 
 tions become the expression not solely of those original gifts and 
 tendencies of a race or a people which we observe when it emerges 
 from prehistoric darkness. Time and circumstances cooperate 
 in the work. Law is the result of the events which mould a nation 
 as well as of the mental and moral qualities with which the nation 
 started on its career. These two elements are so mixed and 
 blended in their working that it is hard to describe them 
 separately. Nevertheless let us try. Let us begin by a glance 
 at the inborn talents and temper of the race, and then see 
 how the course of history trained their powers and guided their 
 action. 
 
 All the Teutons are strong, resolute, even wilful ; and the Low 
 Germans and Northmen were the most active and forceful branches 
 of the Teutonic stock. Every man knew his rights and was 
 ready to assert his rights by sword and axe. Not only so, he was 
 ready, where society had become advanced enough for courts to 
 grow up, to assert his rights by legal process also. Read the 
 Icelandic sagas, in which records of killings and of lawsuits are 
 mingled in about equal proportion, if you wish to realize how 
 keen was the sense each freeman had of his own claims and how 
 resolute he was in enforcing them.^ Never was there a people 
 more fond of legal strife than were the Norwegians and Danes, 
 who spread tl^emselves over Eastern Britain in the ninth and 
 tenth centuries, or than their brethren, whom Rolf Ganger led 
 to the conquest of the northern coast of France in the ninth 
 1 See the Njals Saga Vol. I (pp. 122-209) in this series. 
 
Chap. XIII.] RACE AND ENVIRONMENT AND THE COMMON LAW 373 
 
 century. The Norman peasant is proverbial today in France for 
 his litigiousness. 
 
 In this self-assertiveness, however, there is no disregard of duly 
 constituted authority. The primitive Teuton had his Folkmot 
 in England, his Thing in Norway and Iceland. He was loyal to 
 his chief or king. He felt his duty to the community wherein he 
 lived. He did not always obey the law, but he respected the 
 law, and felt the need of its enforcement. 
 
 It belongs to a strong race to have the power of self-control. 
 Our forefathers were fierce and passionate, like other half-civilized 
 peoples, but they had this power and they restrained themselves 
 from overriding the process of law and letting passion work in- 
 justice many a time when men of other races, Greeks, or Slavs, 
 or Celts, would have yielded to their impulses. So too they had a 
 latent solidity and steadiness which indisposed them to frequent 
 or fitful change. Compared with their Slavonic neighbors to 
 the east and their Celtic neighbors to the west, races at least as 
 intellectually quick and intellectually fertile, the Teutons have 
 always been of a conservative temper. This may be — so we like 
 to think — a mark of good sense and patience, or it may be an 
 attribute of dogged and slowly moving minds. Anyhow, there 
 it is, and (as already remarked) for the purposes of law-building, 
 it is a merit of the first magnitude. 
 
 Further, the mediaeval English mind was of a practical rather 
 than of a speculative type. It had plenty of acumen, plenty of 
 logical vigor. But it did not run to the spinning of theories or the 
 trying of experiments. This has been characteristic more or less 
 of the English and the American mind, and I may add of the 
 Low German or Dutch mind, ever since, as compared with the 
 Scotch mind and with our brethren the High Germans of the 
 European continent. 
 
 Here, then, we have noted five characteristics of those to whom 
 we owe the Common Law. They were strong men and pugnacious 
 men ; they respected authority ; they could at need control their 
 impulses ; they were not given to change ; they were not fertile 
 in theory or invention. With these qualities they started on the 
 work of making a law. How did the conditions of England from 
 the twelfth to the eighteenth century aflFect them, and so guide 
 their action as to bring out in the fulness of time the legal product 
 we have inherited, a fruit very different from that which ripened 
 under the sun of Germany or France? 
 
 The English King in the Middle Ages was strong, stronger than 
 
374 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the Kings of France or Castile or Aragon. He was from the 
 days of Henry II onwards, effective master (except for brief in- 
 tervals) of the whole realm. He was able to make his executive 
 authority feared even if it was sometimes disobeyed. His writ 
 ran everywhere. His judges travelling through the country 
 brought the law to the sight of all men. 
 
 His aim, and that of his judges, was during the thirteenth and 
 fourteenth centuries to build up one law, instead of the variety 
 of the diverse customs such as had grown up in Continental Eu- 
 rope. Thus he and they must needs strive to make the law 
 clear and certain. Such it became. Here and there, as in Kent 
 and in some old boroughs, local land customs survived, yet not 
 enough to mar the unity and definiteness of the law as a whole. 
 
 From good motives as well as bad ones, the king was tempted to 
 stretch his authority, and make himself almost a despot. He was 
 so strong over against the barons that they were obliged from 
 time to time to ally themselves with the church — usually their 
 antagonist — and with the middle class of small landholders and 
 burghers. This alliance was in the interests of freedom and of a 
 limitation of royal power. To it we owe Magna Charta, and 
 the long line of restrictions thereafter imposed on arbitrary gov- 
 ernment. . . . 
 
 Just as the barons and the people were obliged to base them- 
 selves upon the solemnly made engagements of the crown as the 
 evidence of their immunities, so the crown, acting through its 
 judges, being not strong enough to make its own policy or view of 
 what was right prevail as a mere exercise of the sovereign's own 
 will, and desiring to have some positive authority to set against 
 the texts quoted from imperial or papal law by the civilians of 
 the canonists, was forced to rely upon acts previously done, de- 
 cisions previously delivered, and to found the law upon them. 
 Thus both parties were led to appeal to and lay stress upon prec- 
 edents. The rights which the law enforced were, as usually hap- 
 pens in early times, much involved with the procedure for en- 
 forcing them; and the desire to secure uniformity of procedure 
 in the King's courts led to the constant citation of judgments 
 delivered on previous occasions. Under these conditions, and 
 favored by them, there grew up that habit of recording and fol- 
 lowing decided cases which is so eminently and indeed uniquely 
 characteristic of the Common Law. 
 
 The balance of forces in English mediseval society appeared 
 most clearly in the relations of lord and vassal. Each had un- 
 
Chap. XIII.] RACE AND ENVIRONMENT AND THE COMMON LAW 375 
 
 questionable rights, and these rights were apt to come into con- 
 flict. The adjustment of conflicting claims gave constant occu- 
 pation to the lawyers and the judges, and while forming habits 
 of exact thought and precise statement, it created a great mass 
 of technical learning. The older English land law was indeed as 
 intricate and elaborately artificial a body of rules as the world 
 has ever seen. . . . 
 
 English freedom in the particular legal form it took, sprang out 
 of feudal conditions. In reality, it was older than feudality, and 
 had lost some of its simple Teutonic breadth when overgrown by 
 feudal notions. But the structure of parliament and the right of 
 parliament alone to impose taxes sprang out of the relation of the 
 King (as feudal lord) to his tenants, which is in a certain sense a 
 private relation as well as a political one. It is hardly too much to 
 say that what we call the public or constitutional law of England 
 is a part of, as it has certainly grown out of the private law. . . . 
 
 I have referred to exactitude of thought and expression as one of 
 the excellences which we justly admire in the sages of the Common 
 Law, and particularly in the deliverances of the judges. That 
 exactitude has become a feature of all our legal thinking and legal 
 writing, and has in particular made us separate more clearly than 
 the lawyers of some other nations do, strictly legal considerations 
 from those which belong to the sphere of morality or sentiment. 
 We owe it in no small measure to the old system of pleading which, 
 slowly matured and refined to a perhaps excessive point of techni- 
 cality, gave to the intellects of many generations of lawyers a very 
 sharp edge. That system had the great merit of impressing upon 
 them the need for distinguishing issues of law from issues of fact. 
 
 On no feature of the Common Law did your ancestors lay more 
 stress than on the jury, and the right of every citizen to be tried 
 by his peers. This right had been a bulwark of English freedom, 
 and was deemed in the eighteenth century to be essential thereto. 
 Yet it deserves to be noticed that the jury was an institution 
 which, in the form familiar to us, arose almost by accident. The 
 legal genius, or instinct, of the mediaeval English may, however, 
 be credited with the use they made of this accident. Darwin has 
 shown how a variation from a type which in its origin is acci- 
 dental, that is to say, due to some cause operative in an individual 
 organism which is beyond our power of inquiry, may become the 
 source of a new type possessing advantages which enable it to 
 
376 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 survive and prevail and reach a higher level of efficiency than the 
 original type possessed. So it may be not too fanciful to suggest 
 that where a political or legal germ happens to fall in a fertile soil 
 the virtue of the soil enables it to spring up and become the parent 
 of a flourishing progeny. Our ancestors moulded the jury into 
 an instrument serviceable not only for discerning the truth but 
 for securing freedom and justice, freedom because it was practi- 
 cally independent of royal power, justice because, although it 
 was sometimes intimidated, occasionally even corrupted, it was 
 usually less liable to be tampered with by those malign influences 
 which might poison the mind or pervert the action of a judge 
 in days when public opinion was ill-formed or weak. . . . 
 
 § 3. The Geographical Factor in the Common Law. I have 
 kept to the last the most striking of all the historical conditions 
 which determined the character of Anglo-American law. Eng- 
 land was an island. The influences which governed the develop- 
 ment of law in the European mainland reached her in an attenuated 
 form. The English people had the chance of making a new start 
 and of creating a system of law for themselves, instead of merely 
 adopting or adapting the Roman jurisprudence, as did, at various 
 times and in diverse ways, the French, the Spaniards, the Ger- 
 mans, and (ultimately and indirectly) nearly all modern peoples 
 except those of English stock. We must not indeed exaggerate 
 the originality of our law. It is not as original as that of Iceland 
 would probably have been, had Iceland gone on developing the 
 legal customs she had formed by the middle of the thirteenth 
 century. It is not original in the sense of owing little or nothing 
 to foreign sources, for a great deal of law flowed from Roman 
 fountains into the English stream. When the Lombard Vacarius 
 taught the Roman Law in the reign of King Stephen at Oxford — 
 this is among the very first traces we have of that famous uni- 
 versity — we cannot suppose that his hearers were confined to 
 those who wished to practice in the ecclesiastical courts. In 
 the next century we find Bracton, one of our earliest legal writers, 
 copying freely from the Roman law books, though he frequently 
 also contradicts them when English usage differed. In the four- 
 teenth and fifteenth centuries the ecclesiastical chancellors who 
 built up the system of Equity, were much influenced by Roman 
 legal doctrines, drawn largely through canonist channels. Still 
 the fact remains that the law of England was a new creation, not 
 
Chap. XIII.] RACE AND ENVIRONMENT AND THE COMMON LAW 377 
 
 an adaptation of the law of the Empire. It has a character and 
 a quality which are all its own ; and its free spirit and tendencies 
 have always stood out in marked contrast to the despotic spirit 
 and tendencies which France, Spain, and Germany inherited from 
 the imperial jurisprudence. To that jurisprudence it was, during 
 the Middle Ages and the centuries that followed, as much superior 
 in respect for freedom and in what may be called a popular flavor 
 as it was inferior in the philosophic breadth and elegance of the 
 ancient sources on which that imperial jurisprudence was founded. 
 The use of the jury, the far larger place assigned to oral evidence, 
 the sharper separation of issues of law from issues of fact are among 
 the most salient points in which its distinctive and individual 
 quality appears. . . . 
 
E.— RELIGIOUS FACTORS! 
 
 Chapter XIV 
 
 THE INFLUENCE OF RELIGION UPON LAW 
 AS ILLUSTRATED BY THE IDEA OF PROPERTY 
 
 § 1. Religion Leads to the Idea 
 of Property. 
 
 § 2. Origin of the Idea of Property 
 in Death and Sacrifices. 
 
 § 3. The Deity Considered as the 
 Principal Source of Prop- 
 erty. 
 
 §4. 
 §5. 
 
 7. 
 
 Religious Origin of Tribute. 
 
 Religion Evokes the First Eth- 
 ical Considera.tions in Prop- 
 erty Institutions. 
 
 The Influence of Religion on 
 the Law of Inheritance. 
 
 Conclusion. 
 
 § 1. Religion Leads to the Idea of Property. The concept of 
 property which in primeval times is hazy and confused first begins 
 to take on a definite form in State life. Religion prepares the way 
 for the idea and especially for its adoption. It is religion which 
 induces man under the influence of a feeling of his dependence 
 upon powers beyond the world to submit to authority as the most 
 essential precondition of State and ownership, and which incul- 
 cates the idea of law. The operation of religion, however, does 
 not restrict itself in its influence on property to a preparatory 
 function antedating State organization ; since, in the view of the 
 ancients, all law is of religious origin, and established by the gods. 
 Religion long remained a contributing force in the making of laws, 
 and its power still c6ntinues. 
 
 The legal procedure of all peoples has a sacral character in primitive 
 ages.^ The Vedic Aryans in particular stressed the divine origin of law. 
 
 1 [For other statements showing the early dependence of law upon re- 
 ligion, see in this Series Vol. I, chs. v, xiii (sec. 3), xvii (sec. 2), xxi (sec. 1), 
 xxvii (sec. 1), xxx (sec. 2), xxi (sec. 2, 4, 5).] 
 
 2 [By LuDWiG Felix. This translation is Chapter I (omitting sec- 
 tions 4-10) of the author's "Der Einfluss der Religion auf die Entwicklung 
 des Eigenthums", being the third part of his "Entwicklungsgesehichte 
 des Eigenthums unter culturgeschichtlichem und wirtschaftlichem 
 Gesichtspunkte", Leipzig, Duncker and Humblot, 1889. The transla- 
 tion is by Albert Kocourek.] 
 
 3 Felix Dahn, " Urgeschichte der germanischen und romanischen 
 Volker", 1881, Bd. I, p. 4. 
 
 378 
 
Chap. XIV.] THE INFLUENCE OF RELIGION UPON LAW 379 
 
 Thy throne by law maintained, 
 Through law art thou attained. 
 
 With these words they hailed Mitra-Varuna.^ According to Homer, 
 Zeus himself at Dodona made laws (gave counsel) 2; from him, ac- 
 cording to legend, Minos of Crete learned law and ordinance. Belief 
 in a divine origin of the State and of law is evident long after the 
 beginning of the historical period. Herodotus ^ relates of Lycurgus 
 that Pythia at Delphi instructed him in the lawmaking which he 
 carried out in Sparta.^ When Xenophon ^ proposed to increase the 
 taxes and to make a qhange in the laws he sent to Dodona and to 
 Delphi to inquire of tlie gods if they approved his measures. In a 
 similar way, Plato regards it as self-evident that when changes appear 
 desirable in thelaws, the oracles must be consulted.^ This accounts 
 for the long-continued legislative authority of the Delphic oracle. 
 Cicero denominates religion as the fixed basis of the Roman State, '^ 
 and expresses the conviction that that State was far more governed 
 by the power and the help of the gods than by human insight.^ No 
 international agreement and no alliance was made without invocation 
 of the gods ; ^ for no important act of government, according to 
 ancient public law in Rome, could be carried out unless it had first 
 been sanctioned by divine approval.^^ The limitation of the rights 
 and powers of the plebeians had a religious origin; as opposed to 
 them, the patricians in the beginning constituted an exclusive priestly 
 order; the patricians alone were the administrators of holy things; 
 they alone had the auspices under which all the matters of war and 
 peace were to be executed ^^ ; for which reason, for example, it was re- 
 garded as sinful that a plebeian should be invested with public office. ^^ 
 According to a Frisian legend, the laws of the Frisians were bestowed 
 by a god,^^ which accords with the idea of the Germanic tribes that 
 law is attributable to God, and is even identified with him.^"* 
 
 In association with these ideas are the divine honor given to oriental 
 rulers, and the attribution of divine origin of the kings among the 
 
 1 R. v., V, 72, 2; cf. 1, 2, 8; 23, 5; 151, 4; 152, 1.3. V, 67, 4; 68, 1.4. 
 VI, 8, 2; 51, 2-3. X, 133, 6. 
 
 2 "Odyss.", X.IX, 296; cf. SophocL, **(Edipus Rex", 847, seq., "An- 
 tigone", 448, seq. 
 
 3 I, 65. 
 
 *Cf. PluL, "Lycurg.", 5. 
 
 5 "De Vectigal.", 6. 
 
 6 "Laws", VI, 15; "Repub.", IV, 5. 
 
 7 "DeNat. Deor.", 111,2. 
 
 8 "Pro Caj. Rabir.", 2. 
 
 « Liv., I, 24; III, 25; IX, 5; XXX, 42. 
 
 ^° Cf. Otto Gierke, "Das deutsche Genossenschaftsrecht", Bd. Ill, 
 p. 62. 
 
 " Liv., VI, 41. 
 
 12 Liv., IV, 3; cf. Liv., IV, 2, 6; V, 14; X, 6, 8. 
 
 " Brunner, "Deutsche Rechtsgesehichte", Leipzig, 1887, Bd. I, p. 109. 
 
 " Gierke, op. cit., Bd. II, p. 129. 
 
380 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Aryan peoples of ancient times, and, also, even as late as the Mero- 
 vingians.^ Even as late as the year 1626 it was recited in a state paper 
 composed by the Bishop of Chartres, and ratified by the Paris Parle- 
 ment, " the kings are gods, not by nature, but through grace ; the 
 life and death of every subject lies in their hand; even when they 
 take away our property, and our liberty, and bring the greatest evil 
 upon their people, blind obedience is a holy duty." ^ Later, in a 
 similar vein, says Bossuet in his "Politique tiree de I'Ecriture sainte," 
 " . . . Le prince ne doit rendre compte a personne de ce qu'il ordonne 
 . . . O rois, vous etes des dieux, c'est-a-dire, vous avez dans votre 
 autorite, vous portez sur votre front un caractere divin. . . . " ^ Ac- 
 cording to later Chinese law a conspiracy against the emperor, the 
 earthly representative of God, is punished as a disturbance of the 
 peace of the world; and acts which threaten the safety of his holy 
 person are repressed as sacrilegious.^ 
 
 We may recall that among the Jews in ancient times all law was a 
 law of God, and that until late in the Middle Ages the Christian law 
 was impregnated with religious ideas; since the Church derived all 
 earthly law and all mundane power from a divine source, and regarded 
 kings as representatives here below of God, holding in tenure to divine 
 power. ^ 
 
 Among the Indians, the view that all law is a ritual still remains, 
 and the same is true of the followers of Islam, who regard all law as 
 divine revelation, and honor the Koran as a code. 
 
 § 2. Origin of the Idea of Property in Death and Sacrifices. 
 The concept of property seems to have originated among most 
 of the primitive peoples in the fact of death ; since among nearly 
 all of such peoples either all, or the most valuable of the chattels 
 possessed by the dead, whether animate or inanimate, were given 
 to his grave — a custom not so strange in view of the improvidence 
 and total lack of foresight of these children races. The observa- 
 tion of Strabo ^ of the Albanians that in default _ of a-paternal 
 inheritance, they HveTiTprovefty, since they bury with the dead 
 all the goods which he possessed, is applicable to the bulk of 
 primitive peoples. 
 
 Many of them even go farther. Bancroft relates of the Indians 
 of the Rocky Mountains, that they not only bury with the dead 
 
 1 R. Schroder, "Deutsche Rechtsgeschichte", p. 110. 
 
 2 7. V. Dollinger, " Akademische Vortrage", Nordlingen, 1888, Bd. I, 
 p. 275. 
 
 3 Alfred Ramhaud, "Histoire de la civilisation frangaise", 2ieme ed., 
 Paris, 1885-88, t. II, p. 2. 
 
 4 Post, "Die Grimdlagen des Rechts", pp. 366-367. • 
 6 Cf. Gierke, op. cit., I, 146. 
 
 « XI. 4. 
 
Chap. XIV.] THE INFLUENCE OF RELIGION UPON LAW 381 
 
 his own possessions but also those of his nearest relatives who 
 thereby are reduced to misery. The customary fasting days 
 after the death of a member of the family are explainable as 
 bitter necessity.^ The ancient Scandinavians exhibit a stage of 
 progress — only the goods acquire^HBy tTie deceased in his lifetime, 
 and not the goods inherited, may accompany him 2; from which 
 it appears that the family had a claim of ownership with the head 
 of the family. 
 
 In graves, especially, dating from ancient times, in the Orient, 
 there have been found, among other things, great quantities of gold 
 ornaments. The Arabians buried with the dead their camels, so 
 that they might ride on the side beyond.^ Among the Vikings, it 
 even occurred that their ships were buried with them. In Christiania 
 two Viking ships are exhibited, dug from graves. In Madagascar, 
 at one time, there was little money in circulation, because the greater 
 part of it had been buried with the dead."^ 
 
 It is in the same view that on the death of chieftains their huts, 
 even entire villages in which they had lived, are often destroyed, 
 and that their treasure chests are placed in their graves.^ Such 
 customs are also found among peoples of higher culture. After the 
 death of an Inca his successor had to build a new palace ; he could 
 not use the old one, and he was obliged to allow to remain for the 
 deceased in his palace everything left, and especially the treasure.^ 
 
 In Polynesia a large plot of ground very often was set apart j ^ 
 for the^ deceased. This field with all its fruits, as well as all the 
 animals on the land, was in the exclusive possession of the dead 
 man — presumably the first instance of permanent possession of 
 land ^ — and was devoted or consecrated to him. Lippert is of 
 the opinion that it was by this consecration, the as yet indefinite 
 idea of personal possession among primitive peoples, and its inherent 
 inviolability, was expressed.^ 
 
 Another form of renunciation in favor of the dead, sometimes 
 connected with those described, is the sacrificial offering dis- 
 covered especially among all children races.^ On the death of a 
 
 ^ Spencer, "Principles of Sociology", I, pp. 285-286. 
 
 2 E. J. Geijer, "Geschichte Schwedens", Bd. I, p. 103. 
 
 3 R. Dozy, "Essai sur I'histoire de I'lslamisme", Paris, 1879, p. 12. 
 
 * Waitz, "Anthropologie der Naturvolker", Bd. II, p. 436. 
 
 5 Julius Livveri, "Allgemeine Geschichte des Priesterthums", Berlin, 
 1883-84, Bd. I, p. 80. 
 
 * Baslian, "Der Mensch in der Geschichte", Bd. I, p. 275. 
 
 7 Lippert, "Culturgeschiehte", Berlin, 1886-87, Bd. II, p. 599. 
 
 8 Op. cit., Bd. I, p. 117; Bd. II, p. 237. 
 
 » Cf. "lUad", XXIII, 166, seq.; "Odyss.", I, 292; III, 285. 
 
382 FACTORS OF LEGAL EVOLUTION [Paut II. 
 
 Toda all his herds were sacrificed, whereby his widow and his 
 children were reduced to want.^ The Egyptians and the Peru- 
 vians carried these offerings to such an extreme that we may say 
 that the living were enslaved by the dead.^ 
 
 The universality of these obsequies had led many investigators 
 to the opinion that these ceremonies were the first cult, the origin 
 of religion, and that the temple often arose out of the grave.^ 
 
 Sacrifices, whether made to the dead or to the gods, are the first 
 occasion which present to primitive races the idea of a recurring, 
 regular, and voluntary abandonment and division of property. 
 In so far as material things were consecrated to the gods, and 
 withdrawn from human control, the idea of ownership became 
 apparent. 
 
 § 3. The Deity Considered as the Principal Source of Property. 
 Sacrifices have another point of connection with these ideas. 
 Next to the purpose of securing defense against hostile powers, 
 the chief object of sacrifices, especially among primitive peoples, 
 was to require of the gods the bestowal of valuable benefits. The 
 gods, therefore, were originally not only the source of law, but, 
 also, in particular, the chief fountain of property. The thank- 
 offering belongs to a higher stage of development. The pertinent 
 observation of Leist^ that the basis of divine worship in the 
 Vedic world rested essentially on the formula ''do ut des ", ap- 
 plies, as we shall see, not only for all primitive peoples, but also for 
 peoples of higher development. 
 
 In most of the hymns of the Rig Veda, the gods are implored with 
 gifts to bestow wealth in cattle, and since the benefits awarded by 
 the gods are always in proportion to the offerings to them, the rich, 
 as is self-evident, are preferred. To him who has, there shall be given, 
 is the rule.^ Numerous hymns charge the irreligious primitive in- 
 habitants with miserly neglect in the matter of offerings to the divinity, 
 and in this is found sufficient ground for dispossessing the unbelievers 
 of the goods which do not benefit the gods, in favor of the heaven- 
 born.^ Acquisition of land as well as chattels by war has its sole jus- 
 tification as the gift awarded to the conqueror protected by the gods, 
 especially Indra ^ — a view in accord with that of the Greeks and the 
 
 1 Spencer, op. cit., I, p. 285. 
 
 2 Spencer, "Ecclesiastical Institutions", London, 1885, p. 820. 
 ^Spencer, "Ecc. Inst.", pp. 675, 680; Fustel de Coulanges, "La cite 
 
 antique", 3d ed., Paris, 1870, pp. 16-19; Dozy, op. cit., 411. 
 
 '' Leist, " Graeco-italische Rechtsgeschichte", Jena, 1884, p. 197. 
 
 6 R. v., VII, 1, 17; 38, 2; 58, 6; 67, 9. 
 « R. v., VII, 19, 1. 
 
 7 Leist, op. cit., p. 435. [Note 4 supra.] 
 
ClL\P. XIV.] THE INFLUENCE OF RELIGION UPON LAW 383 
 
 Latins.^ Success in battle by the Romans in particular followed 
 divine approval. ^ The East Iranians offered prayers to Mithra not 
 only for power, welfare, and success in battle, but also for horses, 
 cattle, and abundance.^ In Homer, also, the gods are represented as 
 the dispensers of riches.'* 
 
 In an Egyptian book supposed to date from the Middle Empire, 
 man is warned against pride of possession of earthly goods, because 
 they come from the gods without man's effort.^ In Egypt, Seb was 
 the giver of all fruits,® in Arabia Baal of Sinai was dispenser of fruit 
 and water in the desert ^ ; and in ancient Babylonia Marduk was the 
 donor of abundance.^ The Phenicians regarded themselves as the 
 property of Baal,^ an idea expressed in the name of this god.^° In 
 the mythology of the northland, Odin is the portioner of all material 
 and spiritual possessions.^^ 
 
 But the same idea dominates also in the height of classical antiquity. 
 Xenophon ^^ and Pausanias ^^ speak of the gods as the dispensers of all 
 goods. Plato says that the whole world,^^ and in Phaedo, especially, 
 that mankind are the property of the gods. According to Isaeus,^^ 
 Zeus Ktesion was revered as the supporter and multiplier of possessions. 
 Euripides denies to mankind all property rights, and considers man 
 only as the administrator of the gods who at will can take back their 
 own.^® The Romans regarded Jupiter as the giver of all things.^^ 
 Their piety was based on a sort of contractual relation with the 
 gods whose good-will was maintained by offerings ; for which reason, 
 riches was regarded in a higher degree than among the Vedic Aryans, 
 the l;)enevolence of the gods. 
 
 The Old Testament decisively represents God as the owner of the 
 whole world. ^* God promised that Abraham's descendants should 
 have Palestine.^^ Still they were to be only executors or usufructu- 
 aries of the land, since transfers could be made to be effective only 
 for a limited period. It is frequently said that everything comes 
 
 1 Leist, op. cit., 455. 
 
 2 Liv., V, 27; cf. Machiavclli, "Discorsi", I, 14. 
 
 3 Duncker, "Geschichte des Alterthums", Bd. IV, pp. 81, 83. 
 
 4 "Iliad", II, 670; XIV, 491; "Odyss.", XVIII, 19. 
 
 5 Erman, "Aegypten", Tubingen, 1885, Bd. I, 237 [also an Enghsh 
 translation]. 
 
 8 Duncker, op. cit., Bd. I, 44. ' Op. cit., 244. 
 
 * Hommel, "Geschiehte Babyloniens und Assyrians ", Berlin, 1885, 
 p. 410. 
 
 9 F. C. Movers, "Die Phonnizier", Bd. I, 363. 
 
 10 Ibid., 171. 
 
 11 L. S. P. Meyboom, "De Godsdienst der oude Noormannen", Haarlem, 
 1886, pp. 264-265. 
 
 « "De Vectieral.", 1. " VTII, 36. 
 
 " "Laws", X, 11. » "De Hered. Ciron." 
 
 »«"Phoeniss.", 548. "Cicero, "Pro Sext. Rose", 45. 
 
 " Gen., XIV, 22; Ex., xix, 5; Levit., xxv, 23; Deut., x, 14. 
 " Gen., XII, 7; xiii, 15; xv, 7, 18: xvii,28; xxvi, 3; xxviii, 13; xxxv, 
 12; Deut., i, 8; vi, 10; xxxii, 8; Joshua, i. 
 
384 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 from God ^ ; that God's blessing alone produces riches, and not man's 
 power. 2 
 
 Divine origin of possession is also recognized by other peoples.^ 
 This view passed over also into Christianity.^ The Germans looked 
 upon their marches as held in tenure ^ from God of whom they were 
 confederates. The pope as the representative of God considered 
 himself invested with power to regulate all ownership.^ The Koran, 
 also, derives all ownership from God, and the Caliph, as his repre- 
 sentative on earth, is empowered to govern all the property concerns 
 of his subjects, and, especially, those relating to land. 
 
 § 4. Religious Origin of Tribute. The origin not only of all 
 authority and of all law is to be found in religion, but also of 
 consent to alienation of ownership in the things necessary to the 
 existence of the State. How difficult it is for some men to relin- 
 quish possession without the giving of a tangible equivalent is 
 well known ; but alienations in favor of the gods on the grounds 
 already explained are early observable among all peoples. Tribute, 
 as a species of offerings, may be regarded as an original idea, and 
 this with the greater justification that in the beginning, it was 
 paid voluntarily as an offering,^ which custom persisted even up 
 to the time of the Frankish kings. 
 
 Offerings to the gojds are also expressly denominated tribute. 
 Thus it is said of^>din that the people in order to succeed with 
 their harvests made contributions to him.^ The tithe custom, 
 found among various peoples, is to be regarded as a tribute paid to 
 the gcds. Pliny relates that at Shibam where the frankincense 
 was collected, it could not be sold until a tenth had been contrib- 
 uted to the god, which was in part used for the settlement of public 
 expenses. The god then entertains lavishly the guests for a 
 certain number of days.^ The wealth of the high priest of Tyre 
 was principally derived from the tithes paid on the total receipts 
 •of the colonists.^^ The Greeks devoted tithes of various enter- 
 prises to the gods ; thus the products of the gold and silver mines 
 of Siphnos were consecrated to Delphi.^^ The Samians contrib- 
 
 1 Psalms, CIV. 
 
 2 Prov., X, 22; Deut., viii, 17-18. 
 ^Richter, 11, 24. 
 
 4 Corinth., i, 10, 26; Timothy, vi, 17. 
 
 5 Gierke, op. cit., II, 168; cf. GHmm, "Weisthiimer", II, 492, 
 
 8 [Treated in detail in the original work, but omitted in this translation.] 
 
 7 Cf. Herod., Ill, 89; Tacit., "German.", 15. 
 
 8 Geijer, op. cit., 100 [v. note 2, p. 381 supra]. 
 ^Plin., "N. H." XII, 32. 
 
 10 Diodor., XX, 14. 
 
 " Herod., Ill, 57; Pausan., X, 11. 
 
Chap. XIV.] THE IXFLUENCE OF RELIGION UPON LAW 385 
 
 uted a tenth part of their gains from a sea voyage to Libya, to 
 Hera.^ 
 
 Hiillmann is of opinion that the toll duty, at least the passage 
 toll and the ingress toll, originally a tenth, was the most ancient 
 tariff and that it was at first reckoned in kind and later in money .^ 
 Even as late as the time of Lucullus many Romans were accus- 
 tomed to tithe Jupiter for their possessions.^ The Wendish inhab- 
 itants on the island of Riigen were obligated to make contributions 
 to the temple at Arkona. Levies of market tolls on tradesmen 
 were made not by the king but by the temple."* It was the view 
 of the Qermanic races that the dispensing gods of bounty were 
 entitled to a portion of meat and drink, of harvests, of captured 
 game, and the first-born of cattle. This idea in connection with 
 the Mosaic command of tithes was utilized by the Church, and 
 many other forms of offering were fused into this custom. 
 
 In Rome the levying of taxes was connected with the lustrum. 
 After the fixing of the tax, followed the atonement of the army 
 by the sacrifice of a bullock, a pig, and a sheep.^ The same as- 
 sociation of ideas is found in ancient Hebrew times — when the 
 host was reviewed, each man capable of bearing arms was assessed 
 half a shekel.^ 
 
 It is expressly attested of Sweden that the taxes in part were 
 derived from contributions for the maintenance of the ancient 
 offerings which originally were voluntary but which gradually 
 assumed the nature of fixed imposts.^ History shows that taxa- 
 tion often has been abolished after the system had lost its original 
 meaning. The State took the place of the priesthood for whose 
 benefit these contributions at first were made. That the transi- 
 tion was one of difficulty is shown by the complaint of King Gustav 
 Wasa that the taxes from tithes had decreased since the greater 
 part no longer went to the Church but to the crown.^ 
 
 The connection between taxation and religion is indicated also 
 by the fact already noticed, that the chieftains of ancient societies 
 
 1 Herod., IV, 152. 
 
 2 "Urspriinge der Besteuerung", Koln, 1818, p. 45; cf. Demosth. 
 "Adv. Sept.", 475, "Adv. Aristocr.", 679. 
 
 3 Diodor., IV, 21. 
 
 * Lippert, "Allg. Gesch. d. Priesterthums", II, 591. 
 5 Dion. Halic, IV, 22. 
 
 ^ Exod., XXX, 12 seq. 
 op. cil., Bd. 
 ^ Ihid., Bd. II. 115 
 
 7 Geijer, op. cil., Bd. I, 166, 280 [note 2, p. 381 supra]. 
 
386 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 were regarded as gods and received divine honors. On this 
 ground alone can be understood the submissiveness with which 
 the wildest excesses in these matters, of despotic chieftains and 
 other divinely honored leaders, were indulged. The power of the 
 Cazik in Haiti was found by explorers to rest on religious ideas. 
 The Cazik was the sole owner of the crops and he provided for 
 each one's necessities in a socialistic fashion out of the supplies 
 of his storehouses.^ Under this system it was of course possible 
 to regulate distribution for the common good. In Polynesia also 
 the people submitted to burdens and exactions because of their 
 belief in the divinity of their leaders.^ The same is true of Mexico, 
 Peru, Guatemala, and of most of the oriental empires, where the 
 theocratic tendency is unmistakable. 
 
 We may here recall the words of the Apostle Paul that the power 
 of tax^-tion rests^with the magistracy on account of its divine 
 origin — " Let every soul be subject unto the higher powers ! 
 For there is no power but of God ; the powers that be are ordained 
 of God." ^ '' For, for this cause pay ye tribute also ; for they are 
 God's ministers attending continually upon this very thing." ^ 
 Thus are religion and law not only originally united, but eyen 
 today they still remain united in many States in the person of the 
 ruler — as in China and in Islam. 
 
 Next to the divinity ascribed to kings, the influence of the 
 priesthood is to be put down as the source of the institution of 
 taxation. Even so warlike a people, a people so animated by self- 
 assertiveness as the Germanic tribes, willingly submitted to the 
 orders of the priesthood as against the king. 
 
 It was not the kings but the priests who declared the will of 
 God, that had jurisdiction of criminal matters;^ they alone fixed 
 the penalties ; ^ and it followed that they were able to mitigate 
 the hostility of the people to taxation.^ The corpus juris canonici 
 vigorously asserts the duty of paying taxes making reference 
 to the tax penny of Christ.^ 
 
 § 5. Religion Evokes the First Ethical Considerations in Prop- 
 erty Institutions. The observation that with an increase of 
 
 1 Peschel, "Geschichte des Zeitalters der Entdeckungen", p. 192. 
 
 2 Waitz, op. cit., Bd. VI, 195, 658. ^ Romans, xiii, 1. 
 
 "* Romans, xiii, 6. ^ Tacit., "German.", 7, 11. 
 
 6 Ibid., 21. 7 ijjid,, 43. 
 
 8 Roscher, "Finanzwissenschaft", p. 222. 
 
 [At this point the author discusses the Peterspenny in England, taxa- 
 tion in France, and concludes with Islam.] 
 
Chap. XIV.] THE INFLUENCE OF RELIGION UPON LAW 387 
 
 wealth there is a decHne of morals — to which the ancient oriental 
 notion that gold is afflicted with the Typhonean Curse/ is refer- 
 able — goes so far in Buddhism as not only to censure an immoral 
 use of wealth, but to assert that in and cf itself, it is an obstruction 
 to moral conduct, and the attainment of wisdom. In one cf the 
 Buddhistic sutras the rich are condemned because in their folly 
 they knew only the desire of piling up wealth and pleasures, 
 instead of succoring the needy. " It is difficult to be rich and to 
 learn the way," Buddha is reported to have said. Therefore he 
 taught that man should deny all earthly possessions, and should 
 live as if he did not live. Only the man who has loosed himself 
 from earthly bonds can attain the object of eternal good. As a 
 result of this teaching, we read of the struggles of parents, wives, 
 and children to restrain those eager for renunciation.^ 
 
 The Jewish prophets inveigh with great force against the ex- 
 ploitation of the poor by the rich.^ The maledictions against the 
 wealthy even take on a socialistic character as where (Isaiah, 
 V, 8) the system of latifundia is reprobated, and, in many other 
 places, where display is condemned.'^ A more pronounced social- 
 istic tendency is expressed in a series of provisions in favor of the 
 poor against the oppression of the rich. Thus, in the Jubilee 
 Year every man was to return to his possession.^ In every seventh 
 year the fields, the vineyards, and the oliveyards were to rest, in 
 order that the poor of the people might eat.^ Every seven years, 
 every creditor shall release his neighbor of any debt.'^ In this 
 connection, also, is the provision that when reaping the harvest, 
 the gleanings shall be left for the poor,^ and the prohibition of 
 taking interest from the poor.^ A socialistic provision also is 
 that which commands that upon a division of the land, the meas- 
 ure shall be the needs of the families.^^ 
 
 The later JEssenes lived in ascetic communism with an exclu- 
 sion of all individual possession, and they held no slaves. 
 
 The teachings of Christ instill the purest renunciation and self- 
 denial which involve a position of putting aside property, and 
 especially riches. The care of earthly things leads away from the 
 
 * Plui., "De Is. et Os.", 30. 
 
 2 Olde'nberg, "Buddha",' Berlin, 1881, pp. 66-67. 
 
 3 Is., Ill, 14-15; X, 2; Jerem., xvii, 11; Amos, iii, 9; v, 11-12; viii, 
 4 seq. ; Micah, ii, 2. 
 
 * Is., Ill, 16 seq.; Jerem., x, 9-10; Amos, vi, 4 seq. 
 
 ^ Levit., XXV, 13, 28. « Exod., xxiii, 11. 
 
 ' Deut., XV, 2. 8 Levit., xix, 9-10; xxiii, 22. 
 
 * E.xod., XXII, 24; Levit., xxv, 36-37; Deut., xxiii, 20. 
 " Num., xxxiii, 54. 
 
388 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 care of the soul/ and makes entry difficult into the heavenly 
 kingdom ; ^ for the rich living in luxury often defraud the poor.^ 
 The laying up of treasures is not only reproved/ but it is often 
 recommended that possessions be sold and the proceeds be given 
 to the poor.^ It is even ordered that one shall giveup his prop- 
 erty when sued on an unjust claim ; ^ and provision made for 
 wants is considered blameworthy/ 
 
 In accord with what is also the teaching of Buddha, it is re- 
 quired that there be a renunciation of father, of mother, of wife, 
 and of all earthly ties.^ It is expressly provided that the gospel is 
 preached to the poor and to the unfortunate.^ '' Come unto me, 
 all ye that labor and are heavy laden, and I will give you rest." ^° 
 
 The magic of this appeal to the poor, the suffering, and the 
 oppressed, must have been all the more effective on account 
 of its glaring contrast with the coldness and the disdain which 
 the unfortunate encountered in the heathen world. ^^ In classical 
 ancient times all kinds of work, even the highest forms performed 
 for reward, were stigmatized by the most eminent thinkers ; and 
 the necessary consequence was that only those were considered 
 worthy who were economically independent. This view also 
 necessarily led to a cult of plutocracy. In decisive contrast are 
 the words of Christ which reechoed throughout the Middle Ages.^^ 
 
 § 6. The Influence of Religion on the Law of Inheritance. Just 
 as religion has had an essential part in the origin and development 
 of property, so, also, it has affected the right of inheritance. We 
 have already seen that among primitive peoples the surviving 
 family members of a deceased person were not permitted to touch 
 his possessions, and, at any rate, could not fully appropriate 
 them. After a time, the view came to prevail that through suitable 
 offerings (which did not involve, as before, the entire belongings of 
 
 1 Matth., VI, 21; vi, 24; xiii, 22; Mark, iv, 19; Luke, xvi, 13. 
 
 2 Matth., XIX, 24; Luke, viii, 14; xviii, 25; Mark, x, 23, 25. 
 
 3 James, v, 4-6. 
 
 4 Matth., VI, 19. 
 
 5 Matth., XIX, 21 ; Mark, x, 21 ; Luke, xii, 33. 
 
 6 Matth., V, 40; Luke, vi, 29-30. 
 
 7 Matth., VI, 28, 31, 32; Luke, ix, 62. 
 
 8 Matth., x, 37; xix, 29; xii, 48; Mark, x, 29; Luke, xii, 53; xiv, 
 26; I. Corinth., vii, 33. 
 
 9 Matth., XV, 5; Luke, iv, 18; vii, 22. 
 
 10 Matth., XI, 28. 
 
 11 CJ. Theognis, 177 seq.; 267 seq.; 385, 649 seq. ; Plato, "Laws", XI, 
 4; ArisL, "Eth. Nic", I, 8, 15; Juven., Ill, 37. 
 
 12 [At this point the author leads his discussion of the property idea up 
 to modern times from the early centuries of the Christian era. This 
 portion is omitted in this translation.] 
 
Chap. XIV.] THE INFLUENCE OF RELIGION UPON LAW 389 
 
 the dead), and other ceremonies, the claims of those departed 
 would be satisfied. So much, however, was indispensable, and 
 among many peoples became the condition of a right of inherit- 
 ance. 
 
 This was conspicuously the case in India where the belief was 
 held, in common with most other peoples, of the survival of the 
 manes of the dead. According to the laws of Manu ^ the father 
 who did not leave a son to provide in^his honor the repast cf the 
 dead (Sraddha) could not enter heaven. Only the father of a 
 son could fulfill his duties toward his ancestors. This explains 
 the ardent desire of the Hindu for sons, and also the fact that in 
 Indian customary law nearly all personal rights and the rules 
 governing inheritance were inseparably connected with the ap- 
 propriale_Qbservance of certain ceremonies of sepulture. ^ 
 
 If these ceremonies were not performed in a manner prescribed, 
 and Iby the proper persons, thereunto designated, then no relation- 
 ship was recognized between the deceased and any living person. 
 In such case, the law of inheritance did not have application; 
 no one had a right of inheritance. In India the right of property 
 was therefore based on a cult. Family offerings in this way be- 
 came the condition of all personal rights,^ which fully justified the 
 fundamental rules of Hindu law, however odd it seems, that 
 property was considered a means of defraying the expenses of 
 sepulture.'* From this point of view an offense against the right 
 of property was regarded as having the effect of diminishing the 
 ability of a man's sons to provide for his funeral ceremonies, and 
 was considered a crime which the gods would inevitably punish.^ 
 Maine thinks that the unfavorable position of women with ref- 
 erence to inheritance rights is due to the view of the priestly 
 originators of the institution of inheritance, that women on account 
 of their physical weakness and their retired lives would have found 
 greater difficulty than men in providing the necessary share of a 
 dead man's property for his funeral ceremonies.® 
 
 The cult of the dead had a characteristic meaning in ancient 
 classic times. In Hellas the belief prevailed that a ceremonial 
 fun eral w ith definite sacrifices was necessary for the dead to cross 
 
 1 IX, 106. 
 
 » Maine, "Ancient Law", 5th ed., London, 1874, p. 7. 
 
 3 Maine, op. cit., 172. 
 
 * Maine, '* Village Communities", 3d ed., London, 1876, p. 53. 
 5 Maine, "Village Communities", 69. 
 
 • Maine, "Lectures on the Early History of Institutions", London, 
 1875. 
 
390 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the boundaries of the underworld. Nothing was more terrible 
 than for the spirit to wander about after death for want of burial 
 of the body. The spirit of Patroklos implored Achilles to bury 
 him, that he might pass the gate of Hades.^ Polynices, providing 
 against the event of death, made the same request of his sisters. ^ 
 It was a horrible curse to die without burial,^ and the most fear- 
 ful threat in war, to leave the corpse of an enemy or coward with- 
 out funeral rites.^ 
 
 After the funeral rites, it was also necessary to provide offerings 
 and pious gifts in order that the sad fate of the deceased might be 
 mitigated. We have adverted already to the hypothesis that the 
 cult of the dead was the earliest religion. In any event, in Hellas, 
 ancestors also enjoyed divine honors. The father as sole ex- 
 positor and priest of the religion of the domestic hearth, alone 
 could teach it, and he could teach it only to hi-s son. In this way 
 the household religion passed from son to son.^ Since the grave 
 required offerings, it was necessary, as among the Hindus, that the 
 male line be perpetuated. Even in the time of the orator Isaeus, 
 each Athenian took care to leave an heir who would perform the 
 duties owing to his grave, which accounts for the numerous 
 adoptions made by the childless.^ This was the case not only of 
 individuals, but the State also made it the duty of the archon to 
 see to it that no family was extinguished by death.'^ Celibacy 
 under such conditions, as is easy to understand, was regarded as 
 a neglect cf duty, cr, at least, an indication of a want of piety. 
 Plato positively declares marriage to be a sacred duty.^ 
 
 Since the duties owing to the dead rested alone on the son, it 
 followed that originally he alone could inherit, and this succession 
 followed without the need of a will. Acceptance of the estate and 
 observance of the cult requirements were as much a duty as a right. 
 Benefit of inventory and liberty of renunciation were not permitted 
 to the son in Greek law, and did not obtain in Roman law until 
 a late period.^ 
 
 A similar situation is found in ancient Rome. The will which 
 
 1 "Iliad", XXIII, 71; cf. "Iliad", XXII, 338; "Odyss.", XI, 72. 
 
 2 Sophocles, "CEdip. in Colonos", 1401, 1426; cf. "Antigone", 465, 862. 
 
 3 Sophocles, "Ajax", 1132. 
 
 4 "Iliad", II, 393; XI, 452; XV, 348; XXI, 123; XXII, 335. 
 
 5 Fustel de Coulanges, "La cite antique", 3i&me ed., Paris, 1870, p. 36. 
 
 6 Isaeus, "De Hered. Menecl."; "De Hered. Astyphil." 
 ' Isaeus, "De Hered. Apollod." 
 
 8 "Laws", VI, 17. 
 
 " Fustel de Coulanges, op. cit., 79; cf. Plato, "Laws", V, 10; Isaeus, 
 *'De Hered. Philoctemon." 
 
Chap. XIV.] THE INFLUENCE OF RELIGION UPON LAW 391 
 
 seems to have originated at Rome was closely connected with the 
 sacra.^ As is well known, the Roman was unwilling to die with- 
 out a testament. No calamity seemed to him as great as for- 
 feiture cf the power to make a will, and no curse appeared to him 
 more fearful than that he might die without one,^ which feeling 
 in part is attributable to the connection of the inheritance with 
 the performance of death cult duties. It was an obligation laid 
 upon the heirs to see to the pious devotions in honor cf the dead.^ 
 
 Bernhard Stade "* is of opinion that in analogy to Greek and 
 Roman law, the agnatic right of inheritance of the Jews among 
 whom originally only the son was entitled to succeed, was based 
 on the necessity of perpetuating the death cult.^ 
 
 Apart from these considerations, there was another right of 
 inheritance in early Hellenic and Roman days — the inheritance 
 of blood revenge duties in cases of violent killing.^ According 
 to Ewald ^ this rule prevailed among the ancient Jews. It ob- 
 tained also in ancient Nordic times. In Sweden a son. could only 
 inherit from his murdered father after he had revenged him.^ 
 
 The sentiment of piety toward the dead, which strengthened, 
 and was associated with, the feeling of tribal and family unity, 
 exerted a wider influence on the repeated transfer at death of 
 property, in that, especially among the (xreeks,^_it was regarded 
 as a holy duty to the dead to pass on to the descendants an un- 
 diminished estate. Reflexes of this view are found in the Ger- 
 manic Folk laws.^ 
 
 The Koran also regulates the right of inheritance, ^° although 
 in incomplete fashion, and seeks to designate the approximate 
 
 ^ Maine, "Ancient Law", p. 191; cf. Leist, op. cit., 32. 
 
 * Maine, op. cit., 218. 
 
 ' Cicero, "De Leg." II 19 21. 
 
 * ''Geschichte desV'olkes Israel", Berlin, 1887, Bd. I, pp. 391 seq. 
 
 " The innovation of permitting daughters to inherit was a compromise 
 with an older system, which had for its object to prevent extinction of 
 the family — Numbers, xxxvi, 1 seq. The contrast with Job, xlii, 15 
 shows the latter to be a post-exilic work. 
 
 When Stade attempts to explain the eagerness of the Jewish mother for 
 male children (as in Gen., xxx, 1, 2 and I. Sam., i) by the necessity of 
 perpetuating the death cult, it seems to us his references are not convinc- 
 ing ; since Jacob as well as Elkanah at the time had sons by other wives. 
 Furthermore Rachel speaks of "children" and not of "sons." 
 
 « Leist, op. cit., 42 [note 35 supra]. 
 
 ' "Die Alterthumer des Volkes Israel", 3te Ausg., Gottingen, 1866, 
 p. 225. 
 
 8 Geijer, "Geschichte Schwedens", Bd. I, p. 266. See also ScoiCs 
 novel "The Monastery" (Chap. XXVII), where the same rule was ob- 
 served even as late as the 17th centurv. 
 
 9 Cf. Wundt, "Ethik", Stuttgart, 1886, p. 218. 
 " Surah 4. 
 
392 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 heirs ^ by commanding the making of wills.^ An apostate loses 
 his right to inherit.^ That an unbeHever cannot inherit from a 
 Moslem is generally accepted by the Malekites and Hanbalites.^ 
 
 § 7. Conclusion. We have seen that religion created the first 
 conditions for the origin of property, authority, and law ; that it 
 was religious institutions which first evoked the concept of prop- 
 erty; and that the divinity was originally the leading source 
 of property rights, and religion the agency which furnished the 
 means necessary to the existence of the State. Furthermore, 
 the earliest ideas of an ethical nature concerning property were 
 derived from religion which the legal systems supplemented pro- 
 gressively; and that the duties connected by religion with the 
 holding of property long continued, and were especially con- 
 spicuous in the Christian Middle Ages. 
 
 1 Muller, "Der Islam", Bd. I, p. 168. 
 
 2 Surah 5. 
 
 3 Pischon, "Der Einfluss des Islam", Leipzig, 1881, p. 59. In a similar 
 manner Theodosius decreed that any one who gave up the Christian faith 
 for heathendom should lose his right to dispose of his property by will. 
 
 * Pischon, op. cit., 107. 
 
R — PSYCHOLOGIC FACTORS 
 Chapter XV 
 
 SYMPATHY IN GROUP AND INSTITUTIONAL 
 SURVIVAL 1 
 
 I. Folk-Custom and Folkways. 
 II. The Group and the Indi- 
 vidual. 
 
 III. Institutions. 
 
 I. Folk-CiLstom and Folkways 
 
 In the consideration of behavior in its gradual progress from 
 involuntary and unconscious action, arising out of physical forces 
 or chemical' reactions, to the first beginnings of conscious conduct 
 actuated by design, there are two great classes into which we 
 can assort acts. The first being the product of natural forces 
 without assistance from the self, submental in origin, can be 
 called natureways and typically arises from the contact of animal 
 life with its environment. 
 
 The second great group of common human modes of action 
 are acquired instead of inherited, volitional rather than involun- 
 tary, and gradually rise out of subconsciousness into the rational 
 through various degrees of decision or judgment applied to them 
 by the actor. Never " natural " and always " nurtural " the 
 title '' nurtureways " seems not unfitting. 
 
 Of these the most primitive mode is that of the folkways. Un- 
 conscious, habitual, uniform modes of acting, they call for little or 
 no effort of choice, judgment, or will, and arise from the instinc- 
 tive feelings of hunger, love, vanity, and fear ; acquired by imita- 
 tion they are rudimentary in the higher animals, and reach their 
 highest potency in the smaller and more primitive groups, such as 
 families and clans. 
 
 1 [By Edward D. Page. 
 
 Reprinted from "Trade Morals", Yale University Press, 1914. The 
 selections made are from Chapters IV, V, VI, parts being omitted. The 
 compilers have taken the liberty of entering new titles for the division 
 heads for the purposes of this collection.] 
 
 393 
 
394 ' FACTORS OF LEGAL EVOLUTION [Part IL 
 
 The next higher mode of human conduct is that of folk-custom ; 
 folkways of which the folkgroup has become conscious; recog- 
 nized as necessary to the welfare of the group, and enforced by it 
 through various artifices more or less intelligently devised to that 
 end. Conformity with folk-custom is approved by the folkgroup 
 as right, while its breach is condemned as wrong. Notions of 
 right and wrong as applied to conduct, therefore, grow out of the 
 approval or disapproval which the group visits upon those who 
 respect or disregard the uniform modes of conduct which it looks 
 upon as essential to its welfare. 
 
 Folkways and folk-customs embody the results of man's in- 
 telligence and observation through centuries of experiments" in 
 the art of how to live and satisfy his instincts with the least effort. 
 Faculties the most recently developed are always these that in- 
 volve the most effort in their exercise ; and the greatest and most 
 fatiguing work that falls to the lot of man is the exercise of choice 
 and judgment. And so the folkways are the outcome of an in- 
 stinctive desire to adjust life to environment along those lines 
 that call for the least constant output of choice and judgment. 
 
 In spite of the resistance of folkway and folk-custom to change, 
 owing to mental effort involved in new choices, it must not for a 
 moment be supposed that the ways and customs of the folk are 
 fixed, crystallized or immutable ; the dead hand of antiquity 
 throttling a virile race in its struggles to gain higher happiness 
 through a nicer adjustment of life to constantly changing environ- 
 ment. But folk-custom says to the individual or to the subgroup 
 — You shall not pursue your advantage at the expense of the 
 folkgroup. The persistent force of folk-custom is more than an 
 anthropological curiosity, although some reformers would per- 
 suade us that its only function is to resist a worshipful movement 
 called Progress. We have become conscious of the existence of 
 folk-customs, it is true, through their study among ancient and 
 primitive peoples. But it does not follow that they are of no 
 service to the modern State. Old they may be, but not always 
 outworn ; like the Archean rocks they may still yield the richest 
 ores for the making of the social part of man's machinery of 
 efficiency. 
 
 In modern society both folkways and folk-customs exist in 
 all stages of life, growth and decay; they are born, pass from 
 youth to maturity, and die daily. Once attained, the sociological 
 view of life gives insight for the perception and classification of 
 these uniform sequences of conduct of which, in the main, we are 
 
Chap. XV.] SYMPATHY 395 
 
 as unconscious as we are of the wonderful and brilliant bird life 
 which scintillates in the forest, hidden behind its shade to those 
 who know not how and where to look. 
 
 The most striking attribute of folk-custom is that it can make 
 anything right and protect anything from condemnation. More- 
 over, the same conduct may be prohibited by the custom of one 
 group and permitted by that of another. 
 
 Slavery, for example, exists today by social approval in Turkey, 
 Morocco, in many isolated districts of the Asiatic and African 
 colonies and in Mexico. Folk-custom in the tribe of Israel com- 
 mended the conduct of Samuel in hewing to pieces his unarmed 
 captive Agag, king of the Amale kites, by the direction of the 
 Lord (I Sam. xv, 32, 33), and likewise the slaughter by the Hebrews 
 of the helpless women captured from the Midianites (Num. xxi), 
 although such conduct would be condemned by our folk-custom 
 today as criminal and wrong. Folk-custom sanctions the Sunday 
 theater in Chidkgo, St. Louis and New Orleans and prohibits it 
 in Boston, New York and Philadelphia. It permits the sale of 
 a cigar on Sunday in Washington and makes it a crime in Char- 
 lotte, N. C. 
 
 Confusing as the discordance of folk-customs may seem to those 
 who observe their wide divergences under diflFerences of time and 
 space, they are none the less capable of being studied, compared 
 and grouped, and from their mandates or prohibitions with re- 
 spect to particular acts men have in the course of time rudely 
 drawn general rules covering groups of acts. 
 
 The evolution of an ethical principle can be made apparent 
 by a consideration of some one set of moral obligations in their 
 historical sequence through the various phases of social evolution. 
 Take for instance the rights of property and the wrong of theft. 
 
 Property, it must be observed, does not consist at all of material 
 objects, but of the various rights of use, control and disposal which 
 persons exercise with regard to their possessions. To begin with, 
 the simplest right which one may have with respect to anything 
 is to use it. And although he may have the right to use, he may 
 neither be able to control it for his continued enjoyment, nor 
 for qualified disposal, such as to lend or to hire. Nor do the 
 rights of use and control necessarily confer the right of absolute 
 disposal, either (a) by exchange, that is to say, by sale and de- 
 livery, (6) by gift, (c) by bequest or other testamentary process 
 
396 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 or {d) by a contract to sell and deliver at a future time. As a 
 corollary to these rights there are the cognate rights of acquisi- 
 tion ; by plunder, by discovery, by fabrication, by inheritance 
 or by exchange. 
 
 The primitive foundations of property rights are undoubtedly 
 laid in the instinct of acquisition which humanity inherits from 
 its animal forbears, and from whose influence it cannot escape. 
 It shares this innate tendency with the squirrel who lays by a 
 store of nuts against the winter, with the bird who defends its 
 nest, or the bee which both stores the honey and stings the invader 
 of its hive. Such primitive forerunners of property rights are 
 hardly more than an assertion of the right to defend them, for 
 except among the developed group life of the bee there is no 
 acknowledgement of a corresponding duty to respect the right 
 of the hoarder or the builder, and therefore no completed obli- 
 gation. 
 
 In the life of the child the outcropping of the instinct of ac- 
 quisition may be observed at a very tender age; before in fact 
 the infant is capable of expressing emotion other than in the crudest 
 way; but in its promptings we may unquestionably find the 
 source of its later potency in the folkways and folk-customs of 
 the successive social groupings, in each of which the evolution of 
 property rights has its co-ordinate phase. 
 
 In the primitive family group individual property rights, except 
 that of use, were practically undeveloped ; the folkway being for 
 the group members to make common use of its various possessions. 
 As the group was industrially self-sufficing there was no occasion 
 for disposal by exchange save in case of famine. The family 
 head, the father or mother, had during lifetime only a titular 
 right of control exercised for and on behalf of the group, descend- 
 ing automatically according to the folkways governing primitive 
 inheritances ; but without the right of testation or disposal ; and 
 in the rare cases when exchanges were required folk-custom es- 
 tablished a groupal right to share the proceeds. When by separa- 
 tion of some of its members a new family was established, a rough 
 partition of the common stock of goods was accomplished, as in 
 the classic instance of Jacob and Laban. Under these circum- 
 stances there could be no theft within the group. The survival 
 in Roman civilization of the Patria potestas is an enlightening 
 instance of the persistence in culture of the shadowy folkways of 
 control prevailing in a much earlier social type. . . . The rudi- 
 mentary idea of a community of goods universal among primitive 
 
Chap. XV.] SYMPATHY 397 
 
 people still survives in the developing mind of the child ; to whom 
 it is not robbery to take and use a part of what his ancestors would 
 have considered as common goods. 
 
 In the clan folkgroup, dominated by the interest of kin, the 
 folk-customs surrounding common use of the joint product con- 
 tinued ; each member had rights of use in the game, flocks and 
 herds and fruits of the field, still the result of joint effort. But 
 the folkways permitted individual or family control of weapons 
 of the chase, of war, of hunting dogs trained by members, and 
 possibly of some kinds of rude tools, of which others, like grain 
 crushers, were still the property of the clan. Within family lines 
 the folkw^ays preserved the earlier strict rules of succession for the 
 common stock of family goods, which prohibited disposal by gift, 
 exchange or bequest. Exchanges, if made, were communal ; mem- 
 bers of outgroups, strangers, could neither hold nor inherit any sort 
 of property rights. With environmental conditions that made 
 for scarcity of food began the exchange of products by plunder, 
 an inciting cause perhaps of the petty wars that led on the one 
 hand to eventual subjection and slavery, and on the other hand 
 to that folk-custom of clan alliances which eventuated in the 
 formation of tribes. 
 
 The tribe, therefore, came into its own with folkways of family 
 communism, a less complete clan communism, and the beginnings 
 of a folk-custom asserting rights of continuous personal control 
 over certain classes of articles for enjoyment as well as for quali- 
 fied disposal, i.e., lending or hiring within the limits of the tribal 
 peace. The greater division of labor within tribal bounds natu- 
 rally overthrew the self-sufficing industrial life of the pre-existing 
 clans; there were commodities in excess here, a short supply 
 there. There was need for exchange. The folk-custom already 
 countenanced plunder ; hence it was no theft to rob an outgroup. 
 When exhausted by war, tribes who normally would shun recipro- 
 cal intercourse, feigned to conform with this folkway by taking a 
 quantity of their common goods to the border and leaving them 
 th^re in the trust that so easy a conformity with the plunder 
 folkway would tend to reciprocity. And so it was that the ad- 
 vantages of exchange were brought into consciousness and neutral 
 grounds were established on contiguous borders, and by joint 
 folk-custom days agreed upon -for the conduct of exchanges in a 
 primitive market. Mercury, the god alike of plunder, of travel 
 and of trade, represented mythically the associations which 
 clustered about these age-long customs. 
 
398 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 As intertribal commerce grew the kinship subgroups began to 
 produce speciaUzed products; and the developing tribe, finding 
 an economic loss involved in communistic exchange, adapted its 
 folk-custom so as to acknowledge a right of disposal of their prod- 
 ucts by the subgroups themselves. Meantime, the growing use 
 of tools and the demand for more effective weapons had gradually 
 attached some of the rights of disposal to the earlier folk-custom 
 recognizing individual rights of use and control of these imple- 
 ments. In a ruder and more primitive age weapons and tools 
 had been buried with him who had enjoyed in them the primitive 
 rights of use and control ; but as such implements grew more com- 
 plex and more valuable folk-custom attached to them the right 
 of gift or bequest, at first confined to kin, then extended to all 
 tribal members. Meantime, folk-customs were growing which 
 established private rights of use, control and disposal in booty 
 resulting from the plunder of an outgroup by an individual, or the 
 tools, etc., used, made or inherited by him. As facilities for market 
 exchanges increased it could not be but that thrifty industrials 
 should be allowed similar rights in purchased goods. 
 
 The private ownership of land is unrecognized amongst groups 
 which in civilization have not passed beyond the hunting and 
 grazing stages of subsistence ; at first boundaries are recognized 
 to communal domains, and later a more definite folkgroup interest 
 in the area which boundaries circumscribe, combined with a capac- 
 ity for disposal, becomes imbedded in the tribal folkway. Later, 
 a folkway of individual possession of a portion of the soil through 
 use and occupancy is somewhere accidently ^ and sporadically 
 developed ; and the greater efficiency of a fixed tenure so demon- 
 strated gives rise to a nascent folk-custom of full land ownership ■ — 
 which, in spite of its spread, is far from universal even in the 
 national type of folkgroup. 
 
 There are a host of survivals in language, custom and law of 
 these earlier and less complete property folk-customs of the family 
 clan and tribal folkgroups. In Roman jurisprudence the word 
 dominium and in English the words demesne and domain remijid 
 us of the days when the dominus, or head of the house, alone 
 exercised the communal family rights of possession. The word 
 mancijpium, '' the firm grasp", applied to another form of property 
 right, is a relic of the supposition that it was supposed to have 
 
 1 The use of this term does not imply that the event was uncaused ; 
 only that it was the product of normally conflicting forces acting for once 
 in harmony. 
 
Chap. XV.] SYMPATHY 399 
 
 been acquired by plunder, and if not retained by a very firm 
 grasp would probably be lost again. 
 
 When but a few of these rights are in question it is enough for 
 folk-custom to say this man has a right to his axe, his spade, his 
 spear, his knife, his fishhook, his arrow, etc., giving in each instance 
 a specific pronouncement for the members of the folkgroup to 
 follow. But as instances. grow more and more numerous there is 
 need for a general rule condensing and summarizing all of the 
 separate prohibitions or permissions of the separate folk-custom. 
 And hence the classification of all of these property rights as pos- 
 sessions and the moral rule drawm therefrom — " thou shalt not 
 steal " — consolidating in a single precept the duty of all with 
 regard to the property rights acquired by individuals in material 
 objects. 
 
 In the nation, to the earlier rights of disposal by exchange and 
 gift are added the more personal rights of disposal by bequest 
 and by contract; in acquisition, rights to exclusive possession 
 of what objects have been made, invented or used are developed 
 through patent right, copjTight, easements, etc. ; and the facility 
 of exchange is much promoted by a gradual growth of folk-customs 
 covering the buying and selling of written representatives of 
 property rights in more cumbrous material objects. Title to a 
 thousand bales of cotton or to a share in the ownership of a rail- 
 road passes easily, according to our folk-custom, by the transfer 
 of a warehouse receipt or of a stock certificate. And thus nations 
 have seen their interest in the establishment of folk-custom per- 
 mitting a far wider range of individual property rights than was 
 dreamt of in the simpler social structure. The right of disposal 
 has, with few exceptions, become absolute in those nations which 
 are most civilized, because experience has shown that in this way 
 is produced the largest supply of consumable goods, fit for the 
 fending off of famine and want as well as for the satisfaction of 
 those more complex desires arising from the psychic motive forces 
 which more and more are dominating mankind. 
 
 And so we may see, through all groupal phases of the family, 
 the clan, the tribe and the nation with a constantly increasing 
 complexity of social structure, a corresponding accretion and 
 enlargement by the addition of one attribute after another to the 
 folk-custom of private ownership. In the family there are few 
 individual rights of property; use and control are communal, 
 disposal is practically unrecognized. In the clan structure the 
 right of use becomes personal ; the right of control vests in the 
 
iOO FACTORS OF LEGAL EVOLUTION [Part II. 
 
 family, the right of disposal is still in the folkgroup. In the tribe, 
 rights of use and control become personal ; some of the simpler 
 forms of the right of disposal gradually attach to the individual ; 
 others are still communal or unknown. In the nation the right 
 of contract is gradually discovered and, with caution, the folk- 
 customs admit individuals to its privileges. It is neither compre- 
 hensive nor universal to this day. So far as land is concerned, 
 property rights therein are developed later and more slowly than 
 those in movable objects; in modern national societies land 
 ownership is in various stages of incomplete possession, varying 
 widely from folk to folk. 
 
 As we have observed with respect to folkways, their prevalence 
 and incidence are in inverse ratio to the size of the group. And so 
 it is with custom. The customs simultaneously prevailing in any 
 subgroup are the folk-customs of its folkgroup plus an increment 
 of class-customs which are felt to be essential to the welfare of the 
 subgroup. Therefore, the prevalence of custom, like that of folk- 
 ways, is in inverse ratio to the size of the group. It follows that, 
 given a number of acts which the folkgroup recognizes as right 
 or wrong, the subgroup will place a still larger number of acts in 
 the same category. Certain conduct, like theft and fraud, are 
 folkgroup wrongs, universally condemned by folk-custom; other 
 conduct, like unfair competition, destructive underselling and 
 preferential price rebates, are wrongs to some one of the industrial 
 groups and are so condemned by and complained of by them. . . . 
 
 In any society compounded of subgroups there will be co- 
 existent numerous systems of class-customs, some of whose rules 
 are, but many of which are not, accepted by the greater group. 
 
 The members of subgroups within the folkgroup will hold to 
 class-custom with respect to the fellow members of their sub- 
 group ; and to folk-custom with respect to other members of their 
 folkgroup. Sometimes this will display in intragroup relations 
 a reversion to clan folk-custom, often suggesting a variety of social 
 phases co-existent in the same folkgroup, and of a lower phase of 
 civilization in some of the subgroups. 
 
 Neither in clan, tribe or nation was there originally any effort 
 to preserve the rights of members of outgroups ; and so in the times 
 of Elizabeth and the Stuarts predatory private war on the sub- 
 jects of a peaceful nation was countenanced by British folk-custom 
 and excused by the international morals of the day. The plunder 
 
Chap. XV.] SYMPATHY 401 
 
 of the outfolk in the form of piracy was winked at in the Carolinas 
 and not condemned by the citizens of New York or Philadelphia 
 down to the beginning of the eighteenth century ; so that efforts 
 of lawmakers to suppress the practice were nullified by the par- 
 tiality of juries. Until after the War of Independence the cap- 
 ture of negroes and the trade in slaves formed a profitable part 
 of the ventures of the old merchants of Salem and Boston; in 
 both instances because these practices were supported as favorable 
 to the folkgroup welfare. They were a survival in the nation phase 
 of civilization, of plunder-exchange folk-customs inherited from 
 a previous phase of tribal society, and morally excused by the 
 persistence in outgroups of the primitive exclusion from market 
 rights, or of obsolescent but not obsolete property rights in human 
 beings. Even in our own day modern folkgroups or nations but 
 imperfectly recognize a moral principle when applied to other 
 peoples ; and citizens feel less firn;ly bound to protect the property 
 rights of foreigners than they do those of the fellows of their own 
 group. 
 
 Just as the savage considers it right to murder any stranger 
 but wrong to steal a trifle from any fellow tribesman, so, at the 
 present day, ingroups of trades-unionists consider it a greater 
 wrong to deprive a fellow worker of his job than to waylay and 
 assault a strikebreaker, and our nation group has justified a con- 
 duct toward the Colombians and Filipinos that would be regarded 
 as the grossest injustice if practiced at home. 
 
 Folk-custom, it will be remembered, is the selection by the 
 folkgroup, in accordance with its ideals of welfare, of certain of 
 the folkways produced by efforts to satisfy interests arising out 
 of the four great leading motives of hunger, love, vanity and fear. 
 And these motives work with reference, not to the interest of its 
 members as individuals, but to their interest as members of a 
 group, or the interest of the folkgroup itself. It is in fact the self- 
 ish interest of the group, large or small, which prevails in the 
 establishment and choice of folk-custom, and which dominates 
 the morals derived from those folk-customs. These so derived 
 are, however, only a part of the body of moral rules which finally 
 prevail among the higher folkgroups; and another part, drawn 
 from nurtureways which are more the results of individual emo- 
 tions than of group feeling, it will next be necessary to con- 
 sider. 
 
402 FACTORS OF LEGAL EVOLUTION [Paet II. 
 
 II. The Group and the Individual 
 
 It has been noticed by all observers that the moral system 
 founded upon folk-custom is disregardful of the individual. This 
 is not surprising when its origin is considered. It is the product 
 of social evolution — of the evolution of folkgroups. Out of 
 the established folkways the group selects as folk-customs those 
 which it deems essential to its group welfare and enforces them. 
 Except in so far as the individual shares the welfare of the group 
 they do not consider him. The men who compose the group 
 inherit the habits and instincts of their animal forefathers, and 
 the precedent of nature, which pays no heed to individual welfare, 
 is what they have to guide them in their concept of what it is 
 right that individuals should expect of the folkgroup. In all 
 nature and with primitive man there was almost always an over- 
 production of individuals with respect to the means of subsistence, 
 so that many must in some event perish, in order that few might 
 survive. 
 
 And so it was not to be questioned that the primitive folkgroup, 
 under the pressure of recurring famine, should find in a correspond- 
 ing limitation of the right to live some security for its own integrity 
 and survival. In many parts of China the redundant population 
 is still kept down by the folk-custom of drowning or poisoning 
 a considerable fraction of its girl babies ; they think no more of 
 it than we do of drowning kittens. It is a filial duty among the 
 Eskimos to kill their old people when they become burdensome. 
 
 Many illustrations may be adduced of the essential brutality 
 of folk-custom in its bearing upon the individual. In some 
 groups it has made a sacred duty of cannibalism. In mediaeval 
 times folk-custom approved the slaughter of heretics just as we 
 approve the killing of rattlesnakes, and regarded torture as a 
 legitimate means of procuring evidence. . . . Annually the 
 Spartans had a roundup of their subject Helots and killed a 
 number of them to keep fresh their own warlike qualities. Not 
 condemned by folk-custom, these acts are not contrary to the 
 morals of the time and place. . . . These are only extreme in- 
 stances of the frequent brutality of folk-custom, and of its in- 
 difference to individual welfare whenever it is in supposed conflict 
 with that of the group. 
 
 In our survey of the various influences by which conduct is 
 guided we began with instinct ; for it seemed to be the parent of 
 human folkways and to govern conduct that might be partly 
 
Chap. XV.] SYMPATHY 403 
 
 influenced by the will. Much of our behavior is, nevertheless, 
 actuated by reactions of our organism with its environment of an 
 absolutely involuntary kind; tropisms, or movements which are 
 the result of purely physical surroundings such as the external 
 influence of heat, light, electricity ; the motions of air and water, 
 and the chemical reactions within the body. Above these comes 
 another class of involuntary movements caused by reflex nervous 
 action, which must be reckoned with in a full consideration of all 
 the conditions by which our ultimate action is determined. Be- 
 side instinct, the next higher faculty, we have now considered the 
 social influences of folkways and folk-customs ; but if we examine 
 what is conceded by everybody to be the highest type of morals 
 as they are, it is plain that there is something yet needed to account 
 for those higher motives, beyond and superior to the merely 
 groupal welfare ; which may express not the potency of the group 
 toward the individual, or the subjection of the individual to the 
 group ; but that interaction of individuals upon individuals whose 
 rule has been expressed by moral masters, from Confucius to 
 Christ, in the precept that we must do to others as we would have 
 others do to us. 
 
 Because up to this point we have heard little about the individ- 
 ual man it will not do to suppose that he does not exist ; or that his 
 existence can be ignored. . . . Because in physics and chemistry 
 we hear much of atoms and molecules and compounds and of their 
 behavior under, various reactions, it would not do to overlook the 
 less conspicuous electrons and ions of which they are composed. 
 
 The conduct-mode which we shall now discuss is discernible 
 only when self-consciousness becomes so far developed as to recog- 
 nize the welfare of the individual as an individual. At first it 
 obtrudes itself but faintly, for it is overwhelmed and overshadowed 
 by the tremendous.. social force of folk-customs which arise from 
 group-consciousness. It increases, however, in potency as man 
 continues to evolve toward the higher type. Individual, it 
 co-operates with the social, to the making of a wholly moral man. 
 But exactly as liberty — one of the social expressions of individual 
 consciousness — begins to express itself politically, so soon as 
 the tremendous integrating bonds of intertribal conflict have 
 begun to dissolve in the more disintegral peace powers of a nation, 
 just so soon do men begin to seek a wider individual welfare than 
 can be pursued under their continued subjection to the folkgroup, 
 as expressed in its folk-customs. And so individualism enters 
 into competition with socialization as a means of human welfare. 
 
404 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 In all kinds of action and reaction, whether of material or 
 physical bodies, we always find ourselves in the presence of oppo- 
 site and contending forces, the resultant of which is a compromise 
 or balance along whose lines the resultant motion or activity takes 
 place. In physics we call these opposing forces attraction and 
 repulsion ; in chemistry we speak of them as affinity and resistance. 
 The expression which they take in economics is that of co-opera- 
 tion and competition; in politics of socialism and individualism. 
 All in all these are nothing more than the physical or psychical 
 expression of two universal causes of motion underlying all nature 
 and life, which are summarized by the opposing ideas of concur- 
 rence and antagonism. . . . 
 
 For every act there are motives. In those that we have thus 
 far considered we have seen the influence only of the four great 
 primeval motives of hunger, love, vanity and fear. As society 
 progresses in the practice of the peace folk-custom, as mankind 
 becomes more gentle and intelligent, a fifth social motive is dis- 
 cernible in addition to these. This motive is that of compassion 
 or pity, which since the time of Confucius has been recognized 
 as the source of the highest form of moral conduct. Compassion 
 is the capacity that one individual possesses of imagining the 
 feelings of another and which makes him unwilling to do anything 
 which is likely to injure that other person. And yet, as Dr. 
 Johnson has observed, it is not natural to man. Children are 
 always cruel. Savages are always cruel. We may have uneasy 
 sensations for seeing a creature in distress without pity; for we 
 have not pity unless we wish to relieve it. 
 
 The origin of pity is found in the parental instinct, expanding 
 in man into the tender emotion which is evoked by the helpless 
 child — '' flesh of our flesh." This tender emotion is most natu- 
 rally extended to include blood relations composing the kinship 
 group ; its first heterethnic manifestation is probably the feeling 
 of guest-friendship, the earliest evidence of compassionate rela- 
 tions with strangers. . . . 
 
 Like the motives of vanity and fear, the compassion motive 
 is psychic, and is built upon the framework of a developed brain. 
 Psychologically it is a complex sentiment instead of a primary 
 instinct. Jts diffusion and acceptance are due to the fact that 
 those who are most actuated by this motive have a better chance 
 for survival in the struggle for existence than those by whom it 
 is not possessed. 
 
 The course of natural selection in the evolution of greater 
 
Chap. XV.] SYMPATHY 405 
 
 sensitiveness of nervous organization in the human race through 
 compassion has been well stated by Sutherland : " The man who 
 is a good father, a good husband and a good citizen, is the ancestor 
 of many progeny ; while the Napoleonic type of abundant brains 
 but deficient sympathies, even though it make a brilliant career, 
 perishes in a century or less from off the face of the earth. Each 
 person now living has two parents, four grandparents, eight 
 great parents and so on. Thus ten generations back his ancestors 
 formed a living regiment of 1024 persons. Make a small allow- 
 ance " for in-breeding " and assume that on the average each 
 Englishman of the present day had 1000 ancestors of the tenth 
 degree all living in the time of Queen Elizabeth. Let us assume 
 that there were then born 500 boys and 500 girls who might have 
 been the ancestors of the now living individual. A portion of 
 these were weeded out, some of them died through want of suf- 
 ficient parental care, others as they grew up died through their 
 own failure of sympathetic qualities. It is no exaggeration to 
 say that out of a thousand possible ancestors fifty would on the 
 average be eliminated through the failure of parental, conjugal 
 or social qualities. In Elizabeth's time out of every 1000 persons 
 born five were actually hanged. But brawls, venereal diseases, 
 etc., were far more potent cleansers of society. Thus those 
 eliminated w^ould be replaced by men and women of better stock 
 (that is to say, those who were protected from elimination by more 
 effective sympathies). And so we may feel sure that at each 
 generation a steady 5 per cent of the poorer type was withdrawn, 
 leaving room for the expansion of those richer in sympathetic quali- 
 ties. But the power of such a steady withdrawal acting in cumu- 
 lative fashion is enormous when spread over a sufficient time . . . 
 and if we had means of sifting the people of Queen Elizabeth's 
 time into two equal sets, those who could pass in these days for 
 fairly good men and women, and those who were more or less dis- 
 tinctly below the average ... it would be found that practically 
 none of the inferior blood flows in the veins of the present genera- 
 tion ; we being bred almost wholly from the better stock." 
 
 We have seen how folk-custom is important for the welfare 
 and preservation of the folkgroup; it better fits the clan, tribe 
 or nation to survive — as a group. From the foregoing illustra- 
 tion we may perceive how conduct derived from compassion 
 better fits for survival the individual, with which folk-custom, 
 except incidentally, is little concerned. 
 
 A progressive alteration of our moral sentiments toward the 
 
406 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 recognition of a right of individual happiness, as contrasted with 
 group welfare, is due to the increasing force which the compassion 
 motive acquires in the course of the social evolution from 
 savagery to civilization. Personal liberty, its political symptom, 
 is the outcome of a sense of pity felt by the masses of a folkgroup 
 for themselves and for each other in a state of misery and degra- 
 dation of which they become conscious through the contrast of 
 the condition with that of their dominant subgroup. Its force is 
 individualistic, expressed either by orderly attempts to change 
 folk-custom through institutional adaptations, as in the slow break- 
 ing up of military feudalism in England ; or, if repressed, by out- 
 bursts of violence such as those of the French Revolution. 
 
 The process by which humanistic rules of conduct become the 
 basis of a new kind of folk-custom originates, therefore, in the 
 kinship group. Some of the group members, in whom compassion, 
 or the tender emotion, is most strongly developed, discover the 
 suffering of other individuals, as a result of conduct following 
 some folk-custom, and by their protests folk-feeling is gradually 
 excited to the point of its condemnation. 
 
 Take, for example, the folk-custom of infanticide. It seems 
 to have prevailed amongst the early peoples, especially those in 
 which population tended to outrun subsistence. The Egyptians 
 practiced it with no feeling of guilt against the Hebrews in the 
 days of the captivity. The Jews themselves practiced it, and 
 the instance of Abraham's treatment of his two sons shows that 
 their folk-custom was averse neither to child exposure nor to child 
 sacrifice. They had at no time any hesitation in perpetrating 
 it upon an outgroup. But prophets and seers — idealists — de- 
 claimed against it. The best families showed that they disap- 
 proved of it; and these families by their continued aptitude 
 for survival, and consequent leadership, had great influence in 
 the spread of their ideals. Rather than expose or kill their daugh- 
 ters, they introduced the humanistic of sparing them, even if later 
 sold as slaves or concubines. By degrees the humanistic thus 
 introduced became a folk-custom of the Jews. The Greeks of 
 the epic period were quite indifferent to the survival of their 
 children, so much so that the great Spartan tribe was by this 
 sentiment reduced to insignificance. Infanticide was well in- 
 grained in early Roman folk-custom and it was one of the un- 
 questioned rights of the Patria potestas. Softened by the human- 
 
Chap. XV.] SYMPATHY 407 
 
 istic of adoption, it nevertheless prevailed long enough to become 
 a contributing condition of Roman degeneracy. In the fourth 
 century of our era the Hebrew humanistics, which had prevailed 
 over political ineptitude to fit that tenacious race for selection 
 in survival, began through the Christian variant of its religion 
 to affect the folk-feeling of the Roman peoples. And yet the 
 folk-customs of exposure and abandonment declined but slowly; 
 throughout the Middle Ages they persisted in spite of efforts at re- 
 ligious and statutory suppression. . . . Thus by degrees the barbaric 
 folk-custom of infanticide declined before the Hebrew humanistic of 
 infant preservation, until the children whose lives it had saved lived 
 to persecute the people by whom it had been engendered ; among 
 whom yet we find the most notable examples of paternal love. 
 
 This illustration shows the salient features of a humanistic as 
 conducive to family or tribal survival. Its origin through com- 
 passion in a minor folkgroup; the individual stimulus to its 
 ingroup spread through the efforts of leading men and its adop- 
 tion as a religious ideal; its further expansion through the ab- 
 sorption of its folkgroup as a well-dispersed sub-group in a 
 greater folkgroup, and by the latter's predilection for the re- 
 ligious system of the former; the long-time failure of law and 
 religion to suppress a folk-custom founded upon environmental 
 conditions; and upon the change of those conditions the re- 
 newal of the humanistic propaganda through individual effort 
 and institutional device; its final acceptance as folk-custom 
 and its firm hold in modern morals. 
 
 We have seen how the higher sympathetic development of 
 groups which first established such a humanistic gave them an 
 advantage over other groups in whom it was deficient; they 
 became increasingly better fitted to survive and correspondingly 
 more potent in folkgroup activities. For the success of a tribe, 
 both externally as a war group and internally as a peace group, 
 is dependent upon the strength of its intergroup sympathies; 
 and the tribes in whom those sympathies are most developed are, 
 therefore, best fitted to survive. The superior brute force and 
 more selfish folk-customs of the Huns, Goths and Vandals did 
 not prevent them from being absorbed and obliterated by the 
 milder and more sympathetic humanistic ideals of the European 
 peoples whom they subdued and amongst whom they settled. 
 Though better fighters than their adversaries, the less sympathetic 
 Turks have not been able to stand up against their more civilized 
 Northern neighbors in the struggle for national supremacy. 
 
408 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Because the exercise of sympathy promotes the survival of the 
 folkgroup in the struggle for existence, the latter, therefore, con- 
 sciously accepts and enforces some of the humanistics of its sub- 
 groups in the same way that it does its folk-custom and between 
 these, except as to origin, difference disappears ; such humanistics 
 being eventually merged in folk-custom. And so at this juncture 
 the sympathetic forces which have been flowing outward from the 
 individual to the group react and flow inward from the group to 
 the members. The group now exacts socially what its individual 
 members first demanded. 
 
 We have now arrived at a point from which we can survey the 
 whole field of conduct as influenced by nurtureways, which are 
 the three modes of common action characteristic of mankind as 
 organized in the groups of which society is constituted. 
 
 First then, the folkways : originating in animal groups ; char- 
 acteristic of the most primitive folk-groups ; unconsidered, habit- 
 ual, uniform within the group ; a means by which all men endeavor 
 so to systematize their daily life as to escape the effort of a con- 
 stant exercise of choice and judgment in the doing of acts necessary 
 to continued survival ; motived by forces of hunger, love, vanity 
 and fear; acquired through education and imitation; instinct 
 plus acquisition. 
 
 Next, folk-customs (or mores) derived from folk-ways by a 
 conscious choice of such as are deemed by the folkgroup to be 
 connected with its welfare. They are the product of a newly 
 arisen group-consciousness. To conform with folk-customs is 
 right, to disregard them is wrong. They are favored by the 
 folkgroup through the suggestive influence of folk-feeling and up- 
 held with pains, penalties and rewards. Folk-customs are folk- 
 ways plus groupal welfare. From the clan, tribe and other semi- 
 civilized social phases upward, they constitute a potent factor in 
 fitting folkgroups for selection and survival. 
 
 The third mode of conduct is humanistic; according with 
 ideals originating with, and propagated by, individuals or sub- 
 groups so as to modify the anti-individualistic trend of many 
 folk-customs. They are the offshoot of the growing sense of 
 self-consciousness. Founded on compassion for others, they are 
 gradually diffused within the folk-group through the power of 
 sympathy to better fit its possessors to survive in civilization. 
 Characteristic of the higher social phases of upper tribal and na- 
 
Chap. XV.] SYMPA'THY 409 
 
 tional culture, they are the basis of the higher or altruistic morality. 
 Humanistics are folk-customs plus compassion. Humanistic 
 ideals flow from individuals to the groups, while the prohibitions 
 and precepts of folk-custom flow from the group to the individual. 
 Originating in the family and promoting its survival, they are 
 like the folkways in this, that their sway and incidence are in 
 inverse ratio to the size of the group. 
 
 III. Institutions 
 
 The tj^ical cycle of humanistic evolution is : its conception 
 by an individual; its publication; its propagation and diffusion 
 through institutions. Of these there were (a) the voluntary sub- 
 groups, (6) a political institution, the legislature, which created 
 (c) a third institution, a law, to supply motives for folkgroup con- 
 formity with the ideal. Fourthly, religion, another already exist- 
 ing institution, may become conscious of the growing favor ex- 
 tended to the humanistic by its leading minds, may adopt it as a 
 part of its spiritual message; and so make itself an important 
 vehicle in its spread; because of its capacity to join Fear with 
 Pity as motive forces for the acceptance of the humanistic ideal. 
 When by such means a humanistic has become thoroughly em- 
 bedded in folk-feeling, it begins to possess the attributes of a folk- 
 custom and is consciously recognized as essential to the sympa- 
 thies, if not to the welfare, of the folkgroup. 
 
 While a folk-custom is derived from folkways of which the 
 group w^as once unconscious, but which it comes to feel are needful 
 to group welfare, i.e., the adjustment of its structure to its en- 
 vironment, a humanistic is a growth from some person's con- 
 sciousness of a conflict between the welfare of individuals with some 
 folk-custom, which by change of the structure or of the environ- 
 ment of the group is no longer needful for its welfare. 
 
 We observe further that the mode of humanistic growth and 
 diffusion is institutional rather than moral ; as the acme of con- 
 scious nurtureways, the most thoroughly conscious means are used 
 both for their spread and maintenance. The institutions through 
 which we find them working are in part voluntary societies. . . . 
 The service that such institutions perform is primarily for indi- 
 vidual welfare and is quite distinct from that rendered to group 
 welfare by public institutions growing directly out of folk-custom 
 such as public assemblies, courts, jails, police, armies, banks of 
 
410 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 issue, stock and produce exchanges, copartnerships, trades unions 
 and the like. 
 
 An institution is therefore an organized and formal artifice 
 either growing out of folk-custom or formed by leading minds to 
 promote humanistics, with the conscious purpose of supplementing 
 and reinforcing the unorganized and almost unconsciously exerted 
 *' moral " forces of approbation and reprobation by which folk- 
 groups endeavor to make conduct accord with their folk-customs. 
 The device in its developed form is a subgroup created by private 
 enterprise or commanded by public enactment, with the idea of 
 bringing to bear concurrent forces of co-operation, organization 
 and persistence in support of the uniform practice of a folk-custom 
 or to enlarge the acceptance of a humanistic as the case may be. 
 
 In the dim twilight of primitive social structure, we can always 
 recognize the shadowy form of some joint effort, on the part of 
 the folkgroup, to express the sentiments growing out of its attempt 
 to imagine and interpret the powers of nature by which it is sur- 
 rounded. Savage men appreciate fully that they are in the grip 
 of their surroundings; and that powers which they cannot fully 
 understand hold in strict limitation their capacity of existence 
 and enjoyment. The human mind seems always to try to explain 
 these phenomena, and as it has only recently acquired the concept 
 of natural forces its early attempts at explanation are always 
 along the lines of myth ; that is to say, by the attribution of these 
 powers to unseen persons not unlike ourselves, supernatural, but 
 who dwell in nature and control its forces. This line of develop- 
 ment is aided by a tendency of the savage mind to attribute an 
 incorporeal and immortal essence to the dead or to natural objects ; 
 a state of mind fostered by their apparition in dreams; and 
 doubtless superinduced in a state of barbarism by folkways of 
 irregular feeding and of intermittent periods of exercise and repose 
 which are conducive to disorders in the circulation of the blood. 
 For primitive man to believe in the supernatural is in fact as 
 rational as for us to deny it. The religious and scientific rational 
 processes of each social or cultural phase, and the conduct w^hich 
 arises from them, are always considered superstitious or irrational 
 by men who have progressed onward into higher phases. 
 
 As compared to human powers, the powers deemed supernatural 
 are infinite in magnitude; and the fear they inspire leads to a 
 desire for their propitiation. Sacrifices and worship are the 
 efforts to express that propitiation. The example of increased 
 efiiciency gained for the folkgroup through concurrence in its 
 
Chap. XV.] SYMPATHY 411 
 
 folk-customs must have been apparent to men in the early phases 
 of the social structure, and some, at least, saw the value of the 
 fear of the supernatural already established in their folkways, if 
 institutionalized, in supplementing the less organized forces of 
 social approbation or reprobation by which they were endeavoring 
 to secure uniformity of moral conduct. 
 
 In their turn religious institutions made use of the same prin- 
 ciple of concurrence. Their priests early observed the psychic 
 value of the rhythmic expression of emotion, many times mul- 
 tiplied in its effect upon the participant when manifested at the 
 same time by an entire congregation. Churches and rituals are 
 therefore effective means when directed to moral ends, and to this 
 purpose a large part of their service is applied in lower social 
 phases where other institutional forces are wanting. 
 
 So long as religion can sustain in men the idea that they are 
 accountable to powers greater than themselves, its potency in the 
 enforcement of moral duties is enormous; but it parts with this 
 power in proportion as it may persist in the maintenance of doc- 
 trines not in accord with the folk-feeling of the time. A man who 
 denies the eflScacy of magical rites in casting out devils from a 
 sick person, or doubts the value of a sacrifice to the Deity in in- 
 suring a harvest, is not likely to be much impressed with the moral 
 teachings of those who insist upon the acceptance of such beliefs 
 as essential to salvation. Xo more in morals than in dogma does 
 religion represent immutable truth. It commends at one period 
 conduct which at another it reprobates. . . . 
 
 Closely allied to the religious type of institution is that of the 
 political. The patriarchal family seems early to have proved 
 its better fitness for survival than the matriarchal type ; and the 
 tribal exigencies of military efficiency tended to develop the chief 
 or king as its leader in the almost constant warfare in which tribes 
 are engaged. In discovering and carrying out the will of the tribe, 
 the fundamental political folk-custom of assembly or mass meeting 
 was evolved from the clan-custom previously prevailing ; and from 
 this folk-custom as a basis arose a fundamental type of political 
 institution such as the landesgemeinde, folkmote, council or other 
 form of deliberative assembly; to meet, discuss and deliberate 
 over the tribal needs of the folkgroup, and to provide means for 
 defense and oft'ense. The outcome of such needs was a primitive 
 secondary institution, the army. 
 
 By the time that nations had been formed from the tribal 
 groups, men had discovered the value of institutions and that 
 
412 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 they could be organized by the royal authority or through the 
 fundamental political institution; which through the inconven- 
 ience of mass meetings for a scattered population soon developed 
 into a representative assembly, witenagemot, diet, folkthing or 
 parliament. In nations peace-customs develop rapidly through 
 the necessities of the growing industrial life. The primitive 
 remedy, established by early folk-custom for torts or wrongs 
 committed by one person upon another, is blood revenge ; a right 
 of retaliation by the victim's family or his kinship group exerted 
 against the group to w^hich the offender belonged. Punishment 
 for theft, for instance, was originally left in the hands of the 
 despoiled, and consisted either of reparation from the family of 
 the thief or of his pursuit, capture and death. The custom of 
 private vengeance or blood revenge has survived even in civilized 
 nations amongst some subgroups, as is exemplified in the duel, 
 not yet obsolete in Europe, in lynch law, or in the blood feuds of 
 our own Tennessee mountains. 
 
 Blood revenge and its resultant feuds were both destructive of 
 the strength in war of the folkgroups wherein it was most prev- 
 alent, and in a high degree injurious to the growth of industrial 
 subgroups, which needed internal peace for the practice of their 
 crafts. It was found that theft, murder and other personal wrongs 
 could be more efficiently suppressed and punished by the folkgroup 
 acting as a unit, through constituted tribal authority. Thus 
 three conditions were always working to give greater military and 
 industrial efficiency to tribes who used this means of eliminating 
 the right of private vengeance from their folk-custom. The 
 king's justice, at first directly exercised, did the people's will upon 
 wrongdoers. In the more diffused populations of the larger tribes 
 the king's authority must needs be delegated to judges; and to 
 procure uniformity of justice, statutes defining the offense and 
 stating the punishment established by folk-custom were instituted 
 by the assembly or proclaimed by the king. 
 
 In its primitive form, therefore, a statute of law is only a reduc- 
 tion to writing of a folk-custom. For peaceable and orderly 
 enforcement over a large territory it involves the institution of a 
 law court, with judges to hear complaints and to give judgments ; 
 with sheriffs or jailers to execute them; and behind all a king 
 and army providing an irresistible power to enforce the decisions 
 rendered. By such institutions was the king's justice substituted 
 for blood revenge ; an orderly for a disorderly process of punish- 
 ment; and each of the dominant elements in the folkgroup was 
 
Chap. XV.] SYMPATHY 413 
 
 given what it needed — greater efficiency to the war group in war, 
 and peace conditions for the growing group of industrial workers. 
 The penalties of the written law and of the unwritten folk-custom 
 were alike ; but carried out by the irresistible and impartial force 
 of the folkgroup instead of by the angry hand of the victim or his 
 clan. 
 
 By degrees the association of legal remedies and penalties with 
 offenses against the person or against his property led to their 
 recognition as crimes against the peace of the folkgroup instead 
 of wrongs against the victim or his clan. In place, therefore, 
 of drawing the complaint for a wTong done to the aggrieved person 
 the action is brought against the offender in the name of the State 
 itself, which alone assumes responsibility for the punishment 
 of the offender. The body of folk-custom which regulates the 
 relations of the State with its citizens is known as public law and 
 is primarily a code declaring what are the peace-customs of the 
 folkgroup, set down in writing so as to avoid dispute and enforce 
 uniform penalties. In the course of time public law has been 
 extended by statutes enacted by royal authority or by public 
 assemblies, to cover many other moral and economic relations of 
 the citizens to the State beside breaches of peace-custom, but it 
 remains a written law. 
 
 The discovery of the potency of legal institutions in enforcing 
 the criminal law led to their use in another direction. If one class 
 of folk-custom could be reduced to writing and enforced by the 
 courts, why not others? In the almost constant intertribal 
 conflicts many were the victories that led to the conquest of one 
 folkgroup by another ; and when two had intermingled there was 
 always a question as to which folk-custom should prevail. Tiiis 
 confusion led to conflicts between two bodies of folk-customs in 
 which it often happened that the conquerors conceded the supe- 
 riority of some of those of the conquered as well as insisted upon 
 the observance of some of their own. Disputes arose as to the 
 prescribed conduct which according to folk-custom one member 
 of the consolidated folkgroup had the right to expect from one of 
 his fellows. Once courts had been established for the enforcement 
 of the king's peace, the machinery which they supplied could 
 naturally be used to settle a dispute of this nature, with the result 
 that their jurisdiction was extended from the public law which 
 they already enforced to that of private law. 
 
 While public law is the body of folk-custom regulating the 
 relations of citizens and the State, private law, on the other hand, 
 
414 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 is the body of folk-custom regulating the conduct of citizens 
 toward each other together with the principles by which courts 
 have endeavored to classify them. In the main, private law is 
 unwritten — and the dispute of the contestants is, therefore, as 
 to what conduct, according to folk-custom, each has a reasonable 
 right to expect from the other — and the ideal of such conduct 
 becomes generalized in men's minds under the names of justice, 
 equity or right. 
 
 This unwritten, or as it is known among Anglo-Saxon peoples, 
 common, law is, therefore, well described as " the product of the 
 wisdom, counsel and experience of many ages of wise and observ- 
 ing men " ; and attempts to write and codify it have in large 
 measure resulted in confusion. Through its derivation and 
 capacity for enforcement through evidence and discussion in the 
 courts, the common law, especially in great matters, is reasonably 
 approximate in force and flexibility to folk-feeling itself. On the 
 other hand, it is quite beyond the capacity of the human intellect 
 to write down rules which shall take into account the infinite 
 variety of human conduct covered by the folk-custom of all the 
 groups, and which either has happened, is happening or may 
 happen. And equally is it impossible to construct a code flexible 
 enough to keep pace with the changes which are wrought in folk- 
 custom by the continually recurring changes in the structure and 
 environment of the folkgroup and of its constituent subgroups. 
 
 Existing codes of private or common law, such as have been 
 attempted in the countries which derive their jurisprudence from 
 the Romans, can cover only a small fraction of the conduct pre- 
 scribed by folk-custom. The incidents treated are mainly those 
 about which disputes have already occurred, or which have been 
 occasioned by conflicts between the folk-customs of different 
 folkgroups merged by conquest or colonization. The laws of 
 Moses, Solon and Lycurgus — the earliest of codes — have to 
 do exclusively with private law and had the purpose of effecting 
 the adjustment of conflicts of interest which had arisen between 
 different subgroups in their respective states. The codes of the 
 Barbarians compiled in the fifth and sixth centuries adjusted the 
 relations between the provincial Romans and the rude tribes by 
 whom they had been overrun ; so that the conduct of the mem- 
 bers of the subject folkgroup toward each other could still be regu- 
 lated by their milder folk-customs, while their demeanor toward 
 the master folkgroups was controlled by the Salic, Gothic or 
 Hunnish law imposed by the conquering race. 
 
Chap. XV.] SYMPATHY 415 
 
 Law and its Courts, therefore, are institutions whose main 
 function is to establish in a more or less fixed form, precepts drawn 
 from folk-custom. They prescribe for the members of the folk- 
 group courses of conduct in accordance with folk-custom and fix 
 penalties for nonconformance. They are primarily devices of 
 the folkgroup (a) for determining what is folk-custom, (6) for 
 judging whether conduct accords or disagrees with folk-custom, 
 (c) for substituting folk-penalties in place of private vengeance 
 in case of transgression, and (d) for furnishing its members with 
 organized and uniform series of motives, additional to the ordinary 
 moral approvals and condemnations exercised through public 
 opinion, for conformity with its will. 
 
 The class of wrongful conduct initially made criminal by statute, 
 including such offenses as murder, arson, rape, burglary and the 
 like, is known to jurists as mala in se — that is to say, it would be 
 condemned by folk-custom even if there were no written laws. 
 Another class is that in which are placed acts not so condemned 
 and only wrong because the law has made them so. Such acts 
 in law are known as mala prohibita. In the course of time some 
 of them, like smuggling, piracy, perjury and drunkenness, while 
 originally regarded with indifference, have become to be generally 
 condemned by folk-custom. Others, such as relate to liquor 
 selling, trespass, profanity, building regulations, Sunday obser- 
 vance, speed limits, etc., are either statutized class-custom or 
 artificial creations of the legislature; as such but imperfectly 
 adopted by folk-custom, and their infractions not necessarily 
 recognized as morally wrong. To classify them we might almost 
 adopt the continental term and call them contraventions. 
 
 The supposed potency of written laws has given rise to the 
 superstition, peculiarly characteristic of American politics, that a 
 folk-custom can be created by any man if he can only wTite it 
 into a law and get it enacted by a legislature. Nevertheless, such 
 efforts to accomplish a change of conduct by writing and enacting 
 laws not declaratory of existing folk-custom are largely unsuccess- 
 ful, even when supported by the party in power of the day. For 
 strong as is the institution of the law, it is weak as compared with 
 the tremendous force of folk-custom, which rests successively on 
 ideals ingrained in man's sentimental nature by life-long moral 
 training, on the century-long folkway habits, and on the instincts 
 inherited from sources anterior to man. 
 
416 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 It is characteristic of both rehgion and law, as moral adjuncts, 
 that they generally lag behind the folk-custom from which they 
 are derived. They are less sensitive to change in the ideals of 
 folkgroup welfare than is the folk-feeling, or public sentiment, 
 which is everywhere recognized as the most potent and flexible of 
 all incitations to conduct. While in the main there is agreement 
 between all these potencies as to what conduct should be expected 
 of men in given situations, yet there is a twilight zone of acts in 
 which the commands of one agency may be more or less contra- 
 dictory to those of another. 
 
G. — POLITICAL FACTORS 
 
 Ch.4j>ter XVI 
 
 THE CONSTITUTIONAL FACTOR OF LEGAL 
 DEVELOPMENT ' 
 
 I. The Vera Causa of Roman 
 Law — Absence of Religion, 
 Politics, and Ethics — Practi- 
 cal Causes — Infamia. 
 
 11. 
 
 Roman Law and Modern Evolu- 
 tionist Theories. 
 
 I. The Vera Causa of Roman Law — Absence of Religion, 
 Politics, and Ethics — Practical Causes — Infamia 
 
 The most superficial glance at the development of western 
 civilization cannot fail to notice that certain nations succeeded 
 in maturing some branches of art to a degree of perfection un- 
 known amongst other peoples. Thus sculpture was brought to its' 
 highest pitch of perfection by the Greeks ; painting by the Ital- 
 ians and Spaniards; music by the Germans. Science, on the 
 other hand, seems, to use the words of Goethe, to be a fugue, the 
 successive parts of which are formed by the contributions of all 
 nations, and while some nations may boast a greater number of 
 meritorious scientists than others, no nation of western civiliza- 
 tion so completely excels its competitors in the domain of science, 
 as do some in the realm of art. 
 
 To this general remark there is one exception, and one only, 
 namely, Roman law. 
 
 Roman law as taught in the writings of the Roman jurists 
 is a science, a science of great perfection, a science so perfect as 
 to almost approach the harmonious finish of art. But Roman 
 law is not only a marvelous system of the legal customs and con- 
 cepts of the Romans; its value is not restricted to students of 
 
 1 [By Emil Reich. 
 
 Reprinted from " Graeco-Roman 
 at the University of Oxford) 
 65-72.1 
 
 417 
 
 Institutions" (Lectures delivered 
 Parker and Co., Oxford, 1890, pp. 3-28, 
 
418 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Roman law; it has an absolute value for students of any law 
 whatever. In other words, the Romans outstripped all other 
 nations, both ancient and modern, in the scientific construction 
 of legal problems. They alone offer that curious example of one 
 nation's totally eclipsing the scientific achievements of all other 
 nations. 
 
 By law, however, we here understand not all branches of law, 
 as constitutional, criminal, pontifical, and private law, together 
 with jurisprudence. By Roman law we mean exclusively Roman 
 private law. The writings of Roman jurists on constitutional 
 and criminal law have been superseded and surpassed by the 
 writings of more modern jurists. Their writings on questions of 
 private law, on the other hand, occupy a unique place ; they are, 
 to the present day, considered as the inexhaustible fountain-head, 
 and the inimitable pattern of the science of private law. This 
 statement stands in need of no evidence; it is conceded on all 
 hands. It stands, however, in need of an historical and tech- 
 nical explanation. 
 
 In other words, it is perfectly legitimate to ask, why were the 
 Romans the only nation of western civilization that could bring 
 forth a scientific system of private law ? 
 
 This question is all the more legitimate, because the Romans, 
 of all nations, were the least likely to produce a scientific system 
 of private law. Roman history down to Augustus had two main 
 features : (1) the conquest of the world round the Mediterra- 
 nean; (2) the internal strifes for constitutional rights and priv- 
 ileges, first between the patricians and plebeians, and afterwards 
 between the oligarchical and democratical classes. Now the 
 wars of the Romans could not have been the foster-earth of a 
 science of private law. The continuous constitutional strifes 
 were, by their very nature, not unfavorable to the rise of jurists, 
 chiefly because the great orators and lawyers of Rome represented 
 at once the journalistic and parliamentary powers of our days. 
 Men like Porcius Cato, Hortensius, or Cicero united in themselves 
 the parliamentary power of a modern Gladstone with the vast 
 influence of a newspaper like " The Times." They were talking 
 *' leaders." Hence discussions of constitutional questions were 
 a matter of daily occurrence, and thus we could not feel astonished 
 had the Roman jurists left us a perfect science of constitutional 
 law. 
 
 This, however, is not the case. Their writings on constitutional 
 law are immeasurably below their writings on private law. In 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 419 
 
 fact, our astonishment at the Romans having been the greatest 
 writers on the science of private law becomes intensified the more 
 we think of it. 
 
 Private law feeds on commercial and industrial relations; the 
 Romans held commerce in contempt, as all military peoples do, 
 and industrial enterprises were given over to slaves. The practice 
 of private law goes with so many annoyances and inconveniences 
 that nobody can be expected to devote much time to the carrying 
 on of another man's lawsuits, unless he is paid for it : the Romans, 
 until very late, never paid fees to their jurists. The cultivation of 
 a science is generally the work of a profession, whose members 
 have gone through a regular course of general mental training, 
 and, more particularly, with regard to their special science : the 
 real founders of the science of Roman law were unprofessional 
 people who did not cultivate the science of law to the exclusion 
 of all other avocations. Besides, the Romans never cultivated 
 any science with great zeal or success. Science they took at 
 second-hand from the Greeks. For the Greeks were the scientists 
 of the world. 
 
 The cities that studded the shores of the ^gaean, Tyrrhenian, 
 and Ionian seas poured forth ever-increasing numbers of pro- 
 found thinkers, who contrived to marshal into scientific order, 
 facts of the most divergent descriptions. The disconnected 
 experiences and observations of butchers, hunters, fishers, and 
 bird-catchers they dexterously and most ingeniously welded into 
 systematic views of comparative anatomy. The incoherent and 
 stray glimpses of plant-life caught by the gardener, florist, and 
 forester they collected into luminous views on botanical phe- 
 nomena. The intricate and irregular verbal and syntactical 
 phenomena of their marvelous idioms they succeeded in arrang- 
 ing according to comprehensive principles. And likewise with 
 other phenomena, astronomical, mechanical, mathematical, and 
 political. It is needless to enumerate the immortal names of 
 Thales, Democritus, Pythagoras, Aristotle, Archimedes, Conon, 
 Euclid, Theophrastus, Hipparchus, Heron, Diophantus, and all 
 the other glories of Greek science. 
 
 Jurists, scientific jurists alone, the Greeks never had. 
 
 The Greeks construed sciences of all kinds of phenomena, 
 legal phenomena of civil life excepted. Their wonderful gift for 
 systematic thinking failed them in this one respect. Not even 
 the laborious J. A. Fabricius could muster up more than a very 
 small list of Greek jurists, in the Roman sense of the word, that 
 
420 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 is to say, jurists practising private law. Read the speeches of 
 Isseos or Isocrates, and compare their conception and treat- 
 ment of law with similar passages in Cicero's Orations, for instance, 
 the Oration for Csecina, or Quintius, or Murena, and the vast 
 difference between Greek and Roman private law will strike you 
 *most forcibly. 
 
 In other words, the Greeks, who were the teachers of the Romans 
 in every branch of science and philosophy, were entirely unable 
 to vie with their pupils as to legal science. Whence this remark- 
 able and unexpected superiority of the Romans ? How and why 
 could they excel the most gifted nation of all ages in the cultiva- 
 tion of a science, the subject-matter of which was as familiar to 
 the Greeks as to the Romans? For the Greeks were notorious 
 pettifoggers, and there was scarcely a week but what a Greek took 
 part in judicial proceedings, either as one of the numerous judges, 
 or as a witness, or as one of the contending parties. 
 
 And why did the Jews not construct a generally valuable system 
 of private law? They, as .well as the ancient Egyptians, As- 
 syrians, Icelanders, and Irish, had accumulated vast piles of 
 legal casuistics, and the discussion of questions concerning pri- 
 vate law, together with religious issues, formed the bulk of the 
 studies eagerly pursued by Egyptian priests, Jewish rabbis, 
 Irish " Brehons ", and Iceland wise men. Why, then, did they 
 not succeed ? 
 
 For, make allowances as many as you may, the systems of 
 private law, as cultivated among the nations just mentioned, 
 are essentially inferior to the system taught in the writings of 
 Roman jurists. You will ask, perhaps, in what then does this 
 vaunted superiority consist? Are the Roman jurists so much 
 more sagacious or shrewd than the jurists of other nations ? Is 
 their practical sense so much stronger, or do they combine theo- 
 retical comprehensiveness with practical adroitness in a superior 
 way? 
 
 It would be simply unfair to deny the exquisite keenness and 
 penetration in the juristical portions of the Thalmud of the Jews, 
 made accessible through the labors of M. Rabbinovicz; the 
 Gragas of the Icelanders ; or the amazing casuistics of the Brehon 
 books. Nor can we discover any serious deficiency in their sense 
 of practical needs. They also abound in refined principles, in 
 systematic divisions, sub-divisions, and sub-subdivisions. And 
 yet all this is productive of no result of generally available ex- 
 cellence. We read the ancient Brehons, because we take great 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 421 
 
 historical interest in Irish institutions. But we never so much 
 as think of grafting law-principles of the ancient Brehons on the 
 body of our modern law, nor do we apply to them for ready counsel 
 and advice in any practical difficulty of the bar or the bench. 
 
 The Romans, on the other hand, stand to us in intimate rela- 
 tion ; their legal wisdom is a living wisdom, a living factor in 
 our life. Marcus Antistius Labeo, Capito, Gains, Papinianus, 
 Paulus, or Ulpian are still walking amongst us, ready to help us 
 in any practical difficulty, and capable of assisting us whenever 
 we fail to make up the feud between theory and practice. The 
 works of the Greek scientists and thinkers, although indicative 
 of an incomparably greater power of mind than the works of the 
 Roman jurists, are now-a-days obsolete. We rarely or never 
 use them as text-books, or as current reference books of science. 
 The works of the Roman jurists, on the other hand, still continue 
 to be the text-books of students of law^ all over Europe and Amer- 
 ica. In what then does the specific excellence consist ? 
 
 It is of course extremely difficult to reduce the characteriza- 
 tion of a complex system of law to a few words. But such is 
 the pre-eminent excellence of Roman private law that it is more 
 or less easily contrasted with the system of private law of other 
 nations. Roman or civil laic is the only system of private law that 
 has not been unduly influenced by the irrelevant factors of religion, 
 politics, and ethics. 
 
 Take the private law of any other nation. Let us begin with 
 English law. We all know that English common law has been 
 largely influenced by the political structure of English society. 
 The English law of real property, for instance, is, in the words 
 of ]\Ir. Kenelm Digby, its distinguished historian, a " congeries 
 of ancient custom and mediaeval and modern innovation." But 
 what were those ancient customs and mediaeval innovations 
 caused by? By the political system of feudalism. The law 
 of acquiring or conveying property was strictly and immediately 
 depending on the political standing of the owner or purchaser. 
 The pervading principle of the law of real property, as it developed 
 in England, was this: " Nulle terre sans seigneur"; that is to 
 say, the law of real property was pervaded by a political principle. 
 Consequently the strictly legal, or to apply an unusual but very 
 apt expression, the strictly '' civilistic " development of the law 
 of real property was hampered and interfered with from the very 
 beginning. An element was brought into it that was irrelevant, 
 because extraneous. 
 
422 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 The Romans never suffered their legal institutions to be inter- 
 larded with extraneous matter. From the earliest times down 
 to the age of the emperors, the Romans had a political institution 
 that might have lent itself very easily to an undue interference 
 with institutions of private law, after the manner of feudalism. 
 I mean the Roman " clientela." Roman clients stood to their 
 " patroni " in a relation not unlike that of a feudal tenant to his 
 lord. They held estates from them, they were obliged to do 
 homage and to discharge some of the duties implied in " feudal 
 incidents." All this surely might have easily been used as a 
 means to unduly influence the development of the Roman law 
 of real property. It might have been used to create those semi- 
 complete forms of property with which English law abounds, and 
 which go to make the English law of real property a most intricate 
 law. But nothing of the kind happened. The Roman concept 
 of real property, or rather of property in general, was nowise in- 
 fluenced by the grants of land so frequent amongst patrons and 
 clients, and the legal construction of these grants, namely, the 
 '^ precaria", exercised no influence whatever on the features of 
 " dominium " or " possessio." 
 
 Or take another great political institution of the Romans : I 
 mean the two classes of patricians and plebeians. Nothing is 
 more patent than the constant struggle of the plebeians with the 
 patricians, and the marked difference in their political standing. 
 Did this well-known difference exercise any influence on the pri- 
 vate law of the Romans ? Do we ever hear of an " actio " or 
 private right being denied to a Roman because he is a plebeian ? 
 There is no trace either in the XII Tables^ or in any later legisla- 
 tion, of ^ any thoroughgoing or even important difference between 
 the plebeians and patricians as to " civil " rights (taking the word 
 *' civil " in its Roman sense) after the middle of the fifth century 
 B.C. A plebeian could acquire real property, contract obligations, 
 marry, and will his property according to the same principles of 
 private law as a patrician. Their contentions and conflicts re- 
 ferred to political issues. It never occurred to them to alter the 
 frame of their private law on the strength of political differences. 
 Consequently private law had not to suffer from an irrelevant 
 mixture of extraneous matter, and instead of being warped, as it 
 were, in its development by the alien element of politics, it freely 
 pursued its natural course, and thus reached a higher perfection. 
 
 Roman law was likewise free from an undue influence of re- 
 ligion. What vast changes may be wrought in the character of 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 423 
 
 private law by an undue influence of religion, or rather theology, 
 we can clearly see in the law of the Mohammedans, or, more 
 correctly speaking, in the systems of the various sects of the 
 ]\Iohammedans. There are three gigantic systems of private law : 
 The Roman, the English, and the Mohammedan. Each of them 
 rules several hundreds of millions of people. But one glance at 
 the sources of Mohammedan private law will satisfy us as to the 
 reason of its inferiority compared to Roman law. The order of 
 authorities to be observed by a Mohammedan judge is (1) the 
 Kooran, (2) the Soonut, or Traditions, (3) the concurrent opin- 
 ions of the Sahabah, or Comparison of the Prophet, (4) the con- 
 current opinion of the Tabieen, or their immediate successors, 
 (5) opinion of Abu Huneefa, Aboo Yoosuf, and Mohammed, 
 (G) opinion of modern lawyers, (7) Kiyas, or analogical reason.^ 
 This of course refers to judges applying the law according to Abu 
 Huneefa. But this *' sect", together with all other " sects", 
 recognize the Kooran, the Sahabah, and the Tabieen as their 
 fundamental source. In other words, they all agree that their 
 theological code is the foundation of their legal concepts. 
 
 It is needless to dwell on the total irrelevancy of such an in- 
 fluence. Theology, while perfectly legitimate in its own domain, 
 can claim no legitimate influence over private law, no more than 
 private law can over theology. Thus every Mohammedan law- 
 concept is honeycombed in form, as it were, or rather stinted in 
 its growth by the conflicting influence of theological ideas. 
 
 The Romans, on the other hand, never allowed their religious 
 concepts to interfere with the fundamental features of their pri- 
 vate law. The Sibylline, or sacred books of the Romans, were in 
 constant use among them ; but only for political purposes. The 
 Roman Senate frequently, nay continually, charged certain 
 officers " ad libros ire", to consult the sacred books, just as Mo- 
 hammedan nations refer to the Kooran. But it never occurred 
 to the senate to consult these mysterious theological books on 
 questions of private law. And thus the private law of the Romans 
 remained unbiased by an irrelevant influence that has impeded 
 the growth of a science of Mohammedan law; and likewise the 
 scientific development of the private law of the Hindoos and 
 Jews. For it is evident on the face of the matter, that if a system 
 of private law is constantly interfered with by elements alien to 
 the nature of private law, its development must needs be retarded 
 and driven into unprofitable directions. 
 
 1 N. E. Baillie, "Moh. Law of Sale", p. 21. 
 
424 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 I have finally to say a few words about the relation of Roman 
 private law to ethics. Ethical and moral ideas have largely, and 
 often unduly, influenced the unrestrained growth of private law. 
 For although private law has close relations with ethics, it con- 
 tains and comprises leading ideas distinctly different from ethical 
 ideas. Our obligations to a certain individual are quite different 
 when arising from motives of friendship, and when caused by the 
 duties of a legal contract. In fact the domain of private law is 
 widely separated from the domain of ethics. Ethical obligations 
 the Romans named " officia", and they had special treatises on 
 them in contradistinction to the obligations of law. But they 
 never confounded the needs and powers of ethical with those of 
 jural relations. And thus they contrived to develop the prin- 
 ciples of their private law undisturbed and unbiased by factors 
 of an alien kind. 
 
 It is therefore that their legal principles have that comprehen- 
 siveness and thoroughgoing character which is the great glory 
 of Roman law. A Roman lawyer, and even a modern French 
 or German lawyer — French and German private law being es- 
 sentially Roman law — were, and are, never obliged to ransack 
 whole libraries of precedents to find the law covering a given 
 case. They approach a case in the manner of a physician ; care- 
 fully informing themselves of the facts underlying the case, and 
 then eliciting the legal spark by means of close meditation on the 
 given data according to the general principles of their science. 
 The Corpus Juris Civilis is one stout volume. This one volume 
 has sufficed to cover billions of cases during more than thirteen 
 centuries. The principles laid down in this volume will afford 
 ready help in almost every case of private law, because they ema- 
 nate from private law alone, and have no tincture of non-legal 
 elements. The law of the English, for instance, is so intimately 
 connected with English feudalism and the constitution of England, 
 that unless a country possessed the same kind of, or a similar con- 
 stitution, it could not adopt one line of English law. The private 
 law of the Romans is connected with none of their peculiarly 
 Roman institutions, and consequently it fits the law of any nation, 
 provided this nation wants a science of private law, which is not 
 always the case. 
 
 This statement seems to lack all historical evidence. One 
 hour's reading in the Corpus Juris seems to show us any number 
 of peculiarly Roman institutions that influence largely the struc- 
 ture of Roman private law. Such is, for instance, Roman slavery. 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 425 
 
 Now-a-days we have no slaves, and thus one might think that the 
 wonderfully refined speculations of Roman jurists on questions 
 connected with slave-law — one half of the striking " fragments " 
 of Africanus treat of such cases — are all obsolete and can have 
 no bearing on our modern private law. I venture to state that 
 the number of cases where slaves are brought into play forms over 
 sixty per cent of all cases of the Corpus Juris. 
 
 Now according to what we notice in our own law, we should 
 expect that no modern civilian will devote his time to the intricate 
 questions of Roman slave-law, Roman " patronatus", Roman 
 '' libertini ", etc., etc., just as no English practical jurist will 
 devote his time to a laborious study of old English serf- and villein- 
 law. Roman law, however, is so independent of institutions 
 peculiarly Roman, that while slavery has long ceased to be of 
 any practical interest to the jurists of modern Europe — except 
 as a pretext to grab large territories in Africa — Roman slave- 
 law continues to exercise a most intense interest, and recent books, 
 like Professor Leist's books on " Roman Patronatus", are eagerly 
 welcomed on all hands as contributions to practical law. 
 
 . . .Roman slave-law has a value entirely independent of the 
 historical and as it were accidental institution of Roman slavery. 
 American slavery is a thoroughly historical institution, and the 
 works of Cobb, Hurd, Wilson, and others on American slave-law 
 are totally ignored by the present lawyers of Louisiana, Alabama, 
 or Mississippi. Not so Roman treatises on slave-law. 
 
 It is the same case with the peculiarly Roman institution 
 of " patria potestas ", which, although long obsolete as such, is 
 still of practical value to all countries where Roman law has been 
 adopted . . . 
 
 Roman private law grew up in a strictly legal atmosphere, and 
 consequently furnishes us principles of a purely jural and legal 
 character as distinct from law-principles tinctured with political, 
 theological, or ethical concepts ; it developed as Pomponius once 
 says : '' rebus ipsis dictantibus." 
 
 We have now to inquire what was the originating cause, the 
 " vera causa " of this marvelous law ? Why was it that the 
 Romans alone were able to furnish their age and all subsequent 
 ages with law-principles that were as completely divested of non- 
 legal elements as are the propositions in Euclid of non-mathe- 
 matical? Before proceeding to a sketch of my view of the vera 
 causa, it will be necessary to premise the views of others- 
 
426 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 . , . According to Coulanges, Roman as well as Greek law was 
 derived from the religious beliefs of the Romans and Greeks, 
 from the worship of their ancestors and their homesteads. This 
 explanation of the origin of Roman law fails to account for the 
 very first question involved in our problem : namely, why the 
 Greeks were unable to create the very elements of a law-system 
 which the Romans succeeded in bringing to the highest pitch of per- 
 fection. Professor Coulanges' explanation covers both Greeks and 
 Romans ; it tries to account for the law of the former as well as 
 for that of the latter, taking it for granted that there is no essen- 
 tial difference between Greek and Roman law, as there was no 
 essential difference betwen their religious beliefs. But this is 
 exactly the thing that we are forced to deny. Roman law is es- 
 sentially, and as the Latin saying is, " toto cselo " different from 
 Greek law ; consequently it cannot be derived from religious be- 
 liefs the majority of which were common both to Greeks and 
 Romans. In fact, as I have endeavored to suggest, Roman law 
 owes its excellence partly to the fact of its being entirely independ- 
 ent of religious ideas. 
 
 Professor Jhering, of Gottingen, in his celebrated work entitled, 
 " Geist des romischen Rechts ", — " Spirit of Roman Law " (or, 
 as some of his opponents have put it, " Spirit of Professor Jhe- 
 ring"), says a good deal about the causes of Roman law ; he thinks 
 that the cultivation of law was allotted to thp Romans, ''according 
 to the economy of history." ^ This Very probably means that the 
 Romans had a historical vocation to cultivate law, because — 
 they were given the power to do so. This again is on a line with 
 the assertion that the poverty in London, for instance, is owing 
 to the great number of poor people in London. And this again 
 means nothing at all. To say that a nation perfcrmed certain 
 feats of intellect or character, because it had a historical vocation 
 for it, is tantamount to a confession of total ignorance regarding 
 the causes of such feats. Jhering proceeds to say that the Roman 
 people had one pre-eminent trait of character, selfishness; and that 
 their law is — the religion of selfishness.^ And this peculiar trait 
 of character made them apt to carry out the promptings of their 
 historical vocation. " The Roman world taken as a whole may be 
 designated as the triumph of the idea of utilitarianism and prac- 
 ticability ; all her forces both of mind and character exist on be- 
 half of utilitarian objects. Selfishness is the moving power of the 
 
 1 "Nach der Oekonomie der Geschiehte", T, 316. 
 
 2 "Die Religion der Selbstsucht", ib., p. 328. 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 427 
 
 whole ; the whole of Roman virtues and institutions is the objec- 
 tivation or the organism of national selfishness." Having thus 
 characterized the Roman nation, he proceeds to gather the infini- 
 tude of Roman law-institutions under a few heads, which he calls 
 '' principles " or leading ideas, first of which is the *' principle " 
 of the " subjective will ", and of this he says that it is the foun- 
 tain-head of Roman law. In addition to this he teaches that there 
 w^re several ' Triebe " or propensities at work, and he deduces 
 many Roman law-concepts from such national propensities. 
 
 I am sorry to say that while I readily accept many of Professor 
 Jhering's brilliant suggestions, especially in the last volume 
 of his work, I fail to see the adequacy of his vague " principles " 
 and " propensities." I most profoundly believe that such terms 
 are nothing else than the " qualitates occultae " of the scholastics, 
 that they do not account for concrete institutions, and that they 
 can at the best only characterize an institution, but not deduce 
 it from its real causes. True, the Roman nation manifests a 
 certain selfishness, although it is hard to see why we should blame 
 a nation for selfishness, every single member of which labored 
 more for the common weal than for his own profit. But one or 
 two moral traits are totally unfit to account for concrete institu- 
 tions. The Greeks surely can be said to have been a people with 
 a keen sense of beauty. But who will explain the rise of their 
 marvelous sculpture from this sense alone? Who will call it the 
 fountain-head of their sculpture? In other words, who will call 
 a symptom a cause ? . . . The Romans were not one whit more 
 selfish than any other nation, and the principle of subjective will 
 was not stronger in them than in any other prosperous people. 
 
 The late Sir H. Maine (in the first chapter of his '' Ancient 
 Law ") was of opinion that Roman law owed its peculiar develop- 
 ment to the '' theoretical descent of Roman jurisprudence from 
 a code ", meaning the XII Tables, and that '' the theoretical 
 ascription of English law to immemorial unwritten tradition " 
 was the chief reason of its developing differently from Roman 
 law. He lays particular stress on the fact that the Romans 
 possessed a code at a time when usage was still wholesome, as 
 he says. In fact, he thinks that the XII Tables were the chief 
 cause of Roman law having so steadily advanced to its ultimate 
 perfection. I regret to say that I cannot accept this as an ade- 
 quate explanation. The XII Tables were an admirable collec- 
 tion of the current law of the fourth and fifth decades of the fifth 
 century B.C. But so were the codes of the Icelanders, Irish, Welsh, 
 
428 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 or Germans. They all had codes, and at a very early date of their 
 history. But not one of those nations succeeded in developing 
 the original code to a perfect system of law. Why should a code 
 as such be productive of this result? Can a code not become 
 obsolete, inconvenient, and inapplicable ? The marvel is not that 
 the Romans once had a code, called the XII Tables, but that they 
 persistently clung to it for over eight centuries, although continu- 
 ally improving and refining upon it. This tenacious and pious at- 
 tachment to a code can surely not be explained by the code itself. 
 .It originates not from the code but from the people who uphold 
 it. The Americans continue to observe their written constitu- 
 tion, not because it was once written, but because they are deter- 
 mined to revere it as their fundamental law. It is their merit, 
 not that of Jefferson or Washington. 
 
 Professor Theodor Mommsen, of Berlin, in his " Roman His- 
 tory ", devotes several chapters to the consideration of Roman law, 
 and occasionally he gives the following solution of our problem : 
 "It is customary to laud the Romans as a nation privileged to 
 the cultivation of law, and to admire their excellent law as a 
 mystical gift from heaven ; this is probably done to save us feel- 
 ing ashamed of the misery of our own administration of law. 
 One glance at the extremely inconsistent and undeveloped criminal 
 law of the Romans should convince us of the untenableness of their 
 vague notions regarding Roman law, even those to whom it would 
 appear too simple to say, that a sound nation has a sound law, 
 and an ill nation an unsound." In other words, the simple solution 
 of the mystery of the law of the Romans, according to Professor 
 Mommsen, is the fact that they were a healthy nation, and, ac- 
 cordingly, had a healthy law. In the passage just quoted from 
 Mommsen, he animadverts on the highly imperfect state of 
 Roman criminal law ; how shall we now understand his " healthi- 
 ness of the Romans " ? They had a good civil law, because they 
 were a healthy nation. Why then did they not also have a good 
 criminal law? His expression "sound law" refers both to civil 
 and criminal law. If a healthy nation have a healthy law, why 
 not a healthy criminal law as well as a healthy civil law? But 
 apart from this insoluble contradiction, what shall such an ex- 
 tremely vague and cloudy statement avail us? Were the Spar- 
 tans not a healthy nation? And the Macedonians? Health is 
 a very valuable thing both in individuals and nations ; but health 
 alone cannot account for concrete achievements in science or philos- 
 ophy. The health of a nation depends chiefly on a sound condition 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 429 
 
 of its finances and its army, together with the purity of family life 
 and public morals. I fail to see how these factors can account for 
 the fact that the Romans alone produced a perfect system of private 
 law. Many another nation had sound financial, military, and 
 moral conditions; but the Romans alone created an immortal 
 system of private law. 
 
 I shall now try to draw the outlines of my view of the real causes 
 of Roman private law. The search for such causes is frequently 
 discredited at the hands of some jurists, as savoring too much 
 of metaphj'sical or purely philosophical ideas. And as a rule 
 the authors of histories of Roman law carefully avoid investigat- 
 ing the causes of the grand fabric of the law they treat of. The 
 Romans themselves had no idea of the real motors of their law, 
 and this is perfectly in keeping with the experience of our ow^n 
 times. Very few Englishmen could give a satisfactory account of 
 the rise of English equity law, barring mere quotations from the 
 current histories of English law. Or to come to present times, 
 exceedingly few Englishmen or Americans could satisfactorily 
 account for the rise of two recent social movements that have 
 already assumed vast dimensions. I mean Prohibitionism and 
 the Salvation Army, The modern historians of Roman law, not 
 being able to find explicit passages of Roman authors concerning 
 the real causes of their law, simply ignore the questions, and re- 
 main, as Rudorff says, " on the ground of solid comprehension 
 and continuous work." ^ 
 
 Rudorff and many more German historians of Roman law 
 notwithstanding, I venture to say that unless we can fully compre- 
 hend the practical causes that were productive of Roman law, we 
 shall never be able to understand the institutions of Roman law as 
 we understand some of our own institutions. They will never come 
 home to us ; they will only be an undigested mass of learned texts, 
 which we have to commit to memory through laborious study of 
 the ancient and modern authorities. A clear understanding of the 
 causes of Roman law, on the other hand, facilitates our study of 
 that law most effectively. In order to convey a very distinct idea 
 of my view I have tried to reduce it to a few words, in fact, to one 
 single word, so that whatever you may happen to think of the value 
 of my view, you will not be doubtful as to what my view is. 
 
 The main catcse of the rise of Roman private law and its high 
 perfection I take to be the Roman institution of Infamia, 
 
 1 **Auf dem Boden soliden Erkennens und Fortarbeitens " ("Rechts- 
 gesch. ": Preface). 
 
430 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 The Roman institution of " infamia " was the fountain-head, 
 or rather the chief motor and factor that brought about the ma- 
 jority of those legal institutions the sum total of which go to 
 form the system of Roman law. It was this institution that led 
 to the rise of Roman jurists ; not of lawyers, but of " jurispruden- 
 tes " ; and it was likewise this institution that served these jurists 
 with a mental check, as it were, in their elaboration of legal con- 
 cepts. To bear out this assertion I shall first characterize in a 
 few words the institution of Roman infamia. 
 
 Infamia in Latin means infamy, public disgrace. Savigny, 
 whose chapter on infamia is still considered the best extant 
 treatise on this institution, says : " Infamia as the consequence of 
 a criminal sentence became a generalrule only by degrees." And 
 this is the salient point of the whole problem, the point to which 
 I wish you to pay special attention. Certain trespasses entailed 
 the punishment of public disgrace. The Romans, just as we, 
 punished certain trespasses or offences with fines and loss of honor. 
 A person convicted of theft is considered disgraced in our times. 
 He is unable to hold a public office, and society will not receive 
 him. That, therefore, the Romans were sensible of the disgrace 
 inherent in certain offences appears very natural indeed. 
 
 But what shall we say on reading that the Romans did not think 
 that a person was disgraced by embezzling public money? or 
 committing a crime against public morals ? For such is the case. 
 We read in Zumpt's " Criminal Law of the Roman Republic " : 
 " There is no trace that persons fined by the tribunes had to 
 suffer from any public disgrace ; on the contrary, there are examples 
 of such persons having kept their offices," and he quotes several 
 examples of Roman officials who were convicted of embezzling 
 public money and yet did not sustain any loss of honor, or 
 " capitis diminutio." 
 
 This strange leniency stands in glaring contrast with the utter 
 rigor of Roman law concerning the trespasses or offences of a 
 much lesser kind. In fact it is no paradox at all to say that while 
 the Romans of the republic readily connived at some of the most 
 dangerous offences committed against the commonwealth of 
 Rome, they mercilessly resented the slightest ruptures of private 
 relations. In other words : their private law was infinitely more 
 draconic than their criminal law. We just saw that an embezzler 
 of public money was fined but not disgraced. On the other hand, 
 we learn that a private agent of a Roman, a " mandatarius ", 
 if there was a civil judgment against him enjoining him to refund 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 431 
 
 the money he had been intrusted with, was " ipso facto " dis- 
 graced, that is, henceforth unable to vote or to be elected. 
 
 jMind the enormity of the case : there is a civil judgment in a 
 civil case ; a judgment commanding the defendant to refund the 
 money he had received from his mandator. This judgment put 
 an indelible stain on the social life of the defendant ; in fact it 
 made him a social outcast. And now compare the horrible con- 
 sequence of this civil judgment with the indifferent consequence 
 of the criminal conviction of an embezzler of public money ! What 
 inconsistency ! The private agent of a private person is defeated 
 in a civil lawsuit ; and instead of being held to pay a fine he is 
 deprived of his most precious civil rights, of rights that were in- 
 finitely more precious to a Roman than to a modern *' citizen." 
 A Roman who was deprived of his right of suffrage and conse- 
 quently of his eligibility to the various oflSces of the state, was 
 deprived of his very life. Outside state-life there was no life in 
 republican Rome. Death was decidedly preferable to the punish- 
 ment of infamia, and the latter has rightly been called " civil 
 death." And this civil death was the lot of him who had the 
 misfortune of getting defeated in civil law suits. For the case 
 of an agent was not only the case in which infamia could be in- 
 flicted. In fact, if we endeavor to represent to ourselves the actual 
 practice of Roman private law, we shall see that the spectre of 
 infamia threatened the citizens at nearly every step of their daily 
 actions. 
 
 Infamja was directly or indirectly the consequence of innumer- 
 able actions. In current works on Roman law you will find enu- 
 merated a small number of actions that could bring infamia upon 
 the defeated defendant. This, how^ever, is an altogether mis- 
 leading statement. Infamia was, for instance, the consequence 
 of " commodatum ", that is, when a lender sued the borrower, 
 provided the borrower had used the loaned thing in a way contrary 
 to stipulation. In such a case the lender could use the " actio 
 furti ", which inflicted infamia on the defendant. One of the most 
 generally applicable actions was the " actio doli ", since it lay in 
 every case when an evil design on the part of the defendant could 
 be proved, provided there was no other specific ** actio " appli- 
 cable. But any civil action could inflict infamia, inasmuch as the 
 execution of any civil judgment, or as we call it, any writ of " fieri 
 facias ", inflicted infamia. 
 
432 FACTORS OF LEGAL EVOLUTION [Pakt IT. 
 
 . . . Infamia was the sword of Damocles, that constantly hung 
 over the life of every single Roman during the whole period of the 
 republic. The causes of this strange institution are patent to any 
 one who carefully studies the marvelous frame of the Roman 
 State. It is impossible to dwell on this point at present. I 
 will state this much, that the institution of infamia was the great 
 constitutional check of the Roman commonwealth. Infamia 
 thus threatened every single Roman at every step and at every 
 turn of his every-day life. , He could not transact the least bit 
 of business, the smallest affair that could eventually lead to liti- 
 gation in court, without jeopardizing his very civil existence. 
 
 Now represent to yourself the practical working of such an in- 
 stitution as infamia. On the one hand, every Roman citizen was 
 profoundly convinced of the impossibility of shaking off the 
 tyranny of that institution ; on the other hand, every Roman 
 citizen could not help seeing that some means have to be dis- 
 covered which will obviate the sorest consequences of infamia with- 
 out doing away with the otherwise wholesome institution itself. 
 Suppose a Roman had a friend whom he had commissioned to do 
 some business for him ; in short, suppose the '' mandatarius " of a 
 Roman happened to be his friend. For some reason or other this 
 mandatarius could not refund the money he had been intrusted 
 with, or did not wind up his " mandatum " in a proper way. The 
 Roman now is under the obligation to sue his friend, with the 
 " actio mandati directa ", that is, with an action that will even- 
 tually bring infamia upon his friend, or on himself. For, if the 
 judges held that his friend was not bound to refund any money, 
 his friend could sue him with the '^ actio injuriarum ", which 
 brought likewise infamia upon the defeated defendant. As in 
 this case so it was in innumerable cases of every-day life. 
 
 Now, no gentleman will delight in ruining his friend for a sum 
 of money. In this predicament of his the Roman naturally 
 turned to some clever man of his acquaintance for advice. This 
 clever man could solve the problem in one way only; not being 
 allowed to uproot the foundations of the institution of infamia, 
 that is, of substantive law, he essayed to compass his end by fitly 
 adapting the case of his client to adjective law, to the law of 
 procedure. Thus it came about that that portion of the law of 
 Rome which we are used to call the adjective or subordinate 
 portion of law, was in reality the substantive portion of it. In 
 Roman law the law of procedure was the prior, the substantive law. 
 This is exactly the reverse of English law, in which the law of 
 
Ch.\p. XVI .J THE CONSTITUTIONAL FACTOR 433 
 
 procedure is called adjective law. The actio is the mcderatcr 
 of rights, and not vice versa. 
 
 The common law of Rome was a law in which the action was 
 not the mere appendix of the right, as in modern times, but its 
 root. Now-a-days we distinguish between contentious juris- 
 diction and voluntary jurisdiction, as it is called in English ec- 
 clesiastical law. Conveyancing, e.g., is a non-contentious affair, 
 and consequently it does not assume the garb of an action. But 
 in Rome the most peaceful act of non-contentious transactions 
 assumed the garb of a full-fledged action of law. For in Rome 
 the actio, that is, contentious law, was the fountain-head of non- 
 contentious law. . . . 
 
 . . . One moment's reflection will satisfy any student of Roman 
 institutions that in a commonwealth where ordinary business- 
 transactions were saturated with germs of the most deleterious 
 nature, some citizens will naturally fall to thinking about remedies 
 that might mitigate the virulence of the poison. And this is the 
 reason why the Romans, a military people, a people that held 
 commerce in contempt, and who did not cultivate philosophy or 
 science at all, a people of haughty warriors, who never succeeded in 
 systematizing their constitutional or criminal law— I say, this is the 
 reason ^yhy the Romans felt induced to pay such extraordinary at- 
 tention to' the regulation and systematization of private law. Their 
 private law had the character not of our private law, but of our modem 
 criminal law; and it is only in the domain of criminal law that we 
 can ever hope to equal the ancient Romans, since our criminal law 
 arises from an institution similar, if not identical, with the insti- 
 tution of infamia, namely, the institution of modern social honor. 
 
 We can entertain no hopes to equal the Romans in the elabora- 
 tion of systems of private law ; but we are allowed to cherish the 
 hope that we shall uphold the fabric of our civilization without 
 placing the sword of Damocles over the head of every citizen in 
 every hour of his daily life. For all higher institutions high 
 prices must be paid. The unrivaled abundance of Greek litera- 
 ture, philosophy, and science was purchased at the expense of the 
 total subjugation of the female and two thirds of the male popula- 
 tion of Greece. Roman law was purchased at the expense of an 
 institution than which the Spanish Inquisition was not much more 
 cruel. Let us charitably hope that our civilization, if wanting 
 in a perfect system of private law, is also wanting in social spectres 
 like the Roman institution of infamia. 
 
434 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 II. Roman Law and Modern Evolutionist Theories 
 
 Investigations into the causes of Roman law are of very great 
 moment for two reasons ; first, on account of the intense interest 
 attaching to the institutions of ancient Rome in general, and to its 
 law in particular; secondly, on account of such investigations 
 being fit to serve as test-cases for the doctrines of modern evolu- 
 tionism. 
 
 The great and signal success of Darwinism in the domain of 
 natural science has filled its adherents with just enthusiasm. The 
 most radical opponent of the theories of Darwin, Haeckel, Huxley, 
 Wallace, and other eminent Darwinists cannot but acknowledge 
 that many facts of morphology, botany, zoology, and anthropology 
 have been reduced to greater scientific order ; and numerous facts 
 hitherto unknown have been discovered through the improved 
 methods of Darwinism. To deny this would be to deny the most 
 evident fact in modern science. 
 
 Enthusiasm, however, is likely to carry away its devotees ; and, 
 accordingly, the fervent adherents of modern evolutionism were 
 not satisfied with the laurels won in the sciences just named, 
 but essayed to try their victorious concepts on problems that have 
 previously been considered outside the pale of the naturalist. 
 The puzzles of sociology, the enigmas of the rise and development 
 of social institutions, they declared to be amenable to satisfactory 
 solutions by means of ideas and concepts that proved so successful 
 with regard to the physical frame of animals and plants. Re- 
 ligion, marriage-systems, kinship-systems, ceremonies, and laws 
 were and are said to be problems that unbosom their mysteries 
 to " natural selection ", " survival of the fittest ", " atavism ", 
 " theory of survivals ", and the rest of Darwinian concepts with 
 astounding willingnesSv We are taught that in social institutions, 
 as in animals and animal life, there is an uninterrupted process 
 of ev9lution going on, one " stage " of civilization succeeding to 
 another " stage ", the " higher " to the " lower ", the " hetero- 
 geneous " to the " homogeneous " ; that humanity was first what 
 the savages of Africa and South America are at present ; that by 
 dint of more advanced ideas and greater " enlightenment " social 
 institutions have been slowly improving; and that our present 
 civilization, although containing many " survivals " of ruder and 
 less " enlightened " times, is, by the very working of the principles 
 of " natural selection " and " survival of the fittest ", radically 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 435 
 
 superior to the civilizations of either Greece and Rome or the 
 Middle Ages. 
 
 While fully acknowledging the great services rendered to natural 
 science by Darwinism, we most positively deny that any one of 
 the great problems of the history of institutions has been brought 
 to a satisfactory solution by means of Darwinian concepts. How- 
 ever, much as we should like to dwell on this most interesting 
 point at full length, we have to restrict ourselves to a more con- 
 crete question. 
 
 We maintain that the rise and development of Roman law, 
 or, to use modern phraseology, that the " evolution " of Roman 
 law, cannot be construed or understood by bringing the con- 
 cepts of Darwinism to bear upon it. On the contrary: the 
 " evolution " of Roman law is, as the evolution of all other social 
 institutions, manifest evidence against the applicableness of 
 modern evolutionist concepts to the development of social institu- 
 tions. 
 
 According to evolutionist views the law of a nation is derived 
 either from the law of another nation, or from rudimentary and 
 incipient legal institutions of its own. In both cases one law is 
 derived from another law. This, however, does not hold good in 
 the case of the Romans; the Romans not having derived their 
 law from other nations, nor from an alleged rudimentary law of 
 their own ancestors. That the Romans did not borrow their law 
 from the Greeks or any other nation has been proved nearly two 
 hundred years ago by Vico ; that they did not " evolve " their law 
 out of rudimentary " variations ", aided by '* natural selection in 
 the struggle for life ", has been proved, we trust, [here]. Roman 
 law, we said, was an outcome, not of causes pertaining to law, but 
 of causes pertaining to politics. It arose simultaneously with the 
 peculiar constitution of the Roman Stale. Given the constitu- 
 tion of Rome, the science of Roman law follows from it at once : 
 it is not a matter of slow development, of long growth, of adapta- 
 tion, or struggle, death, and survival ; it is a matter of logical suc- 
 cession. Just as the theorem of Pythagoras follows from the 
 nature of the rectangular triangle at once and irrespective of time ; 
 even so the law of Rome from the constitution of Rome. For, in 
 fact, the law of Rome was part of Rome's constitution. There 
 is no prior, and no posterior; no antecedent, and no successor. 
 The essential features of Roman law were extant at the time when 
 the essential features of the Roman republic had come into exist- 
 ence. The rest was mere expansion and elaboration of given 
 
436 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 principles. But of slow growth, of evolution through stages, 
 there is no trace. The praetorian law, it is true, was immeasur- 
 ably less developed in the third than in the first century B.C. 
 This, however, was owing not to a lower " stage '* in the " evolu- 
 tion " of Roman law, but to the simple fact that the Romans 
 of the third century did not need an elaborate system of prae- 
 torian law, being, as they were, a comparatively small common- 
 wealth. 
 
 The evolutionist is in constant demand of enormous periods of 
 time. He believes that the small and incipient changes, that he 
 is so sorely in need of, are sure to happen in one of the countless 
 minutes of vast infinitudes of time. The incipient " variations '' 
 — this the killjoy of Darwinists — he cannot dispense with ; at 
 the same time, however, he is unable to assign a definite time to 
 their rise ; and thus he drowns his doubts in the extremely plausi- 
 ble assumption that the required incipient " variation " is more 
 than likely to happen, provided we give it liberal chances of time. 
 Now there is nothing cheaper than abstract time; and each of 
 us is willing to grant any quantity of an object than which nothing 
 is more inexhaustible. So it comes to pass that the vast periods 
 of time demanded from the evolutionist have been willingly granted 
 on all hands. 
 
 This may do, and no doubt does in natural science. But it will 
 never do in the science of social institutions. The objects of the 
 latter are distinctly and well-nigh essentially different from those 
 of the former, in that they invariably refer to organized aggregates 
 of individuals ; whereas biology proper treats, as a rule, of indi- 
 viduals only. One fox does and acts exactly what a thousand foxes 
 are doing and acting. The actions performed by one man, on the 
 other hand, are totally different from the actions of organized 
 aggregates of a thousand men. Sociology treats of aggregates of 
 individuals, institutions being the outcome of the activity of aggre- 
 gates. In large aggregates, however, movements are much less 
 given to unaccountable changes, to chance " variations." No 
 stretch of time will give us a right to assume the rise of such in- 
 cipient " variations ", as Darwinists constantly presuppose, de- 
 claring at the same time, that the laws of " variations " are covered 
 with " profound mystery." Instead of begging incipient " vari- 
 ations", and leaving the explanation of their rise entirely unat- 
 tempted, the student of institutions has to insist on nothing more 
 uncompromisingly, than on the explanation of what Darwinists call 
 " variations." 
 
ClL\P. XVI.] THE CONSTITUTIONAL FACTOR 437 
 
 In other words : Darwinists constantly beg incipient '' varia- 
 tions", waiving at the same time all responsibility of accounting 
 for such " variations." The student of social institutions never 
 begs incipient " variations " ; he asks for such variations only 
 as he can suflficiently account for. 
 
 Hence, the methods of Darwinism desert the investigator of 
 social institutions at the very point where his investigations com- 
 mence. In other words, they do not assist him at all, proving, 
 as they do, inapplicable to sociological problems. 
 
 Roman law offers, as w^e saw, the " variations " of a civil law 
 saturated with elements of criminal law. The causes of this 
 variation are perfectly clear to the careful student of Roman 
 institutions. It was the necessary check of a constitution that 
 was built and erected on the strict morality of a few citizens. 
 The question again as to the causes of this restriction to a few 
 citizens resolves itself, . . . into the problem of the causes of 
 Roman slavery, which in its turn reposes on the fact that the 
 Grseco-Roman age knew of no other civilization than a city-state 
 civilization. This fact again arose from the geographical position 
 of antique classical countries, all of them being situated on the 
 shores of the Mediterranean Sea. 
 
 Thus we can follow up the concatenation of causes under the 
 constant and benignant light of clear ideas, until we reach causes 
 the explanation of which devolves upon another description of 
 thinkers. But nowhere did we say that " variations " are to be 
 begged, are to be supposed to crop up as mere chance rovers in 
 the boundless expanse of infinite time. 
 
 Nor did we see that the "variation" of law, called Roman law, 
 was kept up, augmented, fortified, and rendered more useful 
 in the " struggle for life " by the forces of " natural selection", 
 or '' sexual selection", or '' survival of the fittest." The " varia- 
 tion " of Roman law was in need of np such forces ; it was born 
 full-fledged, irresistible from the very beginning. It was not the 
 result of an alleged struggle of the praetorian system against the 
 old system of ** jus civile " ; on the contrary, these two systems 
 were mutually interdependent and affiliated throughout all periods 
 of Roman history. 
 
 Nor can we perceive any " survivals " in Roman law. Our view 
 of institutions being that all 'present institutions are kept in ex- 
 istence by present causes, we cannot adopt the evolutionist 
 views of " survivals." Odd habits and ceremonies of our age, 
 for instance, that are commonly explained on the assumption of 
 
438 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 their being " survivals " of former ages, can all be accounted for 
 by the working of present, if latent, causes. This is likewise the 
 case with similar habits and apparent oddities in Roman law. In 
 Professor Jhering's '' Spirit of Roman Law " a considerable 
 number of such "survivals" are enumerated; the theory of 
 '' survivals ", however, is not drawn upon, and the great civilian 
 rightly remarks : " On pourrait certes soutenir que la force d'iner- 
 tie, la puissance de I'habitude seules en ont fait une forme : mais 
 il ne faut pas oublier que la puissance de I'habitude a elle seule 
 suppose deja une disposition subjective favorable a la forme." ^ 
 
 Evolutionist theories finally draw most heavily on death. Death 
 is the great friend of theories that have to do away with innumer- 
 able inconvenient individuals, in order to make room for such as 
 prove fitted for the " sweet habit of existence." But what is the 
 meaning of death with regard to social institutions? What can 
 death mean for aggregates, the members of which are constantly 
 regenerated from the inexhaustible fountain of life? Aggregates 
 of people do not die like individuals. They have a life of consider- 
 ably more tenacious cast. They sometimes last for thousands of 
 years, as in the case of the orthodox Jews, the Chinese, and many 
 other nations. Institutions emanating from and grafted upon 
 such aggregates are not like the colors or limbs of animals. They 
 are based upon common ideas, and many ideas contain the germ 
 of eternity. Men in their quality as members of aggregates do 
 not struggle for physical and ephemeral life alone. They struggle 
 for another life also; nay their noblest and highest efforts are 
 directed towards a life beyond the limits of mere countable days 
 and nights. The base of their aspirations thus being shifted from 
 the narrow plane of divisible time to the boundless ranges of eter- 
 nity : what can a doctrine avail us that creeps along the lowly 
 fences of months and years, and registers the deaths of single 
 individuals ? Nations do not live in the jail of time ; they live or 
 try to live in the open grounds of eternity. Instead of wishing 
 for the death of the unfit, they frequently so arrange matters as 
 to care for nobody as lovingly as for the very people who are unfit 
 for the struggle of life. And, vice versa, nations frequently pay 
 the highest modes of worship to the very individuals that died 
 art early death in the service of ideas maintaining the common- 
 wealth of that nation. In what sense of the word can we say that 
 Caesar died ? Was the effect of his actions, words, and writings 
 
 ^ R. von Jhering, "L'Esprit du Droit Romain" (French transl., Paris, 
 1880), Vol. Ill, pp. 195, 196. 
 
Chap. XVI.] THE CONSTITUTIONAL FACTOR 439 
 
 lost like that of a dead fox? Could the bearing of every minute 
 of his life on the Roman commonwealth be effaced by that accident 
 on the Ides of March, 44 B.C., that mortals call the death of Caesar ? 
 Nay, can the effect of the life of the least and most insignificant 
 Roman be said to have vanished at all? Was not Rome the 
 product of the Romans, and does not Rome still govern the world, 
 or two thirds of it ? 
 
 Whatever death may mean in animals — and a late theory 
 pronounces death on death with regard to earlier periods, con- 
 tending that death has been " evolved", like all other biological 
 facts, in course of time — it means nothing or very little in the 
 history of aggregates of people. Hence the great fuss made over 
 death by evolutionists is but an uncouth racket for the student 
 of institutions. He does not draw on death; he does not think 
 that the span of life enjoyed by an individual is typical for the 
 life lived by aggregates. Aggregates rise and decay according 
 to rules totally different from the rules of life in force among 
 animals and plants. They live in a temporal space beyond mere 
 phenomenal time; and if the patient and careful student of the 
 rise, development, and decay of Roman law, or any other social 
 institution, cannot but feel a profound antipathy against the teach- 
 ings of modern evolutionists, he does so mainly because he is fully 
 convinced that the life of nations is based not on the passing waves 
 of time, but on the unchanging expanse of eternity. 
 
H.— SOCIAL FACTORS — PHYSICAL FORCE 
 
 Chapti^i XVII 
 Section 1— THE STRUGGLE FOR LAW^ 
 
 The end of the law is peace. The means to that end is war. 
 So long as the law is compelled to hold itself in readiness to resist 
 the attacks of wrong — and this it will be compelled to do until 
 the end of time — it cannot dispense with war. The life of the 
 law is a struggle, a struggle of nations, of State power, of classes, 
 of individuals. 
 
 All the law in the world has been obtained by strife. Every 
 principle of law which obtains had first to be wrung by force from 
 those who denied it ; and every legal right — the legal eights of a 
 whole nation as well as those of individuals — supposes a continual 
 readiness to assert it and defend it. The law is not mere theory, 
 but living force. And, hence it is, that Justice which, in one hand, 
 holds the scales, in which she weighs the right, carries in the other 
 the sword with which she executes it. The sword without the 
 scales is brute force ; the scales without the sword is the impotence 
 of law. The scales and the sword belong together ; and the state 
 of the law is perfect, only where the power with which Justice 
 carries the sword is equaled by the skill with which she holds the 
 scales. 
 
 Law is an uninterrupted labor, and not of the State power only, 
 but of the entire people. The entire life of the law, embraced in 
 one glance, presents us with the same spectacle of restless striv- 
 ing and working of a whole nation, afforded by its activity in the 
 domain of economic and intellectual production. Every individual 
 placed in a position in which he is compelled to defend his legal 
 
 1 [By Rudolph von Jhering. 
 
 From ^' The Struggle for Law", Ch. I, 1st ed., Chicago, 1879, Calla- 
 ghan and Company. 
 
 The translation is by John J. Lalor. 
 
 For a biographical sketch of von Jhering, see 2d ed. of the American 
 translation, Callaghan and Company, Chicago, 1915: introduction by 
 A. Kocourek.j 
 
 440 
 
Chap. XVII, § 1.] THE STRUGGLE FOR LAW 441 
 
 rights, takes part in this work of the nation, and contributes his 
 mite towards the reaHzation of the idea of law on earth. 
 
 Doubtless, this duty is not incumbent on all to the same extent. 
 Undisturbed by strife and without offense, the life of thousands of 
 individuals passes away, within the limits imposed by the law to 
 human action ; and if we were to tell them : The law is a warfare, 
 they would not understand us, for they know it only as a condi- 
 tion of peace and of order. And from the point of view of their 
 own experience, they are entirely right, just as is the rich heir, 
 into whose lap the fruit of the labor of others has fallen, without 
 any toil to him, when he questions the principle : property is 
 labor. The cause of the illusion of both is that the two sides of the 
 ideas of property and of law may be subjectively separated from 
 each other, in such a manner, that enjoyment and peace become 
 the part of one, and labor and strife of the other. If we were to 
 address ourselves to the latter, he would give us an entirely op- 
 posite answer. And, indeed, property, like the law, is a Janus- 
 head with a double face. To some it turns only one side, to 
 others only the other ; and hence the difference of the picture of 
 it obtained by the two. This, in relation to the law, applies to 
 whole generations as well as to single individuals. The life of one 
 generation is war, of another peace ; and nations, in consequence 
 of this subjective difference, are subject to the same illusion pre- 
 cisely as individuals. A long period of peace, and, as a conse- 
 quence thereof, faith in eternal peace, is richly enjoyed, until the 
 first gun dispels the pleasant dream, and another generation takes 
 the place of the one which had enjoyed peace without having had 
 to toil for it, another generation which is forced to earn it again by 
 the hard work of war. Thus, in property and law, do we find 
 labor and enjoyment distributed. But the fact that they belong 
 together does not suffer any prejudice, in consequence. One per- 
 son has been obliged to battle and to labor for another who enjoys, 
 and lives in peace. Peace without strife, and enjoyment without 
 work, belong to the days of Paradise. History knows both only 
 as the result of painful, uninterrupted effort. 
 
 That, to struggle, is, in the domain of law, what to labor, is, 
 in that of economy, and, that, in what concerns its practical 
 necessity as well as its moral value, that struggle is to be placed 
 on an equal footing with labor in the case of property, is the idea 
 which I propose to develop. I think, that in so doing, I shall be 
 performing no work of supererogation, but, on the contrary, that 
 I shall be making amends for a sin of omission which may rightly 
 
442 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 be laid at the door of our theory of law ; and not simply at the door 
 of our philosophy of law, but of our positive jurisprudence also. 
 Our theory of law, it is only too easy to perceive, is busied much 
 more with the scales than with the sword of Justice. The oile- 
 sidedness of the purely scientific standpoint from which it con- 
 siders the law, looking at it not so much as it really is, as an idea 
 of force, but as it is logically, a system of abstract legal principles, 
 has, in my opinion, impressed on its whole way of viewing the law, 
 a character not in harmony with the bitter reality. This I in- 
 tend to show. 
 
 The expression law (Recht) is, it is well known, used in a two- 
 fold sense, in an objective sense and in a subjective sense. Law 
 (Recht), in the objective sense of the word, embraces all the prin- 
 ciples of law enforced by the State ; it is the legal ordering of life. 
 Law (Recht), in the subjective sense of the word, is, so to speak, 
 the precipitate of the abstract rule into the concrete legal right 
 of the person. In both directions the law meets with opposition. 
 In both directions, it has to overcome that opposition; that is, 
 it has to fight out or assert its existence through a struggle. As 
 the real object of my discussion, I have selected the struggle in 
 the second direction, but I must not omit to demonstrate that my 
 assertion that to struggle is of the very essence of the law, in the 
 former direction also, is correct. 
 
 In regard to the realization of the law, on the part of the State, 
 this is not contested, and it, therefore, does not call for any 
 further exposition. The maintenance of law and order by the 
 State is nothing but a continual struggle against the law- 
 lessness which violates them. But it is otherwise in regard to 
 the origin of the law, not only to the origin of the most primi- 
 tive of all law, at the beginning of history, but to the re- 
 juvenescence of law which is taking place daily under our eyes, 
 the doing away with existing institutions, the putting to one side 
 of existing principles of law by new ones ; in short, in regard to 
 progress in the domain of the law. For here, to the view which 
 I maintain, that the principles of jurisprudence are subject to the 
 same law in their origin as in the rest of their history, there is, 
 nevertheless, another theory opposed, one which is still, at least 
 in our science of Roman law, universally admitted, and which I 
 may briefly characterize after its two chief representatives as the 
 Savigny-Puchta theory of the origin of the law. According to 
 this theory, the formation of the body of principles of jurispru- 
 dence is effected by a process as unnoticed and as painless as is 
 
Chap. XVII, § 1.] THE STRUGGLE FOR LAW 443 
 
 the formation or growth of language. The building up of the 
 body of principles of jurisprudence calls for no strife, no struggle. 
 It is not even necessary, according to this theory, to go in search 
 of them, for the principles of jurisprudence are nothing but the 
 quiet working power of truth which, without any violent effort, 
 slowly but surely makes its way ; the power of conviction to which 
 minds gradually open and to which they give expression by their 
 acts : a new principle of jurisprudence comes into being with as 
 little trouble as any rule of grammar. The principle of the old 
 Roman law, that the creditor might sell his insolvent debtor as a 
 slave in foreign parts, or that the owner of a thing might claim it 
 from any one in whose possession he found it, would have been 
 formed in ancient Rome, according to this view, scarcely in any 
 other manner than that in which the grammatical rule that cum 
 governs the ablative was formed. 
 
 This is the idea of the origin of the law which I myself had 
 when I left the university, and under the influence of which I lived 
 for a good many years. Has this idea any claim to truth? It 
 must be admitted that the law, like language, has an unintended, 
 unconscious development, or, to call it by the traditional expres- 
 sion, an organic development from within outward. To this de- 
 velopment, we owe all those principles of law which are gradually 
 accumulated from the autonomous balancing of the accounts of 
 the legal rights of men in their dealings with one another, as well 
 as all those abstractions, consequences and rules deduced by 
 science from existing laws, and presented by it to the conscious- 
 ness. But the power of those two factors, the intercourse of man 
 with man, and science, is a limited one. It can regulate the mo- 
 tion of the stream, within existing limits, and even hasten it ; but 
 it is not great enough to throw down the dikes which keep the 
 current from taking a new direction. Legislation alone can do 
 this ; that is, the action of the State power intentionally directed 
 to that end ; and hence it is not mere chance, but a necessity, 
 deepy rooted in the nature of the law, that all thorough reforms 
 of the mode of procedure and of positive law may be traced back 
 to legislation. True it is, that the influence of a change made 
 by the legislative power in the existing law, may possibly be limited 
 entirely to the sphere of the abstract,without extending its effects 
 down into the region of the concrete relations which have been 
 formed on the basis of the law hitherto — to a new change in the 
 machinery of law, a replacing of a worn-out screw or roller by a 
 more perfect one. But it very frequently happens that things 
 
444 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 are in such a condition that the change can be effected only at the 
 expense of an exceedingly severe encroachment on existing rights 
 and private interests. In the course of time, the interests of 
 thousands of individuals, and of whole classes, have become bound 
 up with the existing principles of law in such a manner that these 
 cannot be done away with, without doing the greatest injury to 
 the former. To question the principle of law or the institution, 
 means a declaration of war against all these interests, the tearing 
 away of a polyp which resists the effort with a thousand arms. 
 Hence every such attempt, in natural obedience to the law of self- 
 preservation, calls forth the most violent opposition of the im- 
 periled interests, and with it a struggle in which, as in every 
 struggle, the issue is decided not by the weight of reason, but 
 by the relative strength of opposing forces; the result being not 
 infrequently the same as in the parallelogram of forces — a devia- 
 tion from the original line towards the diagonal. Only thus, 
 does it become intelligible, that institutions on which public 
 opinion has long since passed sentence of death continue to enjoy 
 life for a great length of time. It is not the vis inertios which 
 preserves their life, but the power of resistance of the interests 
 centering about their existence. 
 
 But in all such cases, wherever the existing law is backed by 
 interests, the new has to undergo a struggle to force its way into 
 the world — a struggle which not infrequently lasts over a 
 whole century. This struggle reaches its highest degree of in- 
 tensity when the interests in question have assumed the form of 
 vested rights. Here we find two parties opposed each to the other, 
 each of which takes as its device the sacredness of the law; the 
 one that of the historical law, the law of the past ; the other that 
 of the law which is ever coming into existence, ever renewing its 
 youth, the eternal, primordial law of mankind. A case of conflict 
 of the idea of law with itself which, for the individuals who have 
 staked all their strength and their very being for their convic- 
 tions and finally succumb to the supreme decree of history, has 
 in it something that is really tragic. All the great achievements 
 which the history of the law has to record — the abolition of 
 slavery, of serfdom, the freedom .of landed property, of industry, 
 of conscience, etc. — all have had to be won, in the first instance, 
 in this manner, by the most violent struggles, which often lasted 
 for centuries. Not infrequently streams of blood, and everywhere 
 rights trampled under foot, mark the way which the law has 
 traveled during such conflict. For the law is Saturn devouring 
 
Chap. XVII, § 1.] THE STRUGGLE FOR LAW 445 
 
 his own children. The law can renew its youth only by break- 
 ing with its own past. A concrete legal right or principle of law, 
 which, simply because it has come into existence, claims an un- 
 limited and therefore eternal existence, is a child lifting its arm 
 against its own mother; it despises the idea of the law when it 
 appeals to that idea ; for the idea of the law is an eternal Becom- 
 ing ; but that which has become must yield to the new Becoming, 
 
 since 
 
 Alles was entsteht 
 
 1st werth dass es zu Grunde geht. 
 
 And thus the historical development of law presents us with a 
 picture of research, struggle, fight, in short, of toilsome, wearying 
 endeavor. The human mind working unconsciously towards the 
 formation of language is met by no forcible resistance, and art 
 has no opponent to overcome but its own past — the prevailing 
 taste. It is not so with law considered as an end.- Cast into the 
 chaotic whirl of human aims, endeavors, interests, it has forever 
 to feel and seek in order to find the right way, and when it has 
 found it, to overthrow the obstacles which would impede its 
 course. If it be an undoubted fact, that this development, like 
 that of art or language, is governed by law and is uniform, it can- 
 not be denied that it departs largely from the latter in the manner 
 in which it takes place ; and in this sense, therefore, we are com- 
 pelled decidedly to reject the parallel instituted by Savigny — a 
 parallel which found universal favor so rapidly — between law 
 on the one hand and language and art on the other. 
 
 This doctrine is false, but not dangerous as a philosophical 
 opinion. As a political maxim, however, it contains an error 
 pregnant with the most ominous consequences imaginable, be- 
 cause it feeds man with hope where he should act, and act with 
 a full and clear consciousness of the object aimed at, and with 
 all his strength. It feeds him with the hope, that things will 
 take care of themselves, and that the best he can do, is to fold 
 his arms and confidently wait for what may gradually spring to 
 light from that primitive source of all law called, " the natural 
 conviction of legal right." Hence the a^version of Savigny and 
 of all his disciples for the interference of legislation, and hence 
 the complete ignoring of the real meaning of custom, in the 
 Puchta theory of the law of custom. Custom to Puchta is 
 nothing but a mere mode of discovering what conviction as to 
 the legally right is : but that this very conviction is first 
 formed through the agency of its own action, that through this 
 
446 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 action it first demonstrates its power and its calling to govern 
 life ; in short that the principle : the law is an idea which involves 
 force — to this the eyes of this great mind were entirely closed. 
 But, in this, Puchta was only paying tribute to the time in which 
 he lived. For his time was the romantic in our poetry, and the 
 person who does not recoil from transferring the idea of the roman- 
 tic to jurisprudence, and who will take the trouble to compare the 
 corresponding directions followed in the two spheres with one 
 another, will perhaps not find fault with me, when I allege that the 
 Historical School in law might just as well have been called the 
 romantic. That law or the principle of legal right comes into exist- 
 encie or is formed painlessly, without trouble, without action, 
 like the vegetable creation, is a really romantic notion, that is, 
 a notion based on a false idealization of past conditions. Stern 
 reality teaches us the contrary, and not alone that small part of 
 that reality which we have before our eyes ourselves, and which 
 presents us, almost everywhere, with the most strenuous endeavors 
 of nations in respect to the formation of their legal relations — 
 questions of the gravest nature which crowd one upon another ; but 
 the impression remains the same, no matter what part of the past 
 we contemplate. Savigny's theory can, therefore, appeal to noth- 
 ing but pre-historic times of which we have no information. 
 
 But, if we may be permitted to indulge in hypothesis in relation 
 to them, I am willing to oppose to Savigny's, which represents 
 them as the time of the peaceable, gentle evolution of the prin- 
 ciples of law from the inner consciousness of popular conviction, 
 my own hypothesis, which is diametrically opposed to his; and 
 it will have to be granted to me that, to say the least, it has in its 
 favor, the analogy of what we can see of the historical develop- 
 ment of law, and as I believe, the advantage, likewise, of greater 
 psychological probability. Primitive times ! It was once the 
 fashion to deck them out in every beautiful quality: truth, 
 frankness, fidelity, simplicity, religious faith; and in such soil, 
 principles of law would certainly have been able to thrive without 
 any other force to assist their growth than the power of the con- 
 viction of right : they would not have needed the sword, nor even 
 the unassisted arm. But today we all know that the pious and 
 hoary past was noted for qualities the very opposite of these, 
 and the supposition that they were able to get their principles of 
 law in an easier manner than all later generations can scarcely 
 expect to be credited now. For my part, I am convinced that 
 the labor which they must have expended on their task was one 
 
Chap. XVII, § 2.] COMPROMISE NATURE OF LAW 447 
 
 still more difficult, and that even the simplest principles of law, 
 such, for instance, as those named above, from the most ancient 
 Roman law, of the authority of the owner to claim back his chattel 
 from any one in whose possession it was found, and of the creditor 
 to sell his insolvent debtor into foreign servitude, had to be first 
 fought out by the hardest battles, before they obtained unques- 
 tioned recognition. But, be this as it may, we may leave the most 
 primitive times out of consideration. The information afforded us 
 by the remotest history on the origin of law is sufficient. But this 
 information is to the effect : the birth of law like that of men 
 has been uniformly attended by the violent throes of childbirth. 
 
 And why should we complain that it is thus attended? The 
 very fact that their law does not fall to the lot of nations without 
 trouble, that they have had to struggle, to battle and to bleed for 
 it, creates between nations and their laws the same intimate bond 
 as is created between the mother and her child when, at its birth, 
 she stakes her own life. A principle of law won without toil is on 
 a level with the children brought by the stork : what the stork has 
 brought, the fox or the vulture can take away again. But from the 
 mother who gave it birth, neither the fox nor the vulture can take 
 the child away ; and just as little can a people be deprived of the 
 laws or institutions which they have had to labor and to bleed for, 
 in order to obtain. We may even claim that the energy and love 
 with which a people hold to and assert their laws, are determined 
 by the amount of toil and effort which it cost them to obtain them. 
 Not mere custom, but sacrifice, forges the strongest bond between 
 a people and their principles of legal right ; and God does not make 
 a gift of what it needs to the nation He wishes well, nor does He 
 make the labor necessary to its acquisition easy, but difficult. In 
 this sense, I do not hesitate to say : The struggle needed by laws 
 to fight their way into existence is not a curse, but a blessing. 
 
 Section 2 — THE COMPROMISE NATURE OF LAW 
 
 [In connection with the foregoing chapter which emphasizes the 
 element of force and struggle in the development of law, it is 
 relevant to notice a derivative idea which, however, on account 
 of its importance and interest, represents an independent stand- 
 point — the " compromise " theory of law of Adolph Merkel, 
 late professor of law at Strassburg.^ 
 
 ^ [This theory is discussed in the author's "Recht und Macht" in 
 Schmoller's "Jahrbuch fiir Gesetzgebung, Verwaltung, und Volkswirt- 
 
448 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Says the author : '' The interests which the law protects and 
 on which it exerts its influence are never completely in harmony. 
 There is competition among these interests." 
 
 The legalistic point of view looks upon interests as they actually 
 exist in the world as outside the sphere of law. On this view, 
 the State alone has interests, and if the interests of the State 
 happen to coincide with any particular interest of private persons, 
 it is in legal theory purely a non-essential consideration. Legal- 
 istic political science, which has the fortune to be somewhat more 
 socialized in its scope of investigation than pure legal theory in 
 the traditional sense, would no doubt take some account of the 
 purely human factor — the existence and collision of private in- 
 terests — in explaining the State ; but the law as an independent 
 field has not, until comparatively recent times, seen any need of 
 explaining the social substratum upon which legal rules rest and 
 through which they operate. Incidentally, that narrow point of 
 view has the efi^ect of shutting out all understanding of legal ideas 
 and legal institutions as evolutionary products. 
 
 " If one of these interests which the law protects succeeds in 
 gaining an exaggerated importance in the law, it will be at the 
 cost of other competing interests. There is, indeed, generally 
 only relative conflict in such cases, but yet it is such that a com- 
 plete and enduring adjustment is impossible, and when conflict 
 is overcome in one form, it reappears again in another. 
 
 '' There are two classes of such interests. As to one class, the 
 State acts by an energetic, unified, and diversified administration, 
 through definite and stable State institutions. As to the other 
 class, the State leaves a wide scope of freedom and adaptation 
 where interests may freely compete without the interference of 
 the law." 
 
 This statement may be illustrated but in a somewhat different 
 sense than that intended by the author. In the case of the 
 interests of labor unions, the administration of the law leaves 
 a much wider field untouched than, for example, in the law 
 of contracts. The reasons are historical, political, and social. 
 The historical reason is that group activities in labor matters are 
 much later in appearance in any system of law than the relations 
 
 schaft", V, 1, seq.; in his "Elemente der allgemeinen Rechtslehre", sec, 
 11 : and his " Juristisehe Enzyklopadie", sec. 40. See also the memoria] 
 essay by the author on .Jhering, published as an appendix to Jhering't 
 "Law as a Means to an End" (*'Zweck im Recht"), "Modern Legal 
 Philosophy Series", V, pp. 427, 452. The above abstract is based or 
 his " Elemente."] 
 
Chap. XVII, § 2.] COMPROMISE NATURE OF LAW 449 
 
 growing out of contract. The political reason is that the adminis- 
 trativ^e machinery is " on the fence " between organizations of 
 labor and organizations of wealth, and does not find it possible 
 to make a choice. The parties in interest are too equally matched ; 
 and a bad selection would be fatal to political expediency. The 
 social reason is that the problem is not yet well enough understood 
 in all its ethical and economic bearings. Therefore, in this case, 
 all arms of legal administration — the legislative, the judicial, and 
 the executive — remain, as far as possible, in an attitude of pas- 
 siveness. 
 
 The author continues : " Since there is no standard by which 
 the value of an interest in comparison with another can be fixed 
 with logical certainty, and for all time, and since the relations 
 themselves- upon which interests are based are constantly chang- 
 ing, it is impossible for the content of the law to deal justly with 
 the claims up:)n which it operates. Every legal rule, measured 
 by the claims which it circumscribes, must be out of proportion 
 in one direction or another." 
 
 It follows, of course, that these inequalities engender new 
 conflicts. There will be a party seeking reforms in the law, and 
 an opposing party which will attempt to maintain existing con- 
 ditions favorable to that party. 
 
 " A contrast of more universal significance arises out of the 
 relation of law and power. Law cannot attain its object except 
 in association with the forces which reside in society. The sover- 
 eign interest points to the use of law and the employment of its 
 power in the service of general interests. In this way a natural 
 tie is established between law and force. But this bond does not 
 prevent the existence of a certain amount of opposition between 
 them. Law is an organ which represents the interests of the 
 governing class and of the governed. These interests are never 
 completely in accord. There is competition for the preponderat- 
 ing influence on the content of the legal system. 
 
 " Forms of State have been conceived where it was thought 
 complete harmony of interests would prevail, or the efi^ort has been 
 made to discover definite forms of State organization which ac- 
 complish that purpose ; but it is easy to see that all such attempts 
 do not get above the level of imagination. Thought and effort 
 have been employed to do away with every relation of the govern- 
 ing and the gov^erned, by an equalization of all power relations. 
 But here, too, we are in an Utopian realm. Even if it were possible 
 to think out and put into practice a system whereby human 
 
450 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 powers would be equally divided into as many parts as there are 
 individuals (which is not the case), one of two things would result. 
 Either, first, the State and law would be abolished in accordance 
 with the dream of the sincere socialist ; or, second, the State and 
 law would come under the control of a majority, in which case the 
 result would be what was above emphasized (and experienced by 
 existing rule by majorities) in all other forms of government. 
 
 " Since the relations pointed out cannot be removed, there will 
 arise, naturally, a struggle for power among all those social ele- 
 ments which for the time being are able to participate in it, and 
 there will follow a plenitude of oppositions of the most diverse sort, 
 whose operation the law is impotent to counteract. 
 
 " A progressive movement has taken place in the development 
 of legal systems which secure to heterogeneous interests a wide 
 scope of concurrent activity, as well as in promoting in a definite 
 way a reconciliation of view as to what is just, and, likewise, in 
 promoting agreement on certain fundamental ideas which should 
 find expression in the law. This movement is synchronous with 
 the establishment and development of a sphere apart from the 
 field of combat where all interests may be represented and may 
 adjust their difficulties in a peaceable way. 
 
 " At the same time, however, this development has led to a 
 multiplication of new oppositions and an accentuation of old ones." 
 
 It results, as the author continues, when we come to examine 
 more closely into the facts, that the object sought of harmonizing 
 interests and views, recedes farther into distance. Law, con- 
 sidered with reference to the conflicting interests upon which it 
 operates, is in the nature of a treaty of peace ; but since the power 
 relations are constantly changing which the law from time to time 
 attempts to harmonize, it can have no enduring existence. Like 
 every treaty of peace, the law has a compromise character, and it 
 cannot strip itself of this attribute unless it should affirmatively 
 take sides with one class of interests for the suppression of others. 
 
 The development of law continues, therefore, to be what it has 
 always been, and always will be as long as there remains a dif- 
 ference in individuals and a difference in the conditions of life, 
 — a compromise, a measure of forces.] 
 
Chapter XVIII 
 THE USE OF CONFLICT! 
 
 § 1. The Mystery of Progress. I § 3. Causes and Conditions of Su- 
 
 § 2. The Stagnation of Fixed Law. | periority among Nations. 
 
 § 1. The Mystery of Progress. "The difference between pro- 
 gression and stationary inaction ", says one of our greatest living 
 writers, " is one of the great secrets which science has yet to pene- 
 trate." I am sure I do not pretend that I can completely pene- 
 trate it ; but it undoubtedly seems to me that the problem is on 
 the verge of solution, and that scientific successes in kindred 
 fields by analogy suggest some principles which wholly remove 
 many of its difficulties, and indicate the sort of way in which 
 those which remain may hereafter be removed too. 
 
 But what is the problem? Common English, I might perhaps 
 say common civilized thought, ignores it. Our habitual instruc- 
 tors, our ordinary conversation, our inevitable and ineradicable 
 prejudices tend to make us think that " Progress " is the normal 
 fact in human society, the fact which we should expect to see, the 
 fact which we should be surprised if we did not see. But history 
 refutes this. The ancients had no conception of progress; they 
 did not so much as reject the idea ; they did not even entertain 
 the idea. Oriental nations are just the same now. Since history 
 began they have always been what they are. Savages, again, 
 do not improve ; they hardly seem to have the basis on which 
 to build, much less the material to put up anything worth having. 
 Only a few nations, and those of European origin, advance ; and 
 yet these think — seem irresistibly compelled to think — such 
 advance to be inevitable, natural, and eternal. Why, then, 
 is this great contrast ? 
 
 Before we can answer, we must investigate more accurately. 
 No doubt history shows that most nations are stationary now; 
 
 1 [By Walter Bagehot. 
 
 Reprinted from "Physics and Politics" (1869), chap, ii.] 
 451 
 
452 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 but it affords reason to think that all nations once advanced. 
 Their progress was arrested at various points; but nowhere, 
 probably not even in the hill tribes of India, not even in the Anda- 
 man Islanders, not even in the savages of Terra del Fuego, do we 
 find men who have not got some way. They have made their 
 little progress in a hundred different ways ; they have framed with 
 infinite assiduity a hundred curious habits ; they have, so to say, 
 screwed themselves into the uncomfortable corners of a complex 
 life, which is odd and dreary, but yet is possible. And the corners 
 are never the same in any two parts of the world. Our record 
 begins with a thousand unchanging edifices, but it shows traces 
 of previous building. In historic times there has been little prog- 
 ress ; in prehistoric times there must have been much. 
 
 In solving or trying to solve the question, we must take notice 
 of this remarkable difference, and explain it too, or else we may 
 be sure our principles are utterly incomplete, and perhaps alto- 
 gether unsound. But what then is that solution, or what are the 
 principles which tend toward it? Three laws, or approximate 
 laws, may, I think, be laid down, with only one of which I can 
 deal in this paper, but all three of which it will be best to state, 
 that it may be seen what I am aiming at. 
 
 First. In every particular state of the world, those nations 
 which are strongest tend to prevail over the others ; and in cer- 
 tain marked peculiarities the strongest tend to be the best. 
 
 Secondly. Within every particular nation the type or types 
 of character then and there most attractive tend to prevail ; and 
 the most attractive, though with exceptions, is what we call the 
 best character. 
 
 Thirdly. Neither of these competitions is in most historic 
 conditions intensified by extrinsic forces, but in some conditions, 
 such as those now prevailing in the most influential part of the 
 world, both are so intensified. 
 
 These are the sort cf doctrines with which, under the name of 
 " natural selection " in physical science, we have become familiar ; 
 and as every great scientific conception tends to advance its 
 boundaries and to be of use in solving problems not thought of 
 when it was started, so here what was put forward for mere animal 
 history may, with a change of form, but an identical essence, be 
 applied to human history. 
 
 At first some objection was raised to the principle of " natural 
 selection " in physical science upon religious grounds ; it was to be 
 expected that so active an idea and so large a shifting of thought 
 
Chap. XVIII.] THE USE OF CONFLICT 453 
 
 would seem to imperil much which men valued. But in this as 
 in other cases, the objection is, I think, passing away; the new 
 principle is more and more seen to be fatal to mere outworks 
 of religion, not to religion itself. At all events, to the sort of 
 application here made of it, which only amounts to searching 
 out and following up an analogy suggested by it, there is plainly 
 no objection. Every one now admits that human history is guided 
 by certain laws, and all that is here aimed at is to indicate, in a 
 more or less distinct way, an infinitesimally small portion of such 
 laws. 
 
 The discussion of these three principles cannot be kept quite 
 apart except by pedantry ; but it is almost exclusively with the 
 first — that* of the competition between nation and nation, or 
 tribe and tribe (for I must use these words in their largest sense, 
 and so as to include every cohering aggregate of human beings) 
 — that I can deal now ; and even as to that I can but set down a 
 few principal considerations. 
 
 The progress of the military art is the most conspicuous, I was 
 about to say the most showy, fact in human history. Ancient civ- 
 ilization may be compared with modern in many respects, and 
 plausible arguments constructed to show that it is better; but 
 you cannot compare the two in military power. Napoleon could 
 indisputably have conquered Alexander ; our Indian army would 
 not think much of the Retreat of the Ten Thousand. And I 
 suppose the improvement has been continuous : I have not the 
 slightest pretence to special knowledge ; but, looking at the mere 
 surface of the facts, it seems likely that the aggregate battle array, 
 so to say, of mankind, the fighting force of the human race, has 
 constantly and invariably grown. It is true that the ancient 
 civilization long resisted the " barbarians ", and was then de- 
 stroyed by the barbarians. But the barbarians had improved. 
 " By degrees ", says a most accomplished writer, " barbarian 
 mercenaries came to form the largest, or at least the most effec- 
 tive, part of the Roman armies. The body-guard of Augustus 
 had been so composed ; the praetorians were generally selected from 
 the bravest frontier troops, most of them Germans." " Thus,'* 
 he continues, " in many ways was the old antagonism broken 
 down, Romans admitting barbarians to rank and office, bar- 
 barians catching something of the manners and culture of 
 their neighbors. And thus, when the final movement came, the 
 Teutonic tribes slowly established themselves through the prov- 
 inces, knowing something of the system to which they came, 
 
454 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 and not unwilling to be considered its members." Taking friend 
 and foe together, it may be doubted whether the fighting capacity 
 of the two armies was not as great at last, when the empire fell, 
 as ever it was in the long period while the empire prevailed. Dur- 
 ing the Middle Ages the combining power of men often failed ; 
 in a divided time you cannot collect as many soldiers as in a con- 
 centrated time. But this difficulty is political, not military. If 
 you added up the many little hosts of any century of separation, 
 they would perhaps be found equal or greater than the single host, 
 or the fewer hosts, of previous centuries which were more united. 
 Taken as a whole, and allowing for possible exceptions, the ag- 
 gregate fighting power of mankind has grown immensely, and 
 has been growing continuously since we knew anything about it. 
 
 Again, this force has tended to concentrate itself more and more 
 in certain groups which we call '' civilized nations." The literati 
 of the last century were forever in fear of a new conquest of the 
 barbarians, but only because their imagination was overshadowed 
 and frightened by the old conquests. A very little consideration 
 would have shown them that, since the monopoly of military 
 inventions by cultivated states, real and effective military power 
 tends to confine itself to those states. The barbarians are no 
 longer so much as vanquished competitors ; they have ceased to 
 compete at all. 
 
 The military vices, too, of civilization seem to decline just as 
 its military strength augments. Somehow or other civilization 
 does not make men effeminate or unwarlike now as it once did. 
 .There is an improvement in our fibre — moral, if not physical. 
 In ancient times city people could not be got to fight — seemingly 
 could not fight; they lost their mental courage, perhaps their 
 bodily nerve. But nowadays in all countries the great cities 
 could pour out multitudes wanting nothing but practice to make 
 good soldiers, and abounding in bravery and vigor. This was 
 so in America ; it was so in Prussia ; and it would be so in Eng- 
 land too. The breed of ancient times was impaired for war by 
 trade and luxury, but the modern breed is not so impaired. 
 
 A curious fact indicates the same thing probably, if not cer- 
 tainly. Savages waste away before modern civilization; they 
 seem to have held their ground before the ancient. There is no 
 lament in any classical writer for the barbarians. The New Zea- 
 landers say that the land will depart from their children; the 
 Australians are vanishing; the Tasmanians have vanished. If 
 anything like this had happened in antiquity, the classical moral- 
 
Chap. XVIII.] THE USE OF CONFLICT 455 
 
 ists would have been sure to muse over it ; for it is just the large 
 solemn kind of fact that suited them. On the contrary, in Gaul, 
 in Spain, in Sicily — everywhere that we know of — the bar- 
 barian endured the contact of the Roman, and the Roman allied 
 himself to the barbarian. Modern science explains the wasting 
 away of savage men ; it says that we have diseases which we can 
 bear, though they cannot, and that they die away before them as 
 our fatted and protected cattle died out before the rinderpest, 
 which is innocuous, in comparison, to the hardy cattle of the 
 Steppes. Savages in the first year of the Christian era w^ere pretty 
 much what they were in the 1800th ; and if they stood the contact 
 of ancient civilized men, and cannot stand ours, it follows that 
 our race is presumably tougher than the ancient ; for we have to 
 bear, and do bear the seeds of greater diseases than those the 
 ancients carried with them. We may use, perhaps, the unvarying 
 savage as a metre to gauge the vigor of the constitutions to 
 whose contact he is exposed. 
 
 Particular consequences may be dubious, but as to the main 
 fact there is no doubt; the military strength of man has been 
 growing from the earliest time known to our history, straight on 
 till now. And we must not look at times known by written rec- 
 ords only ; we must travel back to older ages, known to us only 
 by what lawyers call real evidence — the evidence of things. 
 Before history began there was at least as much progress in the 
 military art as there has been since. The Roman legionaries or 
 Homeric Greeks were about as superior to the men of the shell 
 mounds and the flint implements as we are superior to them. 
 There has been a constant acquisition of military strength by man 
 since we know anything of him, either by the documents he has 
 composed or the indications he has left. 
 
 The cause of this military growth is very plain. The strongest 
 nation has always been conquering the weaker; sometimes even 
 subduing it, but always prevailing over it. Every intellectual 
 gain, so to speak, that a nation possessed was in the earliest times 
 made use of — was invested and taken out — in war ; all else 
 perished. Each nation tried constantly to be the stronger, and so 
 made or copied the best weapons ; by conscious and unconscious 
 imitation each nation formed a type of character suitable to war 
 and conquest. Conquest improved mankind by the intermixture 
 of strengths; the armed truce, which was then called peace, im- 
 proved them by the competition of training and the consequent 
 creation of new power. Since the long-headed men first drove 
 
456 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the short-headed men out of the best land in Europe, all European 
 history has been the history of the superposition of the more 
 military races over the less military — of the efforts, sometimes 
 successful, sometimes unsuccessful, of each race to get more mili- 
 tary ; and so the art of war has constantly improved. 
 
 But why is one nation stronger than another ? In the answer 
 to that, I believe, lies the key to the principal progress of early 
 civilization, and to some of the progress of all civilization. The 
 answer is that there are very many advantages — some small and 
 some great — every one of which tends to make the nation which 
 has it superior to the nation which has it not ; that many of these 
 advantages can be imparted to subjugated races, or imitated by 
 competing races ; and that, though some of these advantages may 
 be perishable or inimitable, yet, on the whole, the energy of civili- 
 zation grows by the coalescence of strengths and by the competi- 
 tion of strengths. 
 
 § 2. The Stagfnation of Fixed Law. The first thing to acquire 
 is, if I may so express it, the legal fibre; a polity first — what 
 sort of polity is immaterial ! a law first — what kind of law is 
 secondary ; a person or set of persons to pay deference to — 
 though who he is or they are by comparison scarcely signifies. 
 
 " There is ", it has been said, " hardly any exaggerating the 
 difference between civilized and uncivilized men; it is greater 
 than the difference between a tame and a wild animal ", because 
 man can improve more. But the difference at first was gained 
 in much the same way. The taming of animals as it now goes 
 on among savage nations, and as travellers who have seen it 
 describe it, is a kind of selection. The most wild are killed when 
 food is wanted, and the most tame and easy to manage kept, 
 because they are more agreeable to human indolence, and so the 
 keeper likes them best. Captain Galton, who has often seen 
 strange scenes of savage and of animal life, had better describe 
 the process : " The irreclaimably wild members of every flock 
 would escape and be utterly lost; the wilder of those that re- 
 mained would assuredly be selected for slaughter whenever it 
 was necessary that one of the flock should be killed. The tamest 
 cattle — those which seldom ran away, that kept the. flocks to- 
 gether, and those which led them homeward — would be preserved 
 alive longer than any of the others. It is, therefore, these that 
 chiefly become the parents of stock and bequeath their domestic 
 aptitudes to the future herd. I have constantly witnessed this 
 process of selection among the pastoral savages of South Africa. 
 
Chap. XVIII.] THE USE OF CONFLICT 457 
 
 I believe it to be a very important one on account of its rigor and 
 its regularity. It must have existed from the earliest times, and 
 have been in continuous operation, generation after generation, 
 down to the present day." 
 
 Man, being the strongest of all animals, differs from the rest ; 
 he was obliged to be his own domesticator ; he had to tame him- 
 self. And the way in which it happened was, that the most 
 obedient, the tamest tribes are, at the first stage in the real struggle 
 of life, the strongest and the conquerors. All are very wild then ; 
 the animal vigor, the savage virtue of the race has died out in 
 none, and all have enough of it. But what makes one tribe — 
 one incipient tribe, one bit of a tribe — to differ from another is 
 their relative faculty of coherence. The slightest symptom of 
 legal development, the least indication of a military bond, is then 
 enough to turn the scale. The compact tribes win, and the com- 
 pact tribes are the tamest. Civilization begins, because the be- 
 ginning of civilization is a military advantage. 
 
 Probably if we had historic records of the ante-historic ages — 
 if some superhuman power had set down the thoughts and actions 
 of men ages before they could set them down for themselves — 
 we should know that this first step in civilization was the hardest 
 step. But when we come to history as it is, w^e are more struck 
 with the difficulty of the next step. All the absolutely incoherent 
 men — all the " Cyclopes " — have been cleared away long be- 
 fore there was an authentic account of them. And the least 
 coherent only remain in the " protected " parts of the world, 
 as we may call them. Ordinary civilization begins near the 
 Mediterranean Sea; the best, doubtless, of the ante-historic 
 civilizations were not far off. From this centre the conquering 
 swarm — for such it is — has grown and grown ; has widened its 
 subject territories steadily, though not equably, age by age. 
 But geography long defied it. An Atlantic Ocean, a Pacific Ocean, 
 an Australian Ocean, an unapproachable interior Africa, an in- 
 accessible and undesirable hill India, were beyond its range. In 
 such remote places there was no real competition, and on them in- 
 ferior half-combined men continued to exist. But in the regions 
 of rivalry — the regions where the better man pressed upon the 
 worse man — such half-made associations could not last. They 
 died out, and history did not begin till after they were gone. The 
 great difficulty which history records is not that of the first step, 
 but that of the second step. What is most evident is not the diffi- 
 culty of getting a fixed law, but getting out of a fixed law ; not of 
 
458 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 cementing (as upon a former occasion I phrased it) a cake of 
 custom, but of breaking the cake of custom; not of making the 
 first preservative habit, but of breaking through it, and reaching 
 something better. 
 
 This is the precise case with the whole family of arrested civ- 
 ilizations. A large part, a very large part, of the world seems to 
 be ready to advance to something good — to have prepared all 
 the means to advance to something good — and then to have 
 stopped, and not advanced. India, Japan, China, almost every 
 sort of Oriental civilization, though differing in nearly all other 
 things, are in this alike. They look as if they had paused when 
 there was no reason for pausing — when a mere observer from 
 without would say they were likely not to pause. 
 
 The reason is, that only those nations can progress which pre- 
 serve and use the fundamental peculiarity which was given by 
 nature to man's organism as to all other organisms. By a law of 
 which we know no reason, but which is among the first by which 
 Providence guides and governs the world, there is a tendency in 
 descendants to be like their progenitors, and yet a tendency also 
 in descendants to differ from their progenitors. The work of 
 nature in making generations is a patchwork — part resemblance, 
 part contrast. In certain respects each born generation is not 
 like the last born ; and in certain other respects it is like the last. 
 But the peculiarity of arrested civilization is to kill out varieties 
 at birth almost ; that is, in early childhood, and before they can 
 develop. The fixed custom which public opinion alone tolerates 
 is imposed on all minds, whether it suits them or not. In that case 
 the community feel that this custom is the only shelter from bare 
 tyranny, and the only security for what they value. Most Orien- 
 tal communities live on land which in theory is the property of 
 a despotic sovereign, and neither they nor their families could have 
 the elements of decent existence unless they held the land upon 
 some sort of fixed terms. Land in that state of society is (for all 
 but a petty skilled minority) a necessary of life, and all the unin- 
 creasable land being occupied, a man who is turned out of his 
 holding is turned out of this world, and must die. And our notion 
 of written leases is as out of place in a world without writing and 
 without reading as a House of Commons among Andaman Is- 
 landers. Only one check, one sole shield for life and good, is then 
 possible — usage. And it is but too plain how in such places and 
 periods men cling to customs because customs alone stand between 
 them and starvation. 
 
CiL^P. XVIII.] THE USE OF CONFLICT 459 
 
 A still more powerful cause co-operated, if a cause more power- 
 ful can be imagined. Drj-den had a dream of an early age, " when 
 wild in woods the noble savage ran " ; but " when lone in woods 
 the cringing savage crept " would have been more like all we 
 know of that early, bare, painful period. Not only had they no 
 comfort, no convenience, not the very beginnings of an epicurean 
 life, but their mind within was as painful to them as the world 
 without. It was full of fear. So far as the vestiges inform us, 
 they were afraid of everything; they were afraid of animals, of 
 certain attacks by near tribes, and of possible inroads from far 
 tribes. But, above all things, they were frightened of " the 
 world " ; the spectacle of nature filled them with awe and dread. 
 They fancied there were powers behind it which must be pleased, 
 soothed, flattered, and this very often in a number of hideous 
 ways. We have too many such religions, even among races of 
 great cultivation. Men change their religions more slowly than 
 they change anything else; and accordingly we have religions 
 " of the ages " — (it is Mr. Jowett who so calls them) — of the 
 " ages before morality " ; of ages of which the civil life, the com- 
 mon maxims, and all the secular thoughts have long been dead. 
 " Every reader of the classics ", said Dr. Johnson, " finds their 
 mythology tedious." In that old world, which is so like our 
 modern world in so many things, so much more like than many 
 far more recent, or some that live beside us, there is a part in which 
 we seem to have no kindred, which we stare at, of which we can- 
 not think how it could be credible, or how it came to be thought 
 of. This is the archaic part of that very world which we look 
 at as so ancient ; an '' antiquity " which descended to them, 
 hardly altered, perhaps, from times long antecedent, which 
 were as unintelligible to them as to us, or more so. How this 
 terrible religion — for such it was in all living detail, though we 
 make, and the ancients then made, an artistic use of the more at- 
 tractive bits of it — weighed on man, the great poem of Lucre- 
 tius, the most of a nineteenth-century poem of any in antiquity, 
 brings before us with a feeling so vivid as to be almost a feeling of 
 our own. Yet the classical religion is a mild and tender specimen 
 of the preserved religions. To get at the worst, you should look 
 where the destroying competition has been least — at America, 
 where sectional civilization was rare, and a pervading coercive 
 civilization did not exist ; at such religions as those of the Aztecs. 
 
 At first sight it seems impossible to imagine what conceivable 
 function such awful religions can perform in the economy of the 
 
460 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 world. And no one can fully explain them. But one use they as- 
 suredly had : they fixed the yoke of custom thoroughly on man- 
 kind. They were the prime agents of the era. They put upon a 
 fixed law a sanction so fearful that no one could dream of not con- 
 forming to it. 
 
 No one will ever comprehend the arrested civilizations unless 
 he sees the strict dilemma of early society. Either men had no 
 law at all, and lived in confused tribes, hardly hanging together, 
 or they had to obtain a fixed law by processes of incredible diffi- 
 culty. Those who surmounted that difficulty soon destroyed all 
 those that lay in their way who did not. And then they themselves 
 were caught in their own yoke. The customary discipline, which 
 could only be imposed on any early men by terrible sanctions, 
 continued with those sanctions, and killed out of the whole society 
 the propensities to variation which are the principle of progress. 
 
 Experience show^s how incredibly difficult it is to get men really 
 to encourage the principle of originality. They will admit it in 
 theory, but in practice the old error — the error which arrested a 
 hundred civilizations — returns again. Men are too fond of their 
 own life, too credulous of the completeness of their own ideas, too 
 angry at the pain of new thoughts, to be able to bear easily with 
 a changing existence ; or else, having new ideas, they want to en- 
 force them on mankind — to make them heard, and admitted, 
 and obeyed before, in simple competition with other ideas, they 
 would ever be so naturally. At this very moment there are the 
 most rigid Comtists teaching that we ought to be governed by a 
 hierarchy — a combination of savans orthodox in science. Yet 
 who can doubt that Comte would have been hanged by his own 
 hierarchy ; that his essor materiel, which was in fact troubled by 
 the " theologians and metaphysicians " of the Polytechnic School, 
 would have been more impeded by the government he wanted to 
 make? And then the secular Comtists, Mr. Harrison and Mr. 
 Beesly, who want to " Frenchify the English institutions " — 
 that is, to introduce here an imitation of the Napoleonic system, 
 a dictatorship founded on the proletariat — who can doubt that 
 if both these clever writers had been real Frenchmen they would 
 have been irascible anti-Bonapartists, and have been sent to 
 Cayenne long ere now ? The wish of these writers is very natural. 
 They want to " organize society", to erect a despot who will do 
 what they like, and work out their ideas; but any despot will 
 do what he himself likes, and will root out new ideas ninety-nine 
 times for once that he introduces them. 
 
Chap. XVIII.] THE USE OF CONFLICT 461 
 
 Again, side by side with these Comtists, and warring with them — 
 at least with one of them — is Mr. Arnold, w^hose poems we know 
 by heart, and who has, as much as any living Englishman, the 
 genuine literary impulse; and yet even he wants to put a yoke 
 upon us — and, worse than a political yoke, an academic yoke, 
 a yoke upon our minds and our styles. He, too, asks us to imitate 
 France; and what else can we say than what the two most 
 thorough Frenchmen of the last age did say ? — " Dans les corps 
 a talent, nulle distinction ne fait ombrage, si ce n'est pas celle 
 du talent. Un due et pair honore I'Academie Fran^aise, qui ne 
 veut point de Boileau. refuse la Bruyere, fait attendre Voltaire, 
 mais revolt tout d'abord Chapelain et Conrart. De meme nous 
 voyons a I'Academie Grecque le vicomte invite, Corai repousse, 
 lorsque Jormard y entre comme dans un moulin." Thus speaks 
 Paul-Louis Courier in his own brief inimitable prose. And a still 
 greater writer — a real Frenchman, if ever there was one, and 
 (what many critics would have denied to be possible) a great poet 
 by reason of his most French characteristics — Beranger, tells us 
 in verse. . . . Asylums of commonplace, he hints, academies must 
 ever be. 
 
 But that sentence is too harsh ; the true one is — the academies 
 are asylums of the ideas and the tastes of the last age. " By the 
 time ", I have heard a most eminent man of science observe, " by 
 the time a man of science attains eminence on any subject he be- 
 comes a nuisance upon it, because he is sure to retain errors which 
 w^ere in vogue when he was young, but which the new race have 
 refuted." These are the sort of ideas which find their home in 
 academies, and out of their dignified windows pooh-pooh new 
 things. 
 
 I may seem to have wandered far from early society, but I 
 have not wandered. The true scientific method is to explain the 
 past by the present — what we see by what we do not see. We 
 can only comprehend why so many nations have not varied, when 
 we see how hateful variation is ; how everybody turns against it ; 
 how not only the conservatives of speculation try to root it out, 
 but the very innovators invent most rigid machines for crushing 
 the " monstrosities and anomalies " — the new forms, out of which, 
 by competition and trial, the best is to be selected for the future. 
 The point I am bringing out is simple : one most important pre- 
 requisite of a prevailing nation is that it should have passed out 
 of the first stage of civilization into the second stage — out of the 
 stage where permanence is most wanted into that where varia- 
 
462 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 bility is most wanted ; and you cannot comprehend why progress 
 is so slow till you see how hard the most obstinate tendencies of 
 human nature make that step to mankind. 
 
 Of course the nation we are supposing must keep the virtues of 
 its first stage as it passes into the after stage, else it will be trodden 
 out ; it will have lo'st the savage virtues in getting the beginning 
 of the civilized virtues ; and the savage virtues which tend to war 
 are the daily bread of human nature. Carlyle said, in his graphic 
 way, " The ultimate question between every two human beings is, 
 ' Can I kill thee, or canst thou kill me? ' " History is strewn 
 with the wrecks of nations which have gained a little progressive- 
 ness at the cost of a great deal of hard manliness, and have thus 
 prepared themselves for destruction as soon as the movements of 
 the world gave a chance for it. But these nations have come out 
 of the '' pre-economic stage '* too soon ; they have been put to 
 learn while yet only too apt to unlearn. Such cases do not vitiate, 
 they confirm, the principle — that a nation which has just gained 
 variability without losing legality has a singular likelihood to be 
 a prevalent nation. 
 
 No nation admits of an abstract definition; all nations are 
 beings of many qualities and many sides ; no historical event ex- 
 actly illustrates any one principle ; every cause is intertwined and 
 surrounded with a hundred others. The best history is but like 
 the art of Rembrandt; it casts a vivid light on certain selected 
 causes, on those which were best and greatest; it leaves all the 
 rest in shadow and unseen. To make a single nation illustrate a 
 principle, you must exaggerate much and you must omit much. 
 But, not forgetting this caution, did not Rome — the prevalent 
 nation in the ancient world — gain her predominance by the prin- 
 ciple on which I have dwelt? In the thick crust of her legality 
 there was hidden a little seed of adaptiveness. Even in her law 
 itself no one can fail to see that, binding as was the habit of obe- 
 dience, coercive as use and wont at first seem, a hidden impulse 
 of extrication did manage, in some queer way, to change the sub- 
 stance while conforming to the accidents — to do what was wanted 
 for the new time while seeming to do only what was directed by 
 the old time. And the moral of their whole history is the same : 
 each Roman generation, so far as we know, differs a little — and 
 in the best times often but a very little — from its predecessors. 
 And therefore the history is so continuous as it goes, though its 
 two ends are so unlike. The history of many nations is like the 
 stage of the English drama : one scene is succeeded on a sudden 
 
Ch.\p. XVIII.] THE USE OF CONFLICT 463 
 
 by a scene quite different — a cottage by a palace, and a wind- 
 mill by a fortress. But the history of Rome changes as a good 
 diorama changes ; while you look, you hardly see it alter ; each 
 moment is hardly different from the last moment ; yet at the close 
 the metamorphosis is complete, and scarcely anything is as it 
 began. Just so in the history of the great prevailing city; you 
 begin with a town and you end with an empire, and this by un- 
 marked stages. So shrouded, so shielded, in the coarse fibre of 
 other qualities was the delicate principle of progress, that it never 
 failed, and it was never broken. 
 
 One standing instance, no doubt, shows that the union of pro- 
 gressiveness and legality does not secure supremacy in war. The 
 Jewish nation has its type of progress in the prophets, side by side 
 with its type of permanence in the law and Levites, more distinct 
 than any other ancient people. Nowhere in common history do 
 we see the two forces — both so necessary and both so dangerous — 
 so apart and so intense : Judsea changed in inward thought, just 
 as Rome changed in exterior power. Each change was continu- 
 ous, gradual, and good. In early times every sort of advantage 
 tends to become a military advantage ; such is the best way, then, 
 to keep it alive. But the Jewish advantage never did so; be- 
 ginning in religion, contrary to a thousand analogies, it remained 
 religious. For that we care for them ; from that have issued end- 
 less consequences. But I cannot deal with such matters here, 
 nor are they to my purpose. As respects this essay, Judaea is an 
 example of combined variability and legality not investing itself 
 in warlike power, and so perishing at last, but bequeathing never- 
 theless a legacy of the combination in imperishable mental effects. 
 
 It may be objected that this principle is like saying that men 
 walk when they do walk, and sit when they do sit. The problem 
 is, why do men progress? And the answer suggested seems to 
 be, that they progress when they have a certain sufficient amount 
 of variability in their nature. This seems to be the old style of 
 explanation by occult qualities. It seems like saying that opium 
 sends men to sleep because it has a soporific virtue, and bread 
 feeds because it has an alimentary quality. But the explanation 
 is not so absurd. It says : ** The beginning of civilization is 
 marked by an intense legality ; that legality is the very condi- 
 tion of its existence, the bond which ties it together ; but that 
 legality — that tendency to impose a settled customary yoke 
 upon all men and all actions — if it goes on, kills out the varia- 
 bility implanted by nature, and makes different men and dif- 
 
464 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 ferent ages facsimiles of other men and other ages, as we see them 
 SO often. Progress is only possible in those happy cases where the 
 force of legality has gone far enough to bind the nation together, 
 but not far enough to kill out all varieties and destroy nature's 
 perpetual tendency to change." The point of the solution is not 
 the invention of an imaginary agency, but an assignment of com- 
 parative magnitude to two known agencies. 
 
 § 3. Causes and Conditions of Superiority among Nations. 
 This advantage is one of the greatest in early civilization — one 
 of the facts which give a decisive turn to the battle of nations; 
 but there are many others. A little perfection in political insti- 
 tutions may do it. Travellers have noticed that among savage 
 tribes those seemed to answer best in which the monarchical power 
 was most predominant, and those worst in which the '' rule of 
 many " was in its vigor. So long as war is the main business of 
 nations, temporary despotism — despotism during the cam- 
 paign — is indispensable. Macaulay justly said that many an 
 army has prospered under a bad commander, but no army has 
 ever prospered under a '' debating society " ; that many-headed 
 monster is then fatal. Depotism grows in the first societies, 
 just as democracy grows in more modern societies ; it is the govern- 
 ment answering the primary need, and congenial to the whole 
 spirit of the time. But despotism is unfavorable to the principle 
 of variability, as all history shows. It tends to keep men in the 
 customary stage of civilization ; its very fitness for that age un- 
 fits it for the next. It prevents men from passing into the first 
 age of progress — the very slow and very gradually improving 
 age. Some " standing system " of semi-free discussion is as 
 necessary to break the thick crust of custom and begin progress 
 as it is in later ages to carry on progress when begun; probably 
 it is even more necessary. And in the most progressive races we 
 find it. I have spoken already of the Jewish prophets, the life 
 of that nation, and the principle of all its growth. But a still 
 more progressive race — that by which secular civilization was 
 once created, by which it is now mainly administered — had a 
 still better instrument of progression. '' In the very earliest 
 glimpses ", says Mr. Freeman, " of Teutonic political life, we find 
 the monarchic, the aristocratic, and the democratic elements 
 already clearly marked. There are leaders with or without the 
 royal title; there are men of noble birth, whose noble birth (in 
 whatever the original nobility may have consisted) entitles them 
 to a pre-eminence in every way ; but beyond these there is a free 
 
Chap. XVIII.] THE USE OF CONFLICT 465 
 
 and armed people, in whom it is clear that the ultimate sover- 
 eignty resides. Small matters are decided by the chiefs alone ; 
 great matters are submitted by the chiefs to the assembled nation. 
 Such a system is far more than Teutonic ; it is a common Aryan 
 possession ; it is the constitution of the Homeric Achaians on earth 
 and of the Homeric gods on Olympus." Perhaps, and indeed 
 probably, this constitution may be that of the primitive tribe 
 which Romans left to go one way, and Greeks to go another, 
 and Teutons to go a third. The tribe took it with them, as the 
 English take the common law with them, because it was the one 
 kind of polity which they could conceive and act upon ; or it may 
 be that the emigrants from the primitive Aryan stock only took 
 with them a good aptitude — an excellent political nature, which 
 similar circumstances in distant countries were afterward to 
 develop into like forms. But anyhow it is impossible not to trace 
 the supremacy of Teutons, Greeks, and Romans in part to their 
 common form of government. The contests of the assembly 
 cherished the principle of change ; the influence of the elders 
 insured sedateness and preserved the mould of thought ; and, 
 in the best cases, military discipline was not impaired by free- 
 dom though military intelligence was enhanced with the general 
 intelligence. A Roman army was a free body, at its own choice 
 governed by a peremptory despotism. 
 
 The mixture of races was often an advantage, too. Much as 
 the old world believed in pure blood, it had very little of it. Most 
 historic nations conquered pre-historic nations, and though they 
 massacred many, they did not massacre all. They enslaved the 
 subject men, and they married the subject women. No doubt 
 the whole bond of early society was the bond of descent; no 
 doubt it was essential to the notions of a new nation that it should 
 have had common ancestors ; the modern idea that vicinity of 
 habitation is the natural cement of civil union would have been 
 repelled as an impiety if it could have been conceived as an idea. 
 But by one of those legal fictions which Sir Henry Maine de- 
 scribes so well, primitive nations contrived to do what they found 
 convenient, as well as to adhere to what they fancied to be right. 
 When they did not beget they adopted; they solemnly made be- 
 lieve that new persons were descended from the old stock, though 
 everybody knew that in flesh and blood they were not. They 
 made an artificial unity in default of a real unity ; and what it 
 is not easy to understand now, the sacred sentiment requiring 
 unity of race was somehow satisfied ; what was made did as well 
 
466 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 as what was born. Nations with these sort of maxims are not 
 likely to have unity of race in the modern sense, and as a phys- 
 iologist understands it. What sorts of unions improve the breed, 
 and which are worse than both the father-race and the mother, 
 it is not very easy to say. The subject was reviewed by M. 
 Quatrefages in an elaborate report upon the occasion of the 
 French Exhibition, of all things in the world. M. Quatrefages 
 quotes from another writer the phrase that America is a great 
 laboratory of experiments in the mixture of races, and reviews 
 the different results which different cases have shown. In South 
 Carolina the Mulatto race is not very prolific, whereas in Louisi- 
 ana and Florida it decidedly is so. In Jamaica and in Java 
 the Mulatto cannot reproduce itself after the third generation; 
 but on the continent of America, as everybody knows, the mixed 
 race is now most numerous, and spreads generation after genera- 
 tion without impediment. Equally various likewise in various 
 cases has been the fate of the mixed race between the white man 
 and the native American; sometimes it prospers, sometimes it 
 fails. And M. Quatrefages concludes his description thus: ''En 
 acceptant comme vraies toutes les observations qui tendent a 
 faire admettre qu'il en sera autrement dans les localites dont j'ai 
 parle plus haut, quelle est la conclusion a tirer de faits aussi peu 
 semblables? Evidemment, on est oblige de reconnaitre que le 
 developpement de la race mulatre est favorise, retarde, ou empeche 
 par des circonstances locales; en d'autres termes, qu'il depend 
 des influences exercees par I'ensemble des conditions d'existence, 
 par le milieu." By which I understand him to mean that the 
 mixture of race sometimes brings out a form of character better 
 suited than either parent form to the place and time ; that in such 
 cases, by a kind of natural selection, it dominates over both parents 
 and perhaps supplants both, whereas in other cases the mixed 
 race is not as good then and there as other parent forms, and 
 then it passes away soon and of itself. 
 
 Early in history the continual mixtures by conquest were just 
 so many experiments in mixing races as are going on in America 
 now. New races wandered into new districts, and half killed, 
 half mixed with the old races. And the result was doubtless as 
 various and as difficult to account for then as now ; sometimes the 
 crossing answered, sometimes it failed. But when the mixture 
 was at its best, it must have excelled both parents in that of which 
 so much has been said — that is, variability, and consequently 
 progressiveness. There is more life in mixed nations. France, 
 
Chap. XVIII.] THE USE OF CONFLICT 467 
 
 for instance, is justly said to be the mean term between the Latin 
 and the German races. A Norman, as you may see by looking at 
 him, is of the north ; a Provencal is of the south, of all that there 
 is most southern. You have in France Latin, Celtic, German, 
 compounded in an infinite number of proportions : one as she is 
 in feeling, she is various not only in the past history of her various 
 provinces, but in their present temperaments. Like the Irish 
 element and the Scotch element in the English House of Commons, 
 the variety of French races contributes to the play of the polity ; 
 it gives a chance for fitting new things which otherwise there w^ould 
 not be. And early races must have wanted mixing more than 
 modern races. It is said, in answer to the Jewish boast that 
 " their race still prospers, though it is scattered and breeds in-and- 
 in ", " You prosper because you are so scattered ; by acclimatiza- 
 tion in various regions your nation has acquired singular elements 
 of variety; it contains within itself the principle of variability 
 which other nations must seek by intermarriage." In the be- 
 ginning of things there was certainly no cosmopolitan race like 
 the Jews ; each race was a sort of " parish race", narrow in thought 
 and abounded in range, and it wanted mixing accordingly. 
 
 But the mixture of races has a singular danger as well as a sin- 
 gular advantage in the early world. We know now the Anglo- 
 Indian suspicion or contempt for " half-castes." The union of 
 the Englishman and the Hindoo produces something not only 
 between races, but between moralities. They have no inherited 
 creed or plain place in the world ; they have none of the fixed 
 traditional sentiments which are the stays of human nature. In 
 the early world many mixtures must have wrought many ruins ; 
 they must have destroyed what they could not replace — an in- 
 bred principle of discipline and of order. But if these unions of 
 races did not work thus ; if, for example, the two races were so 
 near akin that their morals united as well as their breeds, if one 
 race by its great numbers and prepotent organization so presided 
 over the other as to take it up and assimilate it, and leave no 
 separate remains of it, then the admixture w^as invaluable. It 
 added to the probability of variability, and therefore of improve- 
 ment; and if that improvement even in part took the military 
 line, it might give the mixed and ameliorated state a steady ad- 
 vantage in the battle of nations, and a greater chance of lasting 
 in the world. 
 
 Another mode in which one state acquires a superiority over 
 competing states is by provisional institutions, if I may so call 
 
468 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 them. The most important of these — slavery — arises out 
 of the same early conquest as the mixture of races. A slave 
 is an unassimilated, an undigested atom; something which 
 is in the body politic, but yet is hardly part of it. Slavery, too, 
 has a bad name in the later world, and very justly. We connect 
 it with gangs in chains, with laws which keep men ignorant, 
 with laws that hinder families. But the evils which we have 
 endured from slavery in recent ages must not blind us to, or make 
 us forget, the great services that slavery rendered in early ages. 
 There is a wonderful presumption in its favor; it is one of the 
 institutions which, at a certain stage of growth, all nations in all 
 countries choose and cleave to. *' Slavery '\ says Aristotle, 
 " exists by the law of nature ", meaning that it was everywhere 
 to be found — was a rudimentary universal point of polity. 
 " There are very many English colonies ", said Edward Gibbon 
 Wakefield, as late as 1848, '' who would keep slaves at once if we 
 would let them ", and he was speaking not only of old colonies 
 trained in slavery, and raised upon the products of it, but likewise 
 of new colonies started by freemen, and which ought, one would 
 think, to wish to contain freemen only. But Wakefield knew 
 what he was saying ; he was a careful observer of rough societies, 
 and he had watched the minds of men in them. He had seen 
 that leisure is the great need of early societies and slaves only can 
 give men leisure. All freemen in new countries must be pretty 
 equal ; every one has labor, and every one has land ; capital, 
 at least in agricultural countries (for pastoral countries are very 
 different), is of little use; it cannot hire labor; the laborers go 
 and work for themselves. There is a story often told of a great 
 English capitalist who went out to Australia with a shipload of 
 laborers and a carriage; his plan was that the laborers should 
 build a house for him, and that he would keep his carriage, just 
 as in England. But (so the story goes) he had to try to live in 
 his carriage, for his laborers left him, and went away to work for 
 themselves. 
 
 In such countries there can be few gentlemen and no ladies. 
 Refinement is only possible when leisure is possible ; and slavery 
 first makes it possible. It creates a set of persons born to work 
 that others may not work, and not to think in order that others 
 may think. The sort of originality which slavery gives is of the 
 first practical advantage in early communities ; and the repose it 
 gives is a great artistic advantage when they come to be described 
 in history. The patriarchs Abraham, Isaac, and Jacob could not 
 
Chap. XVIII.] THE USE OF CONFLICT 469 
 
 have had the steady calm which marks them if they had them- 
 selves been teased and hurried about their flocks and herds. 
 Refinement of feeling and repose of appearance have indeed no 
 market value in the early bidding of nations ; they do not tend to 
 secure themselves a long future or any future. But originality 
 in war does, and slave-owning nations, having time to think, are 
 likely to be more shrewd in policy and more crafty in strategy. 
 
 No doubt this momentary gain is bought at a ruinous after- 
 cost. When other sources of leisure become possible, the one use 
 of slavery is past. But all its evils remain, and even grow worse. 
 " Retail " slavery — the slavery in which a master owns a few 
 slaves, whom he well knows and daily sees — is not at all an in- 
 tolerable state ; the slaves of Abraham had no doubt a fair life, 
 as things went in that day. But wholesale slavery, where men are 
 but one of the investments of large capital, and where a great 
 owner, so far from knowing each slave, can hardly tell how many 
 gangs of them he works, is an abominable state. This is the 
 slavery which has made the name revolting to the best minds, 
 and has nearly rooted the thing out of the best of the world. 
 There is no out-of-the-way marvel in this. The whole history of 
 civilization is strewn with creeds and institutions which were 
 invaluable at first, and deadly afterward. Progress would not 
 have been the rarity it is if the early food had not been the late 
 poison. A full examination of these provisional institutions would 
 need half a volume, and would be out of place and useless here. 
 Venerable oligarchy, august monarchy, are two that would alone 
 need large chapters. But the sole point here necessary is to say 
 that such preliminary forms and feelings at first often bring many 
 graces and many refinements, and often tend to secure them by the 
 preservative military virtue. 
 
 There are cases in which some step in intellectual progress gives 
 an early society some gain in war ; more obvious cases are when 
 some kind of moral quality gives some such gain. War both needs 
 and generates certain virtues ; not the highest, but what may be 
 called the preliminary virtues, as valor, veracity, the spirit of obe- 
 dience, the habit of discipline. Any of these, and of others like 
 them, when possessed by a nation, and no matter how generated, 
 will give them a military advantage, and make them more likely 
 to stay in the race of nations. The Romans probably had as much 
 of these efficacious virtues as any race of the ancient world — per- 
 haps as much as any race in the modern world too. And the suc- 
 cess of the nations which possess these martial virtues has been 
 
470 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the great means by which their continuance has been secured in 
 the world, and the destruction of the opposite vices insured also. 
 Conquest is the missionary of valor, and the hard impact of military 
 virtues beats meanness out of the world. 
 
 In the last century it would have sounded strange to speak, 
 as I am going to speak, of the military advantage of religion. 
 Such an idea would have been opposed to ruling prejudices, and 
 would hardly have escaped philosophical ridicule. But the notion 
 is but a commonplace in our day, for a man of genius has made it 
 his own. Mr. Carlyle's books are deformed by phrases like '' in- 
 finities " and " verities ", and altogether are full of faults, which 
 attract the very young, and deter all that are older. In spite of 
 his great genius, after a long life of writing, it is a question still 
 whether even a single work of his can take a lasting place in high 
 literature. There is a want of sanity in their manner which throws 
 a suspicion on their substance (though it is often profound) ; and 
 he brandishes one or two fallacies, of which he has himself a high 
 notion, but which plain people will always detect and deride. 
 But whatever may be the fate of his fame, Mr. Carlyle has taught 
 the present generation many lessons, and one of these is that 
 " God-fearing " armies are the best armies. Before his time 
 people laughed at Cromwell's saying, '' Trust in God, and keep 
 your powder dry." But we now know that the trust was of as 
 much use as the powder, if not of more. That high concentra- 
 tion of steady feeling makes men dare everything and do anything. 
 
 This subject would run to an infinite extent if any one were 
 competent to handle it. Those kinds of morals and that kind of 
 religion which tend to make the firmest and most effectual char- 
 acter are sure to prevail, all else being the same ; and creeds or 
 systems that conduce to a soft limp mind tend to perish, except 
 some hard extrinsic force keep them alive. Thus Epicureanism 
 never prospered at Rome, but Stoicism did; the stiff, serious 
 character of the great prevailing nation was attracted by what 
 seemed a confirming creed, and deterred by what looked like a 
 relaxing creed. The inspiriting doctrines fell upon the ardent 
 character, and so confirmed its energy. Strong beliefs win strong 
 men, and then make them stronger. Such is no doubt one cause 
 why Monotheism tends to prevail over Polytheism ; it produces 
 a higher, steadier character, calmed and concentrated by a great 
 single object ; it is not confused by competing rites, or distracted 
 by miscellaneous deities. Polytheism is religion in commission^ 
 and it is weak accordingly. But it will be said the Jews, who were 
 
Chap. XVIIIJ THE USE OF CONFUCT 471 
 
 monotheist, were conquered by the Romans, who were polytheist. 
 Yes, it must be answered, because the Romans had other gifts ; 
 they had a capacity for politics, a habit of discipline, and of these 
 the Jews had not the least. The religious advantage was an 
 advantage, but it was counterweighed. 
 
 No one should be surprised at the prominence given to war. 
 We are dealing with early ages ; nsition-maJcing is the occupation 
 of man in these ages, and it is war that makes nations. Nation- 
 changing comes afterward, and is mostly effected by peaceful 
 revolution, though even then war, too, plays its part. The idea 
 of an indestructible nation is a modern idea ; in early ages all 
 nations were destructible, and the farther we go back the more 
 incessant was the work of destruction. The internal decoration 
 of nations is a sort of secondary process, which succeeds w^hen 
 the main forces that create nations have principally done their 
 work. We have here been concerned with the political scaffold- 
 ing. The nicer play of finer forces may then require more pleasing 
 thoughts than the fierce fights of .early ages can ever suggest. It 
 belongs to the idea of progress that beginnings can never seem at- 
 tractive to those who live far on; the price of improvement is, 
 that the unimproved will always look degraded. 
 
 But how far are the strongest nations really the best nations? 
 how far is excellence in war a criterion of other excellence? I 
 cannot answer this now fully, but three or four considerations are 
 very plain. War, as I have said, nourishes the " preliminary " 
 virtues, and this is almost as much as to say that there are virtues 
 which it does not nourish. All which may be called " grace " 
 as well as virtue it does not nourish; humanity, charity, a nice 
 sense of the rights of others, it certainly does not foster. The 
 insensibility to human suffering, which is so striking a fact in the 
 world as it stood when history first reveals it, is doubtless due to 
 the warlike origin of the old civilization. Bred in war and nursed 
 in war, it could not revolt from the things of war, and one of the 
 principal of these is human pain. Since war has ceased to be the 
 moving force in the world, men have become more tender one to 
 another, and shrink from what they used to inflict without caring ; 
 and this not so much because men are improved (which may or 
 may not be in various cases), but because they have no longer 
 the daily habit of war — have no longer formed their notions upon 
 war, and therefore are guided by thoughts and feelings which 
 soldiers as such — soldiers educated simply by their trade — 
 are too hard to understand. 
 
472 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Very like this is the contempt for physical weakness and for 
 women which marks early society too. The non-combatant 
 population is sure to fare ill during the ages of combat. But these 
 defects, too, are cured or lessened ; women have now marvelous 
 means of winning their way in the world ; and mind without 
 muscle has far greater force than muscle without mind. These 
 are some of the after-changes in the interior of nations, of which 
 the causes must be scrutinized, and I now mention them only to 
 bring out how many softer growths have now half-hidden the old 
 and harsh civilization which war made. 
 
 But it is very dubious whether the spirit of war does not still 
 color our morality far too much. Metaphors from law and meta- 
 phors from war make most of our current moral phrases, and a 
 nice examination would easily explain that both rather vitiate 
 what both often illustrate. The military habit makes man think 
 far too much of definite action, and far too little of brooding medi- 
 tation. Life is not a set campaign, but an irregular work, and 
 the main forces in it are not overt resolutions, but latent and half- 
 involuntary promptings. The mistake of military ethics is to 
 exaggerate the conception of discipline, and so to present the moral 
 force of the will in a barer form than it ever ought to take. Mili- 
 tary morals can direct the axe to cut down the tree, but it knows 
 nothing of the quiet force by which the forest grows. 
 
 What has been said is enough, I hope, to bring out that there 
 are many qualities and many institutions of the most various 
 sort which give nations an advantage in military competition; 
 that most of these and most warlike qualities tend principally to 
 good ; that the constant winning of these favored competitors is 
 the particular mode by which the best qualities wanted in ele- 
 mentary civilization are propagated and preserved. 
 
Chapter XIX 
 STRUGGLE AND ADAPTATION 
 
 § 1. Imperfection of Human Social 
 Adaptation. 
 
 § 2. Causes Which Oppose Hu- 
 man Adaptation. 
 
 § 3. Circumstances Which Favor 
 Adaptation. 
 
 § 4. Origin and Evolution of Law. 
 § 5. Origin and Evolution of the 
 State. 
 
 § 1. Imperfection of Human Social Adaptation. In spite of 
 the notable progress achieved by the human species, it must be 
 acknowledged that men are still very imperfectly adapted among 
 themselves. Apart from the fact that some peoples have scarcely 
 emerged from barbarism, and that others are still in a state of 
 savagery, or nearly so, it is evident that wars and commercial 
 hostilities still occur among the most civilized nations. 
 
 If we pass from external relations to internal conditions, we find 
 among the greater number of human groups that political and 
 juridical struggles are still very intense. It is sufficient to say 
 that some peoples are in truth under the domination of a military 
 class, others under a sacerdotal tyranny, and the remainder under 
 an aristocratic or plutocratic regime. 
 
 Where a democracy dominates we find a condition of struggle 
 more or less violent between the rich and the poor, between major- 
 ities and minorities. After all is said, it cannot be asserted that 
 the human species after thousands and thousands of years of effort 
 and of suffering has traveled far on the road which leads to its 
 well-being and happiness. 
 
 When we reflect that some of the inferior types of life, such as 
 bees and ants, as well as various species of birds and herbivorous 
 animals which populate the primeval forest, are better adapted 
 
 1 [By Michel-Angelo Vaccaro, director of Rivista Scientifica del 
 Diritto. 
 
 This translation by E. Soderwall, of the Gary Library of Law in North- 
 western University, is from the revised French version translated from the 
 Italian by J. Gaure under the title, *'Les Bases Sociologiques du Droit 
 ©t de L'fitat" (Bibliothfeque Sociologique Internationale, direction de M. 
 Rene Worms), Paris, 1898, Giard & Bri^re, pp. 440-456.] 
 
 473 
 
474 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 to social life than man, one is constrained, against his wish, to 
 question whether man is justified in calling himself the king of 
 the earth when there are other creatures which live together in 
 greater harmony. Of what use is our superiority, our great in- 
 telligence, our marvelous inventions and discoveries, if in spite 
 of all this our social adaptation is so imperfect that it makes us 
 more unfortunate than many inferior animals? 
 
 But, instead of useless recrimination, let us see if, upon closer 
 examination, this phenomenon is not less terrifying than it appears. 
 
 § 2. Causes Which Oppose Human Adaptation. Man was the 
 last to come on the earth ; he has had, therefore, less time than 
 the animals which preceded him to adapt himself to his situation. 
 Furthermore, adaptation among animals is to a large extent 
 connected with variations which have become organic, and which 
 in consequence are transmitted by heredity with greater regularity 
 than is the case with man whose life consists of phenomena which 
 are almost entirely non-instinctive. If this were all, there would 
 be reason to be content, but a cruel fate has raised up other causes 
 which prevent the human species from attaining a satisfactory 
 adaptation among themselves. 
 
 The first and most important of these causes is an insufficiency 
 of means necessary to life which leads inevitably to struggle and 
 to elimination of a certain number of individuals. This primi- 
 tive insufficiency of things useful to life in human society increases 
 notably by reason of foresight which degenerates into cupidity 
 and counsels each one to take not only what is necessary for his 
 needs, as animals do, but, also, to appropriate as much as possible 
 of the thing. This involves a larger number of eliminations than 
 is required by the ordinary laws of nature. 
 
 If the struggle for existence between men took place under 
 equal conditions, then those less favored would, nevertheless, be 
 quickly expelled from the banquet of life by those better endowed. 
 As a result, after each generation, the survivors would have be- 
 come very well adapted to their biological and social environment. 
 Unfortunately, the struggle for life occurs under such irregular 
 conditions that it often leads to triumph of the less deserving and • 
 degenerate members of society. Consequently, human adapta- 
 tion encounters new obstacles and remains inperfect. The human 
 social composition is much more complicated and variable than 
 any other. It follows that among men, adaptation is subject to 
 endless disturbances which prevent its realization in a normal 
 manner. 
 
Chap. XIX.] STRUGGLE AND ADAPTATION 475 
 
 This order of things is to be regretted the more as mankind 
 frequently passes from a stage more favorable for life to one less 
 favorable, which renders adaptation more difficult and painful. 
 We know that whenever a social group is subjugated by another 
 not only the conditions of its adaptation change, which is an evil, 
 but, also, that they become very painful and very hard. The 
 victors who seek only to exploit the vanquished do all that they 
 can to force them into an inferior kind of life. But they succeed 
 only with difficulty; because the adaptation which harmonizes 
 with a greater or less extent of degeneration is only obtained at 
 the price of long suffering and enormous sacrifices which drive to 
 revolt those who are subjected to them. . . . 
 
 § 3. Circumstances Which Favor Adaptation. While, on one 
 hand, man's high intelligence has led him to a great variety of 
 evil against his fellow creatures, it has, on the other hand, enabled 
 him to overcome and to adapt to his needs other species, and to 
 put into opposition against each other the forces of nature, in 
 such a way as to render him service and to compel more abundant 
 production. 
 
 As wealth increases, the correspondence between means of sub- 
 sistence and the population becomes closer. For proof of this, 
 it is sufficient to compare barbarous and civilized peoples. Among 
 barbarous tribes the number of violent eliminations (such as 
 abortions, infanticide, homicide, human sacrifices, perpetual 
 wars, etc.) is not only greater than among civilized peoples, but 
 life itself is shorter and less secure on account of hardships, fre- 
 quent poverty, and epidemic diseases. . . . 
 
 In discussing the special features of human adaptation, we have 
 noticed among animals that adaptation is effected characteristi- 
 cally by a process of organic and psychic modification which does 
 not extend beyond the individual; while among human beings, 
 on the contrary, there is besides this organic process, an artificial 
 and incorporeal process of modifications impressed upon external 
 nature, together with appliances and instruments separated from 
 the body, which have the advantage of giving the individual greater 
 power of resistance against his enemies. 
 
 W^e have seen, also, that the process of selection among animals 
 has the aim of preserving and accumulating organic modifications 
 favorable for their survival. Among human beings, while selec- 
 tion produces the same result, it also tends to accumulation of 
 all the inventions and discoveries which improve the instruments 
 and other artificial agencies which are possessed. 
 
476 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Organic modifications demand a long time to become fixed and 
 to become hereditary; and they accumulate more slowly than 
 those which man learns to impress on material things, in the way 
 of artificial instruments and machines. It results, therefore, 
 that human adaptation is more extensive and more rapid than 
 adaptation among animals. 
 
 It is true that a great number of these instruments, these arti- 
 ficial means of adaptation, are the monopoly of a special class 
 which frequently uses them for the oppression of others ; but yet, 
 the benefits which they produce are greater than the evil which 
 they cause to society. Man, after he accumulates material wealth, 
 builds up a spiritual inheritance of experience and knowledge 
 which enables him, in the face of the surrounding forces of nature, 
 to ward off certain pains and to promote certain pleasures. Ani- 
 mals, also, accumulate a similar capital in the form of organized 
 memory and of instincts, but it is insignificant in comparison with 
 that acquired by humanity from generation to generation. 
 
 By the aid of spoken language and the invention of writing, 
 the human species is able to communicate among its members, 
 and to transmit to its descendants, an endless mass of experiences 
 and of information which facilitates the progress of adaptation. 
 Of this knowledge, one part concerns the manner in w^hich man 
 should comport himself in relation to surrounding organic and 
 inorganic nature ; the other, on the contrary, concerns his attitude 
 toward his fellows, to avoid their individual or collective reaction. 
 
 § 4. Origin and Evolution of Law. In the primitive horde, 
 each individual seeks voluntarily to satisfy his wants without 
 coming into conflict with his associates, so as not to incur unneces- 
 sary hardships or expose himself to dangers. But it happens, 
 inevitably, that individuals are driven to struggle amongst them- 
 selves ; because, in a certain measure, each one is an obstacle to 
 the others in the conquest of the things necessary for life. These 
 contests are a source of good or evil for the individual, according 
 to his victory or defeat. Little by little experience produces 
 the rule of individual conduct — " attack others only when by 
 calculation you may hope to be successful." Thus, whenever 
 the individual refrains from an act which may injure another, it 
 is not that he considers the act in itself as wrong or illicit, but only 
 because he dreads a reaction capable of bringing on him an evil 
 greater than the benefit which he desires. 
 
 As long as organized force does not exist within the horde, 
 and as long as each adult individual meets conditions as they arise 
 
/ 
 Chap. XIX.] STRUGGLE AND ADAPTATION 477 
 
 as best he can, aggression is profitable for those who are able to 
 calculate accurately their own forces and those of the adversary, 
 and detrimental for those who do not successfully make this 
 estimate of power. But when nuclei of associations of a definite 
 number of men are formed within the group which react in a body 
 then, if a stranger makes aggression, or commits an offense against 
 one of the members, it is almost certain that he will fare badly* 
 
 By virtue of repetition of this sort of experience, it is not long 
 before a rule of conduct is formed which counsels abstinence from 
 certain kinds of acts solely for the reason that they are habitually 
 followed by painful reactions. When the causal connection 
 between the act and the painful reaction becomes fixed, then such 
 an act is regarded as intrinsically pernicious, and therefore illicit. 
 
 Doubtless, the mental process here in question is not as simple 
 as we have stated it. There are a thousand causes which have 
 affected its development. In the first place, it is certain that 
 ages have passed before there existed a solidarity of individuals 
 capable of reacting against what gives offense to any one of them. 
 In the next place, these allied individuals, counting on the power 
 of their associates, have been able to inflict injury with impunity 
 on strangers not yet organized, which they themselves had already 
 begun to consider as illicit, and which has made imcertain the 
 establishment of a definite rule of conduct. Since, however, the 
 advantage of these alliances was very great, it must be admitted, 
 as all the facts prove, that they have originated at nearly the 
 same time, and with the result that impunity has not been suffi- 
 ciently frequent to prevent such acts being considered as illicit 
 w^hich for the greater part were followed by painful reactions. 
 
 The same solidarity between the members of each group or clan, 
 also, would, for special reasons, prevent the member of one group 
 from inflicting injury on a member of another organization which 
 in reacting would involve not only the transgressor but his asso- 
 ciates as well. The practice is known of punishing the culprit 
 directly, or of delivering him over to the one offended to take his 
 revenge, in order to avoid reprisals. 
 
 In this fashion, there springs up from an external reaction which 
 is under the control of those injured, an internal reaction emanating 
 from the members of the clan of the offender; and as a conse- 
 quence of this, certain acts come, more and more, to be regarded as 
 prejudicial and illicit. 
 
 We have pointed out how experience teaches man to abstain 
 from certain acts. We have now to show how under the do- 
 
478 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 minion of pleasure and pain, man is brought to act in favor of his 
 associates. 
 
 It is, first of all, unnecessary to observe that sociality always 
 involves cooperation. Men, even in the most primitive state, as 
 well as all animals, give aid to each other, and defend women and 
 children against external aggression ; without which defense the 
 group would not have survived. With the appearance of the clan, 
 the competition for life began to impress on the members an 
 organic tendency toward solidarity. The Australian savage who 
 suffers and wastes away until the moment when he revenges the 
 death of his parent, and the Fuegian who voluntarily shares a 
 gift with his companions give evidence of this tendency in a form 
 almost organic. 
 
 Furthermore, in the bosom of the clan, rules of voluntary con- 
 duct are soon formed; that is to say, rules of conduct governed 
 by actual calculation of pleasures and pains. Again, the existence 
 of the clan demands necessarily certain discipline, and also ade- 
 quate authority of a chieftain. Any one who disobeys him, 
 subjects himself not only to disapproval of his companions, but 
 also to punishment. By repetition, the orders of the chieftain 
 become imperative rules of conduct, and obedience becomes a duty 
 subject to compulsion. What is said of the orders of the chieftain 
 applies with greater force to the commands given by a tribal 
 council, and, in a later era, by the monarch. 
 
 Among these commands, those which have a general character 
 are handed down to the descendants who observe them, if for no 
 other reason, in order not to provoke the spirits of their ancestors. 
 
 Careful observation discloses that the first glimpses of law are 
 seen when the clan is formed. It is then, in fact, that an external 
 collective reaction arises, as yet in part indistinct, against whom- 
 soever offends against the members of the clan, and an internal 
 sanction which tends to assure a certain solidarity and a certain 
 discipline among its own members ; and tends, also, to prevent 
 harm by these members to members of other clans which st:imu- 
 late reactions by means of vengeance and reprisals. 
 
 It seems to us that the view that law begins with the State is 
 as erroneous as that view which supposes that it arises with the 
 patriarchal family. The latter view evidently assumes that the 
 family is anterior to the clan and to the State ; while it is known to 
 be a later phenomenon than either of them. 
 
 Such is the process in general in simple human groups, which 
 produces definite, imperative rules of conduct. But in compound 
 
Chap XIX.] STRUGGLE AND ADAPTATION 479 
 
 groups, the process is more rapid and more complicated. The 
 fact is established that when one people subjugates another, the 
 victors, after having eliminated the most dangerous members and 
 after having terrified the others, impose on the latter, by the 
 menace of drastic punishments, certain rules of conduct tending 
 to prevent them from revolting or from harming in any manner 
 their oppressors, and also to prevent mutual injuries among 
 themselves in any manner to diminish the advantages which the 
 conquerors seek to obtain. Finally, the conquerors organize to 
 better their political constitution for the purpose of holding the 
 subjugated elements under control. The victors submit to cer- 
 tain rules of conduct to prevent dissensions and reprisals and to 
 assure to their members a share in the exploitation of the 
 vanquished. 
 
 The fact of struggle for supremacy among the various social 
 classes itself creates with certain limitations rights and juridical 
 duties, privileges, and honors very similar to those which arise 
 when one people superposes itself upon another. Such are the 
 most general rules of conduct which are regularly developed in 
 human groups. As is apparent, they vary in detail from group 
 to group, according to the case and the circumstances. 
 
 Besides these, the most usual sources of law, there is another 
 which tends to ward off every sort of evil, real or imaginary, which 
 strikes the members of the clan indiscriminately; such, for ex- 
 ample, as fires, inundations, epidemics, etc. But the rules of 
 conduct which are formulated to avoid these calamities, instead 
 of being beneficial, are for a long time sources of injury to the social 
 body. Man in his ignorance attributes a large number of evils 
 caused by the blind forces of nature to divine reprobation, to the 
 vengeance of gods or the spirits of ancestors. Thus, instead of 
 searching for means to combat these forces and to turn aside their 
 deadly thrust, man has had recourse to blood sacrifices, and to 
 holocausts, to appease the anger of supernatural agencies. 
 
 Furthermore, a large number of acts and omissions considered 
 as displeasing to the gods have been punished. The evils which 
 have resulted to humanity from these deplorable superstitions 
 which still continue to claim victims and to produce unhappiness, 
 are beyond calculation. 
 
 Lastly, with the growth of wealth, industry, and commerce 
 new wants have arisen which have produced new rules of juridical 
 conduct for the protection of production and exchange of goods, 
 and for assuring the enjoyment of private and public advantages. 
 
480 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Such is the natural origin of law. Its function consists in adapt- 
 ing human beings to their surroundings, and in fixing the condi- 
 tions of their [social] coexistence. The conditions imposed by 
 law for [social] coexistence are not those which ought to be selected 
 for assuring the greatest measure of prosperity among all the 
 members of society; but, rather, they are those which result 
 from the actions and reactions among men at a given historical 
 moment. Born in ignorance, and having only his experiences 
 as guide, man has groped his way on the earth seeking to satisfy 
 in the best manner possible the many necessities which beset 
 his way. He has also paid dearly for all his mistakes, marking 
 with his tears and with his blood the long road which he has 
 traveled. It is, therefore, because he has been driven by the forces 
 of nature and by his fellowmen, that he has followed, little by little, 
 and unconsciously, a path less strewn with thorns and tribulations. 
 
 Although the struggle for existence between different human 
 groups has been and continues to be the source of infinite suffering 
 and evil, yet it must be recognized that it has in a large degree 
 favored the progress of the human race. Man acts as he feels, 
 as he understands, and as he can, but of what he does only that 
 is lasting which has the effect of assuring his survival. This 
 result does not follow a providential will, or a pre-established 
 order of things, but is the consequence of the blind labor of nature 
 — that is to say, of the totality of cosmic forces. 
 
 The fact that the peoples with the best internal organization, 
 i.e. where the individuals are best adapted to each other, have a 
 greater probability of surviving, and enjoy greater prosperity 
 than other peoples, leads indirectly to the dominance and exten- 
 sion of their social organization ; because with the advancement 
 of such peoples their laws and customs also survive and triumph. 
 In the measure that this effect repeats itself under the pressure 
 of competitive forces of life, customs and laws become more 
 favorable to human adaptation, and become more adequate to 
 the conservation and prosperity of the whole social group. 
 
 While each family and each individual act in their own interest, 
 the natural law of survival operates unconsciously and organically 
 in the collective interest. That the greater part of the customs, 
 laws, and institutions favorable to collective life, as well as those 
 sentiments which are called altruistic, or preferably social, are 
 created by the blind but beneficent processes of nature is a fact 
 which cannot be questioned. It is true that numerous circum- 
 stances have disturbed the process of selection, but they have 
 
Chap. XIX.] STRUGGLE AND ADAPTATION 481 
 
 only had the effect of rendering its course less direct, but not of 
 arresting it. 
 
 Besides this organic and involuntary process, there is another, 
 conscious and involuntary, which directs the evolution of law and 
 of human institutions. In speaking of compound social groups, 
 we have seen that the conquerors never succeed in adapting a 
 conquered people, in a stable and permanent fashion, to their 
 wants and caprices. We have also seen that the vanquished 
 element, profiting by all favorable conditions, force from the con- 
 querors concessions, and compel them to enact less oppressive and 
 less harmful laws. We have finally also seen that in the course 
 of time, the conquered element succeeds in becoming organized 
 in a political class which participates in government. Each of the 
 changes which occurs in human groups by the action and reaction 
 of forces operating against each other, results in progress in the 
 law and in institutions, and in a better adaptation of mankind 
 to social life. . . . 
 
 § 5. Origin and Evolution of the State. "Be it or be it not 
 true that man is shapen in iniquity and conceived in sin, it is 
 unquestionably true that government is begotten of aggression 
 and by aggression." ^ 
 
 In the beginning of the State the chief is a warrior. His au- 
 thority which is temporary does not extend beyond attack and 
 defense and acts strictly connected with them. For the rest, 
 the individuals of the group conduct themselves in accordance 
 with traditional habits formed under the empire of natural selec- 
 tion of the public opinion of the living and the dead. 
 
 Even when the chieftain's authority begins to take on a per- 
 manent character, protection of the group members does not fall 
 to him in times of peace, but rests with the clan, which has an 
 organization and a government of its own for the defense and 
 discipline of its members. The chieftain intervenes in private 
 disputes only as a peace-maker or arbitrator in order to avoid 
 reprisals between different clans, which might endanger the suc- 
 cess of military enterprise. 
 
 Protection of the interests of the social group is rather confided 
 to a council of elders than to the chieftain, who is usually one of 
 their peers. But when wars commence, the chieftain gradually 
 usurps the powers of the council of elders, and, in part, those of 
 the leaders of the clans. In time, he arrogates to himself the power 
 
 ^ Spencer, "The Sins of Legislators", p. 1, reprinted in "The Man 
 versus the State", London, 1907, p. 44. 
 
482 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 to punish not only wrongs committed against himself and his 
 followers, but also those which might provoke the resentment 
 of strangers and cause them to make war against the group. He 
 looks to it, furthermore, that no one offends the gods or the spirits 
 of ancestors who may visit destructive punishments on the whole 
 community. When he sees in private quarrels an interest to him 
 direct or indirect, he intervenes, but no longer as a peace-maker 
 but as a judge. He compels the party offended to accept com- 
 position, and he inflicts punishments and fines on the guilty. . . . 
 
 In the degree that this method of intervention increases, de- 
 fensive action of the clan becomes less necessary and tends to 
 disappear except for economic reasons. . . . But the dissolution of 
 the clan imposes new obligations upon the government. The 
 patriarchal family, it is true, discharged many functions which 
 before devolved on the clan, but its action is much weaker and 
 much more restricted. The family, for example, continues to 
 avenge offenses against its members ; but frequently it is compelled 
 to submit to, and often to invoke, the intervention of the govern- 
 ment, because it is not able to resist it, or because it is unable to 
 punish offenders as directly as could the clan. 
 
 But it is less for the protection of the person than for the pro- 
 tection of property that government becomes indispensable. 
 While the clan endures, the impossibility for individuals of living 
 outside of it and its communistic regime, prevents the formation 
 of classes of rich and poor. Usurpations are found but not attacks 
 on property. 
 
 When the clan disappears, not only does the communistic 
 regime end, but outside the gentile family, a large number of 
 isolated individuals are found who are joined by outcasts, criminals, 
 and others; whereupon, in course of time, two opposed classes 
 appear — the rich and the poor. The rich in order to combat the 
 poor gather about a chieftain whose force they strengthen to pre- 
 vent possible aggressions of the poor, or they constitute themselves 
 into an oligarchical republic to provide a defense for the interests 
 of all. 
 
 But when a people has attained a certain stage of social develop- 
 ment, following usually military conquest, a new impulse is given 
 to the evolution of the State. The victors, in order to keep the 
 conquered element in submission, and to exploit them for their own 
 advantage, must achieve a better disciplined organization which 
 requires greater cohesion and greater activity of the State. . . . 
 
 Spencer has demonstrated that in the measure in which the mili- 
 
Chap XIX.] STRUGGLE AND ADAPTATION 483 
 
 tary regime gives way to the industrial order, social co-operation 
 becomes voluntary and contractual, that is to say, independent 
 of the direct action of the State. While wars continue, the neces- 
 sities of defense and attack impose upon the State the burden of 
 regulating in a direct and imperative way, all the activities of its 
 subjects, and require it to demand from its subjects absolute 
 obedience. On the contrary, when societies become less warlike 
 and more inclined to the industrial arts, the State no longer needs 
 to regulate in this manner the activities of individuals who, there- 
 fore, acquire greater liberty. 
 
 The evolution of the State proceeds in this fashion : on one hand, 
 the State tends to render a greater measure of public service ; and, 
 on the other hand, to limit always in a lesser degree the liberty 
 of the individual. 
 
 But if we adhere to this statement, it may be shown that it 
 gives but an incomplete notion of the function of the State and of 
 the evil and the good which it produces. Let us examine further. 
 
 That subordination and obedience to a chieftain operate ef- 
 fectively for the success of military enterprises is certain. Again, 
 they produce indisputable advantages in assuring the survival of 
 the group ; but they also lead not only to the sacrifice of individual 
 liberty, but render possible a great number of abuses which spring 
 from the egoism of leadership. The maxim that he who commands 
 political power constantly uses it to further his own interests, is 
 written in letters of blood upon all the pages of history. . . . 
 
 To avail of figurative language, we might say that the State 
 is born with a function of directing, of converging, all individual 
 forces to a common center, in such manner that the group may 
 overcome the rude struggles for existence ; and that when it has 
 become a permanent organ, it seeks to advance in the best way 
 possible its existence and its well-being. While each organ of 
 animal life requires equal reparation of the losses sustained in the 
 performance of its functions, the organ called the State absorbs 
 a much greater quantity of nutritive elements than would be 
 necessary according to biological law. 
 
 The result is that the organ of the State suffers from hyperemia 
 and the cells of other organs suffer from anemia, in consequence 
 of which the social body sickens, or, perhaps, dies. Human 
 groups then pay dearly for the functions of the State whose evils 
 are greater than its advantages. Nevertheless, it is certain that 
 
484 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 in the struggle for life the better governed groups have the ad- 
 vantage against those groups subjected to tyranny. . . . 
 
 Another cause of attenuation results from being deprived of a 
 share in the government. This is demonstrated by the case of 
 the Roman Plebs, who so long as they had no part in the govern- 
 ment did not enjoy the protection of the laws. . . . The same 
 fact is seen, in general, in all compound social groups where 
 the vanquished element is oppressed by the laws. , . . The only 
 protection customarily given is that which a master accords 
 to domestic animals, with the difference that man, being a more 
 dangerous animal, is treated with greater harshness than the 
 beast of burden. . . . Yet liberation is a necessary and inevitable 
 fact which results from the impossibility of perpetually adapting 
 the vanquished element to the wants and caprices of the con- 
 querors. 
 
 The political generalization which follows is that participation 
 in the government and the restriction which results of the para- 
 sitical function of the State, are necessary and inevitable phenom- 
 ena which violence may retard but cannot stay. 
 
 We arrive at the same conclusions by another order of thought. 
 
 In the infancy of mankind when wars are continuous, the mili- 
 tary class commands, and, as we have seen, does not permit any 
 other class to participate in the government or enjoy advantages 
 from it. Later when a sacerdotal class gets the upper hand we 
 find participation in government extending, although unequally, 
 to the military class without which the sacerdotal class would be 
 unable to maintain its dominion. 
 
 Under an aristocratic regime, beside the dominating class of 
 the noble and the rich, we see two other classes taking a share 
 in the government, although in a subordinate degree — the mili- 
 tary class and the sacerdotal class. Lastly, under a democratic 
 regime, participation in government becomes virtually general; 
 and we say virtually, because it is a majority which in fact rules 
 over a minority, which indicates notable progress. 
 
 It is reserved for the future to render participation in govern- 
 ment not more nominal but more effective, and thus to bridle 
 the abuses which majorities may inflict on minorities . . . and to 
 reach a political and social organization better adapted to the ends 
 of human life. ... 
 
Chapter XX 
 
 ARBITR.\MENT AND GUARANTY IN THE ORIGIN OF 
 
 LAWi 
 
 § 1. The Arbitral Element in Law. | § 2. The Idea of Guaranty. 
 
 § 1. The Arbitral Element in Law. However small according 
 to certain scholars may have been the part played by the intellect 
 in the formation of societies, it cannot be doubted that each 
 society is organized in view of an object — not, of course, an ideal, 
 such as the realization of the moral law, or a union of finite beings 
 under an infinite principle, but an empirical end capable of being 
 understood by the most uncultivated mind. The object of 
 society thus conceived and delimited is that of a competitive 
 association where the struggle for life has been reduced to a 
 minimum. Every association, even one composed of animals, as 
 Espinas has shown in his " Societes animales ", has a vague 
 consciousness of this fact. In the face of a common danger 
 the instinct of common safety is aroused with such force and so 
 clearly as to defy all the sophisms of individualism. . . . 
 
 Law expresses a contrast between the pursuit of social ends and 
 the minimum of an inevitable competition for life, even in the 
 most highly organized societies. But if the idea of law expresses 
 this contrast, the law itself is a reaction from the sociability which 
 tends to make this contrast disappear by reducing in the great- 
 est possible measure the conflict of wants to a minimum. The 
 social activity which turns aside natural dangers, epidemics, 
 attacks of the animal world, and the aggressions of outside groups, 
 is reinforced by the effort to appease, or to restrain in the ways 
 of peace, the conflicts of individual desires. 
 
 ^ [By Gaston Richard. 
 
 Translated from "L'Origine de I'id^e de droit", Paris, Thorin et Fils, 
 1892 (pp. 1, 5-12, 16, 19-21, 23-31 et seq., by Albert Kocourek.] 
 
 485 
 
FACTORS OF LEGAL EVOLUTION [Part II. 
 
 We may now understand how the association of the ideas of 
 litigation and of arbitration is the first definite element of the 
 idea of law. 
 
 In a lawsuit two elements are to be distinguished : the conflict 
 of interests and of wants which constitute its subject-matter; 
 the procedure, where recourse to arbitration prevents the conflict 
 from degenerating into open combat. The first is the anti-social 
 and anti-juridicial element of the lawsuit; the second implies 
 the recognition of social jurisdiction. Separated from the pro- 
 cedure, which is confused with it and which constitutes the 
 juridical element, litigation is a partial destruction of social life. 
 
 In the first place, the simple fact of litigation indicates that 
 between the individuals and the groups which it separates, sociality 
 no longer exists. In substance sociality is above all an accord of 
 feeling and a congruity of activities; litigation results from a 
 discord of feeling and a conflict of activities. In the second place, 
 the fact of litigation belies the act of faith upon which sociality 
 rests; that is to say, that society is a combination of efforts of 
 a multitude of persons to render mutual assistance in the struggle 
 for existence. Multiply by supposition the litigation in a society : 
 suppose that there spring up disputes about labor, about the divi- 
 sion of wealth, about marriage unions, about successions to prop- 
 erty, about education, about religion, about matters of deport- 
 ment, about distribution of taxes, about the relations between 
 private persons and magistrates — here we have a picture of a 
 society in the midst of dissolution, since the combination of acts 
 necessary to its existence has entirely given way to conflicts of 
 activity. 
 
 Every mind creates a representation of litigation — a rough 
 sketch of the idea of law. A confused state of consciousness, a 
 pure feeling, may be transmuted into an idea if it is limited by 
 concrete images. Now, that a lawsuit may be represented to the 
 mind by a train of concrete images — nothing is less debatable. 
 A lawsuit is a struggle, a conflict of wants and claims. These 
 claims relate in general to possession of some material object. 
 We know, on the other hand, that among a plurality of concrete 
 images, one of them ordinarily becomes dominant, impressing 
 itself on the attention, and afterwards on the memory, and, in 
 short, becoming a symbol. It is thus that two extended wings 
 sum up for us the train of images associated with the vision of a 
 bird. It is the same in the representation of a lawsuit. It is 
 condensed by the symbolical representation of a drama; it is 
 
Chap. XX.] ARBITRAMENT AND GUARANTY 487 
 
 constituted of a very small number of images expressing a physi- 
 cal combat, a duel between two men who dispute over an object. 
 
 The almost universal forms of primitive procedure are instruc- 
 tive in this connection. The most eloquent of these, and at the 
 same time the most definite and most classical, is the sacramentum 
 of primitive Roman law. Two men dispute over a slave. The 
 plaintiff armed with a spear touches with it the object in litigation 
 and pronounces a formula which states his claims. The defendant 
 in turn lowers his spear on the same object and pronounces the 
 same formula. A symbolical image of a combat preceded by 
 the announcement of two rival claims, such is the primitive rep- 
 resentation of a lawsuit. . . . 
 
 Our conclusion regarding the symbolical representation of a 
 lawsuit accords with contemporary psychology. We do not say 
 that such a representation is necessary, since the moral sciences 
 have familiarized us with the idea of contingency. But we know 
 how one of the elements of the idea of a lawsuit is formed empiri- 
 cally. The representation of the conflict is only the conscious 
 datum of the competitive contest of life or of the more definite 
 and more limited struggle of wants. It contrasts, therefore, with 
 the concept of social ends. We may infer that the latter submits 
 to a corresponding transformation. ... 
 
 If the representation of social ends contrasts with the repre- 
 sentation of litigation, it ought then to clothe the form of an at- 
 tempt toward the restoration of the social life which has been in 
 part destroyed. The representation of litigation is the symbolical 
 image of a combat in motion. The idea of social ends which is 
 associated with it by contrast will be that of a conciliatory inter- 
 vention capable of ending the dispute, whether by bringing into 
 accord the conflicting claims, or by giving satisfaction to one by 
 the condemnation of the other. In a word it will represent the 
 intervention of an arbitrator. 
 
 The ancient monuments of primitive procedure and the Ro- 
 man procedure of the sacramental action verify this conclusion. 
 The two contestants have placed their spears on the object of 
 the litigation, and each has pronounced the formula of his claim. 
 The symbolical combat (" manuum consertio ") then takes place. 
 But a word from the praetor arrests it. He commands the adver- 
 saries to release the contested object ("mittite ambo hominem "). 
 After pronunciation of certain other formulas, the magistrate 
 
488 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 designates one of the contestants to have provisional possession 
 of the thing in controversy. The lawsuit is not vacated, but 
 combat is avoided. 
 
 The concept of an arbitral sentence, associated with the idea of 
 conflict, contributes to form the notion of a lawsuit. Is it an 
 element essential to the idea of law? Our habits of thought 
 toward metaphysics make repugnant any connection whatever 
 between the concept of an action and the idea of law. Neverthe- 
 less, the lawsuit is proof of the existence of law. Abandoning, 
 however, this discussion, we are able to show directly and by the 
 most rigorous methods that without the representation of arbitra- 
 tion there would not be any idea of law. 
 
 Putting aside for the moment all metaphysical definitions, each 
 one will admit that empirically law is a condition of things where 
 one claim may overcome another contrary claim without recourse 
 to violence and without possession of superior force. Let us sup- 
 pose that for the exercise of the right to think differently than 
 the majority, or of the right of property, there is wanting force 
 superior to those who make contrary claims in the matter. We 
 must acknowledge that, in this case, liberty of conscience and the 
 right of property are only vain words. Law implies the possibility 
 of an equality of the claims of the weak with the claims of the 
 strong. As thus conceived, law rests on the idea of arbitrament. 
 To suppress this idea is to destroy not only the reality of law, but 
 also the notion. 
 
 The state of society which we are daily able to observe presents 
 conflicts regulated by an imperative arbitrament and also other 
 conflicts which are not subject to any other than permissive 
 arbitrament. A comparative method equivalent practically to 
 the experimental method permits us, therefore, to make a rigorous 
 examination of arbitral relations and of the law. 
 
 Let us suppose judicial adjustment to be suppressed in those 
 circumstances where today there is compulsory regulation of con- 
 flict, and we should find private combat and violence reappearing 
 as in primitive ages. Suppose again arbitrament to be intro- 
 duced in those cases where there is not now any regulation' of con- 
 flict, and we should see war and violence disappear where humanity 
 still today suffers.^ 
 
 1 [These lines were written more than twenty years before the beginning 
 of the great European war which at this moment after forty months of 
 conflict has already cost hundreds of thousands of lives and billions of 
 dollars. — Ed.] 
 
Chap. XX.] ARBITRAMENT AND GUARANTY 489 
 
 Among creditors and debtors there is today a compulsory system 
 for the adjustment of defaulted debts. The creditor may con- 
 strain the insolvent debtor to discharge the debt; but he must 
 first on the petition of a ministerial officer, an attorney, obtain a 
 judgment. Judgment is not given in his behalf unless he presents 
 proof of the obligation. Judgment being rendered for him, he 
 may proceed by way of execution, but here again he must resort 
 to a ministerial officer, a bailiflP. . . . Between the feeling of injury 
 experienced by the creditor and the vindicative impulses which 
 spring from this injury, on one hand, and violence of resistance 
 on the part of the debtor, civilized society has established a com- 
 plex arbitrament in which we may deplore its delays but which 
 results in avoiding private war. The very imperfections of this 
 system attest that it is the slow labor of secular traditions. 
 
 Now let us suppose the abolition of this system> and let us 
 withdraw in the presence of an unpaid creditor and a defaulting 
 debtor. We have not the simplicity to believe that the creditor 
 will benevolently endure the injury of which he is the victim. 
 He will attempt to recover by force the equivalent of that of which 
 bad faith has deprived him. In this enterprise he will ask the 
 assistance of those near to him, and if they are under his authority, 
 he will require their aid. On the other hand, the debtor will not 
 submit to violence without resistance, if resistance offers any 
 chance of success. He will bear arms, and he will arm those near 
 to him. Private war will take the place of the lawsuit.^ 
 
 Where a method of social arbitrament has not yet been devised 
 in primitive law, no distinction can be discerned between brigand- 
 age and juridical coercion. For the rest, it would serve no useful 
 purpose to refer to the inductions of juridical archeology to convince 
 that only social arbitrament prevents the conflicts of creditors and 
 debtors from descending to brigandage. International law, which 
 has with propriety been compared to ancient law, affords many 
 celebrated examples.^ 
 
 These proofs are sufficient. We see the absence of law in 
 conflicts where there is an absence of arbitrament. We see law 
 present in conflicts where arbitrament is present. We see that 
 law commences with arbitrament, advances with it, and recedes 
 
 1 See Maine, "Primitive Forms of Legal Remedies" [Vol. II, p. 586 
 seq. of this series]. 
 
 2 Martens, "Causes c616bres du droit des gens", II, 1. 
 
490 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 with it. The idea of law may not therefore be present in our 
 minds when the idea of arbitrament is absent. 
 
 It will perhaps be proper to consider the principal political in- 
 stitutions as forms of arbitrament. The primitive king is not 
 only the chief of an army, but he is also a judge. He convenes 
 the tribunal, presides over it, compels the parties to present them- 
 selves, and often executes the sentence. The pope of the Middle 
 Ages is an august arbiter between kings on one hand and kings and 
 peoples on the other. After the Reformation the diplomatic 
 congresses played a part similar to that of the papacy. Never- 
 theless, we must put aside provisionally this side of our thesis. 
 Domestic and political institutions respond less to the idea of 
 arbitration than to the idea of guaranty. The notion that we 
 have of them is not connected with the idea of arbitration except 
 in the measure that the latter is connected with the idea of guar- 
 anty. 
 
 In return, the representation of law and of custom is only a 
 transformation of the representation of arbitrament. All legis- 
 lation is only a collection of arbitral sentences which have become 
 permanent. It is now known that codes at their origin are only 
 codified customs. Reciprocally intellectual progress always brings 
 about the moment when customs are reduced to writing. We see 
 anterior custom emerging in the XII Tables, in the Code of Manu, 
 in the Code of Narada, in the Levitical law, in the Salic law, and 
 the law of the Ripuarians and of the Burgundians. Even our 
 Code Civil is only a transformation of the Justinian Code (the 
 last revision of the XII Tables), and the customs of which the 
 written formula sprang from the soil, as did also the XII Tables 
 and the Salic law. Without doubt, sometimes the custom thus 
 reduced to writing is placed under the sanction of religion, as is 
 the case with oriental codes ; sometimes it is under the protection 
 of the civil power; but this difference in ultimate force does not 
 imply any difference with respect to origin. 
 
 Procedure, and especially primitive procedure, is to law what 
 language is to thought. It is not its sign, but its appropriate 
 expression. It suffices to examine the primitive forms of procedure 
 to become convinced that the law is an eternal drama in its sim- 
 plicity — a dialogue among three persons — the plaintiff, the de- 
 fendant, and society as the arbiter. The meaning of the dialogue 
 is clear : it is renunciation by the two rivals of their liberty to 
 
Chap. XX.] ARBITRAMENT AND GUARANTY 491 
 
 exert their claims by force. Voluntary abatement of the quarrel 
 and denunciations of vindictiveness by appeal to sociality — 
 such is the sense of the law. But it is the representation of 
 arbitrament which induces this victorious reaction of sympathetic 
 feeling. 
 
 § 2. The Idea of Guaranty. The thought which serves as point 
 of departure from the idea of law is the contrast between the 
 representation of social ends and that of conflicts which unbridle 
 the competition of wants. What is our rough mental idea of law ? 
 — the effacement of tumultuous individual claims in the face of 
 social arbitrament. There results a double psychological and 
 sociological problem. How is individual assertion brought over 
 to the side of sociality ? Is not every claim the witness of a desire ? 
 Is it not the effect of every obstacle which opposes itself to the 
 desire to transform it into a passion? That external social con- 
 straint attended by irresistible physical power may prevent in- 
 dividual assertion with the use of violence, is conceivable. But 
 that a feeling, an idea, a belief, may create an internal constraint, 
 where the use of physical coercion is foreborne, and that this feel- 
 ing may be sufficiently strong to compel the impulse of desire or 
 of anger to yield — here is a psychological mystery. 
 
 According to Hobbes the submission of individual assertions 
 to social arbitrament results from a calculation of interest. Ex- 
 perience with natural liberty has taught man at what point he 
 imperils the enjoyment of life and the fruits of nature. The in- 
 terest, the inclination, to choose always the lesser evil, teaches 
 man to prefer the evils of obedience to the orders of a sovereign 
 to the evils of universal war. General consent will therefore 
 bring about absolute power or will ratify it if it be imposed. 
 
 Psychology is not able to adopt this analysis. Everything 
 proves that man is not an utilitarian being. If, in general, man- 
 kind always chooses the lesser evils, if it necessarily preferred 
 security to adventure, peace to war, the historical course of events 
 would be wholly unintelligible. Calculation is not the architect 
 of history. Man is better and worse, less mediocre and more 
 absurd than the utilitarians have found him. . . . 
 
 We must seek the solution of the problem in the tendency 
 opposed to interest, in the sentiment of sympathy or altruism. 
 If individuals or small groups in conflict accept the arbitrament 
 of the society of which they are part, it is in the feeling and belief 
 that society will espouse their cause. In a word, it is because 
 the idea of arbitrament is associated with that of guaranty which 
 
492 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 far from being based upon the idea and institution of sovereignty, 
 as Hobbes and Bentham thought, has for its foundation the 
 consciousness of an extensive and profound sympathy by virtue 
 of which the destiny of the group is identified with that of each 
 of its members. In order properly to understand the creation 
 and the function of the idea of guaranty, and the connections 
 which it sustains to the idea of arbitrament, we must return to 
 the last idea and define exactly the reciprocal situation of the 
 parties which it expresses. 
 
 The naked idea of arbitrament represents the voluntary sus- 
 pension of a state of war in outline. It follows that arbitrament, 
 apart from guaranty, admits the possibility on the part of each 
 still to choose at any moment a belligerent solution of the quarrel 
 to the solution by an arbitral sentence. Two general facts re- 
 vealed by the science of legal evolution throw light upon the psy- 
 chology of this point. 
 
 The first of these facts is that primitive procedure always com- 
 mences with the program of a warlike operation and of a simulated 
 combat. Some historians of the law have a tendency to regard 
 the combat as the very spirit of the law. We have already re- 
 marked that it is not necessary to eliminate entirely all the atti- 
 tudes of a belligerent intention. The thing which is of concern 
 for procedure is precisely the suspension of warlike action. Among 
 the Kafirs, according to the testimony of the English missionary 
 Dugmore,^ the introduction of a lawsuit is an armed expedition. 
 The plaintiff, his kinsmen, and his friends proceed armed to the 
 entrance of the village where the defendant resides. There they 
 seat themselves in an open place and observe the effect produced 
 by their presence. This is the signal for the gathering of all the 
 adult male inhabitants. They accordingly muster together 
 within speaking distance. Then commence the pourparlers and 
 debates which are carried on pacifically. Here we have a clear 
 application of what Darwin calls the principle of antithesis — 
 the belligerent manifestation renders more conspicuous the peace- 
 able intention. Nevertheless, a plaintiff who comes in arms 
 demonstrates that he may fight if he thinks that preferable. 
 
 Another fact still more surprising to those of our civilization, 
 is that courts of justice in primitive societies do not give to their 
 judgments executive force. In like manner the parties are not 
 obliged to submit their disputes. As Maine has put it, 
 
 1 See "Kafir Laws and Customs" [Vol. I of this series, pp. 292, 
 302]. 
 
Chap. XX.] ARBITRAMENT AND GUARANTY 493 
 
 " The dominant notion ... is not a law, or a right, or a sanction, 
 or the distinction between positive and natural law, or between per- 
 sons and things. The great fact is that there now exists an alter- 
 native to private reprisals, a mode of stanching personal or hereditary 
 blood-feuds other than slaughter or plunder." ^ 
 
 He adds : 
 
 " On the whole, the effect of peace and civilization is to diminish 
 the reverence of mankind for courts of justice, and the abiding sense 
 of their importance. We may believe that the impressiveness of the 
 early courts of justice was in part created by what to a modern eye 
 were their infirmities. It would seem that by their side the very 
 practices long survived which it was their object to suppress. The 
 tenderness of early judicial procedure to immemorial barbarism is 
 shown b}^ its partial recognition of the remedy which we call * dis- 
 traint ' and the German ' self help ', the remedy of private reprisals 
 on the property of an adversary ; and there is much significant evi- 
 dence that the early tribunals had no power of directly enforcing their 
 own decrees. The man who disobeyed the order of court went out 
 of the law. His kinsmen ceased to be responsible for his acts, and 
 the kinsmen of those who injured him became also irresponsible ; 
 and thus he carried his life in his hand. We cannot then doubt 
 that the violence and bloodshed which the law licensed under certain 
 circumstances were generally rife during the infancy of courts of jus- 
 tice, and that their earliest service to mankind was to furnish an 
 alternative to savagery, not to suppress it wholly. Their value and 
 beneficence were therefore probably all the more conspicuous while 
 as yet their power was imperfect and their operation irregular." ^ 
 
 The two facts assist us in understanding another which is gen- 
 erally misinterpreted. Spencer finds in this institution further 
 proof of his favorite thesis " that government is begotten of ag- 
 gression and by aggression." ^ . . . A sociologist less dominated by 
 the spirit of his system, Fustel de Coulanges, explains the judicial 
 combat under the Frankish monarchy on religious grounds. Ac- 
 cording to the thought of that age God always would award 
 victory to the most just cause. Neither of these explanations is 
 satisfactory. It is inexact to say that governments have always 
 shov/n the indifference to civil justice which Spencer charges. 
 On the other hand the explanation which the Franks in the time 
 of the Merovingian empire gave to the institution of judicial 
 
 ^ "Early Law and Custom", cap. xi ("Classifications of Legal 
 Rules"). 
 
 2 Maine, ibid. (Fr. tr. p. 522). 
 
 3 "The Man versus The State" ("The Sins of Legislators"), Fr. tr. 
 p. 68. 
 
494 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 combat does not necessarily express the original idea. Many 
 outgrown institutions have an entirely different explanation in 
 succeeding generations than in that of their origination. If the 
 representation of a combat was a necessary element of a lawsuit, 
 and if a court of justice in primitive times was not simply an ar- 
 bitration which might be accepted or rejected, it is astonishing 
 that the function of the arbitrator did not differ from that of our 
 juries of honor and our witnesses in duels : with the power to say 
 if the combat should take place, to make the rules, and lastly to 
 determine what should be the stake. 
 
 Be that as it may, it is clear that the naked idea of arbitration 
 did not and could not bring about a complete restoration of social 
 life, in part suspended by the fact of litigation, if it were not con- 
 nected with another idea, the idea of obligatory submission of the 
 parties to the arbitration and to the arbitral judgment. But this 
 is only the idea of guaranty; because it implies that the entire 
 social body, or that a notable part ©f it, for example, the family 
 chieftains, vouch for the arbitrament and its sentence. . . . This 
 guaranty means not protection or security but solidarity. The 
 concept of guaranty represents the intervention of one who 
 vouches, who answers for the act of another. This idea is more 
 precisely seen in the relation to a debt, of an indorser, of an aval, 
 or of a surety. It is connected with the idea of arbitrament, 
 but is not to be confused with it. 
 
 How is the idea of guaranty as thus conceived connected with 
 that of arbitrament, and how may it modify the spectacle of the 
 drama which constitutes the lawsuit? In the sense arrived at, 
 as a promise of security, the guaranty for each of the parties will 
 consist of this, that the other loses his power of withdrawing from 
 the arbitration, and especially loses the preference which he may 
 have for combat instead of a peaceable adjustment. There is, 
 therefore, a constraint which weighs on each of the litigants 
 forcing them to present themselves before an arbitrator and to 
 submit to arbitral judgment. 
 
 Let us examine the procedure of the sacramentum. Each of 
 the litigants deposits in the hands of the magistrate a certain sum, 
 the " aeris sacramentum." This sum goes to the coffers of the 
 State. It represents compensation for the time and the trouble 
 which it takes to dispense justice. In the meantime, the deposit 
 of this sum is a motive for each of the parties to present himself 
 
Chap. XX.] ARBITRAMENT AXD GUARANTY 495 
 
 before the judge without any physical coercion. It is, therefore, a 
 guaranty, a security for the other party. 
 
 A frail and unsatisfactory guaranty, no doubt ! Likewise, 
 societies do not remain contented with it. The security of the 
 litigants increases with all the motives, incentives, institutions, 
 and forces which take away from each the power of preferring a 
 private war to an arbitral judgment. The juridicial effect of State 
 action is the radical impossibility of reverting to private warfare 
 for the settlement of disputes. This is why if we take the word 
 guaranty in the sense indicated, the State is the highest form of 
 guaranty, and this the reason also that within the limits of the 
 State itself, warlike procedure tends to be eliminated by juridicial 
 procedure. 
 
 However, we must not think that upon the appearance of the 
 concept of guaranty, our notion of a State immediately follows. 
 Our idea of a State is that of a public force superior to all the re- 
 sistance of individual wills which (1) prohibits all private persons 
 with disputes from resorting to any other method of settlement 
 than arbitral judgment ; and (2) which uses force in aid of the 
 judgments rendered by official judges who constitute the tri- 
 bunals. But history shows that this notion is very recent, that it 
 has been of very slow growth, and, we may add, that its vitality 
 has been very weak. The idea of a State with a union of a mili- 
 tary magistracy and of a civil magistracy has been, as is the case 
 of this union itself, a matter of hesitant growth. Before its dis- 
 covery and application nations have thought out and resorted to 
 much more spontaneous and indirect forms of constraint. 
 
 Let us pass from further consideration of violent execution 
 against property by the party who repudiates the authority of a 
 court of justice. Maine has described at length this procedure 
 after an examination of Germanic and Irish records, and he does 
 not hesitate to identify it with brigandage. It cannot be doubted 
 that such procedure is in essence belligerent, and that it is the 
 negation of guaranty. Let us likewise pass over the benevolent 
 function in these matters of superstition. A striking type is seen 
 in the strange institution discovered in the traditions of the ancient 
 Irish people and also among the East Indians and the Persians, 
 known as '' sitting Dharna ", where the claimant fasts on the 
 defendant. The belief in a punishment of another life may be 
 in itself sufficient to compel the adversary to accept arbitral judg- 
 ment ; but this species of guaranty is too individual, too indirect, 
 and too peculiar to serve in the life of normal societies. 
 
496 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 Revenge is a form of constraint common to modern international 
 law and to primitive law, which is both simple and natural. It 
 consists in breaking social relations with the person who is hostile 
 to arbitration. History of primitive law shows that while courts 
 of justice are not able to impose their jurisdiction on persons with 
 disputes, yet the individual who refuses to submit himself to it 
 loses forever the power to invoke it. His relatives cease to be 
 responsible for him, and the strength of his arm becomes his sole 
 protection. This kind of ban clearly was a guaranty both for 
 litigants and for society. 
 
 Ancient records disclose that an individual in matters of crime, 
 if not of property and debt, may cause a community not only to 
 outlaw an aggressor, but also to take up arms as a whole in his 
 cause. Nothing is more instructive than the instance set down 
 in "Judges" in the Old Testament where a Levite armed the 
 tribes of Israel against the Benjamites who had attacked his 
 concubine. It is to be observed that in the time of the Judges, 
 Israel, a free republic of autonomous families, was unacquainted 
 with a judicial organization. The " judge " was only a temporary 
 military chieftain similar to the sirdar to whom the Turkoman 
 tribes submit for the purposes of a military expedition. 
 
 (1) Then all the children of Israel went out, and the congregation 
 was gathered together as one man, from Dan even to Beersheba, 
 with the land of Gilead, unto the Lord in Mizpeh. 
 
 (3) . . . Then said the children of Israel, tell us, how was this 
 wickedness ? 
 
 (4) And the Levite, the husband of the woman that was slain, 
 answered and said, I came into Gibeah that belongeth to Benjamin, 
 I and my concubine, to lodge. 
 
 (5) And the men of Gibeah rose against me, and beset the house 
 round about me by night, and thought to have slain me : and my 
 concubine have they forced that she is dead. 
 
 (6) And I took my concubine, and cut her in pieces, and sent 
 her throughout all the country of Israel. . . . 
 
 (8) And all the people arose as one man saying, we will not 
 any of us go to his tent, neither will we any of us turn into his 
 house. 
 
 (19) And the children of Israel rose up in the morning and en- 
 camped against Gibeah. 
 
Chap. XX.] ARBITRAMENT AND GUARANTY 497 
 
 (20) And the men of Israel went out to battle against Benjamin ; 
 and the men of Israel put themselves in array to fight against them at 
 Gibeah. 
 
 A custom of the Kabyles, the " anaya ", enables us to under- 
 stand the idea of mutual solidarity which leads to the notion of 
 personal security. 
 
 " The anaya exactly resembles the passport and the letter of safe- 
 conduct, but with the difference that the latter are essentially the 
 creations of legal authority or constituted power; while any Kabyle 
 may give the anaya. There is this further difference that to the extent 
 that the moral support of a passport or safe-conduct may outw^eigh 
 all police surveillance, to that extent the security of the individual 
 who possesses the anaya exceeds the ordinary protection of the laws 
 enjoyed by the citizen. 
 
 " The anaya not only gives protection against all immediate vio- 
 lence to the stranger who travels among the Kabyles, but it also 
 wards off temporarily the vengeance of his enemies and suspends the 
 penalties of his previous acts. The abuses which follow a too gen- 
 erous extension of the principle are held in check in practice by the 
 extreme reserve of the Kabyles in giving it application. 
 
 " Far from being prodigal with the anaya they limit it to their 
 own friends. It is only given once to a fugitive ; it is regarded as 
 invalid if it has been purchased; and, lastly, a false declaration of 
 anaya is punished by death. 
 
 *' In order to prevent the fraud of false declaration, and, at the same 
 time, to avoid an involuntary infraction of its protection, the anaya 
 is generally manifested by a visible token. The person who confers 
 anaya delivers as proof of his support an object which is well known 
 as belonging to him, such as his gun, or his staff. Frequently, when 
 he has ground to suspect that his proteg^ may be molested, he 
 accompanies him. 
 
 *' Anaya, of course, receives consideration and has a scope depend- 
 ing in degree or extent on the individual who gives it. Coming 
 from a Kabyle subaltern it will be respected in his village and its en- 
 virons ; coming from a man of influence among the neighboring tribes, 
 it will be renewed by a friend in another place who substitutes himself 
 as protector, and thus from village to village. Given by a marabout 
 it has no limits. Although an Arabian chieftain is able to extend 
 the benefit of his protection little beyond the confines of his govern- 
 ment, the safe-conduct of a Kabyle marabout extends even to places 
 where his name is unknown. Whoever carries it may traverse the 
 length of the Kabyle country, whatever may be the number of his 
 enemies, or the nature of the grievances against him. He has only 
 to present himself on his journey successively to the marabouts of 
 
498 FACTORS OF LEGAL EVOLUTION [Part II. 
 
 the different tribes each of whom will hasten to honor the anaya of 
 the preceding marabout, and to substitute his own in exchange. 
 Thus, from marabout to marabout, the stranger will not fail to achieve 
 happily the object of his journey. 
 
 " A Kabyle lays nothing to his heart more than the inviolability 
 of his anaya. It is for him not only a matter of personal honor, but 
 it is also a moral responsibility of his relatives, his friends, his village, 
 and the entire tribe. Such a man will not be obliged to search out a 
 supporter to aid him in inflicting vengeance for a personal injury 
 which rouses up all his compatriots if it is a question of his anaya 
 which has been violated." ^ 
 
 If this description is exact — and we have no reason to doubt 
 it — it presents the case of solidary responsibility of which the 
 product is the belief in guaranty. It is one of those institutions 
 which attest the capacity of society to create of itself a relative 
 kind of order which in particular has the mission of warding off 
 private war, without that complicated system of penal, legislative, 
 executive, fiscal, and military institutions which we call the State. 
 Although we do not question the advantages which the State and 
 law have conferred on mankind, yet they have confirmed all the 
 guaranties which existed before their appearance. State and law 
 have added to them ; but they have not created something out 
 of nothing. . . . 
 
 1 E. Daumas, "Moeurs et Coutumes de 1' Algeria", 2d ed., Paris, 
 Hachette, 1855: cap. iii, "La Kabylie", p. 224. 
 
PART III 
 PROCESS OF LEGAL EVOLUTION • 
 
 Chapter XXI 
 EVOLUTION OF SOCIAL STRUCTURES 
 
 By Lester F, Ward 
 
 Chapter XXII 
 SOCIAL INTEGRATION AND DIFFERENTIATION 
 
 By Herbert Spencer 
 
 Chapter XXIII 
 
 PLANETARY THEORY OF THE LAW'S EVOLUTION 
 By John H. Wiqmorb 
 
 Chapter XXIV^ 
 
 DEGENERATIVE EVOLUTION 
 
 By Jean Demoor, Jean Massart, and Emile Vanderveldb 
 
 Chapter XXV 
 THE EVOLUTION OF CIVIL LAW 
 
 By Raoul de la Grasserie 
 
 Chapter XXVI 
 
 THE PERPETUAL EVOLUTION OF LAW 
 By Edmond Picard 
 
Chapter XXI 
 EVOLUTION OF SOCIAL STRUCTURES ^ 
 
 It is not my intention to attempt any general treatment of social 
 .structures. That subject would be altogether too large for a 
 single paper. But, aside from that, there is no need of any such 
 treatment. Probably nine-tenths of all the work done in sociol- 
 ogy thus far is of that kind. It consists chiefly in the description 
 of social structures or in discussions of different aspects which they 
 present. But thus far I have met with no work dealing with the 
 evolution of social structures. By this I mean that sociologists 
 have been content to take up the social structures which they find 
 actually in existence, and to consider and examine them, often 
 going into the minutest details and exhaustively describing everyr 
 thing in any way relating to them as finished products; but no 
 one has as yet attempted to explain what social structure is, or 
 how these various products have been formed. 
 
 As a general proposition, social structures may be said to be 
 human institutions, using botl\ terms in the broadest sense. In 
 all grades and kinds of society there are human institutions, and, 
 indeed, society may be said to consist of them. If we examine 
 any one of them, we find that it possesses a certain permanence 
 and stability. It is not a vague, intangible thing that will vanish 
 at a touch, but something fixed and durable. This is because it 
 possesses a structure. A structure is something that has been 
 constructed, and a study of social structure is the study of a 
 process and not a product. Our task, therefore, is not to examine 
 the various products of social construction, but to inquire into the 
 methods of social construction. 
 
 Our language, like our ideas, is more or less anthropomorphic. 
 Man constructs, and the products are called structures. He 
 takes the materials that nature provides, and with them he builds 
 
 1 [By Lester F. Ward. 
 
 Reprinted from "American Journal of Sociology", X, pp. 589-^601, 
 604-605. A paper read at the International Congress of Arts and Sciences, 
 Department of Sociology, St. Louis, September, 1904.1 
 
 501 
 
502 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 whatever he needs — houses, vehicles, boats, cities. Each of 
 these products is a structure, but it is an artificial structure. The 
 human method of constructing is an artificial method. This con- 
 sists in first forming in the mind an ideal of the finished product, 
 and then arranging the materials in such wise that they will 
 realize that product. The end is seen from the beginning. It is a 
 final or teleological method. Nature also constructs, but the 
 method of nature is just the opposite of that of man. There is 
 no foresight, and the materials are added in small increments 
 until the structure is completed. The method of nature is a 
 differential or genetic method. All natural structures are of this 
 class, and social structures are natural structures. 
 
 But natural structures are not so simple as might appear from 
 this statement. They do not consist in the mere mechanical 
 apposition of the raw materials brought into material contact. 
 This would produce only a mass, a heap, a mixture ; it would not 
 produce a structure. A structure implies a certain orderly ar- 
 rangement and harmonious adjustment of the materials, and 
 adaptation of the parts and their subordination to the whole. 
 How does blind nature accomplish this? It does it according 
 to a universal principle, and it would be impossible to convey any 
 clear conception of the process of social structure without first 
 setting forth, at least briefly, the character of this principle. 
 
 It is not only in human society that natural or genetic struc- 
 tures are formed. The organic world affords perhaps the most 
 striking example of the process, and all organisms not only con- 
 sist of such structures, but are themselves organic structures. 
 Every other department of nature furnishes examples, but there 
 is one other in which the process is so simple that it is easily 
 grasped by the average mind. This is that of astronomy. Each 
 one of the heavenly bodies is a natural structure formed by the 
 raw materials and blind forces of nature, and yet the heavenly 
 bodies are highly symmetrical and perfectly ordered structures. 
 The solar system and all other star systems are also such struc- 
 tures, in which there is perfect adjustment of parts and subordina- 
 tion of the parts to the whole. 
 
 This last example will serve a good purpose in explaining the prin- 
 ciple, because we are already familiar with the facts of centrifugal 
 and centripetal forces which constitute the principle by which the 
 systems are maintained. This is, in fact, the principle that underlies 
 all genetic structures ; but in other departments there are many 
 other elements to be considered which complicate the process. The 
 
Chap. XXI.] EVOLUTION OF SOCIAL STRUCTURES 503 
 
 principle may then be stated in its most general form as the in- 
 teraction of antagonistic forces. In astronomy these are reduced 
 to the two classes, the centrifugal and centripetal ; but in other 
 departments there are many antagonistic forces, which need not 
 directly oppose one another, but which modify and restrain one 
 another in a great variety of ways. Any one of these forces con- 
 sidered by itself alone is in the nature of a centrifugal force. In 
 astronomy it is well known that if the centrifugal forces were to 
 operate alone, the systems would be immediately destroyed. This 
 would be equally true of any other system and of all natural struc- 
 tures. Any force considered in and by itself is destructive, and 
 no single force could by any possibility construct a system. All 
 systems and all structures are the result of the interaction of a 
 plurality of forces checking and restraining one another. A single 
 unopposed force can produce only motion of translation. A 
 plurality of interacting forces holds the materials acted upon 
 within a limited area, and while no matter or force can be de- 
 stroyed, the paths are shortened and converted from straight 
 lines into curves and circles, and the bodies impinged are made to 
 revolve rapidly in limited circuits and vortices, and to arrange 
 themselves into orderly s}'stems with intense internal activities. 
 This is the fundamental condition of all organization, and natural 
 systems or genetic structures are organized mechanisms. If we 
 apply it to the bodies or substances which make up the physical 
 world, we see that the intensive internal activities which they thus 
 acquire constitute what we call their properties, and the differences 
 in the properties that different substances possess are simply the 
 different activities displayed by their molecular components due 
 to the differences in their organization. This doubtless applies 
 to chemical elements as well as to inorganic or organic compounds, 
 and many chemists regard even an atom as a system somewhat 
 analogous to a solar system. 
 
 In the organic world the process of organization, due to suc- 
 cessive recompounding of the highest organic compounds, under- 
 goes a higher degree of organization, and protoplasm is evolved, 
 which is capable of carrying the process on upward, and of pro- 
 ducing the progressively higher and higher forms of life. The 
 lowest of these forms consist of what are called unicellular organ- 
 isms, which have the power of multiplication or increase of numbers 
 but are incapable of any higher development. They are called 
 " protozoans ", and represent the initial stage in organic develop- 
 ment. The next step consists in the organic union of two or more, 
 
504 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 usually many, of these unicellular organisms into a multicellular 
 organism. Such organisms are called " metazoans ", and with 
 this stage begins the most important class of organic structures, 
 viz., tissues. All the organic forms with which any but the micro- 
 scopist is familiar belong to this metazoic stage and present a great 
 variety of tissues, with which everybody is more or less familiar. 
 
 I will not go farther with these illustrations from the inorganic 
 and organic world ; but it was essential, as will soon appear, to 
 go thus far. Social structures are identical, in these fundamental 
 aspects, with both inorganic and organic structures. They are 
 the products of the interaction of antagonistic forces. They also 
 pass from a primordial stage of great simplicity into a secondary, 
 more complex stage, and these two stages are closely analogous 
 to the protozoic and metazoic stages of biology. I call them the 
 " protosocial " and " metasocial " stages, respectively. 
 
 If we set out with the simple propagating couple, we soon have 
 the primitive family group consisting of the parents and children. 
 The children are of both sexes, and they grow to maturity, pair 
 off in one way or another, and produce families of the second 
 order. These do the same, resulting in families of the third order, 
 and so on. After a few generations the group assumes consider- 
 able size, and constitutes first a horde, and finally a clan. The 
 clan at length becomes overgrown and splits up into several or 
 many clans, separating more or less territorially, but usually 
 adopting the rule of exogamy, and living on comparatively peace- 
 ful terms at no great distance from one another. Their mode of 
 reproduction is exactly analogous to the process of reproduction 
 by division in the Protozoa, and this is what I characterize as the 
 protosocial stage in race-development. 
 
 But the multiplication of clans through continuous repro- 
 duction in a geometrical progression, coupled with the limits 
 prescribed by the food-supply, results in the wider and wider 
 separation of the clans, until at length certain clans or hordes 
 will have become so far removed from the primary center of 
 dispersion as to lose all connection with it. At the low stage of 
 mental development necessary to such a race of beings scarcely 
 as much as a tradition would ultimately remain of the existence 
 of a primordial group from which all had descended. One clan 
 would keep budding off from another, and moving out farther 
 and farther along lines of least resistance, until a great area cf 
 the earth's surface would at last become thus sparsely inhabited 
 by a multitude of clans, each knowing only the few that are 
 
Chap. XXI.] EVOLUTION OF SOCIAL STRUCTURES 505 
 
 located nearest to it. As the dispersion takes place in all direc- 
 tions from the original center, or as nearly so as the configuration 
 of the country and the nature of the food-supply will permit, 
 those migrating in opposite directions become, after a sufficient 
 lapse of time, so widely separated from one another as to constitute 
 wholly distinct peoples. They all have languages, but in time 
 the local variations that they naturally undergo render them to 
 all intents and purposes different languages, at least so much so 
 that if individuals of these long-separated groups should chance to 
 meet, they could not understand one another. It would be the 
 same with their customs, beliefs, and religion. They would have 
 become in all essential respects different races. 
 
 We will suppose that in the end a whole continent is thus 
 peopled with these alien hordes and clans, which would now have 
 become innumerable. The process by which this is brought about 
 is what I have called " social differentiation." But it cannot 
 always last. A new process supervenes, and the stage of social 
 differentiation is succeeded by a stage of social integration. The 
 protosocial stage closes, and the matasocial stage comes on. In 
 the protosocial stage the social structure is the simplest possible. 
 The horde or clan is composed altogether of similar elements. 
 The multiplication of such groups can be nothing but a repetition 
 of similar groups, and there can be no change or variation, and 
 therefore no progress or structural advance. Throughout the 
 protosocial, as throughout the protozoic, stage there is no struc- 
 tural development, no evolution. The differentiation consists 
 simply in the multiplication of practically identical clans. Just as 
 organic evolution began with the metazoic stage, so social evolu- 
 tion began with the metasocial stage. So, too, as the metazoic 
 stage was brought about through the union of several or many 
 unicellular organisms into a multicellular organism, so the meta- 
 social stage was brought about by the union of two or more simple 
 hordes or clans into a compound group of amalgamated hordes 
 or clans. In the organic world the result was the formation of 
 tissues, the multiplication of organs, and the integration of the 
 parts thus united into complete organisms. In the social w^orld 
 the result was the formation of what may be properly called social 
 tissues, the multiplication of social organs, and the integration 
 of all the elements thus combined into peoples, states, and nations. 
 The study of social structure properly begins here; but social 
 structure would be wholly unintelligible without a clear idea of 
 both the principle and the materials of social structure. The 
 
506 PROCESS OF LEGAL EVOLUTION [Part IH. 
 
 principle is the interaction of antagonistic forces, and the materials 
 are the primitive hordes and clans brought into existence by the 
 process of social differentiation. We have now to descend from 
 generalities and inquire into the specific character of social inte- 
 gration. A great area has become inhabited by innumerable 
 human groups, but there is no organic connection between them. 
 Each group lays claim to a certain area of territory, but they begin 
 to encroach upon one another. Two groups thus brought into 
 proximity may be, and usually are, utterly unknown to each 
 other. The mutual encroachment is certain to produce hos- 
 tility. War is the result, and one of the two groups is almost 
 certain to prove the superior warrior and to conquer the other. 
 The first step in the whole process is the conquest of one race by 
 another. This is the beginning of the struggle of races of which 
 we have all heard so much. Most persons regard this struggle 
 as the greatest of all human misfortunes. But the sociologist 
 studies the effects of race-struggle and finds in it the basis of his 
 science. The first effect is the subjugation of one race by another. 
 The second effect is the establishment of a system of caste, the 
 conquering race assuming the role of a superior or noble caste, 
 and the conquered race being relegated to the position of an in- 
 ferior or ignoble caste. The greater part of the conquered race 
 is enslaved, and the institution of slavery begins here. The 
 slaves are compelled to work, and labor in the economic sense 
 begins here. The enslavement of the producers and the compel- 
 ling them to work was. the only way in which mankind could have 
 been taught to labor, and therefore the whole industrial system 
 of society begins here. 
 
 The conquerors parcel out the lands to the leading military 
 chieftains, and the institution of private ownership of land has 
 its origin at this stage. Success in war is attributed to the favor 
 of the gods, and those who pretend to be in communication with 
 the gods are the most favored of men. They are installed in high 
 places and made the recipients of large emoluments. From the 
 condition of sorcerers, soothsayers, and medicine-men they are 
 raised to that of a powerful priesthood. Henceforth they consti- 
 tute a leisure class, and this is the origin of that most important 
 human institution. Mutual race-hatred results in perpetual 
 uprisings, requiring constant suppression by the military power. 
 This is costly, dangerous, and precarious, and wisdom soon dic- 
 tates a form of systematic treatment for offenders. Personal 
 regulation gradually gives way to general rules, and these ulti- 
 
Chap. XXI.] EVOLUTION OF SOCIAL STRUCTURES 507 
 
 mately take the form of laws. Government by law gradually 
 succeeds government by arbitrary military commands. The effect 
 of this is nothing less than the origin of the state. The state is 
 the most important of all human institutions. There is no institu- 
 tion about which so much has been written, and even in our day, 
 volumes are yearly appearing vainly endeavoring to explain the 
 origin and nature of the state. They all completely miss the mark, 
 and flounder in a sea of vague and w^orthless speculation. The 
 state is a spontaneous genetic product, resulting, like all other 
 social structures, from the interaction of antagonistic forces, 
 checking and restraining one another and evolving a great social 
 structure destined to become the condition to all social progress. 
 Under the state there are recognized both rights and duties. 
 So long as the law is not violated there is liberty of action, and 
 the foundations of human freedom are laid. 
 
 Another great institution takes its rise at this stage, viz., that 
 of property. With the establishment of the state, with its recog- 
 nition of rights under the law, it becomes possible, as never before, 
 to enjoy midisturbed any object that has been rightfully acquired. 
 Such an object then becomes property, and belongs to its owner 
 even if not in his immediate possession. He need no longer fear 
 that, unless it is constantly watched and forcibly defended, it 
 will be wrested from him by others who have no other claim than 
 that of superior strength. The immense sociological importance 
 of this cannot be too strongly emphasized. For a man's posses- 
 sions need no longer be confined to what he can himself consume 
 or enjoy ; they may greatly exceed his wants, or consist of objects 
 for which he has no need, but which are needed by others who 
 have other things that he does want and for which he can ex- 
 change them. He can manufacture a single product many thou- 
 sand times in excess of his needs, and exchange it for a great 
 variety of other objects similarly produced in excess by others. 
 We thus see that the institution of private property was the 
 foundation at once of all trade and business and also of the divi- 
 sion of labor. But property was not possible until the state was 
 established, whose most important function was at the outset 
 and still remains the protection of the citizen in his proprietary 
 rights. 
 
 With the establishment of the state, or even before, there begins 
 a differentiation of social tissues. The analogy with organic- 
 tissues is here particularly clear and useful in helping us to under- 
 stand the process. All well-informed persons are now familiar 
 
508 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 with the fact that the tissues of all developed animals consist of an 
 ectoderm, or outer layer, an endoderm, or inner layer, and a meso- 
 derm, or intermediate layer, and that out of one or the other of 
 these fundamental tissues all the organs of the body are formed. 
 Now, the evolution of the metasocial body is exactly parallel to 
 this. The conquering race, or superior class or caste, represents 
 the social ectoderm ; the conquered race, or inferior class or caste, 
 represents the social endoderm. The social mesoderm is not so 
 simple, but it is not less real. It is one of the most important 
 consequences of race-amalgamation. 
 
 Within the social body, under the regime of law and the state, 
 there is intense activity. Compelled by mutually restraining 
 forces to remain in one place and not fly off on various tangents, 
 the vigorous elements of the new complex society display a corre- 
 sponding intensity in their inner life. Only a small part of the 
 superior race can hold high places under the state, and the great 
 majority of them are obliged to support themselves by their own 
 efforts. Neither are all the members of the subject race held in 
 bondage ; a large percentage remain free, and must .of course 
 maintain themselves by some form of useful activity. These 
 two classes are too nearly alike in their social standing to continue 
 long socially and economically independent. It must be remem- 
 bered that both races have descended from the same original 
 stock, although they do not know it. There is therefore no es- 
 sential difference in their general character. The superiority 
 by which one was able to conquer the other may have been due to 
 a variety of more or less accidental causes. It does not render 
 them superior in other respects. The individuals of both races 
 will differ greatly in character and ability, and members of the 
 subject race will often excel those of the dominant race in certain 
 respects. They are all struggling together for subsistence, and it 
 is inevitable that their interests will often be the same. Race- 
 prejudice will thus gradually give way, and in the general indus- 
 trial strife there is a greater and greater commingling and co- 
 operation. There thus arises a large industrial class made up 
 of these two elements, and this class may be appropriately called 
 the " social mesoderm.'' This industrial, commercial, or business 
 class is the real life of the society. The ruling class becomes 
 more and more dependent upon it for the supply of the resources 
 of the state, and gradually the members of this class acquire more 
 or less influence and power. 
 
 As time goes on, the situation is accepted by all, and race- 
 
CiL\P. XXI. J EVOLUTION OF SOCIAL STRUCTURES 509 
 
 prejudices give way. The interaction of all classes increases and 
 a general process of assimilation sets in, tending toward a com- 
 plete blending of all classes into a single homogeneous group. 
 Intermarriage among the members of the two races grows more 
 and more frequent, until ultimately nearly or quite all the members 
 of the society have the blood of both races in their veins. The 
 final outcome of it all is the production of a people. The people 
 thus evolved out of heterogeneous elements is different from either 
 of the races producing it. It is a new creation, the social syn- 
 thesis of the race-struggle, and as homogeneous in its consti- 
 tution as was either of its original components. 
 
 Only one more step in this process of evolution of social struc- 
 tures is possible on the simple plane on which we have been trac- 
 ing it, and that is the making of a nation. The new people that 
 has been developed now begin to acquire an attachment, not 
 only for one another as members of the society, but also for the 
 place of their birth and activity. They realize that they are a 
 people and that they have a country, and there arises a love of 
 both which crystallizes into the sentiment that we call patriotism. 
 All are now ready to defend their country against outside powers, 
 and all are filled with what we know as the national sentiment. 
 In a word, out of the prolonged struggle of two primarily antago- 
 nistic and hostile races there has at last emerged a single cemented 
 and homogeneous nation. 
 
 We thus have as the natural and necessary result of the con- 
 quest and subjugation of one primitive group by another no less 
 than fourteen more or less distinct social structures or human 
 institutions. These are in the order in which they are developed : 
 (1) the system of caste ; (2) the institution of slavery ; (3) labor 
 in the economic sense ; (4) the industrial system ; (5) landed 
 property ; (6) the priesthood ; (7) a leisure class ; (8) govern- 
 ment bylaw; (9) the state; (10) political liberty ; (11) prop- 
 erty ; (12) a business class ; (13) a people ; (14) a nation. 
 
 The first two of these social structures are not now regarded 
 as useful, but they were useful when formed and, indeed, the 
 essential conditions to all the subsequent ones. The priesthood 
 and the leisure class are now no longer necessary to a high civiliza- 
 tion, but the\ still exist, and under proper limitations they have 
 an important function. All institutions undergo great modifica- 
 tions and some are completely transformed with time. 
 
 The case considered is that of the union of two primitive groups 
 which occupied at the outset the same social position, and that the 
 
510 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 lowest known. It may be called a case of simple social assimi- 
 lation. That there have been many such cases there is no doubt, 
 but no such could be observed by enlightened man, for the simple 
 reason that no such primitive groups exist, or have existed since 
 there have been enlightened men. This may sound strange 
 when we constantly hear of existing hordes and clans. But I 
 make bold to affirm that none of the hordes or clans now existing 
 are at all primitive. Nay, I go farther and maintain that all 
 hordes and clans, all tribes, and all races are equally old. The 
 lowest race on the earth is as old as the most enlightened nation. 
 There is no escape from this except in the old exploded theological 
 doctrine of special creation. The theory of polygenism is a form 
 of that doctrine applied to human races. To admit it involves 
 the surrender of the whole doctrine of evolution. If man has 
 evolved from a lower prehuman stage, he emerged as man at a 
 given time, and all human races have descended from that one 
 truly primitive type. All human races are therefore equally old. 
 The differences among them are not at all due to the time it has 
 required to reach their present state, because all have had the 
 same time in which to do this. • The differences are wholly due 
 to the different conditions under which they have been placed and 
 in conformity with which they have developed. 
 
 There has, of course, been a great variety of influences at work 
 in determining the direction and degree of development of the 
 races of men, but there is one element that has had more to do 
 with this than any other, or perhaps than all others combined; 
 that is the element with which we have been dealing, viz., the 
 element of social assimilation. When we realize that all human 
 races are equally old, we can readily see that all cases of simple 
 assimilation, such' as the one sketched, must have occurred far 
 back in the early history of man. The period of social differentia- 
 tion may have been very long. It may have occupied half cf the 
 two hundred thousand years that are commonly assigned to man 
 on the earth. But whatever its length, that period is long past, 
 and the period of social integration has been at least as long. 
 All the cases of simple assimilation had run their course ages 
 before there were any records of any kind, and human history 
 acquaints us only with types of a far higher order. 
 
 In other words, the only cases of which we have any actual 
 knowledge are cases of compound social assimilation. Compound 
 assimilation results when peoples or nations that have already 
 been formed in the manner described out of lower social elements 
 
Chap. XXI.] EVOLUTION OF SOCIAL STRUCTURES 511 
 
 again amalgamate on a higher plane and repeat the process. 
 When one perfectly integrated nation conquers and subjugates 
 another, the same steps have to be taken as in the case of simple 
 groups. The struggle is as much more intense as it is higher in 
 the scale of social structure. But the new structures developed 
 through it, although they have the same names and the same 
 general character, become, when formed, more powerful and 
 capable of accomplishing much more. The new society is of a 
 higher grade and a more potent factor in the world. The new 
 state, the new people, the new nation, are on a higher plane, and 
 a long step is taken tow^ard civilization. 
 
 But all the nations of which history tells us anything have 
 undergone much more still than two social assimilations. Most 
 of them have undergone many, and represent highly complex 
 structures. With every fresh assimilation they rise in the scale 
 of civilization. W^hat they acquire is greater and greater social 
 efficiency, and the principal differences between races, peoples, and 
 nations are differences in the degree of social efficiency. Not only 
 are the same social structures acquired in the first assimilation 
 greatly increased and strengthened, but a large number of other, 
 more or less derivative, but highly socializing, structures are 
 added. The system of law, which was at first only a sort of 
 police regulation, becomes a great system of jurisprudence. Gov- 
 ernment, which at first had but one branch, viz., the executive, 
 acquires a judicial and finally a legislative branch. The state 
 becomes a vast systematized organization. Industry, which at 
 the beginning consisted wholly of slave labor under a master, and 
 later included the simplest forms of trade, develops into a system 
 of economic production, exchange, transportation, and general 
 circulation. Property, which primarily meant only oxen, spears, 
 bows and arrows, and primitive agricultural implements, now 
 takes varied forms, the most important being those symbols of 
 property which go by the name of money. Under the protection 
 of the state, wealth becomes possible to a large number who 
 possess the thrift to acquire it, and this takes the form of capital, 
 which is the condition to all industrial progress and national 
 wealth. 
 
 The existence of wealth — i.e., of a large number of wealthy 
 citizens — creates another kind of leisure class, and many, freed 
 from the trammels of toil, turn their attention to various higher 
 pursuits. Art and literature arise, and civilizing and refining 
 influences begin. Voluntary organizations of many kinds, all 
 
512 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 having different objects, are formed. Besides innumerable busi- 
 ness combinations and corporations, there spring up associations 
 for mutual aid, for intellectual improvement, for social inter- 
 course, for amusement and pleasure, and also eventually for 
 charitable and benevolent purposes. Educational systems are 
 established, and the study of human history, of art and letters, 
 and finally of nature, is undertaken. The era of science at last 
 opens, invention and discovery are stimulated, and the conquest 
 of nature and the mastery of the world begin. 
 
 Every one of these civilizing agencies is a social structure, and 
 all of them are the products of the one universal process. They 
 represent the products of that intensive activity which results 
 from the primary clash and conflict of the social forces in the 
 fierce grapple of hostile hordes and clans, and the far fiercer 
 battles of developed nations bent on each other's conquest and 
 subjugation. To see all this one has only to read the history of 
 any of the great nations of the world that are leading the civiliza- 
 tion of today. . . . 
 
 . . . We have seen how social structures are formed. The 
 spontaneous products of a great cosmical law, they could not 
 be other than thoroughly organized, firm, compact, and durable 
 mechanisms, comparable to organic structures — tissues, organs, 
 organisms. This is the most important lesson taught by the 
 science of sociology. If all the world could learn it, the greater 
 part of all political and social failures would be prevented. It 
 would dispel at one blow all the false notions so widely current 
 relative to the alteration, abolition, or overthrow of any human 
 institution. As human institutions are the products of evolution, 
 they cannot be destroyed, and the only way they can be modified 
 is through this same process of evolution. Universal acquaintance 
 with the causes, the laws, and the natural history of social struc- 
 tures, and with their consequent durability, permanence, and 
 indestructibility, would produce a complete change in all the 
 prevailing ideas of reform, and the superficial reformers, however 
 well meaning, would forthwith abandon their chimerical schemes, 
 and set about studying the science of society with a view t3 the 
 adoption of legitimate means for the direction of the course of 
 social evolution toward the real and possible modification and 
 perfecting of social structures. For structures are easily modified 
 by appropriate methods. They are of themselves always under- 
 going changes. It is in this that social progress wholly consists. 
 But the integrity of the structures must not be disturbed. They 
 
Chap. XXI.] EVOLUTION OF SOCIAL STRUCTURES 513 
 
 must remain intact and be permitted, or even caused, to change 
 in the desired direction, and to be ultimately transformed into 
 the ideal human institutions that a progressive age demands. 
 A condition of social statics may thus be converted into one of 
 social dynamics. All social structures taken together constitute 
 the social order. The problem is to inaugurate a condition cf 
 social progress. This cannot be done by disturbing the social 
 order. Order is the condition to progress, and progress con- 
 sists in setting up dynamic activities in the social structures 
 themselves. A structure represents a state of equilibrium, but 
 it is never a perfect equilibrium, and the conversion of this partial 
 equilibrium into a moving equilibrium, provided it moves in the 
 right direction, is social progress. 
 
Chapter XXII 
 
 SOCIAL INTEGRATION AND DIFFERENTIATION ^ 
 I. Social Growth. | II. Social Structures. 
 
 I. Social Growth 
 
 §1. Societies, like living bodies, begin as germs — originate 
 from masses which are extremely minute in comparison with the 
 masses some of them eventually reach. That out of small wander- 
 ing hordes have arisen the largest societies, is a conclusion not to 
 be contested. The implements of pre-historic peoples, ruder even 
 than existing savages use, imply absence of those arts by which alone 
 great aggregations of men are made possible. Religious cere- 
 monies that survived among ancient historic races, pointed back 
 to a time when the progenitors of those races had flint knives, 
 and got fire by rubbing together pieces of wood ; and must have 
 lived in such small clusters as are alone possible before the rise 
 of agriculture. 
 
 The implication is that by integrations, direct and indirect, 
 there have in course of time been produced social aggregates a 
 million times in size the aggregates which alone existed in the 
 remote past. Here, then, is a growth reminding us, by its degree, 
 of growth in living bodies. 
 
 § 2. Between this trait of organic evolution and the answering 
 trait of super-organic evolution, there is a further parallelism : 
 the growths in aggregates of different classes are extremely various 
 in their amounts. 
 
 Glancing over the entire assemblage of animal types, we see 
 that the members of one large class, the Protozoa, rarely increase 
 beyond that microscopic size with which every higher animal 
 begins. Among the multitudinous kinds of Ccelenterata, the 
 masses range from that of the small Hydra to that of the large 
 
 ^ [By Herbert Spencer. 
 
 Reprinted from "The Principles of Sociology", Vol. I, pt. ii, caps, iii, 
 iv, §§ 224-233. The sections are here renumbered.] 
 
 514 
 
Chap. XXII.] INTEGRATION AND DIFFERENTIATION 515 
 
 Medusa. The annulose and molluscous types, respectively, show 
 us immense contrasts between their superior and inferior members. 
 And the vertebrate animals, much larger on the average than the 
 rest, display among themselves enormous differences. 
 
 Kindred unlikenesses of size strike us when we contemplate 
 the entire assemblage of human societies. Scattered over many 
 regions there are minute hordes — still extant samples of the 
 primordial type of society. We have Wood-Veddahs living 
 sometimes in pairs, and only now and then assembling ; we have 
 Bushmen wandering about in families, and forming larger groups 
 but occasionally; we have Fuegians clustered by the dozen or 
 the score. Tribes of Australians, of Tasmanians, of Andamanese, 
 are variable within the limits of perhaps twenty to fifty. And 
 similarly, if the region is inhospitable, as with the Esquimaux, or 
 if the arts of life are undeveloped, as with the Digger-Indians, 
 or if adjacent higher races are obstacles to growth, as with Indian 
 Hill-tribes like the Juangs, this limitation to primitive size con- 
 tinues. Where a fruitful soil affords much food, and where a 
 more settled life, leading to agriculture, again increases the supply 
 of food, we meet with larger social aggregates : instance those in 
 the Polynesian Islands and in many parts of Africa. Here a 
 hundred or two, here several thousands, here many thousands, 
 are held together more or less completely as one mass. And then 
 in the highest societies, instead of partially-aggregated thousands, 
 we have completely-aggregated millions. 
 
 § 3. The growths of individual and social organisms are allied 
 in another respect. In each case size augments by two processes, 
 which go on sometimes separately, sometimes together. There 
 is increase by simple multiplication of units, causing enlargement 
 of the group ; there is increase by union of groups, and again by 
 union of groups of groups. The first parallelism is too simple 
 to need illustration ; but the facts which show us the second must 
 be set forth. 
 
 Organic integration, treated of at length in the Principles of 
 Biology,^ must be here summarized to make the comparison in- 
 telligible. The compounding and re-compounding, as shown us 
 throughout the vegetal kingdom, may be taken first, as most 
 easily followed. Plants of the lowest orders are minute cells, 
 some kinds of which in their myriads color stagnant waters, 
 and others compose the green films on damp surfaces. By cluster- 
 ings of such cells are formed small threads, discs, globes, etc.; 
 
 1 §§ 180-211. 
 
516 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 as well as amorphous masses and laminated masses. One of these 
 last (called a thallus when scarcely at all differentiated, as in a 
 sea-weed, and called a frond in. cryptogams that have some struc- 
 ture), is an extensive but simple group of the protophytes first 
 named. Temporarily united in certain low cryptogams, fronds 
 become permanently united in higher cryptogams : then forming 
 a series of foliar surfaces joined by a creeping stem. Out of this 
 comes the phsenogamic axis — a shoot with its foliar organs or 
 leaves. That is to say, there is now a permanent cluster of clusters. 
 And then, as these axes develop lateral axes, and as these again 
 branch, the compounding advances to higher stages. In the 
 animal kingdom the like happens; though in a less regular and 
 more disguised manner. The smallest animal, like the smallest 
 plant, is essentially a minute group of living molecules. There 
 are many forms and stages sKowing us the clustering of such 
 smallest animals. Sometimes, as in the compound Vorticellcs 
 and in the Sponges, their individualities are scarcely at all masked ; 
 but as evolution of the composite aggregate advances, the individ- 
 ualities of the component aggregates become less distinct. In 
 some Ccelenterata, though they retain considerable independence, 
 which they show by moving about like AmoehoB when separated, 
 they have their individualities mainly merged in that of the 
 aggregate formed of them : instance the common Hydra. Ter- 
 tiary aggregates similarly result from the massing of secondary 
 ones. Sundry modes and phases of the process are observable 
 among coelenterate types. There is the branched hydroid, in 
 which the individual polypes preserve their identities, and the 
 polypidom merely holds them together; and there are forms, 
 such as Velella, in which the polypes have been so modified and 
 fused, that their individualities were long unrecognized. Again, 
 among the Molluscoida we have feebly-united tertiary aggregates 
 in the Salpidcs; while we have, in the Botryllidce, masses in which 
 the tertiary aggregate, greatly consolidated, obscures the in- 
 dividualities of the secondary aggregates. So, too, is it with 
 certain annuloid types ; and, as I have sought to show, with the 
 Annulosa generally.^ 
 
 Social growth proceeds by an analogous compounding and 
 re-compounding. The primitive social group, like the primi- 
 tive group of living molecules with which organic evolution begins, 
 never attains any considerable size by simple increase. Where, 
 as among Fuegians, the supplies of wild food yielded by an in- 
 1 "Principles of Biology", § 205. 
 
Chap. XXII. J INTEGRATION AND DIFFERENTIATION 517 
 
 clement habitat will not enable more than a score or so to live in 
 the same place — where, as among Andamanese, limited to a 
 strip of shore backed by impenetrable bush, forty is about the 
 number of individuals who can find prey without going too far 
 from their temporary abode — where, as among Bushmen, wander- 
 ing over barren tracts, small hordes are alone possible, and even 
 families " are sometimes obliged to separate, since the same spot 
 will not afford sufficient sustenance for all " ; we have extreme 
 instances of the limitation of simple groups, and the formation 
 of migrating groups when the limit is passed. Even in tolerably 
 productive habitats, fission of the groups is eventually necessitated 
 in a kindred manner. Spreading as its number increases, a prim- 
 itive tribe presently reaches a diffusion at which its parts become 
 incoherent ; and it then gradually separates into tribes that be- 
 come distinct as fast as their continually-diverging dialects pass 
 into different languages. Often nothing further happens than 
 repetition of this. Conflicts of tribes, dwindlings or extinctions 
 of some, growths and spontaneous divisions of others, continue. 
 The formation of a larger society results only by the joining of 
 such smaller societies; w^hich occurs without obliterating the 
 divisions previously caused by separations. This process may 
 be seen now going on among uncivilized races, as it once w^ent on 
 among the ancestors of the civilized races. Instead of absolute 
 independence of small hordes, such as the low^est savages show us, 
 more advanced savages show us slight cohesions among larger 
 hordes. In North America each of the three great tribes of Co- 
 manches consists of various bands, having such feeble combination 
 only, as results from the personal character of the great chief. 
 So of the Dakotahs there are, according to Burton, seven principal 
 bands, each including minor bands, numbering altogether, ac- 
 cording to Catlin, forty-two. And in like manner the five Iro- 
 quois nations had severally eight tribes. Closer unions of these 
 slightly-coherent original groups arise under favorable conditions ; 
 but they only now and then become permanent. A common 
 form of the process is that described by Mason as occurring among 
 the Karens. " Each village, with its scant domain, is an inde- 
 pendent State, and every chief a prince ; but now and then a little 
 Napoleon arises, who subdues a kingdom to himself, and builds 
 up an empire. The dynasties, however, last only with the con- 
 trolling mind." The like happens in Africa. Livingstone says 
 — " Formerly all the Maganja were united under the government 
 of their great Chief, Undi; . . . but after Undies death it fell to 
 
518 PROCESS OF LEGAL EVOLUTION [Paet III. 
 
 pieces. . . . This has been the inevitable fate of every African 
 empire from time immemorial." Only occasionally does there 
 result a compound social aggregate that endures for a considerable 
 period, as Dahomey or as Ashantee, which is " an assemblage of 
 States owing a kind of feudal obedience to the sovereign." The 
 histories of Madagascar and of sundry Polynesian islands also 
 display these transitory compound groups, out of which at length 
 come in some cases permanent ones. During the earliest times 
 of the extinct civilized races, like stages were passed through. In 
 the words of Maspero, Egypt was '' divided at first into a great 
 number of tribes, which at several points simultaneously began 
 to establish small independent states/every one of which had its 
 laws and its worship." The compound groups of Greeks first 
 formed, were those minor ones resulting from the subjugation of 
 weaker towns by stronger neighboring towns. And in Northern 
 Europe during pagan days, the numerous German tribes, each 
 with its cantonal divisions, illustrated this second stage of ag- 
 gregation. After such compound societies are consolidated, rep- 
 etition of the process on a larger scale produces doubly-compound 
 societies ; which, usually cohering but feebly, become in some cases 
 quite coherent. Maspero infers that the Egyptian nomes de- 
 scribed above as resulting from integrations of tribes, coalesced 
 into the two great principalities, Upper Egypt and Lower Egypt, 
 which were eventually united : the small states becoming prov- 
 inces. The boasting records of Mesopotamian kings similarly 
 show us this union of unions going on. So, too, in Greece the 
 integration at first occurring locally, began afterwards to combine 
 the minor societies into two confederacies. During Roman days 
 there arose for defensive purposes federations of tribes, which 
 eventually consolidated ; and subsequently these were compounded 
 into still larger aggregates. Before and after the Christian era, 
 the like happened throughout Northern Europe. Then after a 
 period of vague and varying combinations, there came, in later 
 times, as is well illustrated by French history, a massing of small 
 feudal territories into provinces, and a subsequent massing of 
 these into kingdoms. 
 
 So that in both organic and super-organic growths, we see a 
 process of compounding and re-compounding carried to various 
 stages. In both cases, after some consolidation of the smallest 
 aggregates there comes the process of forming larger aggregates 
 by union of them; and in both cases repetition of this process 
 makes secondary aggregates into tertiary ones. 
 
Chap. XXII.] INTEGRATION AND DIFFERENTIATION 519 
 
 § 4. Organic growth and super-organic growth have yet another 
 analogy. As above said, increase by multiplication of individuals 
 in a group, and increase by union of groups, may go on simul- 
 taneously ; and it does this in both cases. 
 
 The original clusters, animal and social, are not only small, 
 but they lack density. Creatures of low types occupy large spaces 
 considering the small quantities of animal substance they contain ; 
 and low-type societies spread over areas that are wide relatively 
 to the numbers of their component individuals. But as integra- 
 tion in animals is shown by concentration as well as by increase 
 of bulk ; so that social integration which results from the cluster- 
 ing of clusters, is joined with augmentation of the number con- 
 tained by each cluster. If we contrast the sprinkling in regions 
 inhabited by wild tribes with the crowds filling equal regions in 
 Europe ; or if we contrast the density of population in England 
 under the Heptarchy w ith its present density ; we see that besides 
 the growth produced by union of groups there has gone on inter- 
 stitial growth. Just as the higher animal has become not only 
 larger than the lower but more solid ; so, too, has the higher society. 
 
 Social growth, then, equally with the growth of a living body, 
 shows us the fundamental trait of evolution under a twofold aspect. 
 Integration is displayed both in the formation of a larger mass, 
 and in the progress of such mass towards that coherence due to 
 closeness of parts. 
 
 It is proper to add, how^ever, that there is a mode of social 
 growth to which organic growth affords no parallel — that caused 
 by the migration of units from one society to another. Among 
 many primitive groups and a few developed ones, this is a con- 
 siderable factor ; but, generally, its effect bears so small a ratio 
 to the effects of growth by increase of population and coalescence 
 of groups, that it does not much qualify the analogy. 
 
 II. Social Structures 
 
 § 5. In societies, as in living bodies, increase of mass is habit- 
 ually accompanied by increase of structure. Along with that 
 integration which is the primary trait of evolution, both exhibit 
 in high degrees the secondary trait, differentiation. 
 
 The association of these two characters in animals was described 
 in the '' Principles of Biology." ^ Excluding certain low kinds 
 of them whose activities are little above those of plants, we recog- 
 
 ' §44. 
 
520 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 nized the general law that large aggregates have high crganiza- 
 tions. The qualifications of this law which go along with differ- 
 ences of medium, of habitat, of type, are numerous; but when 
 made they leave intact the truth that for carrying on the combined 
 life of an extensive mass, involved arrangements are required. 
 So, too, is it with societies. As we progress from small groups to 
 larger ; from simple groups to compound groups ; from compound 
 groups to doubly compound ones; the unlikenesses of parts in- 
 crease. The social aggregate, homogeneous when minute, habit- 
 ually gains in heterogeneity along with each increment of growth ; 
 and to reach great size must acquire great complexity. Let us 
 glance at the leading stages. 
 
 Naturally in a state like that of the Cayaguas or Wood-Indians 
 of South America, so little social that " one family lives at a dis- 
 tance from another ", social organization is impossible ; and even 
 where there is some slight association of families, organization 
 does not arise while they are few and wandering. Groups of 
 Esquimaux, of Australians, of Bushmen, of Fuegians, are without 
 even that primary contrast of parts implied by settled chieftain- 
 ship. Their members are subject to no control but such as is 
 temporarily acquired by the stronger, or more cunning, or more 
 experienced : not even a permanent nucleus is present. Habit- 
 ually where larger simple groups exist, we find some kind of head. 
 Though not a uniform rule (for, as we shall hereafter see, the 
 genesis of a controlling agency depends on the nature of the social 
 activities), this is a general rule. The headless clusters, wholly 
 ungoverned, are incoherent, and separate before they acquire 
 considerable sizes; but along with maintenance of an aggregate 
 approaching to, or exceeding, a hundred, we ordinarily find a 
 simple or compound ruling agency — one or more men claiming 
 and exercising authority that is natural, or supernatural, or both. 
 This is the first social differentiation. Soon after it there fre- 
 quently comes another, tending to form a division between regu- 
 lative and operative parts. In the lowest tribes this is rudely 
 represented only by the contrast in status between the sexes : 
 the men, having unchecked control, carry on such external activ- 
 ities as the tribe shows us, chiefly in war ; while the women are 
 made drudges who perform the less skilled parts of the process 
 of sustentation. But that tribal growth, and establishment cf 
 chieftainship, which gives military superiority, presently causes 
 enlargement of the operative part by adding captives to it. This 
 begins unobtrusively. While in battle the men are killed, and 
 
Chap. XXII.] INTEGRATION AND DIFFERENTIATION 521 
 
 often afterwards eaten, the non-combatants are enslaved. Pata- 
 gonians, for example, make slaves of women and children taken 
 in war. Later, and especially when cannibalism ceases, comes 
 the enslavement of male captives ; whence results, in some cases, 
 an operative part clearly marked off from the regulative part. 
 Among the Chinooks, " slaves do all the laborious work." We 
 read that the Beluchi, avoiding the hard labor of cultivation, 
 impose it on the Jutts, the ancient inhabitants whom they have 
 subjugated. Beecham says it is usual on the Gold Coast to make 
 the slaves clear the ground for cultivation. And among the 
 Felatahs " slaves are numerous : the males are employed in weav- 
 ing, collecting wood or grass, or on any other kind of work ; some 
 of the women are engaged in spinning ... in preparing the yarn 
 for the loom, others in pounding and grinding corn, etc." 
 
 Along with that increase of mass caused by union of primary 
 social aggregates into a secondary one, a further unlikeness of 
 parts arises. The holding together of the compound cluster 
 implies a head of the whole as well as heads of the parts ; and a 
 differentiation analogous to that which originally produced a chief, 
 now produces a chief of chiefs. Sometimes the combination is 
 made for defence against a common foe, and sometimes it results 
 from conquest by one tribe of the rest. In this last case the pre- 
 dominant tribe, in maintaining its supremacy, develops more highly 
 its military character : thus becoming unlike the others. 
 
 After such clusters of clusters have been so consolidated that 
 their united powers can be wielded by one governing agency, 
 there come alliances with, or subjugations of, other clusters of 
 clusters, ending from time to time in coalescence. When this 
 happens there results still greater complexity in the governing 
 agency, with its king, local rulers, and petty chiefs; and at the 
 same time, there arise more marked divisions of classes — mili- 
 tary, priestly, slave, etc. Clearly, then, complication of structure 
 accompanies increase of mass. 
 
 § 6. This increase of heterogeneity, which in both classes of 
 aggregates goes along with growth, presents another trait in com- 
 mon. Beyond unlikenesses of parts due to development of the co- 
 ordinating agencies, there presently follow unlikenesses among 
 the agencies co-ordinated — the organs of alimentation, etc., in 
 the one case, and the industrial structures in the other. 
 
 W^hen animal-aggregates of the lowest order unite to form 
 one of a higher order, and when, again, these secondary aggregates 
 are compounded into tertiary aggregates, each component is at 
 
522 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 first similar to the other components ; but in the course of evolu- 
 tion dissimilarities arise and become more and more decided. 
 Among the Coelenterata the stages are clearly indicated. From 
 the sides of a common hydra, bud out young ones which, when 
 fully developed, separate from their parent. In the compound 
 hydroids the young polypes produced in like manner, remain 
 permanently attached, and, themselves repeating the process, 
 presently form a branched aggregate. When the members of the 
 compound group lead similar and almost independent lives, 
 as in various rooted genera, they remain similar : save those of 
 them which become reproductive organs. But in the floating 
 and swimming clusters, formed by a kindred process, the differ- 
 ently-conditioned members become different, while assuming 
 different functions. It is thus with the minor social groups com- 
 bined into a major social group. Each tribe originally had within 
 itself such feebly-marked industrial divisions as sufficed for its 
 low kind of life ; and these were like those of each other tribe. 
 But union facilitates exchange of commodities ; and if, as mostly 
 happens, the component tribes severally occupy localities favor- 
 able to unlike kinds of production, unlike occupations are initiated, 
 and there result unlikenesses of industrial structures. Even 
 between tribes not united, as those of Australia, barter of products 
 furnished by their respective habitats goes on so long as war does 
 not hinder. And evidently when there is reached such a stage of 
 integration as in Madagascar, or as in the chief Negro states of 
 Africa, the internal peace that follows subordination to one gov- 
 ernment makes commercial intercourse easy. The like parts 
 being permanently held together, mutual dependence becomes 
 possible; and along with growing mutual dependence the parts 
 grow unlike. 
 
 § 7. The advance of organization which thus follows the ad- 
 vance of aggregation, alike in individual organisms and in social 
 organisms, conforms in both cases to the same general law : dif- 
 ferentiations proceed from the more general to the more special. 
 First broad and simple contrasts of parts; then within each of 
 the parts primarily contrasted, changes which make unlike divi- 
 sions of them ; then within each of these unlike divisions, minor 
 unlikenesses; and so on continually. 
 
 The successive stages in the development of a vertebrate column, 
 illustrate this law in animals. At the outset an elongated depres- 
 sion of the blastoderm, called the " primitive groove ", represents 
 the entire cerebro-spinal axis : as yet there are no marks of verte- 
 
Chap. XXII.] INTEGRATION AND DIFFERENTIATION 523 
 
 brae, nor even a contrast between the part which is to become 
 head and the part which is to become back-bone. Presently 
 the ridges bounding this groove, growing up and folding over 
 more rapidly at the anterior end, which at the same time widens, 
 begin to make the skull distinguishable from the spine; and the 
 commencement of segmentation in the spinal part, while the 
 cephalic part remains unsegmented, strengthens the contrast. 
 Within each of these main divisions minor divisions soon arise. 
 The rudimentary cranium, bending forward, simultaneously ac- 
 quires three dilations indicating the contained nervous centres; 
 while the segmentation of the spinal column, spreading to its 
 ends, produces an almost-uniform series of " proto- vertebrae." 
 At first these proto-vertebrse not only differ very little from one 
 another, but each is relatively simple — a quadrate mass. Grad- 
 ually this almost-uniform series falls into unlike divisions — the 
 cervical group, the dorsal group, the lumbar group; and while 
 the series of vertebrae is thus becoming specialized in its different 
 regions, each vertebra is changing from that general form which 
 it at first had in common with the rest, to the more special form 
 eventually distinguishing it from the rest. Throughout the em- 
 bryo there are, at the same time, going on kindred processes; 
 which, first making each large part unlike all other large parts, 
 then make the parts of that part unlike one another. During 
 social evolution analogous metamorphoses may everywhere be 
 traced. The rise of the structure exercising religious control 
 will serve as an example. In simple tribes, and in clusters of tribes 
 during their early stages of aggregation, we find men who are at 
 once sorcerers, priests, diviners, exorcists, doctors, — men who 
 deal with supposed supernatural beings in all the various possible 
 ways: propitiating them, seeking knowledge and aid from them, 
 commanding them, subduing them. Along with advance in social 
 integration, there come both differences of function and differ- 
 ences of rank. In Tanna " there are rain-makers . . . and a host 
 of other ' sacred men ' ; " in Fiji there are not only priests, but 
 seers; among the Sandwich Islanders there are diviners as well 
 as priests; among the New Zealanders, Thomson distinguishes 
 between priests and sorcerers; and among the Kaffirs, besides 
 diviners and rain-makers, there are two classes of doctors who 
 respectively rely on supernatural and on natural agents in curing 
 their patients. More advanced societies, as those of ancient 
 America, show us still greater multiformity of this once-uniform 
 group. In Mexico, for example, the medical class, descending 
 
524 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 from a class of sorcerers who dealt antagonistically with the super- 
 natural agents supposed to cause disease, were distinct from the 
 priests, whose dealings with supernatural agents were propitiatory. 
 Further, the sacerdotal class included several kinds, dividing 
 the religious offices among them — sacrificers, diviners, singers, 
 composers of hymns, instructors of youth; and then there were 
 also gradations of rank in each. This progress from general to 
 special in priesthoods, has, in the higher nations, led to such 
 marked distinctions that the original kinships are forgotten. The 
 priest-astrologers of ancient races were initiators of the scientific 
 class, now variously specialized; from the priest-doctors of old 
 have come the medical class with its chief division and minor 
 divisions ; while within the clerical class proper, have arisen not 
 only various ranks from Pope down to acolyte, but various kinds 
 of functionaries — dean, priest, deacon, chorister, as well as others 
 classed as curates and chaplains. Similarly if we trace the gen- 
 esis of any industrial structure; as that which from primitive 
 blacksmiths who smelt their own iron as well as make implements 
 from it, brings us to our iron-manufacturing districts, where prepa- 
 ration of the metal is separated into smelting, refining, puddling, 
 rolling, and where turning this metal into implements is divided 
 into various businesses. 
 
 The transformation here illustrated, is, indeed, an aspect of 
 that transformation of the homogeneous into the heterogeneous 
 which everywhere characterizes evolution; but the truth to be 
 noted is that it characterizes the evolution of individual organ- 
 isms and of social organisms in especially high degrees. 
 
 § 8. Closer study of the facts shows us another striking paral- 
 lelism. Organs in animals and organs in societies have internal 
 arrangements framed on the same principle. 
 
 Differing from one another as the viscera of a living creature 
 do in many respects, they have several traits in common. Each 
 viscus contains appliances for conveying nutriment to its parts, 
 for bringing it materials on which to operate, for carrying away 
 the product, for draining off waste matters ; as also for regulating 
 its activity. Though liver and kidneys are unlike in their general 
 appearances and minute structures, as well as in the offices they 
 fulfil, the one as much as the other has a system of arteries, a 
 system of veins, a system of lymphatics — has branched channels 
 through which its excretions escape, and nerves for exciting and 
 checking it. In large measure the like is true of those higher 
 organs which, instead of elaborating and purifying and distribut- 
 
Chap. XXII.] INTEGRATION AND DIFFERENTIATION 525 
 
 ing the blood, aid the general life by carrying on external actions 
 — the nervous and muscular organs. These, too, have their ducts 
 for bringing prepared materials, ducts for drafting off vitiated 
 materials, ducts for carrying away effete matters; as also their 
 controlling nerve-cells and fibres. So that, along with the many 
 marked differences of structure, there are these marked com- 
 munities of structure. 
 
 It is the same in a society. The clustered citizens forming an 
 organ which produces some commodity for national use, or which 
 otherwise satisfies national wants, has within it subservient struc- 
 tures substantially like those of each other organ carrying on each 
 other function. Be it a cotton-weaving district or a district 
 where cutlery is made, it has a set of agencies which bring the raw 
 material, and a set of agencies which collect and send away the 
 manufactured articles ; it has an apparatus of major and minor 
 channels through which the necessaries of life are drafted out of 
 the general stocks circulating through the kingdom, and brought 
 home to the local workers and those who direct them ; it has 
 appliances, postal and other, for bringing those impulses by which 
 the industry of the place is excited or checked ; it has local con- 
 trolling powers, political and ecclesiastical, by which order is 
 maintained and healthful action furthered. So, too, when, from 
 a district which secretes certain goods, we turn to a sea-port which 
 absorbs and sends out goods, we find the distributing and re- 
 straining agencies are mostly the same. Even where the social 
 organ, instead of carrying on a material activity, has, like a uni- 
 versity, the office of preparing certain classes of units for social 
 functions of particular kinds, this general type of structure is re- 
 peated : ^ the appliances for local sustentation and regulation, 
 differing in some respects, are similar in essentials — there are 
 like classes of distributors, like classes for civil control, and a spe- 
 cially-developed class for ecclesiastical control. 
 
 On observing that this community of structure among social 
 organs, like the community of structure among organs in a 
 living body, necessarily accompanies mutual dependence, we 
 shall see even more clearly than hitherto, how great is the like- 
 ness of nature between individual organization and social organ- 
 ization. 
 
 § 9. One more structural analogy must be named. The forma- 
 tion of organs in a living body proceeds in ways which we may 
 distinguish as primary, secondary, and tertiary ; and, paralleling 
 them, there are primary, secondary, and tertiary ways in which 
 
526 PROCESS OF LEGAL EVOLUTION ' [Part III. 
 
 social organs are formed. We will look at each of the three par- 
 allelisms by itself. 
 
 In animals of low types, bile is secreted, not by a liver, but by 
 separate cells imbedded in the wall of the intestine at one part. 
 These cells individually perform their function of separating cer- 
 tain matters from the blood, and individually pour out what they 
 separate. No organ, strictly so-called, exists ; but only a number 
 of units not yet aggregated into an organ. This is analogous to 
 the incipient form of an industrial structure in a society. At 
 first each worker carries on his occupation alone, and himself 
 disposes of the product to consumers. The arrangement still 
 extant in our villages, where the cobbler at his own fireside makes 
 and sells boots, and where the blacksmith single-handed does 
 what iron-work is needed by his neighbours, exemplifies the 
 primitive type of every producing structure. Among savages 
 slight differentiations arise from individual aptitudes. Even 
 of the degraded Fuegians, Fitzroy tells us that " one becomes an 
 adept with the spear; another with the sling; another with a 
 bow and arrows." As like differences of skill among members 
 of primitive tribes cause some to become makers of special things, 
 it results that necessarily the industrial organ begins as a social 
 unit. Where, as among the Shasta Indians of California, " arrow- 
 making is a distinct profession ", it is clear that manipulative 
 superiority being the cause of the differentiation, the worker is 
 at first single. And during subsequent periods of growth, even 
 in small settled communities, this type continues. The statement 
 that among the Coast Negroes, " the most ingenious man in the 
 village is usually the blacksmith, joiner, architect, and weaver ", 
 while it shows us artizan-f unctions in an undifferentiated stage, 
 also shows us how completely individual is the artizan-structure : 
 the implication being that as the society grows, it is by the addi- 
 tion of more such individuals, severally carrying on their occu- 
 pations independently, that the additional demand is met. 
 . By two simultaneous changes, an incipient secreting organ 
 in an animal reaches that higher structure with which our next 
 comparison may be made. The cells pass from a scattered cluster 
 into a compact cluster; and they severally become compound. 
 In place of a single cell elaborating and emitting its special prod- 
 uct, we now have a small elongated sac containing a family of 
 cells ; and this, through an opening at one end, gives exit to their 
 products. At the same time there is formed an integrated group 
 of such follicles, each containing secreting units and having its 
 
Chap. XXII.] INTEGRATION AND DIFFERENTIATION 527 
 
 separate orifice of discharge. To this type of individual organ, 
 we find, in semi-civilized societies, a type of social organ closely 
 corresponding. In one of these settled and growing communities, 
 the demands upon individual workers, now more specialized in 
 their occupations, have become unceasing; and each worker, 
 occasionally pressed by work, makes helpers of his children. 
 This practice, beginning incidentally, establishes itself; and 
 eventually it grows into an imperative custom that each man shall 
 bring up his boys to his own trade. Illustrations of this stage 
 are numerous. Skilled occupations, " like every other calling 
 and office in Peru, always descended from father to son. The 
 division of castes, in this particular, was as precise as that which 
 existed in Egypt or Hindostan." In Mexico, too, " the sons in 
 general learned the trades of their fathers, and embraced their 
 professions." The like was true of the industrial structures of 
 European nations in early times. By the Theodosian code, a 
 Roman youth " was compelled to follow the employment of his 
 father . . . and the suitor who sought the hand of the daughter 
 could only obtain his bride by becoming wedded to the calling 
 of her family." In mediaeval France handicrafts were inherited ; 
 and the old English periods were characterized by a like usage. 
 Branching of the family through generations into a number of 
 kindred families carrying on the same occupation, produced the 
 germ of the guild; and the related famihes who monopolized 
 each industry formed a cluster habitually occupying the same 
 quarter. Hence the still extant names of many streets in English 
 towns — '* Fellmonger, Horsemonger, and Fleshmonger, Shoe- 
 wright and Shieldwright, Turner, and Salter Streets " : a segre- 
 gation like that which still persists in Oriental bazaars. And now, 
 on observing how one of these industrial quarters was composed 
 of many allied families, each containing sons working under 
 direction of a father, who while sharing in the work sold the prod- 
 uce, and who, if the family and business were large, became mainly 
 a channel taking in raw material and giving out the manufactured 
 article, we see that there existed an analogy to the kind of glandular 
 organ described above, which consists of a number of adjacent 
 cell-containing follicles having separate mouths. 
 
 A third stage of the analogy may be traced. Along with that 
 increase of a glandular organ necessitated by the more active 
 functions of a more developed animal, there goes a change of 
 structure consequent on augmentation of bulk. If the follicles 
 multiply while their ducts have all to be brought to one spot, it 
 
528 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 results that their orifices, increasingly numerous, occupy a larger 
 area of the wall of the cavity which receives the discharge ; and 
 if lateral extension of this area is negatived by the functional 
 requirements, it results that the needful area is gained by forma- 
 tion of a caecum. Further need of the same kind leads to secondary 
 cseca diverging from this main caecum ; which hence becomes, in 
 part, a duct. Thus is at length evolved a large viscus, such as a 
 liver, having a single main duct with ramifying branches running 
 throughout its mass. Now we rise from the above-described 
 kind of industrial organ by parallel stages to a higher kind. There 
 is no sudden leap from the household-type to the factory-type, 
 but a gradual transition. The first step is shown us in those rules 
 of trade-guilds under which, to the members of the family, might be 
 added an apprentice (possibly at first a relation), who, as Brentano 
 says, " became a member of the family of his master, who in- 
 structed him in his trade, and who, like a father, had to watch 
 over his morals, as well as his work " : practically, an adopted son. 
 This modification having been established, there followed the 
 employing of apprentices who had changed into journeymen. 
 With development of this modified household-group, the master 
 grew into a seller of goods made, not by his own family only, but 
 by others ; and, as his business enlarged, necessarily ceased to be 
 a worker, and became wholly a distributor — a channel through 
 which went out the products, not of a few sons, but of many 
 unrelated artizans. This led the way to establisments in which 
 the employed far outnumbered the members of the family ; until 
 at length, with the use of mechanical power, came the factory: 
 a series of rooms, each containing a crowd of producing units, 
 and sending its tributary stream of product to join other streams 
 before reaching the single place of exit. Finally, in greatly de- 
 veloped industrial organs, we see many factories clustered in the 
 same town, and others in adjacent towns; to and from which, 
 along branching roads, come the raw materials and go the bales 
 of cloth, calico, etc. 
 
 There are instances in which a new industry passes through 
 these stages in the course of a few generations; as happened 
 with the stocking-manufacture. In the Midland counties, fifty 
 years ago, the rattle and burr of a solitary stocking-frame came 
 from a road-side cottage every here and there : the single worker 
 made and sold his product. Presently arose work-shops in which 
 several such looms might be heard going : there was the father 
 and his sons, with perhaps a journeyman. At length grew up the 
 
CiLiP. XXir.J INTEGRATION AND DIFFERENTIATION 529 
 
 lar^e biiilcling containing many looms driven by a steam-engine; 
 and finally many such large buildings in the same town. 
 
 § 10. These structural analogies reach a final phase that is still 
 more striking. In both cases there is a contrast between the 
 original mode of development and a substituted later mode. 
 
 In the general course of organic evolution from low types to 
 high, there have been passed through by insensible modifications 
 all the stages above described ; but now, in the individual evolu- 
 tion of an organism of high type, these stages are greatly abridged, 
 and an organ is produced by a comparatively direct process. 
 Thus the liver of a mammalian embryo is formed by the accumu- 
 lation of numerous cells, which presently grow into a mass pro- 
 jecting from the wall of the intestine ; while simultaneously there 
 dips down into it a csecum from the intestine. Transformation 
 of this caecum into the hepatic duct takes place at the same time 
 that within the mass of cells there arise minor ducts, connected 
 with this main duct; and there meanwhile go on other changes 
 which, during evolution of the organ through successively higher 
 types, came one after another. In the formation of industrial 
 organs the like happens. Now that the factory system is well- 
 established — now that it has become ingrained in the social 
 constitution, we see direct assumptions of it in all industries for 
 which its fitness has been shown. If at one place the discovery 
 of ore prompts the setting up of iron-works, or at another a special 
 kind of water facilitates brewing, there is no passing through the 
 early stages of single worker, family, clustered families, and so 
 on ; but there is a sudden drafting of materials and men to the 
 spot, followed by formation of a producing structure on the ad- 
 vanced type. Nay, not one large establishment only is thus 
 evolved after the direct manner, but a cluster of large establish- 
 ments. At Barrow-in-Furness we see a town with its iron-works, 
 its importing and exporting businesses, its extensive docks and 
 means of communication, all in the space of a few years framed 
 after that type which it has taken centuries to develop through 
 successive modifications. 
 
 An allied but even more marked change in the evolutionary 
 process, is also common to both cases. Just as in the embryo of 
 a high animal, various organs have their important parts laid 
 down out of their original order, in anticipation, as it were ; so, 
 with the body at large, it happens that entire organs which, during 
 the serial genesis of the type, came comparatively late, come in 
 the evolving individual comparatively soon. This, which Prof. 
 
530 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Haeckel has called heterochrony, is shown us in the early marking 
 out of the brain in a mammalian embryo, though in the lowest 
 vertebrate animal no brain ever exists ; or, again, in the segmenta- 
 tion of the spinal column before any alimentary system is formed, 
 though, in a proto-vertebrate, even when its alimentary system 
 is completed, there are but feeble signs of segmentation. The 
 analogous change of order in social evolution is shown us by new 
 societies which inherit the confirmed habits of old ones. Instance 
 the United States, where a town in the far west, laid down in its 
 streets and plots, has its hotel, church, post-office, built while 
 there are but few houses ; and where a railway is run through the 
 wilderness in anticipation of settlements. Or instance Australia, 
 where a few years after the huts of gold-diggers begin to cluster 
 round new mines, there is established a printing-office and journal ; 
 though, in the mother-country, centuries passed before a town 
 of like size developed a like agency. 
 
Chapter XXIII 
 PLANETARY THEORY OF THE LAW'S EVOLUTION ^ 
 
 A TRUTH to be kept in mind is that evolution in Law, as in other 
 cosmic facts, is always the result of a conflict of forces. The situa- 
 tion is very much like that of two men pushing face to face on the 
 pavement, each seeking to pass, or wrestling in a final grip on the 
 mat; in the wrestling match, finally a slight balance of force 
 prevails, and the one man falls on his back, with the other over 
 him as the winner. Then there is equilibrium for a while, but only 
 until the next bout begins. Law is usually a series of wrestling 
 bouts; the prize to the final winner signifies the enactment of 
 the winning force as a rule of law. Coniplete rest may or may 
 not ensue. But the victory does not signify the annihilation of 
 the losing force ; it signifies only a slight overbalance in the win- 
 ning force, followed by a more or less temporary rest, according 
 to the conventions of the game. 
 
 The importance of this truth is that to solve the problem of 
 evolution of a legal rule, we must first analyze fully the respective 
 social forces which were struggling underneath the surface be- 
 fore the rule of law came into being; for the decision or enact- 
 ment of a rule of law meant simply the over-balance of some 
 forces against other forces. 
 
 In physics. Sir Isaac Newton's third law of motion was this: 
 ** To every force there always exists a corresponding force which 
 is equal and oppositely directed." When the forces which aid any 
 uniform motion are added to those which oppose the motion, the 
 sum is always zero. And even when motion is not uniform, and 
 acceleration exists, there a force of reaction will be found; for 
 Newton's law proclaims that action is always equal and opposite to 
 reaction. The same truth obtains in the mental and social world. 
 
 ^ [By John H. Wigmore, co-editor of this Series. Reprinted from 
 " Problems of the Law's Evolution ", being a portion of the first of a series 
 of three lectures delivered at the University of Virginia by the author on 
 the Barbour-Page Foundation and originally published in "Virginia Law 
 Review", IV, 297 (January, 1917).] 
 
 531 
 
532 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 As the idea of opposing forces thus involves an idea of motion, 
 SO in analyzing this aspect of motion in evolution we are obliged 
 to ask : 
 
 What is meant by the evolution of law? Does it mean neces- 
 sarily progress? Or may it mean mere change? And if so, 
 change of what? Can we conceive of a going backward, in evo- 
 lution, — or of the death of an institution ? May there be a de- 
 generacy now and then, in evolution ? 
 
 The usual discussions of legal evolution seem here to commit 
 certain fallacies. For example, in Sir Henry Maine's master- 
 piece, " Ancient Law ", perennial in its freshness and stimulus, 
 the learned author, in describing the development of contract, 
 sums up the change as a change from general concepts to special 
 ones. Again, in the same field, he declares that the contract be- 
 gan with ignoring the moral idea of keeping faith but looked 
 solely at some outward ceremony, and ended by minimizing the 
 outward form and protecting the mere mental and moral prom- 
 ise, the actual will of the parties ; in short, the movement is from 
 outward physical form to inward moral essence, or, as he puts 
 it, ** from a gross to a refined conception." Again, in another 
 famous generalization, he offers the thesis that the movement 
 of human relations in general is " from Status to Contract." So, 
 too, De la Grasserie has discovered, he thinks, some twenty-eight 
 general trends in the evolution of law, enumerated thus : 
 
 1 . From Custom to Ordained Law and to Judge-Declared Law ; 
 
 2. From Oral to Written and to Codified Law ; and so on.^ 
 Now these and other generalizations naturally suggest two or 
 
 three critical questions, before we can accept them as solutions 
 pro tanto of the problems : 
 
 (a) What definiteness of meaning do these scholars give to 
 the evolution of a legal idea ? Let us answer this by saying that 
 it means something less concrete than history, and something 
 more lifelike than a mathematical formula. For example, the 
 history of human marriage would fill several volumes ; but 'its 
 evolution is something that could be summed up (one would 
 suppose) in a page or two. On the other hand, to say, (for ex- 
 ample) that the evolution of marriage, in respect to the number 
 of persons that mate, passes from promiscuity through polygamy 
 to monogamy (assuming that this were true) is too abstract, 
 in that it ignores the contrary local variations and does not ex- 
 plain them, and therefore fails to represent the whole truth. 
 1 [See post, chap. XXV, p. 575 seq.] 
 
Chap. XXIII.] PLANETARY THEORY 533 
 
 The reason is that it fails to state anything about the outside 
 factors which cause the movement; for example, local poverty 
 of. economic resources may make polygamy impossible, or local 
 moral precepts may make monogamy impossible; and thus the 
 abstract formula becomes fallacious. 
 
 We may therefore, simply to have a common understanding 
 of terms, take the following definition : 
 
 The evolution of law, which we seek to discover, does not im- 
 ply progress, either morally or otherwise, but merely movement ; 
 it does imply movement in the abstract elements of the conduct 
 shown in history, seeking always to proceed to the more and 
 more abstract ; but always including the cause with the effect. 
 In other words, we seek to trace the movement of the more ab- 
 stract elements in the history of each type of legal conduct, so 
 far as the sequence of cause and effect can be discovered. 
 
 (6) The second critical question is : Do these scholars assume 
 constancy in a specific legal institution, in all epochs and all com- 
 munities? They do often seem to assume this. They assume it 
 very much as all of us (including scientists) assume constancy 
 in the nature of the fundamental chemical elements, such as 
 sodium, magnesium, or nitrogen ; that is, wherever an atom of 
 nitrogen exists in the cosmos, it is always the same in its nature, 
 and will always work in a certain way. Many years ago, I pub- 
 lished an essay on the development of the mortgage or pledge 
 idea, in all accessible systems of law, Germanic, Greek, Jewish, 
 Babylonian, Egyptian, Japanese, Slavic, and Roman \ ; and I 
 formed the impression in my own mind (though I publicly dis- 
 claimed insisting upon it) that the pledge idea had somewhere an 
 inherent sameness or constancy, which would therefore develop 
 alike, in general features, in all communities and in all epochs. 
 And we find it often assumed by scholars that in the world of legal 
 ideas there are certain atomic elements (so to speak) which, 
 if they develop at all, will develop spontaneously in a necessary 
 or constant way, no matter what may be the combinations with 
 others — for instance, the movement from judge-made law to 
 legislative statute, from formal procedure to informal procedure, 
 from unwritten law to written law, from paternal family power to 
 individual independence. 
 
 Now it is of course obvious, upon reflection, that no such 
 inherent fixed tendencies in legal ideas have been proved to exist. 
 Probably no scholar to-day would dcliberateiy affirm it, except 
 1 [Reprinted in Vol. II (p. 456) of this Series.] 
 
534 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 a few of the idealists. But we need to avoid the danger of its 
 assumption in tracing the positive evolution of law. What really 
 takes place, in evolution, is a change 'of effect whenever there is 
 a change of cause; and these causes come chiefly from outside 
 the law itself. For example, until the invention of writing, legal 
 customs could not be written down, on stone or parchment ; the 
 Scandinavian law-men, for instance, committed the customs to 
 memory and chanted them, up to about 900 a.d. All the de- 
 velopment of legislation and justice that ensued from such epoch- 
 making incidents as the inscription of the Twelve Tables at 
 Roiyie, or the compilation of the Germanic Codes in the fifth 
 and sixth centuries a.d., became possible only by the use of 
 writing. If writing had not come into use, we cannot say just 
 what would have been the course of development. In modern 
 African tribes, for instance, justice is still done without written 
 law; and an important cause of its difference from European 
 law must be the lack of writing, and not necessarily some in- 
 herent nature of legal ideas. Had there been some intrinsic na- 
 ture, it would have developed, irrespective of writing. 
 
 Another circumstance that must make us skeptical as to any 
 inherent constancy of evolution for legal ideas is the extraordi- 
 nary differences of speed of evolution of humanity in different 
 epochs. Apparently, the speed has increased enormously with 
 the lapse of time. The paleontologists tell us, for example, that 
 during the Third Interglacial Period of the world and the Fourth 
 Glacial Period (the Lower Paleolithic), represented by the Pilt- 
 down and the Neanderthal races, the time that elapsed was 
 125,000 years ; yet the entire human progress in arts of life made 
 in that inconceivably long period is represented only by improved 
 methods of chipping the surface of flints for the making of tools.^ 
 In short, the evolutionary changes in family and property institu- 
 tions, during the last 3,000 years, have been vastly more numerous 
 and rapid than in the whole preceding 400,000 or 500,000 years of the 
 life of the human race. This being so, there is little room for assum- 
 ing any inherent constancy in the operation of a particular legal idea. 
 
 In short, the only constancy, if any is discovered, in evolution 
 of law, is constancy of cause and effect, not of inherent nature 
 of a legal idea. 
 
 (c) The third critical question is this: Do these scholars as- 
 sume universality of a formula of evolution throughout all specific 
 legal ideas f 
 
 1 H. F. Oshorn, " Men of the Old Stone Age " (1916), pp. 15-23. 
 
Chap. XXIII.] PLANETARY THEORY 535 
 
 Let us roughly enumerate the entire mass of principal legal 
 ideas : Personal relations, including family and clan, marriage, 
 parentage, adoption, emancipation, expulsion, etc. ; Property, in- 
 cluding ownership, lease, mortgage, succession, community, sale, 
 etc. ; Liability, including tort, crime, contract, agency, surety- 
 ship, etc. ; Procedure, including judge, summons, arrest, pleading, 
 evidence, judgment, etc. Now, let us take some of De la Gras- 
 serie's twenty-eight generalizations as to the movement of legal 
 evolution. These generalizations represent, as it were, identical 
 threads of evolution on which all legal institutions are strung. But 
 does this learned investigator mean that these threads are the same 
 and equally true, not only in the main trunk ideas of the law, 
 such as family and property, but also in each branch idea, such 
 as marriage, adoption, succession, partnership, etc.? For exam- 
 ple, take the assertion that evolution proceeds from the simple to 
 the complex. Is this alike true for family and clan law as a 
 whole and for every detailed idea of it, such as relationship, 
 marriage, divorce, and adoption? It is certainly not true for 
 relationships, nor for marriage, nor for adoption ; it may be true 
 for divorce. Is is alike true not only for liability as a whole, 
 but also for the specific forms of liability such as suretyship, 
 money debt, tort, warranty of property, etc.? If it is true fcr 
 liability in general, it is hardly true for money debt, for warranty, 
 or for suretyship. And if it is not thus universally true, where 
 and why does it cease to be trne? And if it ceases to be true in 
 any species of some genus of legal idea, what becomes of its va- 
 lidity as a general or abstract truth ? Moreover, since these gen- 
 eral truths obviously differ, in that some purport to apply in the 
 whole field and some in part only (such as property), why are 
 some of them universal and some only partial ? 
 
 The warning is therefore pertinent that we cannot assume before- 
 hand that such universality of truth exists and will be discovered 
 in the evolution of legal ideas. All we can assume is the imiversal- 
 ity of identical efi^ects from identical causes. 
 
 We are now in a position, with these criticisms in mind, to 
 consider the question : 
 
 L What are possibly the most general formulas of evolution? 
 
 This inquiry has fascinated the philosophers for centuries. I 
 confess to a skepticism of their hypotheses. I will try to demon- 
 strate their unsoundness, and the greater probability of a rival 
 hypothesis. 
 
 We must of course assist our minds by analogies in the ma- 
 
536 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 terial world. The philosophers have resorted to the analogies of 
 physics and physical forces. Some philosophers, for example, 
 have imagined the path of progress to be in a simple undulating 
 line; others figure it as a single line with angular regressions. 
 Vico conceived it as a simple circle returning upon itself. The 
 popular notion is that of an ascending straight line. De Greef 
 supposes a helix, or circular spiral, constantly ascending, but re- 
 turning over itself identically ; De la Grasserie accepts this figure. 
 Goethe pictured a helix, or circular spiral, constantly ascending 
 but enlarging itself.^ Goethe's symbol, says Picard, a recent 
 writer,^ " seems, better than any other, to take account of the 
 immense variation of facts, especially in the law, while marking 
 the destined tendencies." 
 
 But, to me, that is precisely what it seems not to account for, 
 viz., the immense variety and variation of forces. For, as al- 
 ready pointed out, the evolution of legal ideas is affected by a 
 large number of forces, great and small, acting oppositely or in 
 harmony, some here and some there, in the different parts of 
 law, in different countries, and at different times. Hence, it is 
 simply impossible to assume that the total path of evolution is 
 so simple as even Goethe's spiral. Take for example, the types 
 of human mating — promiscuity, polygamy (in its two forms of 
 polyandry and polygyny), and monogamy. Now the movements 
 to be represented in our symbol must include all communities in 
 all epochs of time, and must represent all of these three forms. 
 According to Goethe's spiral, the movement could only be from 
 one of these forms through another into the third, either once 
 in all time, or else over again at each coil of the spiral ; and it 
 must be the same movement in all communities past, present or 
 future. And yet we know that a few communities have been 
 arrested in their growth and still practice polygamy ; and we 
 have no proof that no community has circled through all three 
 and started again on promiscuity; moreover, we do not posi- 
 tively know that some communities did not begin with monog- 
 amy. And in other parts of law the simplicity of Goethe's spiral 
 is even more incongrous with observed facts. 
 
 A much more plausible hypothesis, to my mind, is the analogy 
 of the planetary system with its numerous local interdependent 
 motions. To apprehend its application to the movements of legal 
 forces, let us call to mind the principles of physics, as illustrated 
 in the ordinary gyroscope. 
 
 1 [See the diagrams post, p. 671,] 2 [Post, chap. XXVI of this volume.] 
 
Chap. XXIII.] PLANETARY THEORY 537 
 
 As you know, a rigid body in space of three dimensions has 
 three degrees of independence of motion ; that is, three axes 
 on which its rotation will have no component of motion about 
 either of the other axes. Thus, the gyrostat has three possible 
 directions of rotation about either axis OA or axis OB or axis 
 O C, each at right angles to the other two. Every such rotation 
 will be due to some external force, and each such external force 
 will somehow affect the resultant motion dependently upon the 
 other forces. For example, by the pull of gravity the body may 
 be forced to rotate about axis OA. Or by a separate push or 
 torque, it may be made to rotate around the axis OB. Or, still 
 a different force might give a third motion or precession about 
 the axis OC. Now the speed and fluctuations of this new mo- 
 tion will depend on the relative measure of the three or more 
 forces. These forces, being external and independent, may vary 
 infinitely from time to time ; but the result of their operation in 
 each instance wall proceed according to certain discovered for- 
 mulas. 
 
 To illustrate concretely, I hold here, in my left hand, a bicycle 
 wheel, free to rotate on its axle. Let the axis of my right arm, 
 when stretched out to my right, be axis O A ; let the axis of my 
 left arm, stretched out directly in front of me, and holding the 
 axle of the wheel prolonging my left arm, be axis O B ; and let 
 my body, upright from the floor, be axis OC. Now (1) with 
 the wheel thus extended, the force of gravity is pulling it down- 
 wards, with a rotation around axis O A ; call this force X ; but 
 the pull of my left hand counteracts the force momentarily and 
 holds it up ; call this X' ; if the pull or lift of the left hand, X', 
 is removed, the wheel falls by gravity, X, i.e.^ rotates around 
 axis O A. (2) Again, another external force applied to the wheel 
 at the rim will produce rotation left-right around the left arm, 
 axis O B ; call this force Y ; and an opposite force would cause 
 its rotation right-left around the same axis, clock-wise to the 
 spectator; call this Y. (3) Again, a third force, applied to the 
 wheel, would cause its rotation east- west around the upright 
 axis of the holder's body, O C ; while an opposite force would 
 cause a corresponding rotation west-east around the same axis; 
 call these Z and Z'. And the simultaneous application of either 
 of these latter two opposite forces, Y and Y', or Z and Z', would 
 leave the wheel stationary, as in the case of X and X'. Now 
 one of the discovered laws of such forces is this : If, while gravity 
 alone, the force X, is operating on the wheel (thus held out on 
 
538 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 the left arm) to rotate it downwards around axis OA, another 
 force, Y, is applied to rotate it left-right (against the clock) 
 around the left-arm axis OB, the entire wheel takes on also a 
 rotation east-west around the upright axis O C (the body of the 
 holder). And the more rapid the rotation around O B, the slower 
 the rotation around O C. And if the point of support be shifted, 
 by transferring the hand from one side to the other of the wheel, 
 so that the direction of the O A rotation (due to the pull of gravity, 
 force X) is reversed, then also the direction of the rotation around 
 axis O C is reversed from east-west to west-east ; and yet the 
 rotation of the wheel around B continues exactly as before. 
 
 If, then we ask, What is the path of motion of a given particle 
 of matter, M, in the wheel, when acted upon by force Y? that 
 path superficially seems to be always a simple circle, going around 
 axis O B as a center. But if we add thereto the facts that force 
 X, or gravity, is acting to pull the particle around axis O A, and 
 that no force X', or uplift, is counteracting gravity, and that no 
 force of friction or other obstacle is preventing motion around 
 axis O C, we find that in fact the true path of the given particle, 
 M, is not that simple circle, but is a complex curve, determinable 
 by a mathematical formula which takes into account all the above 
 forces and their quantities. And if we add to our reckoning the 
 periodical shifting of the center of gravity, from one side of the 
 wheel to the other (due to shifting the location of the hand), we 
 find that the path of the particle M becomes still more complex, 
 while remaining symmetrical and regular, so long as none of the 
 forces are altered. 
 
 What, then, is the lesson of this analogy for legal evolution? 
 If a spoke of this wheel represents an institution, let us say de- 
 scent of property after death to lineals instead of to collateral 
 relatives, our superficial observation, finding it in its first posi- 
 tion, is that the institution is stationary ; and further, that when 
 a force Y (let us say migration of races) is applied, its motion 
 becomes circular, against the clock, around OB. But we must 
 notice further that in both cases we have omitted to reckon that 
 gravity (let us say religion in this case), force X, is operating 
 to pull the institution around OA, but is counteracted by the 
 upward lift of the hand, force X' (let us say the political power 
 of kings) ; and that as soon as force X' is removed, the motion 
 of the spoke is now in reality a complex one, due to recession 
 east-west around axis O C ; and that the further change of the 
 centre of gravity (let us say the economic change from a tropical 
 
Chap. XXIII. J PLANETARY THEORY 539 
 
 country to an arid or cold country) produces another change of 
 motion in the institution. Now, these several forces are all ex- 
 ternal to the institution itself; and they may themselves all be 
 subject to regular and periodic operation, and not to arbitrary 
 or whimsical happening, such as is due to the momentary choice of 
 the lecturer. Moreover, these forces Vary widely in different 
 times and places. 
 
 So that, if we ask again. What is the evolution of a given legal 
 institution ? we now perceive that, even with these simple elements 
 exemplified in a wheel held by the lecturer, the path can never 
 be a simple circle, or any elementary curve, but must be at least 
 a complex of many curves, original and different for each insti- 
 tution. 
 
 Moreover, w^hile all this is going on, with only these few ele- 
 ments assumed as representing the whole, there is besides a larger 
 body, to which the first and smaller one is affixed (like the build- 
 ing in which the lecturer is), and the larger body may also be 
 moving independently, and moving in any one of the three pri- 
 mary directions, and subject to still other forces. And further- 
 more, this larger body may itself again be part of a still larger 
 system, one of several bodies, and the larger system will have its 
 own motions under its own forces. In the total cosmos of bodies, 
 the motions of the smaller bodies will be affected by the motions 
 of each of the larger systems, though the larger ones may not 
 be appreciably affected by the smaller ones. And the motions 
 of one or more of the smaller bodies may reverse or cease while 
 all others continue. In short, we shall have a planetary system, 
 full of endless possibilities. 
 
 The analogy of this planetary system to the law will not be 
 necessarily identical ; no physical analogy would be. But at least 
 it shows how such complexities are consistent with regular evo- 
 lution, i.e., with constancy of change and relation of forces by 
 cause and effect, in a set of legal ideas forming part of a whole 
 system. And the complexities of inter-related legal movements 
 are certainly no less than those of the planetary system, but pre- 
 sumably vastly greater ; for human life is but a part of the terres- 
 trial mass, and law is but part of human life, and the details of 
 their forces and phenomena are obviously more numerous than 
 the grand forces of the total mass. 
 
 Take, for an example, the evolution of the last will or testa- 
 ment. Sir Henry Maine and others have attempted to disen- 
 tangle the various elements of its growth in the law of Rome, 
 
540 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Greece, Germania, and India. What is certain is that in a primi- 
 tive stage there is no will, and that at a later stage the will is 
 recognized. But on analyzing this net line of motion, so to 
 speak, we find that it is the direct resultant of at least several 
 forces ; and that all of these are affected by still other forces pro- 
 ceeding from still larger independent legal institutions. In the 
 first place, the force tending to validate the paternal last will is 
 directly modified by several minor forces ; there are the claims 
 of the blood relatives, of the wife, and of children ; and further- 
 more the distinction between agnate (male line) and cognate 
 relatives, and between male and female descendants, between 
 polygamy and monogamy, will here produce minor variations 
 according to time and place. Then, outside these, are the larger 
 forces represented by the system of religion, of economics, and 
 of property. Religion requires that the family worship, the an- 
 cestral rites, shall be continued ; "religion prescribes ", said Cicero, 
 " that the property and the worship of a family shall be insepara- 
 ble"; "he who inherits", said the Hindu Laws of Manu, "is 
 bound to make offerings upon the tomb." And so the Hindu's 
 only expedient, and a common one in all peoples, for transmitting 
 the estate where no blood-child existed, was the expedient of arti- 
 ficial adoption ; thus the limitations of the principle of adoption 
 affected the path of evolution of the testament. This principle 
 of adoption is itself part of another sphere of forces involving 
 artificial relationship; of which the variety known as blood fra- 
 ternity has now died out. But, furthermore, the economic system 
 sometimes distinguished between land or house and the few 
 primitive movables; for example, in some of our own surviving 
 American Indian tribes, a man's movable property is all that he 
 owns personally, and it is destroyed at his death; it cannot be 
 inherited, and therefore it cannot be willed ; moreover, the con- 
 munal property, or land, continues, just as before, to be owned 
 by the community; the individual has nothing to will. And so 
 we find a subordinate eddy in the limitations upon testament, 
 viz., that certain properties cannot be included ; then at a later 
 stage, they may be included by consent of relatives ; and finally 
 without such consent. Still, further, the mode of transfer of 
 property affected the movement of the evolution of the will ; for 
 in Rome the patrician will, recorded before the Comitia Curiata, 
 was a variety of adoption but disappeared gradually, while the 
 plebeian will, which proved the permanent form, was made by a 
 formal sale or mancipatio. And finally, in Germanic law, both 
 
Chap. XXIII.] PLANETARY THEORY 541 
 
 continental and English, the whole movement of testamentary 
 evolution receives new turns by the local ideas of transfer, includ- 
 ing the salman, the feoffee to uses, and the executor; while the 
 Roman example, arriving in different countries of Western Eu- 
 rope during different centuries, introduced a new force, that of 
 imitation, which added still other variations. This imitation of 
 the Roman law, in European history since 600 a.d., is like the 
 addition of the magnetism or gravitation of a great central sun, 
 added outside the system, which exerts a modifying force on 
 every legal institution native to each of the smaller spheres. 
 
 My summary is, then, that no simple spiral will serve as an 
 analogy ; that no less complex an analogy than the planetary sys- 
 tem will serve ; that this analogy is a useful guide in our studies, 
 because the gyroscopic inter-action of planetary forces reveals 
 to us the inevitableness of similar inter-actions in the forces af- 
 fecting law^s; and that therefore we cannot expect to trace the 
 evolution of a single legal institution without conceiving of it 
 as a body in motion produced by a force, this motion modified 
 by other immediate forces, and this body and its motions being 
 one part only of a larger body which is itself in one or more motions 
 produced by other forces and modifying the first motions; and 
 this system as one part only of a larger system of forces and 
 motions ; and so on, indefinitely. 
 
Chapter XXIV 
 
 DEGENERATIVE EVOLUTION ^ 
 
 I. Universality op Degenerative Evolution 
 (1) Degeneration in the Development of Institutions and Organs 
 
 § 1. Introduction. Degeneration 
 and Progress. 
 
 § 2. In the Evolution of Institu- 
 tions All Modification Is 
 
 Necessarily Accompanied by 
 Degeneration. 
 § 3. Modification of Similar In- 
 stitutions in Different Social 
 Groups. 
 
 (II) Degeneration in the Evolution of Organisms and Societies 
 
 § 4. Survivals Exist in All Kinds 
 of Societies. 
 
 § 5. Instances of Survival 
 
 Various Groups. 
 § 6. Summary and Conclusions. 
 
 II. The Path of Degenerative Evolution 
 (III) The Supposed Law that Degeneration Retraces the Steps of Progress 
 
 § 7. Retrogression. 
 
 § 8. The Path of Degeneration in 
 Sociology. 
 
 § 9. A Criticism of the Supposed 
 Inverse Path of Degenera- 
 tion. 
 
 § 10. The Irreversibility of De- 
 generative Evolution. 
 §11. Disappeared Institutions. 
 § 12. Summary and Conclusions. 
 
 III. Causes of Degenerative Evolution 
 (IV) Atrophy of Organs and Institutions 
 § 13. The Factors of Atrophy. | § 14. Atrophy of Institutions. 
 
 (V) The Causes of the Persistence of Organs or Institutions without Function 
 
 § 15. Survival of Organs. 
 § 16. Survival of Institutions. 
 § 17. The Integral Persistence of 
 an Institution. 
 
 18. Survival of Institutions in a 
 Reduced State. 
 
 IV. Resume and Conclusions 
 
 § 19. Resume. 
 
 (VI) General Conclusions 
 
 1 [By. Jean Demoor, agrege of the Free University of Brussels, Jean 
 Mass ART, charge de cours of the Free University of Brussels, and ^mile 
 Vandervelde, Professor at the Institute of Hautes Etudes of Brussels. 
 
 This translation is by Mrs. Chalmers Mitchell, and was pubHshed by 
 
 542 
 
Chap. XXIV.] DEGENERATION 543 
 
 I. Universality of Degenerative Evolution 
 (I) Degeneration in the Devel-opTuent of Institutions and Organs 
 
 §1. Introduction. Degeneration and Progress. The term " evo- 
 lution " does not in itself convey an idea of either progress or 
 degeneration. It comprises all the changes undergone by an 
 organism or society independently of the question as to whether 
 these changes are favorable or otherwise. The evolution of an 
 organ, or of the different parts of an organ, is degenerative if it 
 tends to the ultimate decay of that organ or of its parts, and 
 the facts are shown by means of arranging series of fossils or living 
 forms, and comparing them. Evolution is progressive if it tends 
 to the development of an organ or to the formation of a new organ. 
 
 These definitions may be applied — mutatis mutandis — to the 
 changes undergone by societies and institutions or their constit- 
 uent parts. 
 
 The ideas of progress and of degeneration seem at first sight 
 to relate to diametrically opposite phenomena. The term " pro- 
 gressive evolution " conveys the ideas of progress, development, 
 improvement, of increasing differentiation, and of the progressive 
 co-ordination of the functions or organs thus differentiated. 
 
 Degenerative evolution, on the other hand, conveys the ideas 
 of decline, of decay, and of degeneration, such as the atrophy 
 of the organs of locomotion in Sacculina, the degeneration of the 
 leaves of parasitic plants, or the dissolution of corporate bodies 
 in a declining state. 
 
 We propose to show, however, that these two ideas, w^hich 
 at first sight seem contradictory and mutually exclusive, are found, 
 on a strict examination of the facts, to interpenetrate and complete 
 each other. Degeneration and progress will appear as the two 
 sides of one whole, or as two aspects of the same evolution, and 
 it will be seen that all progress must necessarily be attended by 
 degeneration. 
 
 § 2. In the Evolution of Institutions all Modification is Neces- 
 sarily Accompanied by Degeneration. Institutions may be re- 
 garded from two distinct standpoints — from a statical point of 
 view, as they exist in the same society, and from the dynamical 
 point of view, as existing from epoch to epoch, and from society 
 
 D. Appleton and Company, New York, 1899, "International Scientific 
 Series", No. 79. These selections are reprinted from pp. 21-22, 90, 98- 
 115, 151-161, 170-177,205-221,227-229, 247, 251, 281-282,292, 298-299, 
 306, 317-318, of the translated volume.] 
 
544 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 to society. In both cases, we shall arrive at the same conclusion 
 as in biology, that all modification entails degeneration. 
 
 § 3. Modification of Similar Institutions in Different Social 
 Groups. According to the primitive constitution of things, the 
 land occupied by a tribe or clan was regarded as res nullius, and 
 consequently at the free disposal of all the members of the com- 
 munity.^ 
 
 With the increase of population, the value of land rose, and 
 the state of things became modified, the rights of groups and 
 individuals becoming consolidated and at the same time limited. 
 Then arose gradually or simultaneously the following various 
 forms of landed property : (1) Land held by families ; (2) by 
 villages; (3) feudal property; (4) communal or public prop- 
 erty; (5) property belonging to corporations; (6) private 
 property. 
 
 Family, village, and feudal property represent, among certain 
 people, three successive stages in the evolution of property. When 
 the old system of land tenure was abolished, private and com- 
 munal or public property began to develop simultaneously. 
 
 While certain lands which were free to all the inhabitants be- 
 came transformed into collective property, other such lands lost 
 their public character and became private property. In the first 
 case, the communes, on being called upon to fulfil functions of 
 increasing complexity, proceeded to transform all or part of the 
 properties concerned into patrimonial property or property for 
 the use of the people {communaux, allmenden) ? 
 
 In the second case the property of the old community became 
 the joint but undivided property of the members of the corpora- 
 tion; when, however, for purposes of cultivation it became 
 necessary to divide it, the corporative property became trans- 
 formed into private property. 
 
 On reviewing in succession these various phases in the evolu- 
 tion of landed property, it will clearly be seen that modification 
 has everywhere been attended by degeneration. 
 
 1 y. Maurer, "Feld- Wald- iind Weidegemeinschaft." 
 
 2 Giron, "Le droit administratif de la Belgique", No. 683: ** There 
 were three kinds of communal property : 
 
 "(a) Property directly appropriated to the use of the public, such as 
 public squares, streets, churches, etc. 
 
 "(6) Communal property properly speaking, i.e. the real estate and 
 rights belonging to the tribune and to which the people were entitled to a 
 personal share. These consisted of the forest land, rights of appanage, 
 waste land, moorland, and the rights of pasturing. 
 
 " (c) Patrimonial property, i.e. that held by the commune, the revenue 
 from which went to the commune to defray the expenses of administra- 
 
Chap. XXIV.] DEGENERATION 545 
 
 1 . (Family property — Montenegro.) Of all the Balkan States, 
 Montenegro — owing to the natural barriers which separate it 
 from the rest of Europe — has best preserved its archaic institu- 
 tions. Here, side by side with modern institutions, may be found 
 the old system of division into forty-two tribes (pleme) which 
 are subdivided into clans or confraternities (brastvo) and into 
 patriarchal families (zadrugas and inokosnas).^ The develop- 
 ment of modern political and judicial institutions has, however, 
 considerably lessened the importance of the plemes and the brast- 
 vos, so that progression in this direction has not been effected 
 without accompanying degeneration. 
 
 With regard to property, the two different forms of family 
 tenure have been substituted for what was formerly the tribal 
 or clan system. Of the former collective property of the clan, 
 there only remain the following traces : — 
 
 (1) Property rights held over certain portions of land — gener- 
 ally forest or waste land. 
 
 (2) The right of pre-emption in favor of members of the brastvo 
 or of those related to a member within the first six degrees of 
 lineal descent.^ 
 
 (3) The right of allotting to relatives their share in the duties 
 of helping widows and paupers in their work. The workers in 
 this case receive no payment, neither have they any right to de- 
 mand maintenance. 
 
 tion. It included timber land, arable land, house property, market- 
 places, etc." 
 
 ^ For information about the common or differential characters of the 
 zadruga and the inokosna, see Ardent, "La Famille zougoslave au Monte- 
 negro " ("Reforme sociale", 17th October, 1888). 
 
 2 Article 48 of the Civil Code of 1888, drawn up by Bogisic in all pos- 
 sible accordance with "the excellent customs" of Montenegro, begins 
 with the statement that "the right of pre-emption, a privilege which 
 has so long been enjoyed by the members of the brastvo, by persons 
 whose lands adjoin, and by the members of the village and pleme, still 
 flourishes, and will probably continue to do so." 
 
 Bogisic adds that, in accordance with this right, "any person desiring 
 to sell his land, or any kind of real estate belonging to him, is constrained, 
 according to the established custom in such cases, to first offer it in legal 
 order to those persons who enjoy the right of pre-emption, in order to 
 give them an opportunity of purchasing it at the price at which it is to be 
 offered to the public." 
 
 Article 49, sec. 1, gives a list setting out the order of precedence of 
 those who enjoy the right of pre-emption. 
 
 1. Members of the brastvo within the first six lineal degrees of descent. 
 
 2. Persons owning adjoining lands. f Transference, of recent origin, 
 
 3. The other members of the village. I to neighbors of rights 
 
 4. The other members of the pleme. | originally confined to rela- 
 
 [ tives. 
 If none of those entitled to the first offer desire to purchase, the owner 
 may then sell his property to any other Montenegrin. 
 
546 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Still rarer are vestiges of the collective property of the pleme. 
 A few portions of land, however, still belong to that body, and it 
 is probably a survival of this ancient condition of things that 
 foreigners are not permitted to acquire landed property in Mon- 
 tenegro,^ and that the public are unrestricted in the right to hunt 
 over any ground they choose.^ 
 
 2. (Village property — Russia.) Village communes and the 
 periodical division of land — the mir of Russia or the dessah of 
 Java, for instance — do not represent types of a primitive system, 
 but are the outcome of a whole series of modifications. Kovalev- 
 sky traces the evolution of the present system in Russia through 
 the following principal stages : — 
 
 (1) The joint use of land by the members of one family group 
 (pechische), corresponding to the zadruga of the Southern Servians, 
 and sometimes comprised of more than forty persons. 
 
 (2) The division of the mother-family into separate house- 
 holds, thus forming a village community, and the temporary 
 allotment of land of the community among the separate families. 
 
 (3) The alienation of all or part of the allotments assigned 
 to the families and the constitution of agricultural communes no 
 longer necessarily consisting exclusively of persons akin. 
 
 (4) The periodical division of land, which, as the population 
 increased, was instituted with a view to re-establishing an equal 
 distribution. This system of division, which was established 
 gradually, only dealt with the more valuable sort of land, such as 
 meadows and arable land. The forest land and pasturage, that 
 at least which was not already annexed by the lords of the manor, 
 was free to all. 
 
 This transformation of family communities into village com- 
 munities was not effected without accompanying degeneration. 
 The administrative institutions of the family group disappeared, 
 and the rights of pre-emption in favor of blood relations were 
 gradually replaced by village rights. The importance of the 
 family, regarded as an economic group, decreased in proportion 
 with the increase of the importance of the village. 
 
 In some places, however, and especially among the Ossetes 
 
 1 The old Montenegrin law relating to landed property, which pro- 
 scribes the purchase of land in Montenegro by any but Montenegrins, is 
 still in full force. No transaction in violation of it is legally binding 
 {Dickel, "fitude sur le nouveau Code civil montenegrin"). 
 
 2 Throughout the southern Slavonic countries hunting is the free right 
 of all. Any one may hunt where and how he pleases, not only on public 
 ground, among the mountains and forests, but upon private property, 
 whether cultivated or not {Dickel, p. 36). 
 
Chap. XXIV.] DEGENERATION 547 
 
 who inhabit the valleys of the Caucasus, the old system may still 
 be found. There, at any rate up to within the last few years, the 
 aouls (villages) are principally comprised of families holding land 
 in joint tenure, frequently sharing all things in common. These 
 aouls are very rarely met with nowadays.^ 
 
 Besides these family communities, there yet remain among 
 the Ossetes, as in Montenegro, numerous vestiges of the primi- 
 tive system of clan property, i.e. the appropriation of certain por- 
 tions of land by the members of the clan, the common use of pastu- 
 rage and forest land, the enforced participation in certain public 
 works, and the rights of heritage over unclaimed land, or unap- 
 propriated property which had become so owing to the lapse of 
 some " feu " or by the extinction of a family community.^ 
 
 3. (Feudal property — England.) The introduction of the 
 feudal system into England resulted in the substitution of a new 
 method of grouping, in place of the old agrarian communities. 
 These new groups, like the tow^nships of earlier times, consisted 
 of a complete organization occupying definite boundaries. In- 
 stead, however, of being a family group administrated by a dem- 
 ocratic organization and government, this new system, which 
 Maine calls a " manorial group ", consisted of a tenantry auto- 
 cratically grouped together and governed by a feudal chief — 
 the Lord or Seignior.^ 
 
 Although it cannot definitely be asserted that each one of 
 these manorial groups was developed from what had formerly 
 been a village community, yet it is evident that such was fre- 
 quently the case, and that the transformation was accompanied 
 by partial degeneration. For instance : — 
 
 (1) The assembly of the inhabitants of the township, which 
 ■formerly exercised complete control over all legal and adminis- 
 trative affairs, disappeared, and in its place sprang up the mano- 
 rial court which was comprised of a limited number of tenants 
 and presided over by the lord of the manor or his representative. 
 
 (2) The collective property became absorbed, or was at least 
 considerably reduced by the acquisitions of the lord of the manor, 
 
 ^ See Kovalevsky, "Coutume contemporaine et loi ancienne'*, p. 42, 
 Paris, Larose, 1893. 
 
 2 See Kovalevsky, "Couturae contemporaine et loi ancienne", pp. 68 
 and following, Paris, Larose, 1893. 
 
 3 See Maine, "Les Communautes de village"; "fitudes sur THistoire 
 du Droit"; "L'Ancien Droit et la coutume ancienne"; J^mile Lnvcleye, 
 " Les Communautes do famille et de village" (Revue d'^conomie politique, 
 1888, pp. 350 and following); Vinogradoff, "Villainage in England", 
 Oxford and London, 1892. 
 
548 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 or by divisions effected by members of the communes. The old 
 system of collective property held by townships did not, how- 
 ever, wholly disappear. 
 
 (a) The " rights of usage '' in regard to waste land, forest and 
 moors (such as the use of unclaimed pasturage, the cutting of 
 timbers, etc.), were still enjoyed by the old inhabitants, and even 
 in some instances by other persons upon whom these '' rights " 
 had been conferred. 
 
 (b) With regard to meadow land, sometimes the lord of the 
 manor put up enclosures for his own benefit from Candlemas till 
 midsummer, the rights of the community being established dur- 
 ing the remainder of the year only; sometimes it was the com- 
 munity who put up the enclosures, when the lord of the manor 
 was only entitled to the use of the land during the intervals; 
 sometimes pasturage was held as the joint property of the old 
 community, or rather of their descendants the tenants; but as 
 a rule it was regarded as more or less common property. The 
 best meadow land was divided up into what were termed " deals " 
 and apportioned by drawing lots. 
 
 (c) With regard to arable land, the method of appropriating 
 and cultivating the land occupied by the tenants retained many 
 traces of the village system of collective property. For instance : 
 the enforced rotation of crops ; the periodical division of land in 
 certain parts of the country; the division of land into three 
 breaks in other places; and the destruction after the harvest 
 of the enclosures surrounding the crops, after which the land was 
 used for the herding of cattle. 
 
 These survivals may yet be found in some districts of modern 
 England, in spite of all the great changes in the English system 
 of property; changes such as the disappearance of the serf and 
 the appearance of yeomen in the course of the thirteenth to the 
 sixteenth century, and the dispossession of the yeoman in favor 
 of the growth of large properties in the course of the sixteenth 
 to the eighteenth century. 
 
 4. (Public or collective property — Switzerland.) It is easy 
 in Switzerland to follow the course of the transformation into 
 political communes of the old system of economic communes, 
 whether village or manorial. 
 
 In the mountainous parts of Switzerland this transformation 
 is still incomplete, and side by side with the modern commune 
 may be seen the old form of collective property, though in a more 
 or less advanced stage of degeneration. 
 
Chap. XXI V] DEGENERATION 549 
 
 The successive stages of this evolution may be enumerated as 
 follows : — 
 
 (1) The village communities (the Feld- WaM- und Weidegemein- 
 schaft of von IMaurer). 
 
 (2) The collective property of the inhabitants, whether feudal, 
 free, or partly both (Gemischte Gemeinde). 
 
 The Feldgemeimchaft completely disappeared after the Refor- 
 mation, the collective land of the community, the joint use of 
 which was the right of all the inhabitants, being restricted to mere 
 waste land, forest land, and pasturage (Allmend)} 
 
 (3) The institution of Biirgergemeinde — public corporations — 
 the members of which enjoyed the sole use of the Allmend, and 
 upon whom fell the costs of local administration; as the popu- 
 lation increased, the conditions of admission into the Burger- 
 gemeinde become more and more strict. 
 
 (4) The creation of FAmvohner gemeinde, or political com- 
 munes, established side by side with the old system, and in many 
 localities eventually taking its place. In these the responsibili- 
 ties of the former system were assumed, and part or the whole 
 of the collective property w^as appropriated. Where the old com- 
 munities still survive, they have, as a rule, ceased to exercise the 
 greater part of their original functions. In the Cantons of Berne 
 and Saint-Gall, for instance, the old communities have delivered 
 up the greater part of their possessions to the political communes 
 to provide for the expenses of general administration. Their 
 only now remaining function is the administration of the small 
 remainder of their patrimony and the maintenance of the indi- 
 gent members of the community. 
 
 Independently of this decay of the old system of communities, 
 the formation of political communes was attended by other phe- 
 nomena of degeneration : — 
 
 (1) The suppression of all or part of the " rights of usage " 
 enjoyed by the inhabitants. 
 
 The Eimvohner gemeinde, being called upon to discharge more 
 and more onerous and complex functions, were obliged to either 
 partially or wholly transform the communal possessions, to the 
 
 ^ The Allmend, in the primitive sense of the word, meant that part 
 of the old collective property held in joint tenancy by a community of 
 inhabitants or any other public body, the use of which was limited to 
 those who had a personal title to it. This primitive meaning has changed 
 in Switzerland — excepting in the Canton of Schwyz — owing to the 
 changes in the institution itself (see Miaskowski, "Die Schweitzerische 
 Allmend in ihrer geschiehtlichen Entwickelung, von xiii. Jahrhundert bis 
 zum Gegenwart"). 
 
550 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 personal use of which the people were entitled, into property 
 appropriated to the use of the public, either directly (ix. into 
 churches, teaching institutions, etc.) or indirectly, as a means 
 of obtaining a revenue (Enverbsquelle) . 
 
 (2) The decrease in collective property. 
 
 Many of the Burger gemeinde, although no longer discharging 
 public functions, retained part of their estates, w^hich were held 
 by the members in joint tenancy. On the other hand, as the 
 increased population necessitated the cultivation of the Allmend, 
 the original "right of usage" resulted in many instances in a trans- 
 formation of the land into private property. 
 
 This transformation, however, was not always complete, and 
 all the intermediate stages may be traced between the old collec- 
 tive tenure and the appropriation by individuals. 
 
 5. (Corporative property — Belgium.) Here we will limit the 
 sphere of our observations to Belgium, in order to avoid repeti- 
 tion, similar examples being almost universally exhibited through- 
 out Europe.^ 
 
 Our information is obtained from the work of Paul Errera.^ 
 
 The masuirs (the amhorgers of Flanders) were the mansuarii or 
 mansoarii of the Merovingian period, originally serfs, afterwards 
 tenants and copy-holders, and finally freemen. 
 
 Their history exhibits the following stages : — 
 
 (1) The feudal epoch in which the masuirs — i.e. all the mem- 
 bers of the manorial group — enjoyed " rights of usage " over 
 all waste lands, forests and pasturage adjoining their holdings. 
 These rights appear to have been conferred by the lord of the 
 manor, but they really dated from a much earlier period. 
 
 (2) As the increasing population necessitated the regulation 
 and limitation of these rights, certain conditions of property and 
 residence were stipulated for in those seeking admission to the 
 rights of the masuirs, and these privileged persons organized 
 themselves into corporations which were more or less exclusive 
 and separate from the general community. 
 
 (3) By degrees — by means of cantonments, purchases, pre- 
 scriptive claims, etc. — these corporations absorbed the best 
 part of the land, and became almost independent of the lord of 
 the manor ; as a rule, the latter gave up half of the common ter- 
 
 1 With regard to corporative property in Switzerland, see von Mias- 
 kowski, "Die schweizerische Allmend", pp. 37 and following. 
 
 2 *'Les Masuirs, recherches historiques et juridiques sur quelques 
 vestiges des formes anciennes de la propriete en Belgique." 
 
Chap. XXIV.] DEGENERATION 551 
 
 ritory to them, and freed the surplus from all rights of usage. 
 In the corporations of masuirs, however, there were still a few 
 remaining vestiges of some of the institutions of the old manorial 
 group from which they had gradually developed. The lord of 
 the manor, for instance, himself being an inhabitant and a masuir, 
 had a right to a share in the property of the community, and 
 further, in his seigniorial capacity, certain privileges accrued to 
 him, such as "la haute fleur des bois ", i.e. tithes and pannage 
 (crops of acorns). 
 
 (4) The Revolution put an end to all feudal rights, and re- 
 moved the last remaining traces of the origin of the masuirs. 
 
 Throughout this long series of transformations, it is evident 
 that degeneration has followed in the track of progress. Be- 
 sides the disappearance of the manorial group and its attendant 
 institutions, the rights of the masuirs may be said to have become 
 more restricted as they became more defined and' secure. In 
 the early days, all the inhabitants enjoyed joint rights over a 
 vast common territory; at the close of the old system this terri- 
 tory had become much reduced in extent, and had become the 
 property of a more or less large group of privileged persons. 
 
 6. (Private property — Switzerland.) After the Revolution, the 
 communities of masuirs and other similar corporations ceased to 
 have any recognized legal existence. Those which still sur- 
 vived in spite of the irregularity of their legal position, owed their 
 existence to their insignificance. The others dispersed themselves, 
 or were dispersed, and the property which had belonged to them 
 was either incorporated with the communal estate, or divided 
 up among the members of the old community. 
 
 In each of these cases the transformation was attended by de- 
 generation, for the archaic administrative organization disappeared. 
 
 We saw in the Allmend of Switzerland, this same divergent 
 evolution of public and private property, part of the common land 
 being transformed into communal property, while the use of the 
 surplus ended in some instances in the land becoming ultimately 
 the private property of individuals. This frequently occurred 
 where land was cultivated as orchards. In early times both fruit 
 and fruit trees belonged, like the land itself, to the community, 
 and in certain parts of the Cantons of Uri and Schwyz this is still 
 the case. By degrees, however, individual rights over fruit-trees 
 planted on the Allmend came to be recognized. These rights, 
 whether temporary or held for a life-time, eventually became per- 
 petual, and finally this right to the private acquisition of trees 
 
552 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 led to a right to acquire the land itself. This last transfcrmation 
 was not effected without a struggle and occasionally the land was 
 reclaimed by the community, the proprietor of the trees receiv- 
 ing compensation. Now-a-days the possession of trees and land 
 usually go together. Duality of this kind, however, is still to 
 be met with in certain localities. In the Sernfthal (in the Canton 
 of Glaris) a still stranger custom prevails with regard to the maple 
 forests. There, the soil, the trees, and the fallen leaves (the 
 latter being used as litter for cattle) all belong to different persons.^ 
 With regard to house property there are more intermediary con- 
 ditions between use and possession. In some villages, the chalets, 
 as well as the ground upon which they are built, belong to the 
 whole community; in other villages, both are part of the collec- 
 tive property. Sometimes private possession is restricted to the 
 house or chalet, the right to the ground upon which it is built 
 lapsing with the existence of the house. In order to limit the 
 number and durability of these buildings, many restrictions are 
 imposed, such as the prohibition to build houses of stories, or 
 chalets of wood cut from trees not belonging to the builder him- 
 self or to the corporation to which he belongs, etc. 
 
 7. (Summary.) This long series of modifications, the result 
 of which was the transformation of primitive communities of 
 goods into the modern forms of public and private property, was 
 accompanied throughout by degenerative changes. The es- 
 tablishment of family property entailed the curtailment of tribal 
 and clan rights. Family property passed into property held by 
 the village ; next the development of feudal tenure involved the 
 degeneration of the old agrarian communities ; finally, the primi- 
 tive organization of property with the administrative and polit- 
 ical institution dependent on it, disintegrated and disappeared 
 as the primitive community of goods lapsed into the personal 
 enjoyment of these by individuals, and as the primitive method 
 of land tenure passed into the rights of private property. 
 
 We see then that degeneration has always accompanied evolu- 
 tion : the destruction of old institutions is involved in the for- 
 mation of new institutions. 
 
 (II) Degeneration in the Evolution of Organisms and Societies 
 
 § 4. Survivals Exist in all Kinds of Societies. We have seen 
 that modification of organs and of institutions is always associated 
 < . 1 Miaskowski, "Die schweizerische AUmend", pp. 18 and following. 
 
Chap. XXIV.] DEGENERATION 553 
 
 with partial degeneration. We have now to show that, similarly, 
 when organisms and societies become modified, degeneration is 
 shown in some of their organs or institutions. This shows again 
 the universality of degenerative evolution. 
 
 It may be said as certainly of societies as of other organisms 
 that certain modifications have taken place, and that no society 
 actually represents a primitive social organization. All have been 
 submitted to more or less important modifications and have lost 
 some of their early institutions in process of their development. 
 In many cases this can be historically demonstrated. 
 
 It may fairly be asserted that in all societies there are instances 
 of siu'vival, i.e. survival of customs, beliefs and institutions, the 
 original character of which has so completely disappeared that 
 they might well be dispensed with altogether. 
 
 We shall deal only w ith such survivals as correspond — mutatis 
 mutandis — to the rudimentary organs of animals and plants. 
 
 These survivals are of two kinds, the institution itself, such as 
 the various corporations of the city of London, which may still 
 persist, though in a modified condition, or there may remain only 
 traces of the institution in forms, ceremonies, symbols, public 
 games and fetes, customs, and legislative formulas. 
 
 In order to demonstrate this point, it will not be necessary to 
 make a complete enumeration, furnishing examples from all 
 countries of the world, or to draw up a complete list of survivals 
 in any given country. It will be enough to establish two points : 
 
 (1) That instances of survival shall be shown to exist in all 
 societies, even where they are least likely to be found. 
 
 (2) That, in any institution — that of the family, for instance 
 — survivals may be found of all the former stages through which 
 it passed into its present condition. 
 
 These two points being established, our conclusions drawn from 
 them may be given a very wide application. 
 
 § 5. Instances of Survival in Various Groups. " It is a well- 
 known fact," says Kovalewsky, ''that as the past gives place to 
 the present it leaves traces which vary in number and impor- 
 tance." 1 
 
 This is obviously the case with regard to most customs, but it 
 is unnecessary to point out all the instances of survival which 
 abound among the peoples of the countries round about us. They 
 are naturally most common in barbarous societies where the servile 
 
 » Kovalewsky, "Tableau des origines de la propriety et de la famille", 
 
 p. 7. 
 
554 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 imitation of the ancestor plays a much greater part than with us. 
 This is strongly urged by Bagehot in the following passage : 
 
 '' Man," he says, '' may be defined as a creature of habits. As 
 he has done a thing once, so he will probably do it again, and the 
 oftener he has done a thing the more likely he will be to repeat 
 it in the same way, and, what is more, to insist upon others doing 
 the same. 
 
 " By means of counsel and example he transmits to his offspring 
 the customs he himself originated. This is true of the human 
 beings today and will doubtless hold good for all time. It is 
 characteristic of primitive societies that sooner or later most 
 of these customs come to be regarded as having a supernatural 
 sanction, and the whole community is impressed with the belief 
 that if the old tribal customs are violated, incalculable misfortune 
 will follow." 1 
 
 Social modifications are therefore effected very slowly and with 
 great difficulty — stagnation is the rule, and progress but a rare 
 exception, innovators being forced to retain the greater part 
 of the old institutions, introducing only an inevitable minimum of 
 change. A course of history, or a careful study of the conditions 
 of social institutions at an earlier stage of development than our 
 own, will furnish numerous instances of survivals. It now re- 
 mains to be seen if there are no rudimentary social groups wherein 
 all the primitive institutions have been retained, and which, 
 having undergone no modifications, exhibit no traces of degenera- 
 tion. We shall further see if no form of society exists unin- 
 fluenced by the spirit of tradition, and where institutions which 
 have come to be regarded as no longer useful, disappear suddenly 
 and entirely either by voluntary dissolution or by legislative 
 measures. Only in these two extreme cases can the existence of 
 survivals be questioned. We have then to establish two points. 
 
 (a) That all societies, even those to be regarded as primitive, 
 have undergone certain modifications. 
 
 (6) That all societies, even the least conservative, exhibit in- 
 stances of reduced institutions, and of vestiges of institutions which 
 have disappeared. 
 
 We will take the second point first, as it can be more briefly 
 dealt with. 
 
 1. We know that imitation of the past and respect for tradi- 
 tion and custom are reduced to a minimum in modern societies, 
 
 1 Bagehot, "Lois scientifiques du developpement des nations", p. 154, 
 Bibl. scient. intern., Paris, F. Alcan, 1885. 
 
Chap. XXIV.] DEGENERATION 555 
 
 especially in the countries of the new world. Even in these re- 
 cently formed States, however, instance of survival may be found. 
 
 In the first place, there are legal and religious survivals of 
 European origin. Jews settling in the United States kept up the 
 practice of circumcision while Christians introduced the Eu- 
 charist. Spencer ^ has shown that forms of greeting are vestiges 
 of a primitive ceremonial demonstrating submission to the omnip- 
 otence of others. Then take the calendar system which is uni- 
 versal ; we know that the names of months and days of the week 
 are survivals from polytheistic times, and it seems certain that 
 both circumcision and the celebration of the mass are true sur- 
 vivals which originated in religious sacrifices. Independently of 
 these imitative survivals vestiges remain in the United States 
 of reduced institutions which were fully functional in the last 
 century. 
 
 2. We have now to show that the simplest societies have under- 
 gone modifications, and exhibit instances of survival. We will 
 take as examples those rudimentary types most nearly approach- 
 ing to the primitive type,^ i.e. the Veddahs of Ceylon, the Fuegians 
 of Cape Horn, and the Australian tribes. 
 
 (a) The Veddahs, who have lived in the jungles of Ceylon for 
 centuries, either as separate families, or in groups of two or three 
 families, appear to have formerly possessed a much more com- 
 plicated social organization. According to Max Miiller, they 
 were not formerly so low in the scale of humanity ; he says that 
 their language, if not their blood, betrays their " distant connec- 
 tion with Plato, Newton, and Goethe." 
 
 In their language, folk-lore, and clothing, these retain charac- 
 teristic vestiges of a former condition. Take for instance the 
 carefully observed practice of piercing the ears of children at the 
 age of three or four years, although eventually only a small number 
 of them could wear ornaments in them, others having to be content 
 with small pieces of twig, coiled leaves, or bits of straw. 
 
 '' This custom," says Deschamps, " is extremely old, and we may 
 suppose — as there is no other signification in it than the prospect 
 of ultimately wearing jewels — that it dates back from a time when 
 the people were not in so low and destitute a condition as they are 
 now. Having in more civilized times worn jewels in their ears, 
 
 ' "Essays on Progress." 
 
 2 "Aggregates formed by a simple repetition of hordes or clans with- 
 out any such interrelations between them as to form intermediate groups 
 between the whole collection and the individual clans." Durkheim, 
 "Les Ragles de la methode sociologique", Paris, F. Alcan, 1895. 
 
556 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 the custom of piercing the ears in youth persists, though the jewels 
 may be lacking." ^ 
 
 (b) Bridges says that according to a tradition which is probably 
 true, the Fuegians, until quite recently, submitted their young 
 men to a sort of initiatory trial when they attained to adolescence. 
 They were taken into a hut (the kino) set apart for the purpose, 
 and there underwent certain tests, including a rigorous fast. 
 Bridges adds that the kina was also the theatre of mysterious and 
 bizarre scenes of very ancient origin, the roles of which, now 
 relegated to men only, were entirely performed by women. Con- 
 trary to Giraud-Teulon who cites these facts as evidence of the 
 former existence of a matriarchy, the fetes of the kina seem to 
 have quite disappeared from among the natives of Orange Bay. 
 
 Dr. Hyades, however, mentions a survival of the old custom. 
 " The custom is still observed of submitting young girls to a fast 
 at the time of puberty, but this fast is less severe than that 
 already mentioned as undergone by the boys; the same good 
 advice is then given them by their parents, as was formerly 
 bestowed upon the boys in the kina.'' ^ 
 
 (c) Recent researches into the family system among the Aus- 
 tralian tribes has brought a number of survivals to light. This 
 is especially the case with regard to the careful researches of 
 Fison and Howitt ^ who have shown that, independently of their 
 tribal divisions — which are really territorial groups — the 
 Australians are divided up into clans or sexual groups comprising 
 all the individuals with the same Kohong} 
 
 The members of these groups are regarded as members of the 
 same family, and may never, under any circumstance, inter- 
 marry, under pain of being driven out of the clan and hunted like 
 wild beasts. Sometimes individuals of antagonistic tribes living 
 at several hundred miles' distance from one another and speaking 
 different languages have the same Kobong. The law of classes 
 remains active ; a captor may not violate a prisoner belonging to 
 his groups, but a stranger may enter into relations with the women 
 of another tribe, so long as the tribe belongs to a class related to 
 
 1 Emile Deschamps, "L'Anthropologie", 1891, t. ii., pp. 297 and 
 following. 
 
 2 "Mission scientifique du cap Horn", 1882-1883, t. vii., "Anthro- 
 pologie, Ethnographie", by P. Hyades and J. Deniker, Paris, Gauthier- 
 Villars, 1891, p. 377. 
 
 3 Fison and Howitt, "Kurnai and Kamilaroi" (*' Journal of the Anthro- 
 pological Institute", 1884). 
 
 * ' ' The Kobong of a man is the animal or plant, the name of which he 
 bears and reveres as a protecting spirit" (Starcke). 
 
Chav. XXI V.J DEGENERATION 557 
 
 his own. This system of relationship can only be explained as 
 being a survival from a former period in which all persons with 
 the same Kobong belonged to the same group. This is a dis- 
 puted point/ however, for besides this very likely hypothesis, 
 undoubted survivals remain of intermarriage by groups or sexual 
 groups. In the writings of Fison and Howitt, we find the two 
 following instances of this in two tribes which, according to them, 
 severally represent the highest and lowest in the scale of civili- 
 zation, among those with which they came in contact.^ 
 
 {(l) The tribe called Kimandaburi was divided into two exog- 
 amous classes : Mattara and Yungo. Theoretically all the 
 Yungos whether male or female were regarded as the males of the 
 Mattara^, and vice versa. In point of fact, however, only one 
 vestige of the primitive communal marriage remained — the jus 
 primoB noctis, which was the prerogative of all the contemporaries 
 of the husband belonging to the same group. 
 
 {e) The tribe called Narrinyeri, which represented a more ad- 
 vanced stage of civilization, was equally divided into two sexual 
 groups, but in reality, marriage was strictly individual. One 
 survival remained, however, of the former system. When a man 
 captured an alien bride, all the men of his own generation and 
 belonging to the same group possessed the right of jus primoB 
 noctis. 
 
 3. We have seen that instances of survival are rare in some 
 countries because modifications are only effected slowly, and in 
 others because changes are effected very quickly and useless in- 
 stitutions are eliminated root and branch. It is in countries like 
 England, where modifications are brought about with a due respect 
 for old customs and traditions, that ceremonies, institutions, and 
 customs exhibit the greatest number of survivals. 
 
 § 6. Summary and Conclusions.^ The examples we have been 
 able to give make it plain that degenerative evolution exists 
 everywhere. It must be noticed, however, that biological in- 
 vestigations show that in the evolution of organs certain ^ parts 
 may disappear completely, but also that in the evolution of organ- 
 isms certain organs may also disappear. This last phenomenon 
 is most common in embryological development, when it is known 
 as ontological abbreviation. Sometimes it is the adult stage 
 
 1 5<arrAe, " La Famille primitive" (Bibl. scient. intern., Paris, F. 
 Mean, 1891, p. 22).. 
 
 2 Fison and Howitt, "Journal of the Anthropological Institute", 1882. 
 p. 35. . 
 
 ' Various intermediate sections have been omitted. 
 
558 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 that is suppressed, this being possible by what is called psedogene- 
 sis, a precocious appearance and ripening of the sexual organs. 
 
 Sometimes a degenerative transformation becomes still more 
 complete and wonderful ; not only may a larval stage or an adult 
 stage be completely suppressed, but a multicellular organism may 
 even lose its power of dying. It is known that the simplest forms 
 of life are practically immortal : when a microbe like micrococcus 
 divides, nothing dies, and throughout the whole series of succes- 
 sive divisions the primitive life is preserved. On the other hand, 
 in the case of higher animals such as man there are both mortal 
 somatic cells and reproductive cells which by means of conjuga- 
 tion become practically immortal. The mortality of the somatic 
 cells is evidently an acquisition, an advantage fixed by natural 
 selection; but there exist multicellular organisms evidently 
 derived from creatures which had acquired the division into mortal 
 somatic and immortal reproductive cells and which have lost it 
 since. All the cells of their body are able to avoid death by 
 conjugation. 
 
 Whatever transformation may be studied, it will be found 
 that change is always accompanied by an elimination of some parts 
 and that in the interests of the organism as a whole these useless 
 parts gradually degenerate. When a whole organization begins 
 to undergo retrogressive evolution and to decay, it is frequently 
 in the interests of some still larger organization. Individuals 
 or species out of harmony with their surroundings disappear to 
 make room for others. August Comte has shown how death is 
 a progressive agency in the social organization, removing the 
 worn-out tissues and leaving room for new and more plastic in- 
 telligence. All progress implies necessary eliminations. In the 
 domain of society, those who are victims and who from birth, 
 education, or interests, attach themselves to the decaying institu- 
 tions, naturally see only the degenerative side of the change ; but 
 those who regard the process as a whole and do not concentrate 
 their attention upon the injured interests and individual sufferings 
 will see the other side of the movement. 
 
 When a social organism is degenerating there is considerable 
 opposition to its complete disappearance, and so as Houzeau has 
 said,i it is to be expected that living and superior civilizations 
 drag behind them a trail of debris from dead civilizations. 
 
 1 [See § 19 of this chapter.] 
 
Chap. XXIV.] DEGENERATION 559 
 
 II. The Path of Degenerative Evolution 
 
 (III) The Supposed Law That Degeneration Retraces the Steps 
 
 of Progress 
 
 § 7. Retrogrression. It is a common opinion, supported partly 
 by the etymology of the word, that retrogression is a tracing 
 backwards of progression. " In the degeneration of organiza- 
 tions fallen out of use," M. A. Lameere has said, " it is to be 
 observed that the structures formed most recently and most special- 
 ized are the first to disappear, and that the most fundamental 
 characters are those which persist longest : that in fact degenera- 
 tive evolution retraces the steps made by progressive evolution. 
 Peculiarities recently acquired, if they become disused, rapidly 
 disappear, while dispositions of a more ancient kind have a per- 
 sistence almost exactly proportioned to their age." ^ 
 
 This supposed biological law of retracement has penetrated to 
 psychology and sociology. In 1868 Hughlings Jackson, in the 
 study of certain maladies of the nervous system, had arrived at 
 the conclusion that, " In the degeneration of this system the 
 higher functions, those more complex, specialized and voluntary, 
 disappear more quickly than the lower, simpler, less specialized, 
 and more automatic functions." ^ 
 
 Starting from this point, and expressing it in terms of 
 physiology, Ribot formulates as follows the law of degenera- 
 tion of will and memory : " The dissolution of the will occurs 
 in a retrograde fashion, from the more voluntary and complex 
 to the less voluntary and simpler — that is to say, towards autom- 
 atism." ^ 
 
 So also in progressive loss of memory, the degeneration proceeds 
 from the less stable to the more stable. " It begins with recent 
 acquisitions not firmly rooted in the brain, rarely repeated, and 
 so not firmly associated with others, in fact with the least organized 
 parts of memory. It ends with sensory memory, which is instinc- 
 tive, and is deeply rooted in the organism, or is indeed a part of 
 the organism itself." "^ 
 
 These retrograde transformations of the nervous centres have 
 their echoes in the modes in which ideas and feelings are expressed. 
 
 1 A. Lameere, "Esquisse de la Zoologie", Bruxelles, Rosez, p. 184. 
 
 2 Ribot, "Maladies de la M6raoire", p. 29; Dallemagne, "Deg6n6r6s 
 et Desequilibres", p. 430. 
 
 3 "Maladies do la Volenti", p. 150, Paris, F. Aloan. 
 < "Maladies de la Meraoire", p. 94. 
 
560 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Paul Heger, in particular, has shown this in his investigations 
 into the degeneration of writing and speech.^ 
 
 In a lecture on the evolution of language, delivered at the 
 University of Brussels, he said as follows : '' For several years 
 I have studied the degenerative evolution of writing, and I have 
 shown how the writing of the insane resembles that of children. 
 All that I have said with regard to writing applies to speech, and 
 just as drawing lasts longer than writing, so rhythm and music 
 survive after the power of expressing ideas by words has been lost. 
 The gradual degeneration of speech may be traced in the case of 
 old men who gradually pass down the incline into senility. Study 
 of the speech of such persons shows that the degeneration of their 
 faculty retraces the steps by which it had been progressively 
 acquired." 
 
 The labors of Heger were in a field where the social element was 
 important. It is a small step from them to social affairs themselves. 
 A number of authors, including Ferrero, Colajanni, and Degreef, 
 base their ideas upon this law of retrogression, which they regard 
 as established and applying to sociological phenomena.^ 
 
 § 8. The Path of Degeneration in Sociology. We have now 
 to see if degenerative evolution in social matters retraces the steps 
 of progressive evolution. 
 
 In the first place the question cannot be even entertained with 
 regard to some cases, and this for a general reason which will be 
 dealt with later on. 
 
 When a complex institution — such as a commercial society 
 or an administrative organization — becomes useless and ceases 
 to be functional, it usually disappears either by voluntary dissolu- 
 tion or else it is legally suppressed. In either case there is no slow 
 retrogressive degeneration retracing inversely the steps of progress, 
 for all the parts cease to exist simultaneously. If certain parts of 
 the suppressed institution are allowed to persist, these are by no 
 means necessarily the oldest parts, but quite the contrary. 
 
 When, for instance, the provincial states of Dauphiny and 
 Normandy were suppressed by the French monarchy, only the 
 titles with their corresponding emoluments were allowed to remain, 
 and they were obviously of more recent origin than the States 
 themselves. 
 
 1 "Sur rEvolution regressive de I'Ecriture chez certains Alienes" 
 ("Bull, de la Societe d'Anthropologie de Bruxelles", v, 1885-1886) ; "Sur 
 rEvolution du Langage" ("Revue Universitaire", Bruxelles, 1892-1893, 
 p. 143). 
 
 2 Degreef, "Le Transformisme Social", F. Alcan, Paris, 1895, p. 365. 
 
Chap. XXIV.] DEGENERATION 561 
 
 It must be borne in mind that all the parts of an institution 
 rarely become simultaneously useless and non-functional. Those 
 which retain their utility longest are by no means always the most 
 ancient in origin. 
 
 English sheriffs have gradually become of less and less functional 
 importance, and now fulfil no other role than that of presiding over 
 elections and accompanying the judges when on circuit. Both 
 of these functions have been acquired recently compared with all 
 those which the sheriff discharged in the days when the care and 
 protection of the whole county practically devolved upon him. 
 
 The question then of the pathway of degeneration only arises 
 in those cases where the same cause of dissolution simultaneously 
 affects all parts of the institution, and where, without sudden 
 interruption, degeneration is effected slowly but surely through 
 many successive stages. This, of course, happens in the de- 
 generative evolution of individual societies or institutions, and 
 not in the disappearance of complete classes of institutions. 
 
 These reservations being understood, we will mention a few 
 more or less obvious cases in which degeneration does retrace the 
 footsteps of progressive evolution. 
 
 (1) (Tithings, hundreds and counties in England.) In the chap- 
 ter dealing with the pathway of degeneration in '' Transformisme 
 social", G. Degreef mentions the following interesting facts: — 
 
 '' ]\Ir. Herbert Spencer, after describing the formation of tith- 
 ings, hundreds, and counties in England under the Anglo-Saxon 
 regime, observes that the tithings along with their courts of justice 
 were the first to disappear, then the hundreds followed, though 
 some vestiges of their old courts of justice remained, and only 
 the counties and the county courts were left intact. Now we 
 have historical proofs that English counties along with their courts 
 of justice were created before the hundreds, and the hundreds 
 before the tithings." ^ 
 
 (2) (Order of elimination of various racial elements in a coun- 
 try.) In his interesting work '' Civilisation et depopulation ",^ 
 Dumont mentions certain facts which go to show that the in- 
 habitants of poor districts, who are nevertheless of pure racial 
 descent, have a birth-rate higher than that of the members of the 
 population who are not aboriginal, and who for the most part 
 dwell in the towns and fertile plains. From this he concludes 
 that the various racial elements of a nation are eliminated in in- 
 
 1 Degreef, "Le transformisme social", p. 450. 
 « P. 156. 
 
562 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 verse order to that in which they were introduced. In France, 
 for instance, the Frank has been completely absorbed in the Gaul. 
 
 (3) (The degenerative evolution of political organizations.) 
 The progressive and degenerative evolution of political organiza- 
 tions has been described by Herbert Spencer as follows ^ : — 
 
 " Political integration, as it advances, obliterates the original 
 divisions among the united parts. In the first there is the slow 
 disappearance of those non-topographical divisions arising from 
 relationship, as seen in separate gentes and tribes — gradual 
 intermingling destroys them. In the second place, the smaller 
 local societies united into a larger one, which at first retains their 
 separate organizations, lose them by long co-operation ; a common 
 organization begins to ramify through them. And, in the third 
 place, there simultaneously results a fading of their topographical 
 bounds, and a replacing of them by the new administrative bounds 
 of the common organization. 
 
 " Hence, naturally, results the converse truth that in the course 
 of social dissolution the great groups separate first, and after- 
 wards, if dissolution continues, these separate into their component 
 smaller groups. Instance the ancient empires successively formed 
 in the East, the united kingdoms of which severally resumed their 
 autonomies when the coercion of keeping them together ceased. 
 Instance again the Carlovingian Empire which, first parting into 
 its large divisions, became, in course of time, further disintegrated 
 by subdivisions of these. And when, as in this last case, the pro- 
 cess of dissolution goes very far, there is a return to something 
 like the primitive condition, under which small predatory societies 
 are engaged in continuous warfare with like small societies arou'^d 
 them." 
 
 We may conclude then that political integration is attended 
 by degeneration ; primitive institutions disappear and make way 
 for fresh institutions, and their disappearance is permanent. In 
 the course of the dissolution of the Carlovingian Empire there was 
 no reappearance either of the gentes or of the primitive .tribal 
 system; but when this vast organization broke down, it was 
 natural that the more recently formed social bonds, having had 
 the least opportunity of becoming consolidated, should be the 
 first to be sundered. 
 
 (4) (Degenerative adaptation in colonial legislation.) In his 
 treatise C' Annalisi della proprieta capitalista "), Loria furnishes 
 
 1 Herbert Spencer, "Political Institutions", Part iv of "Principles of 
 Sociology", p. 286. 
 
Chap. XXIV.] DEGENERATION 563 
 
 another striking example of the law of degeneration : " When 
 English colonies were first formed in America, the colonists hes- 
 itated to establish any legislation other than that of the mother- 
 country. They were habituated to it; it was written in their 
 own language, and therefore seemed best to correspond with their 
 national characteristics. But, from the outset, the greatest dif- 
 ficulties were met with in the application of this legislation to the 
 colonies. 
 
 " In the first place the statute law of England, the most recent 
 addition to the legislation, was found to be quite unsuited to the 
 economic condition of a colony, and so common law alone came to 
 be established, which, being the more ancient, was better suited 
 to the social organization of a newly-formed society. But even 
 this form of legislation did not remain permanent under social 
 conditions profoundly different from those in which it had been 
 originally established, and the construction of a special legislation 
 was found to be necessary. In this way the common law of Eng- 
 land came to be regarded as unsuited to her colonies, excepting 
 in such cases as were unprovided for in the new colonial law." ^ 
 
 § 9. A Criticism of the Supposed Inverse Path of Degeneration. 
 These few examples suffice to show that in certain cases the 
 more recently formed institutions are the first to decline and dis- 
 appear, while the older persist to the end. 
 
 It must be remembered, however, that the contrary is at 
 least as frequently the case. All changes of legislation, either 
 juridical or religious, follow, but never precede, the economic 
 transformations to which they relate, whether these be social or 
 ethical, unless the transformations are ephemeral. ** Imita- 
 tio ." says Tarde, "proceeds from the more obvious to the less 
 obvious ; that is to say, ends and feelings are imitated sooner 
 than their means and expressions." 
 
 Title-deeds and armorial bearings survive nobility; houses 
 continued to be held as personal or movable property long after 
 the disappearance of nomadic tribes, which, living as they did 
 in tents, originated the conception.^ 
 
 Among peoples where the system of marriage by groups has 
 existed, fam.ily nomenclatures continued to persist long after the 
 disappearance of the family system to which they owed their origin. 
 
 * Loria, "Annalisi della proprieta capitalista", ii, 48. 
 
 » Viollet, "Histoire du droit civil fr.", p. 617. "Although houses 
 were for centuries treated as movable property, they continued to be 
 legally treated as such for a still longer period of time ; it is characteristic 
 of judicial ideas that they lag far behind economic progress." 
 
564 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 " The family," says Morgan, '' is an active element, never station- 
 ary ; it keeps pace with the development of society in the march 
 of progress. On the other hand, the reckoning of kinship changes 
 very slowly; only after long lapses of time does it register the 
 progress actually made by the family in the course of ages, and 
 does not undergo any radical transformation until long after the 
 family itself has been completely changed." '' And," adds Karl 
 Marx, whose critical annotations on Morgan's book were carefully 
 preserved by Engels, " this also applies to systems of politics, 
 law, religion, or philosophy." 
 
 These systems, formed after the completion of the social organi- 
 zation which they express, survive after the organization itself 
 has disappeared. Their elimination is not of such importance to 
 society as is that of the economic or family institutions themselves, 
 as these, when they become useless and disadvantageous, are a 
 drag on future development. 
 
 It cannot be established, however, as a general principle, that 
 the pathway of degeneration, as regards societies or institutions, is 
 inverse to that pursued by their progressive evolution. In the 
 first place, the mere explanation of this supposed law shows that 
 it is quite untenable. 
 
 There is nothing invariable about the pathway of degeneration. 
 It can no more be said to retrace the pathway of progress in an 
 inverse direction than it could be said that in a country abandoned 
 by its inhabitants the more recently formed paths of communica- 
 tion would be the first to become effaced. It is quite true that 
 the broader roads, which would naturally last longer, are frequently 
 the oldest paths of communication ; whereas the footpaths, which 
 are the first to disappear, are usually of more recent origin. Very 
 frequently, however, the new roads follow a rather different direc- 
 tion, and, althousjh more recently constructed, are not the first 
 to disappear. 
 
 § 10. The Irreversibility of Degenerative Evolution. Most au- 
 thorities on the subject are agreed that evolution is not reversible,^ 
 and that institutions or organs which have disappeared or been 
 reduced to rudiments do not reappear and develop afresh. It 
 would be a useless extension of this volume to cite many facts 
 in favor of a view which is almost without supporters, but it will 
 be useful to examine the exceptions, real or apparent, and to dis- 
 cuss : 1. If an institution or organ which has disappeared may 
 
 1 L. Dollo, "Les lois de I'ElvGlution" C'Soc. Belg. Geol. Paleont. Hydr.'\ 
 t. vii, 1893, "proces-verbaux", pp. 164-166). 
 
Chap. XXIV.] DEGENERATION 565 
 
 reappear; 2. If an institution or organ which has been reduced 
 may resume its primitive function ; 3. If an institution or organ 
 which has been reduced may redevelop and assume a function 
 other than its original function. 
 
 § 11. Disappeared Institutions. The Apparent Revival of By- 
 gone Institutions. It seems, at first sight, as if there were many 
 instances of the subsequent revival of bygone institutions. 
 
 Those of ancient Rome and Greece, for instance, appear from 
 time to time to have been reconstructed. In feudal Rome of the 
 fourteenth century, Cola di Rienzi, by turns tribune and senator 
 of the people, re-established the old republican constitution. 
 During the Renaissance period the ancient schools of science 
 were resuscitated, and during the French Revolution similar 
 attempts at revival were made, especially in the department of 
 politics. When Herault de Sechelle, being ordered to draw up a 
 scheme of legislation, revived the laws of Minos, in the constitution 
 of the year VIII, the tribunal, senate and consuls reappeared. 
 During the First Empire, Napoleon, in imitation of Augustus, 
 affected a respect for republican institutions, and had the coinage 
 stamped with his own effigy and that of the republic. In Ger- 
 many, the Holy Empire, which nominally ceased to exist in 1806, 
 reappeared in 1871. In Greece, the Olympic games, suppressed 
 in 1525, were re-established in 1896. 
 
 It is hardly necessary to insist upon the essentially superficial 
 nature of these revivals. It is always possible to bestow upon 
 new social systems the ceremonial code of an institution long since 
 abandoned, but it is quite impossible that the institution itself 
 should be resuscitated in the midst of surroundings which have 
 been completely transformed. The consuls of the year VIII 
 and the emperors of modern times do not resemble the consuls 
 and imperatores of ancient Rome more than the Christian soci- 
 eties of the present day resemble those of the Middle Ages. With 
 regard to outer form in the drawing up of statutes, in all which 
 constitutes, so to speak, the decorative side of the institution, 
 the organizers imitated minutely the keuren of the old ambachten; 
 beneath this apparent similitude, however, were structures of an 
 essentially different nature. Just as the new railway station at 
 Bruges, in spite of its towers and its pointed arches, is far more 
 like any other railway station than a Gothic cathedral, so the 
 Christian societies of today, in spite of the archaic caprices of their 
 founders, resemble more closely modern associations than ancient 
 associations. We see then that it cannot be said in any of these 
 
566 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 cases that the actual revival of a decayed institution took place. 
 The empty form reappeared, but the foundations and the essential 
 parts had become completely transformed. 
 
 § 12. Summary and Conclusions. From all the facts that we 
 have brought together, the general conclusion becomes plain that 
 retrogression, notwithstanding the etymology of the word, does 
 not imply a return to the ancestral condition- 
 
 Rudimentary organs and institutions resemble the primitive 
 states of these, in so far as they no longer possess certain parts 
 which the primitive stages did not yet possess. None the less, 
 profound differences exist between the primitive and the reduced 
 forms. In the primitive condition the institution or organ is 
 capable of varying in the direction of new uses; in the reduced 
 form, after a certain degree of atrophy, there is no longer the 
 possibility of redevelopment to resume old or to acquire new 
 functions. These observations apply equally to biology and to 
 sociology. 
 
 III. Causes of Degenerative Evolution 
 
 (IV) Atrophy of Organs and Institutions 
 
 § 13. The Factors of Atrophy. The causes which are active 
 in producing degeneration are various, but they may all be re- 
 ferred to the limited nature of the means of subsistence, that is to 
 say, of nourishment in the case of organisms, and of capital and 
 labor in the case of institutions. This limitation produces a 
 struggle between the individuals (societies or organisms) and 
 between their component parts. 
 
 In the course of the perpetual struggle for existence among the 
 different parts of an individual, the institutions or organs which 
 have ceased to be functional tend to disappear, their nourishment 
 being absorbed by the active parts. 
 
 § 14. Atrophy of Institutions. The causes of atrophy in in- 
 stitutions are more or less analogous to those which bring about 
 atrophy of organs. First, there is atrophy from want of use, when 
 function either becomes useless or is transferred to another insti- 
 tution. Atrophy from lack of resources corresponds precisely 
 with atrophy from lack of nutrition. There is nothing, however, 
 in the atrophy of institutions quite analogous to that which, in 
 organisms, results from lack of space. But if the development 
 of an institution cannot be actually impeded by the coexistence 
 of another institution, certain instances of atrophy do occur which 
 
Chap. XXIV.] DEGENERATION 567 
 
 cannot be said to arise from either want of use or lack of resources. 
 The institution degenerates merely from hindrance offered to 
 the exercise of its functions. 
 
 (V) The Causes of the Persistence of Organs or Institutions without 
 
 Function 
 
 § 15. Survival of Organs. We have shown how and why organs 
 may become rudimentary and tend to disappear. In many cases 
 the disappearance is complete; and the organ may not even 
 reappear temporarily in the course of the individual development. 
 This disappearance is, how^ever, by no means universal. Even 
 apart from the phenomena of recapitulation, rudimentary organs 
 may persist in the adult, and sometimes, even although organs 
 have ceased to be functional, they persist without degenerating. 
 
 § 16. Survival of Institutions. We have seen that an institu- 
 tion which ceases to be functional without dissolution — either 
 voluntary or enforced — ensuing, tends to atrophy and disappear, 
 while its resources are appropriated by other institutions. It 
 now remains to account for the fact that this atrophy does not 
 generally end in total disappearance. The two following hypoth- 
 eses may be made : 1 . The structure of a non-functional institu- 
 tion may remain intact ; 2. The institution may survive, but in 
 a rudimentary condition. 
 
 § 17. The Integral Persistence of an Institution. A non- 
 functional institution may survive and retain its structure and 
 resources in the following cases: 1. By the intervention of some 
 superior authority to prevent its suppression ; 2. When, while 
 ceasing to be functional, it continues to be useful, though indirectly 
 so ; 3. When its existence is maintained out of respect for old 
 traditions. 
 
 § 18. Survival of Institutions in a Reduced State. It has been 
 shown that a number of institutions in a state of decline continue 
 to be maintained, because they are still useful in spite of their 
 reduced condition. 
 
 This is the case with the symbolic ceremonies which in former 
 days accompanied the drawing up of solemn contracts.^ The per- 
 
 1 According to Viollet in "Histoire du droit civil fr.", p. 607,the primi- 
 tive assembly of the people still survives, though in a reduced condition, 
 in the Roman mancipatio, and in Scandinavia in a solemn form of sale 
 called the scotatio. 
 
 "I believe," he says, "that it was the primitive sale of German law, a 
 sale concluded and ratified in a popular assembly, that gave rise, in the 
 
56S PROCESS OF LEGAL EVOLUTION [Part III. 
 
 sistence of institutions in a reduced condition, but which are not 
 directly useful to any one, may be attributed to one of two causes, 
 either to respect for tradition or to the insignificance of the ves- 
 tiges which remain. 
 
 IV. Resume and Conclusions 
 
 § 19. Resume. When an institution or an organ ceases to be 
 functional or in any way useful, it very soon disappears altogether. 
 If, as happens in some exceptional cases, it persists, it is because 
 neither of the chief factors in causing atrophy, variability or selec- 
 tion, has intervened. 
 
 Sometimes the vestiges are of too insignificant a nature to call 
 for their removal by either artificial or natural selection, and 
 sometimes their existence is ensured by the lack of variability, as 
 in the case of the persistence of flowers in plants which multiply 
 asexually. This absence of variation occurs equally in the social 
 domain, especially in matters connected with religion, wherein 
 ancient customs are credited with a divine origin. Religions may 
 pass away, philosophies may be transformed, and old beliefs cease 
 to prevail, but the remnants of old creeds, conveyed by popular 
 tradition through the centuries, defy destruction by modern in- 
 novations. 
 
 "Their value lies," says Houzeau in his "Etude de la Nature," 
 " in the establishment of a chain between successive generations. 
 The memory of an individual may be regarded as constituting 
 his personality. Take from him the memory of his past, and he 
 is left at a point in time wherein there is no stability and complete 
 isolation. To be himself, a man requires not only his recollections, 
 but a knowledge of his past habits and traditions. When a savage 
 is removed from his fellows and transported to new surroundings 
 in a distant country, he loses all knowledge of his former condition. 
 Society itself, made up as it is of customs and prejudices, con- 
 stitutes history. The mirror of the past is exhibited in the con- 
 sciousness of the collective individual which is called a nation. 
 What link shall we have with former generations if not a heritage 
 
 Middle Ages, to the Scandinavian scotatio. So also in the case of the 
 Roman mancipatio there has long been believed to exist the remnants 
 of a popular assembly. The dumb witnesses in the scotatio appear to 
 me the petrified representatives of the German tribe or village ; and, in 
 the opinion of good judges, the witnesses in mancipatio are no other than 
 symbolic statutes of the five classes of the Roman people. However, 
 this is mere hypothesis." 
 
Chap. XXIV.] DEGENERATION 569 
 
 of their ideas — i.e. of their discoveries and their mistakes? 
 Nations, like individuals, are continually modifying this inherited 
 legacy, but, like the individual, they cannot get away from it 
 without breaking the thread which has made them themselves." 
 
 (VI) General Conclusions 
 
 AH evolution is at once progressive and retrogressive. All 
 modifications of organs and institutions are attended by retro- 
 gression. This occurs equally in the modifications of organisms 
 and of societies. All existing forms, whether organic or social, 
 have undergone certain modifications, and, as a result, have lost 
 some parts of their structure. This universality of degenerative 
 evolution may be proved either by the comparative method, or 
 by showing that all organisms contain rudimentary organs, and 
 that all societies contain survivals. 
 
 II 
 
 Degenerative evolution follows no definite path, and can in no 
 w^ay be regarded as constituting a return to the primitive con- 
 ditions. In some cases — when one cause of dissolution equally 
 and simultaneously affects all the parts of an institution or an 
 organism — the most complicated and delicate structures are the 
 first to disappear ; but it must not be taken as a general principle 
 that the niost complicated structures are necessarily the most 
 recent, and that consequently degeneration always retraces the 
 path of progress. 
 
 Evolution is irreversible, and accordingly, with a few more or 
 less obvious exceptions, we draw the following conclusions : — 
 
 1. That an institution or an organ which has once disappeared 
 never reappears. 
 
 2. That an institution or organ once reduced to the condition 
 of a vestige cannot be re-established and resume its former func- 
 tions. 
 
 3. Neither can they assume fresh functions. 
 
 Ill 
 
 Degenerative evolution is brought about by a limitation in means 
 of subsistence — either in nutriment, capital or labor. In bi- 
 ology the principal if not the sole agents in its accomplishment 
 
570 PROCESS OF LEGAL EVOLUTION [Part HI. 
 
 are the struggle for existence between the various organs, and the 
 struggle for existence between the various organisms. 
 
 In sociology it is artificial selection which is the dominating 
 agent, and natural selection plays only a secondary part. 
 
 The occasional causes of degenerative evolution are inutility 
 of function, insufiiciency of nutriment or resource, and (in biology 
 only) lack of space. 
 
 An institution or an organ which has ceased to be functional, 
 and has also ceased to be useful either directly or indirectly, con- 
 tinues to exist if neither variability nor selection intervene. 
 
Chapter XXV 
 
 THE EVOLUTION OF CIVIL LAW* 
 INTRODUCTION 
 § L The Spiral Curve of Evolution. 
 Topic I. Direction op Juridical Evolution 
 
 § 2. Evolutionary Movements to 
 be Studied. 
 
 § 3. From Customary to Ordained 
 Law and to Judge-De- 
 clared Law. 
 
 (1) Customary Law. 
 
 (2) Ordained Law. 
 
 (3) Judge-Declared Law. 
 
 § 4. From Oral to Written and to 
 Codified Law. 
 
 (1) The Customary and Fluid 
 
 Stage. 
 
 (2) The Ordained and Crys- 
 
 tallized Stage. 
 
 (3) The Neo-Customary or 
 Judicial Stage. 
 
 § 5. From a Law of Nature to a 
 
 Positive Law and a Law 
 
 of Equity. 
 § 6. From Local to General Law. 
 § 7. From Simple to Complex 
 
 Law. 
 § 8. From Material to Immaterial 
 
 Law. 
 § 9. From Formal to Formless 
 
 Law. 
 § 10. From Theocratic to Secular 
 
 Law. 
 §11. From Criminal to Civil Law. 
 § 12. From Civil to Commercial 
 
 and Industrial Law. 
 § 13. From Political to Private 
 
 Law. 
 § 14. From Collective to Individ- 
 ualistic Law. 
 § 15. From Esoteric to Popularized 
 
 Law. 
 
 § 16. From the Outward Act to the 
 Mental Act as Creative of 
 a Right. 
 
 § 17. From Rights "in rem", or 
 Real Rights, to Rights "in 
 personam", or Obligatory 
 Rights. 
 
 § 18. From a Law of Nominate 
 Relations to a Law of In- 
 nominate Relations. 
 
 § 19. From Concrete to Abstract 
 Rights. 
 
 § 20. From Immediate to Deferred 
 Rights. 
 
 §21. From Gratuitous to Commu- 
 tative and Aleatory Trans- 
 actions. 
 
 § 22. From Legal Regulation to 
 Liberty of Contract. 
 
 § 23. From Unilateral to Bilateral 
 Agreements. 
 
 § 24. From Family to Individual 
 Rights. 
 
 § 25. From Ethnic to Territorial 
 Law. 
 
 § 26. From Exclusion to Admis- 
 sion of Foreigners. 
 
 § 27. From a Law of Violent 
 Methods to a Law of 
 Peaceful Methods and of 
 Equitable Aims. 
 
 §28. From Oral to Written Form 
 and the Return to Oral 
 Form. 
 
 § 29. From Immovable to Movable 
 Property. 
 
 § 30. From Reality to Fiction. 
 
 1 [By Raoul de la Grasserie, Laureate of the "Institut de France", 
 Correspondent to the Ministry of Public Instruction, Member of the 
 "Institut International du Sociologie", "Docteur en Droit", Judge of 
 
 571 
 
572 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Topic II. Intensity of the Evolutionary Movement 
 
 § 31. Arrestment. 
 
 §32. Oscillation. 
 
 § 33. Regression. 
 
 § 34. Resumption. 
 
 35. Acceleration and Retarda- 
 
 tion. 
 
 36. Conclusion. 
 
 Introduction 
 
 § 1 . The Spiral Curve of Evolution. Civil law and the sociol- 
 ogy which it contains may be studied as it appears in any given 
 country and at any given time, or in its historical and evolution- 
 ary development and its entirety. The latter method possesses 
 greater concrete reality, because present time is an abstract con- 
 ception and such a limited investigation presents the effect of an 
 instantaneous photograph. We propose, therefore, to examine 
 that line of evolution which represents law in a dynamic state. 
 Our conclusions are especially susceptible of verification since 
 they may be tested by the history of each country, whereas the 
 results of a static study of law are less so. For this reason we lay 
 special stress upon this chapter. Indeed, dynamic study may be 
 said to be the completion of a static study of law. The latter 
 observes a single theoretical instant, an abstraction ; dynamic law, 
 on the other hand, is a perpetual progression, and is alone real, 
 for everything is in motion, at least inwardly; everything is in 
 ceaseless transformation. 
 
 We shall first observe this movement with respect to its direc- 
 tion, which will be presently explained ; then with respect to its 
 speed (by which is meant its normal speed whether of acceleration 
 or retardation), its oscillations, its pauses, its return at times to 
 the point of departure, its arrestment, and finally its acquired 
 speed. In a word, we shall examine successively all the varia- 
 tions in its progress, with regard to direction and speed. 
 
 Our method of exposition will be the reverse of our own personal 
 investigation. This began, according to the scientific method, by 
 observation; we then compared, and finally derived and formu- 
 lated, our laws by induction. We have preferred to state first 
 the sociological laws which have been discovered, that they might 
 throw an introductory light upon the whole subject. There would 
 still remain the extension of this evolution into the future, which 
 
 the Civil Tribunal of Nantes. The present chapter forms part II, chap. 
 XX, pp. 285-411 of "Les principes sociologiques du droit civil", 1906. 
 
 The translation is by Lay ton B. Register, Esq., member of the Phila- 
 delphia Bar and Lecturer in the Law School of the University of Pennsyl- 
 vania.] 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 573 
 
 would be quite possible by an application of its predetermined 
 laws. But that would not fall properly within the province of 
 pure, but rather within that of applied sociology. 
 
 Legal evolution has not everywhere reached the same stage, 
 just as the same geological formations have not everywhere come 
 to the surface ; certain of them are still in a volcanic state. So 
 also, the juridical formation visible to us may be exceedingly 
 ancient without contradicting sociological laws any more than 
 geologic law is denied by a re-exposure of some stratum. We 
 should remember this as a corroboration of the laws which we shall 
 now set down. 
 
 Are there any laws governing general evolution with regard 
 to direction, or speed, or which show the existence of progress at 
 all ? We firmly believe that there are, and hope to be able to 
 prove them by numerous examples. If exceptions exist, they are 
 explainable; but they are very few. Though these laws govern 
 different matters, they nevertheless converge, and it is possible, 
 once having established them in each branch, to unite them in 
 an ordered and consistent system. 
 
 The law of direction of juridical movement is especially interest- 
 ing. No one doubts that movement exists, but whether movement 
 and progress are identical has often been debated. We believe 
 definitely that there is identity, though perhaps not always evi- 
 dent. The regressions are but apparent or momentary. 
 
 Progress takes place towards greater equity, serviceableness, 
 and flexibility. Do we move in a straight line? Do we always 
 advance, though with varying speed? Do we never retreat, or, 
 like the planets, do we describe a circle; for, as they say, there 
 is nothing new under the sun. As a last alternative, do we follow 
 some other system which leads us astray though the path of 
 evolution lies open to view ? 
 
 We do not advance along a closed cfrcle, for that would not be 
 progress, and, on the contrary, progress has been definite and 
 evident. Nor do we move along a straight line, for such a line 
 can scarcely be predicated of anything human, or even of inani- 
 mate things. Not only are there apparent retrogressions con- 
 tradicting such an hypothesis, but it is also certain that much 
 of our progress is accomplished by returns to primitive conditions, 
 and this fact is not comprehensible unless we have the key to the 
 movement. 
 
 It was Vico, we believe, who in the 1600 s found this key. He 
 discovered the course of social events, as Galileo discovered the 
 
574 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 orbits of the heavenly bodies; later Goethe formulated the law. 
 The course of evolution is a spiral.^ 
 
 What are the essentials of spiral motion? We know what it 
 is to turn in a spiral, to revolve like a screw, always rising, always 
 turning. It does not describe a straight ascending line, but a 
 curve ; yet this curve is neither vertical nor horizontal with rela- 
 tion to its base. Were it horizontal, the resultant would be a 
 closed circle ; were it vertical, it would appear as a perpendicular 
 line, with some deviations perhaps. It is in a spiral movement 
 that each new point rises above the preceding and yet always de- 
 scribes a circle. Such is the movement of juridical evolution. 
 When applied to evolution, we secure the results which we now 
 propose to set forth, but which it will be well to illustrate first by 
 an example. 
 
 The point of departure of the evolution of the condition of 
 woman was matriarchy, a peculiar form of feminism, long unsus- 
 pected. The family of the woman alone counted; the son did 
 not inherit from the father; the paternal estate passed to the 
 uterine brother; paternity was not recognized. The reason was 
 that at that epoch paternity could not be certain or provable. 
 Then came an undoubted step forward; civilization was mount- 
 ing the spiral curve of evolution. Patriarchy came to dominate ; 
 the father, more robust than the mother, was better able to assure 
 the life of the child, who thus became attached to a true family 
 farther removed from promiscuity than was polyandry. Then the 
 bonds of patriarchy were tightened ; the woman might no longer 
 be repudiated at will ; marriage became almost indissoluble. But 
 this alluring picture had a shadow. Woman was mistreated and 
 esteemed inferior; she could dispose neither of her property nor 
 her person; she fell under a heavy yoke. Is she now to escape 
 from this?- There is no doubt of it; slowly, yet surely; thus 
 evolution and progress decree. Her progress, however, seems to 
 be backward ; she appears to be returning almost to primitive 
 conditions. Marriage has broken down, or nearly so; through 
 divorce, the woman is safe from man's brutality, but not from 
 his caprice; she finds herself barred from family life. She is 
 more independent, it is true; more so, indeed, than she might 
 please, for the necessities of life are no longer assured her. The 
 
 ^ In a special monograph we developed the consequences and limita- 
 tions of this idea, not restricting ourselves to the specific subject of juridi- 
 cal evolution: **De la forme graphique de revolution" (Paris, Giard 
 and Bri^re). 
 
Chap, XXV.] THE EVOLUTION OF CIVIL LAW 575 
 
 standards of morality gradually formed under patriarchy are 
 disappearing ; at times we seem very near to primitive promiscuity. 
 But, in seeming to return, we have, in reality progressed ; evolu- 
 tion has completed a spiral revolution; the new matriarchy is 
 not identical with the old. 
 
 This example suffices; we will later see how throughout the 
 whole field of law the same process is going on. 
 
 But once evolution has made a turn of the spiral it does not 
 cease, for evolution is endless. It undertakes a second revolution 
 along a similar course. In some instances it has already com- 
 pleted it, in others it is only in process of doing so. Once, how- 
 ever, the initial point is determined, it is possible to compre- 
 hend the point to which it may now have attained. For most 
 institutions the first revolution has been completed and a second 
 has begun ; but in a few we have scarcely yet concluded the first 
 turn. 
 
 We shall divide the present chapter into two parts. In our 
 analysis and investigation of juridical movement we shall first 
 study the general laws of its direction, and second of its intensity, 
 that is to say, its arrestment, retardation, and acceleration, in 
 accordance with what has already been said. 
 
 Topic I. Direction of Juridical Evolution 
 
 § 2. Evolutionary Movements to be Studied. We shall examine 
 successively the following evolutionary movements of law : 
 
 1, from Custom to Ordained Law and to Judge-Declared Law; 
 
 2, from Oral to Written and to Codified Law ; 
 
 3, from a Law of Nature to a Positive Law and a Law of 
 
 Equity ; 
 
 4, from Local to General Law ; 
 
 5, from Simple to Complex Law ; 
 
 6, from Material to Immaterial Law ; 
 
 7, from Formal to Formless Law ; 
 
 8, from Theocratic to Secular Law ; 
 
 9, from Criminal to Civil Law ; 
 
 10, from Civil to Commercial and Industrial Law ; 
 
 11, from Political to Private Law ; 
 
 12, from Collective to Individualistic Law ; 
 
 13, from Esoteric to Popularized Law ; 
 
 14, from the Outward Act to the Mental Act as Creative of a 
 
 Right; 
 
576 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 15, from Rights " in rem " or Real Rights, to Rights '' in per- 
 
 sonam ", or Obligatory Rights ; 
 
 16, from a Law of Nominate Relations to a Law of Innominate 
 
 Relations ; 
 
 17, from Concrete to Abstract Rights; 
 
 18, from Immediate to Deferred Rights ; 
 
 19, from Gratuitous to Commutative and Aleatory Transactions ; 
 
 20, from Legal Regulation to Liberty of Contract ; 
 
 21, from Unilateral to Bilateral Agreements; 
 
 22, from Family to Individual Rights : 
 
 23, from Ethnic to Territorial Law ; 
 
 24, from Exclusion to Admission of Foreigners ; 
 
 25, from a Law of Violent Methods to a Law of Peaceful 
 
 Methods and of Equitable Aims ; 
 
 26, from Oral to Written Form and the Return to Oral Form ; 
 
 27, from Immovable to Movable Property : 
 
 28, from Reality to Fiction „ 
 
 § 3. From Customary to Ordained Law and to Judge- Declared 
 Law. One of the earliest and most fundamental of these move- 
 ments is the first which we have mentioned. It relates to the 
 production itself of law through the operation of a legislative 
 organ, or of whatever takes its place. It involves the common 
 antithesis between customary and non-customary law. The 
 latter we shall term " ordained " in preference to written law, 
 because customary law may also become written. In so doing 
 we shall escape ambiguity. 
 
 (1) Customary Law. Undoubtedly customary law every- 
 where first made its appearance, springing from the inner recesses 
 of the mind. Its essential characteristic is that it forms uncon- 
 sciously. People did not will that custom arise ; no one willed it ; 
 it has hardly yet become conscious. It was as involuntary as 
 was language and society. No race ever agreed to employ such 
 or such words or signs to convey an idea ; no express social con- 
 tract ever existed. The same is true of custom. It was also 
 purely local and extended gradually through the struggle for 
 existence, waged between groups of persons. It was handed down 
 by tradition ; and this was natural since writing was hardly known. 
 To aid the memory it was put into verses, or maxims in verse form. 
 These legal proverbs survive today. 
 
 How did custom originate? The great sociologist, Gabriel 
 Tarde, held that it was by imitation.^ Neighbors imitated one 
 1 [See Vol. II, pp. 36 seq., of this series.] 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 577 
 
 another; but above all the best usage was followed or the one 
 practiced by one's superiors in life. Certainly imitation was a 
 powerful factor, but it was neither the only factor nor the strongest. 
 We have found a more exact analogy elsewhere. There is a phe- 
 nomenon which produces today an effect identical with that of 
 custom ; it is style. We obey it with the same spontaneity and 
 yet it is no less tyrannical. Indeed, early legal customs often 
 concerned the very matters which are now governed by style. 
 For example, in China the custom of wearing mourning, regulated 
 by style with us, was there legally regulated by custom. This 
 shows us the origin of custom. Style results from homogeneity. 
 People of the same nation, of the same province, of the same class 
 obey it, not in imitation, but because they are in reality alike, 
 and the style which they practice is the consequence of their re- 
 semblance. So it was with ancient custom. 
 
 According to other authors, customary law had no such origin ; 
 it never was a law of the people, that is, it never originated from 
 below. A law having, as we shall see, so scientific a character, 
 could not, according to them, have so humble a source. Its 
 true nature has been misunderstood. Law was custom, but not 
 the custom of the whole people. It was that of the courts, of 
 enlightened persons ; it was an early form of judge-declared law. 
 What has taken place in the last period of juridical evolution 
 must have occurred at the beginning. We will examine the 
 theory later in detail ; let it be understood at once, however, 
 that we do not subscribe to it. In certain countries it was no 
 doubt true, as, for instance, where theocracy exercised a strong 
 influence upon institutions ; but not elsewhere. Custom is custom, 
 nothing else. It is neither an extension of theocracy, nor an an- 
 ticipation of judge-declared law. 
 
 It is human and of the people ; it grows by successive deposits ; 
 it remains simple and characterized by the spirit of routine, like 
 the people themselves. No doubt it may appear strange that 
 those who were superstitious and ignorant could produce insti- 
 tutions, at times very remarkable. But is this not equally re- 
 markable of language, which is superior to the intellect of the 
 speaker and which he could not have consciously originated ? We 
 must not confuse conscious with unconscious ability. 
 
 Customary law has disappeared among certain peoples, leaving 
 but traces. In France the Civil Code refers us in places to local 
 usage. But this is exceptional ; such a delegation has to do with 
 purely local custom to which the legislature has granted deference. 
 
578 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Does pure customary law, regarded as a mere instrument, realize 
 in its essence the ideal of a law of nature or of equity, which or- 
 dained law so often offends? Yes generally, though not always. 
 It is certainly an individualistic law as compared with ordained 
 law which is, above all, societary, and restrains liberty more than 
 needful. It can, however, be unyielding among a half -savage, 
 egotistical race possessed of but a feeble notion of justice. It is 
 simpler than the phase of law succeeding it and contains fewer 
 needless restraints. The last stage of the evolution, that of 
 judge-declared law, more perfect for the same reasons, marks a 
 return towards custom. 
 
 Customary law has not everywhere disappeared. It is very 
 remarkable that it remains intact in the Anglo-American system 
 and that it does not even Seem likely to be replaced in great part 
 by legislative law. Nor has it disappeared suddenly to make 
 way for ordained law. The two have existed side by side for long 
 periods and it is a partnership which is of great interest to the 
 student. 
 
 (2) Ordained Law. History shows that ordained law is des- 
 tined to supplant customary law. Let us examine the important 
 stages of its evolution. 
 
 Statutory law differs from custom in that the latter originates 
 from below, that is, from the collective intellect, while the former 
 originates from above. So far as the political forces which create 
 it are concerned, legislation is, relatively speaking, aristocratic no 
 matter what its mode of production. At times, indeed, it springs 
 from a most exalted source, as when its origin appears divine. 
 
 Ordained law drives customary law back. Being of inferior 
 origin, custom seems disqualified, so to speak, before statutory 
 law, which is the product of pure reason. Yet this is the very 
 reason why custom will ultimately regain its authority, at least 
 as an organ of production. 
 
 Customary law is involuntary and spontaneous while ordained 
 law is conscious and voluntary, often, indeed, harsh and tyran- 
 nical. The latter emanates from above, but it does not always 
 originate from the same source. We must distinguish divine 
 law; monarchical law; aristocratic law, the product of science; 
 and democratic law, all of which almost universally succeed one 
 another in just this order. 
 
 Ordained law is of various sorts : inspired ; secularized by 
 monarchy ; based upon earlier legal systems ; democratized. 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 579 
 
 (a) Inspired ordained law. The earliest law (and it has left 
 its trace everywhere) is divine or theocratic law. To be more 
 exact we should say inspired law, for we are not dealing here 
 either with the influence of theology and canon law upon civil 
 law or with religious institutions, such as the oath, borrowed from 
 the canon law, but with something quite different, namely, laws 
 and decisions or the direct discovery by inspiration of what is 
 just and fitting as a general rule or in a particular instance. The 
 lawmaker or magistrate invoked God, and decreed what He 
 dictated. As in customary law, so here, to avoid turning con- 
 tinually to consult the fountain head (for that would be impious), 
 there existed case-law or judgment founded upon precedent, 
 both concrete and abstract. A consultation or a command of 
 the divinity thus served for all future time. We shall refer to 
 this again in greater detail. 
 
 This method of ascertaining the law operated in two ways. It 
 affected sometimes the legislature properly speaking, sometimes 
 the judiciary ; but as to the latter it only applied in doubtful cases, 
 as a rule of interpretation. 
 
 It obtained, no doubt, to some extent everywhere, for the origins 
 of law are enveloped in theocracy. It has disappeared in some 
 countries, but remains in force in certain others where the stamp 
 of theocracy has been too strong to be effaced. 
 
 In such countries, therefore, the very words contained in in- 
 spired texts have been regarded as unalterable, and it has only 
 been through fictions that the law has developed. 
 
 Q)) Secularized ordained law, or monarchical law. In other coun- 
 tries wherever the first period of inspired ordained law was passed, 
 the secularized form, pronounced by the monarch, succeeded. 
 The period of secularization was long, and the code or rather the 
 laws prescribed by the sovereign preserved a sacred character. 
 They came into being as royal ordinances which at first did not 
 entirely repeal either customary or inspired law, but were superim- 
 posed upon these. Force created law at that time ; "Because such 
 is our pleasure " were the words of the king. The sociological 
 element supplanted the psychological or biological elements.^ 
 
 1 [The author explains his use of the terms biological, psychological, 
 and sociological as applied to laws, at pp. 9-11. "Biological elements 
 are those resulting from man's physical nature itself . . . for example, 
 filiation. . . ." The psychological elements "consist of everything 
 depending upon the will and consent." "The sociological elements are 
 those which result from the interference of society in the interests of 
 society." — Translator.] 
 
580 . PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Social utility, real or mistaken, was directly weighed. This form 
 of law appeared at Rome in the decrees of the senate and the 
 edicts, and in France in the ordinances. The king was held al- 
 most in the same respect as God. But he was a lay god and this 
 fact profoundly distinguished the two periods. 
 
 (c) Antiquarian ordained law. The next stage was that of 
 scientific law; but it was only such as science in an embryonic 
 state could produce. It took the form of a veneration for the 
 traditions of an epoch of higher civilization which it aimed to 
 revive and to superimpose upon existing civilization. This phase 
 has not arisen everywhere; it was observable in countries where 
 there was a prior tradition to inspire renascence, but not in coun- 
 tries of juristic originality. Thus it was observable in France 
 where the older Roman law, directly or through the canon law, 
 came to be a new source. It was not a survival of the Roman law 
 in the provinces of the " droit ecrit" , but a superposition upon 
 existing customs and ordinances at the time of its reception into 
 France and Germany. It was proclaimed as " written reason '' ; 
 it acted as a medium to make the various customs cohere. Its 
 influence upon the development of Islamic law was similar. 
 
 It was elaborated by scientific minds, and there was a period 
 when it came very near to becoming the law of the world. 
 
 Under ordained law many combinations of facts remained un- 
 foreseen by legislative enactment. It was again necessary to 
 fall back upon concrete and abstract case-law, as we shall presently 
 see. When the Roman law reached the stage of ordained law, 
 the " responsa prudentum " intervened to fill this function. 
 Customary law existed during the first part of this period, then 
 disappeared. 
 
 (d) Democratic law. Law lastly reached a fourth stage, that 
 of democratization. In this stage it is no longer imposed from 
 above; it again reaches down and finds inspiration from below, 
 from the people, with this difference, that the people do not create 
 this law involuntarily and unconsciously as formerly, but, on the 
 contrary, after reflection. In this respect democratic law is dis- 
 tinct from custom ; it also differs in that it is always codified. On 
 the other hand it resembles monarchical law in that it is also or- 
 dained. Its method of production conforms to constitutional 
 conditions. At Rome it might have been a plebiscite, or legisla- 
 tion in the strict sense, or a decree of the senate. Elsewhere it 
 has originated through national delegates convened in a parlia- 
 ment, or through a referendum or direct popular vote as in some 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 581 
 
 of the Swiss Cantons. In the latter case it is comparable to cus- 
 tom. And yet an abyss separates them, for the one is involuntary 
 and unconscious, while the other is not. Its method of pro- 
 duction is no more scientific than that of monarchical law. It 
 is a new form of ordained law. 
 
 Democratic ordained law, like the other forms of law, is often 
 deficient. To fill the deficiencies, judicial legislation has fre- 
 quently to be called upon. It is this which, after such humble 
 beginnings, is destined gradually to expand the field of ordained 
 law and lead to a new mode of production. 
 
 Evidently these various sorts of ordained law have one feature 
 in common in spite of their differences. In every instance the 
 law, which was amorphous as custom, has been crystallized. It 
 is exceedingly interesting to observe this crystallization. It has 
 occurred just as a physical or chemical phenomenon. We know 
 how in saturated liquids centers of crystallization form little by 
 little and spread covering the entire surface until rigidity is uni- 
 versal and absolute. So it is with law. At first certain centers 
 of crystallization appeared. With the Romans they were the 
 constitutions of the emperors and the decrees of the senate; in 
 France they were the royal ordinances. They governed the more 
 important matters which were never regulated with sufficient 
 energy by custom or the edicts of the Roman praetor. With time 
 these became more frequent, spreading into the fluid customary 
 law and crystallizing more and more of it, until under Justinian 
 the process was complete. From then on, ordained law reigned 
 alone ; crystallization had been completely realized. 
 
 Over this there was reason to rejoice without reserve. All 
 contingencies were so far as possible provided for legislatively, 
 even the purely casuistical, as in the Digest. It was merely a 
 matter of mechanical application. 
 
 Such was the progress realized; a body of law certain and 
 universal was provided. But from that moment the law was 
 destined to resume its movement. The stagnation was stifling; 
 it was now to recover its dynamic force ; its crystals were to re- 
 turn in part to a fluid state. 
 
 (3) J udge- Declared Law. This form was not the necessary 
 accompaniment of ordained law alone, as an interpreter of obscure 
 points of statutory legislation. We have seen that it also came 
 into being under a customary regime, where it served to establish 
 the existence of the custom whenever this was in doubt. It 
 continued on through the various phases of ordained law itself. 
 
582 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 It was, in fact, under the mixed system of customary and imperial 
 law, that the Roman prsetor effected his important evolution. And 
 it subsisted during the period of pure, ordained law, when it might 
 well be believed that the cause for it had entirely disappeared. 
 Indeed, the situation was no longer the same. On fixing custom, 
 there is a temptation to revise it, whereas in the case of precise 
 texts we have only to apply and obey them. And yet the corrosive 
 action of judicial decisions is no less active though unforeseen, 
 and though for a period following codification, it is without effect. 
 
 Even when codified with care, law frequently contains ob- 
 scurities which require interpretation; it is deficient and must 
 be made complete ; it is even unjust, and wherever possible this 
 must be corrected. The first two operations may be undertaken 
 without changing the law in any respect. This is obvious with 
 regard to interpretation. The intent, of the legislator when he 
 created the law is sought and this may be learned from the con- 
 text of the law itself, legislative discussion, the preparatory work 
 of drafting, or from the state of the law prior to the enactment 
 in question. In France it suffices often to read Pothier to know 
 the intent of the legislators of 1804, for they followed him in al- 
 most every respect. What the intention of the legislator would 
 have been today is not a subject of inquiry, because it is unascer- 
 tainable, and we would run the danger of substituting our own 
 pleasure for his. The function of judicial decisions becomes more 
 difficult when we attempt to fill the deficiencies of legislation. It 
 would seem that in this the liberty would be greater since in no 
 case would the law be violated. And yet, to be correct, we must, 
 as in the former case, inquire only how the legislator of that 
 period would have decided. This is relatively simple, since 
 throughout the text of the law he has laid down general prin- 
 ciples as guides. And lastly, may the mistakes of the legislator 
 be corrected? The courts would like to undertake this. But it 
 would be laying a sacrilegious hand upon the work of the lawmaker ; 
 courts must remain silent. 
 
 This was all that judge-declared law dared, at least at the out- 
 set ; the early exposition of the Civil Code, by court or jurist, 
 strictly limited itself to this. 
 
 Within this circumscribed field, judicial decisions and the opin- 
 ions of jurists had only a supplemental task to perform, that of 
 securing a yet more absolute crystallization of law. Legislation 
 in the strict sense had not been able to accomplish this in every 
 detail and the courts, therefore, had to choose between two courses : 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 583 
 
 leave crystallization unachieved by recognizing no binding force 
 in their decisions, .or carry crystallization to completion. To 
 effect the latter the decisions of the courts had to have authority, 
 not only in the particular instance, but in all similar cases, in 
 so far as fixing the rule of law was concerned. This result might 
 be accomplished by an affirmative command of the legislature or 
 by a rule which the courts themselves might adopt to be bound 
 by their former opinions. This meant the reappearance of case- 
 law, and where similar authority was attributed to the collective 
 judgment of jurists, case-law became abstract. 
 
 The solutions which different systems of law have adopted 
 in this matter are various. Some leave without any fresh crys- 
 tallization those portions of the law which have remained fluid. 
 In that case the decisions of the courts are a chaos. Others admit 
 of the creation of more or less stable judicial rules. Thus in France 
 the decision of a court, after drifting at random, even with respect 
 to the concrete case which calls it forth, first becomes fijxed with 
 regard to that particular instance, after a limited debate permitted 
 between the various courts involved. But outside the case 
 itself a decision enjoys no more authority than the force of reason- 
 ing it contains, and the Court of Cassation itself may reverse its 
 own decisions. In other courts the force of a decision may go 
 farther. The law rarely so prescribes, but in practice the lower 
 courts almost invariably submit to the higher from fear of seeing 
 their judgments reversed. Conflict between courts is less and less 
 frequent, and it may be said, therefore, that the power of crystalli- 
 zation is going on more and more, and that the area of doubt and 
 of flux is gradually being reduced. This is a great practical 
 advantage. As to the views of jurists, which alone produce 
 abstract case-law, we know that the Roman law operated in this 
 way, clothing them with the highest authority; the opinions 
 of the jurisconsults enjoyed the force of law. 
 
 Had judicial decisions always been content with these two 
 functions: (1) of interpreting and completing the law in fur- 
 therance of its original spirit; (2) of completing it in the sense 
 of achieving its crystallization, it would not deserve to be counted 
 by us as an independent source of law. It would be merely 
 auxiliary. But at different periods of history, and notably in 
 France during the last few years, it has assumed a new role of very 
 great importance which renders it really creative. 
 
 Such a usurpation is justifiable upon two different grounds, or 
 rather motives. 
 
584 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 The first is altogether subjective and will not occupy us long. 
 And yet, like everything subjective, it is perhaps the most power- 
 ful. Under the customary regime, law was not only capable of 
 creating juridical sociology, unquestionably a science, but it was 
 itself a science. Law, indeed, then contained no contingent factor 
 but followed a logical sequence through time; its evolution was 
 regular; written legislation did not disturb the curve of its de- 
 velopment more than to cause minute oscilla|:ions, after which the 
 instinctive direction was resumed. There was no positive law 
 due to caprice because the lawmaker himself consciously obeyed 
 evolution. If he departed from it, an unconscious force was 
 required to lead him back, and this force could be no other than 
 judge-declared law. It was fitted to do so, because it is a veiled 
 or implied prompting. Its work is the more scientific for that 
 very reason; indeed, the work of the legislator is but slightly 
 scientific. Here, then, we may study juridical evolution. And 
 yet, if its one mission was to follow the law slavishly, it could not 
 exert its proper force. It would be identical wath legislation itself, 
 just as empirical and capricious as the statute which it was con- 
 tent to apply. In brief, for law to be a science, judicial opinion 
 must develop and in the gaps left by the legislature, it must be 
 the law ; it must not devote itself exclusively to sterile interpre- 
 tation, but advance the evolution. 
 
 The objective justification is of weight in quite a different way. 
 It is not here a question of increasing the scientific value of law 
 but of rendering it more and more elastic, equitable and useful. 
 This is its true function. Clothed in ordained formulae and com- 
 pletely crystallized, law risks being incapable of following the march 
 of ideas and interests and this discord might arrest all progress. 
 The parliamentary legislator keeps us waiting too long for a realiza- 
 tion of urgent reform. There is need of a spontaneous mechanism 
 operating more rapidly. Courts being in constant contact with 
 the world of realities, are better placed to see what is needed. 
 Again, if the courts acquire the necessary legislative authority, 
 they would possess in these realities the measure and direction 
 of the forces proper for each application. And furthermore judge- 
 declared law is involuntary and unconscious, and these are advan- 
 tageous qualities. In this respect it would in a way rejuvenate 
 the old customary law without its disadvantages. It would be 
 an enlightened custom ; not that of the uninstructed people, but 
 of learned courts and even of the highest court, for in a country 
 like France everything eventually reaches the Supreme Court. 
 
Chap. XXV.] THE EVOLUTION OF CIVIL L.\W 585 
 
 Rut for judge-declared law to function in this way, for its equity 
 to be salutary, it will have to act differently in the three roles 
 which we have described. 
 
 If it is a question of supplying the deficiencies of the law, it 
 will not inquire what the lawmaker would have done forty or fifty 
 years ago (a scruple not difficult to overcome), nor even what 
 he would have intended under new and different circumstances, 
 but frankly what is good and useful. The judge will no longer 
 be bound uselessly by the dead but will himself act. This will 
 be a social gain and yet the judge will not violate existing law by 
 so doing, since this is silent. A little courage will suffice. 
 
 If it is a case of interpretation, the judge will need more than 
 courage, because there the law has already spoken, and the problem 
 is to understand it. Therefore, it is to the time of the making 
 of the law that he must refer. Yet how unfortunate! The 
 law may be antiquated or even harmful. Why not profit by a 
 fortunate opportunity to make new law? Better that accepted 
 principles perish, at least so long as the innovation thus disguised 
 as interpretation does not offend. Law whose meaning is obscure 
 is as though it were non-existent. It falls within the first cate- 
 
 P'inally the difficult problem is that of amending a clear text. 
 ■ Implendi et adjuvandi ", yes; but " corrigendi gratia"; here 
 begins the sacrilege ! And yet law is made for man and not man 
 for law. jMoreover an amendment will not be effected suddenly, 
 but slowly, insensibly, and above all always indirectly. The law 
 will be bent (the expression is already in use) when it prohibits an 
 act which has become admissible and current. It will be under- 
 mined and abolished, at first in exceptional cases which will be 
 justified through other provisions of the same code ; later in all 
 cases and with somewhat varying results ; and finally the riddled 
 text will fall of its own accord without heed being paid to it. 
 
 The end will justify the means, for it will invariably be the 
 triumph of equity or utility. Of these the second is as important 
 as the first for it will be practical utility, which will cause the usur- 
 pation to pass unperceived. Judicial decisions will act under this 
 powerful impulsion and also under that yet more insidious force, 
 habit. It will merely establish a sanction for that which hitherto 
 has been done although outside the law. We shall later examine 
 the well-known function of the Roman praetor and summarize 
 the accomplishments of French judge-declared law. We shall 
 then see how everything extra-legislative which it contains has 
 
586 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 been in the interest of equity. The same has been true in Eng- 
 land under the influence of the court of Chancery. 
 
 All legal reform began in this way. It often never passed beycnd 
 a tentative stage, because to declare the absolute contrary of exist- 
 ing law would have been deemed too radical. But when that 
 stage is reached, such a law is evidently ready to be repudiated. 
 This the legislator will do. He confirms and perfects the work 
 of the courts There is hardly one legislative reform which has 
 not been anticipated in this way. 
 
 This in particular was Justinian's method. Praetorian reform, 
 legal precedent and the added humanitarian effect of Christianity 
 had long smoothed the way, so that in his compilation he was able 
 to transform the laws radically. 
 
 Today judicial decisions dominate statutory law; the latter 
 furnishes here and there mere transient starting-points. To 
 settle a line of conduct or reach a decision, it is useless to open 
 the Code. It is far more profitable in France to consult the 
 digests of Sirey or Dalloz, for these reply to every question and 
 the Code almost to none. Indeed, even when it does give a clear 
 solution, more often than not it is wrong, because interpretation 
 has long since modified its meaning. • 
 
 Such is the function of judge-declared law at any stage in legal 
 evolution.^ 
 
 Again custom has been pushed to the top, declared, it is true, by 
 magistrates and therefore now aristocratic. It is an application 
 of that law, already explained, which directs the movement cf 
 historical evolution in a spiral. We end or seem to end where we 
 began, that is, with customary law. But the custom represented 
 by case-law is not identical with the earliest form of custom. It 
 is now conscious, deliberate, and even intended, since it is voiced 
 by courts or the public conscience. Its character has been well 
 described by Gabriel Tarde. " Judge-declared law," he said, 
 " when grafted upon statutory law, is the addition to legislative 
 law of a sort of new customary law, which is a substitute for the 
 custom of antiquity. The custom of judges has taken the place 
 of the custom of the judged." 
 
 Sometimes neo-customary judge-declared law strives to become 
 freshly crystallized, as early custom was crystallized in ordained 
 
 1 [Two other sources of law — doctrine and practice — are treated in 
 the omitted text which in the original work follows.] 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 587 
 
 law. This does not take place everywhere directly, but it is a 
 commoner occurrence than is generally believed, because often 
 it is indirect and unperceived. 
 
 The first mode of re-crystallization is the adoption of new or- 
 dained law, that is, parliamentary legislation in the strict sense. 
 When a line of decisions introducing reforms has been well es- 
 tablished with regard to certain isolated points, from which it is 
 possible to develop a general theory, it invites the lawmaker to 
 act. Guided by these fundamental points, the legislature passes 
 a more complete law in the same spirit. Doctrine contributes, 
 supplying needed suggestion. It was in this way that the law of 
 insurance in France, after developing in the courts, became ripe 
 for legislation, and finally an insurance act was submitted to the 
 legislature. The decisions of the courts have also resulted in 
 calling forth the opinions of the Council of State. The judicial 
 decisions prior to the 'passage of the law are then rendered use- 
 less, being merged in it. However, they have served to create it. 
 
 Another more direct and interesting mode, peculiar only at 
 certain periods and to certain countries (it has already been de- 
 scribed) is that of judgment upon precedent or " case-law ", as 
 it has obtained in England, and as it existed at an early period 
 of French history, in the form of " general orders " of the pro- 
 vincial parliaments, above all of the Parliament of Paris. The 
 judge was frankly a lawmaker. 
 
 When a new law has been enacted judicial decisions have had 
 no effect upon the new legislation ; at least not as a corrective of 
 the old law, for defects in the new legislation will presently be 
 revealed and judicial opinion will resume its task of preparing 
 the ground for a subsequent improvement. 
 
 This movement then closely conforms to the spiral progress 
 of social phenomena. We start with custom ; this is committed 
 to writing; then it becomes solidified as a whole in a legislative 
 enactment or ordained law; this is in turn dissolved under the 
 influence of the decision of the courts which attack it from every 
 quarter; soon a new statute completes the work of the courts, 
 whose function for the moment ends, to resume later when ex- 
 perience has given cause for criticism. It will then again dis- 
 solve the recrystallized law. 
 
 § 4. From Oral to Written and to Codified Law. Redaction 
 and codification are a commencement or complement of the 
 
588 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 crystallization of law. They appear at each of the stages which we 
 have just described. We shall delay but a moment over these 
 phenomena, inasmuch as they explain themselves. 
 
 In a fluid state law may be written or codified just as well as 
 in a crystallized state, but codification serves to crystallize it to a 
 certain degree. 
 
 The advantage of written law is that, where customary, it no 
 longer needs to be proved in each instance ; the advantage of codi- 
 fication is that it brings the various branches of the law into 
 instant juxtaposition and classifies them into a logical sequence. 
 A code is synoptic ; it establishes an interdependence throughout 
 the whole body of law. 
 
 The evolution of which we are now speaking presents three 
 phases : law, at first purely oral, was reduced to writing but not 
 officially; later it was officially compiled, though codification re- 
 mained incomplete ; finally it was put into the form of a complete 
 code. 
 
 Let us examine this evolution in detail. 
 
 (1) The Customary and Fluid Stage. Customary law was at 
 first purely oral ; then it be;came successively written and codified, 
 passing through several intermediary states. This is observable 
 in the history of French customary law. 
 
 Oral law was transmitted by memory or by form books and even 
 today by legal maxims. When it was necessary to establish legally 
 the existence of a custom, early French law provided for proof 
 by '^ turbe " (jury). Here proof of the rule depended upon the 
 testimony of witnesses who had to be unanimous. 
 
 Later oral law, without ceasing to be such in so far as an official 
 text was concerned, was unofficially reduced to writing. In this 
 way a part of the French customs was collected by different 
 jurists into the compilations which from the 1200 s to the 1500 s 
 formed the " custumals." There were the " Conseil a un Ami ", 
 the " Livre de Justice et de Plet ", the '' Etablissements de Saint 
 Louis ", the " Coutumes de Beauvoisis ", the " Coutumier de 
 Picardie ", the " Tres Ancien Coutumier de Normandie ", the 
 " Grand Coutumier de Normandie ", the *' Somme Rurale ", the 
 " Tres Ancien Coutumier de Bretagne '\ the '^ Grand Coutumier 
 de France. '' None of these monuments had legislative force of 
 itself ; but through them the oral law became written and in part 
 codified. 
 
 We have said that judicial decisions operated in the same way 
 upon customs as they now do upon the written law. They declared 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 589 
 
 the custom and often modified it. At first the judgment of the 
 court was purely oral ; then it was taken down in writing in each 
 litigation; later it was published in the collection known as 
 " Olim." In this last phase it was an unofficial law. 
 
 Finally oral law became written and was codified little by little 
 in the official compilations of customs ordered by the king. This 
 redaction did not in general alter the custom but merely rendered 
 it official, dispensing with proof. The outcome, however, was to 
 solidify and convert them, not into ordained but into fixed law. 
 They could no longer be modified except by proving that a new 
 custom had arisen; a usage had to be certain and immemorial, 
 or a written custom had to be shown to have fallen into disuse. 
 Furthermore it merged into one general custom those which were 
 excessively local. But the customs, thus compiled, were very 
 deficient. In the civil law they covered only the rights of persons, 
 the feudal system, marriage, gifts, inheritance, and wills. It was 
 a written law rather than a codified law. True codification 
 belonged to another period. 
 
 To the compilation of the customs succeeded a period of revision. 
 Almost all passed through a second publication, that of the revised 
 customs. 
 
 From that date, as has been shown, ordained law made its 
 appearance. It took the form of capitularies and royal ordinances. 
 The law was written, but in no sense codified, as we shall presently 
 point out. 
 
 English law has remained customary in part. No doubt in 
 the course of centuries it has changed from oral to written ; but 
 the redaction w^as merely unofficial. No official compilation of 
 English custom, even partial, similar to that of the early French 
 law has taken place. Here, too, ordained law made a beginning. 
 Numerous statutes were enacted which formed a nucleus. But 
 while they were necessarily written, they were not codified. The 
 same has been true in the United States. 
 
 Codification has, indeed, been regarded as antipathetic to all 
 essentially customary systems of law. Such systems delight in 
 the want of precision which characterizes them. From the prac- 
 tical point of view this is a mistake, for their legislation is full of 
 doubts exposing them to a multitude of errors; in theory and 
 purpose they are right, for the absence of codification prevents 
 the exclusive domination of ordained law and alone insures the 
 continuance of customary law. It is an escape from the arbitrary 
 sovereign will ; it impresses a scientific character upon law. 
 
590 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 (2) Tlie Ordained and Crystallized Stage. Here law is necessarily 
 written. It is a first and inferior stage of codification, which often 
 does not progress beyond the merely written phase. 
 
 This was the case in France, under the capitularies and royal 
 ordinances. These regulated the most important subjects of the 
 law and came near to encompassing the whole field; but they 
 never constituted a synthesis of legislation. We may cite those 
 of Blois upon the celebration of marriage and the registers of civil 
 status; those of Moulins upon oral proof; those of 1667 upon 
 civil procedure, of 1673 upon commerce by land, of 1681 upon 
 commerce by sea, and especially those of 1731 upon gifts7 of 1735 
 upon wills, and of 1737 upon forgery. 
 
 But this very considerable mass of written law inspired a desire 
 to pass to a higher stage, that of ordained codified law. This 
 aspiration was increased by the need of bringing uniformity to 
 the local and divergent customs of the realm. Dumoulin had 
 presented a plan; Lamoignon followed him under Louis XVI 
 and drafted a code which was published under his name. In this 
 work of unification two methods were adopted. In part that of 
 conciliation was followed : the best was chosen from the various 
 customs. In part recognition was given to the relative importance 
 of a custom as determined by the numbers of persons governed 
 by it, the Custom of Paris being preferred in general. Meanwhile 
 monographs by various jurists had appeared : Bourjon's " The 
 Common Law of France " ^ presented an excellent summary in 
 the 1700 s of these various ideas. 
 
 Not till after the French Revolution did the idea of codification 
 take definite shape. It was confused, too, with the idea of terri- 
 torial uniformity. The first attempt was the Civil Code of the 
 Convention ; the final product was the Civil Code of 1804 which 
 embraces the entire body of the civil law. Codification was made 
 complete, and that is the undisputed advantage which still with- 
 stands the innumerable criticisms of which the Civil Code has 
 been made the object. 
 
 In the history of Roman law the codification of the imperial 
 constitutions took place under Justinian, but it was merged with 
 praetorian law and the writings of the jurisconsults, so that it formed 
 one whole in the Digest. 
 
 In England statutory and customary law have so far resisted 
 codification. Statutes accumulate without being repealed or 
 merged. Great inconvenience has resulted in practice but this 
 1 "Du Droit commun de la France." 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 591 
 
 may be blamed upon ethnic traits. The same is true in the 
 United States. There, however, centers of codification appear 
 here and there, as in New York where criminal procedure has been 
 codified, and in Louisiana where codification has reached the 
 same completeness as in the French Civil Code. 
 
 Codification of ordained law went on principally in other coun- 
 tries : as in Germany, where there was a well -developed Prussian 
 Code, in Austria, and in the various Swiss Cantons. With the 
 exception of England and the United States, all European and 
 American countries now possess their civil code. 
 
 Eminent jurists, led by Savigny, were not wanting who opposed 
 codification on the ground that it halted, for the time at least, 
 the progress of dynamic law. For a long while their opinion 
 triumphed. It is now rejected, especially since the strict law 
 has come to receive correction through the more elastic judge- 
 declared law. 
 
 The idea of uniform law is very closely related to codification, 
 though the two should be kept distinct. We shall consider the 
 former presently. 
 
 The codification of the French Civil Code was once complete, 
 but is no longer so. New social requirements have given rise to 
 new laws which have not found a place in the Code. As to such 
 legislation two methods have been pursued. Sometimes the new 
 law has been interpolated into the old Code. This we believe 
 to be the best mode. In creating new law, the legislator has fre- 
 quently repealed the old, and has substituted new Articles for 
 those that have been suppressed. But often he has been content 
 to legislate independently of the Code. This makes conflict 
 likely, and in all cases leads to contrariety in the subject as a whole. 
 Codification, therefore, no longer comprehends the whole of the 
 law. 
 
 Alongside of codified law, is a newer body of uncodified statutes. 
 Sooner or later these tend to unite with the codified portion and 
 to form a more compact and complete body. Codification has 
 then reached its culminating point. Many regard this phase 
 as excessive, and prefer that the original code remain intact and 
 that, as need arise, new laws be passed which, however, should 
 remain independent. This should be the plan of revision of a 
 historical instrument, which, if it is to be respected, must be kept 
 intact. Thus have argued those who oppose the revision of the 
 body of the French Civil Code. 
 
 (3) The NeO'Customary or Judicial Stage. In this phase law 
 
592 PROCESS OF LEGAL EVOJ.UTION [Part III. 
 
 is fluid as in the first period. Is it written, and if so, is it 
 codified ? 
 
 At first it was unwritten. Judgments were handed down with- 
 out public knowledge of them. They were not written in such a 
 way as to be accessible to the public ; they became so only when 
 published in periodical reports. However they were still not 
 codified and had to be sought under their date, a process as tedious 
 as the search for customs. 
 
 Presently order emerged from this chaos. New collections 
 of the same decisions appeared with a critical text. They were 
 arranged not in chronological order but according to subject matter, 
 in the systematic form of a dictionary. Cases were then as easily 
 found as Articles of the Code. In France this work has been ac- 
 complished in the collections known as ''Dalloz", "Sirey", and 
 the " Pandectes Fran9aises." Judicial legislation has thus been 
 codified. Justinian's great labor in the Pandects was analogous. 
 
 § 5. From a Law of Nature to a Positive Law, Then to an Equi- 
 table Law. Strict and equitable law have everywhere been evidently 
 engaged in a parallel race. Roman law carefully distinguished 
 actions '' stricti juris " from those " bonae fidei ", and quiritary 
 from bonitary ownership ; English law distinguishes common law 
 from equity, the legal from the equitable title. There is some- 
 thing fundamental in this. 
 
 Natural law, too, has been distinguished from positive civil 
 law, and although the term natural law is not easy to define, we 
 are nevertheless very sensible of a meaning and also of the antith- 
 esis so frequent and so expressive between natural and positive. 
 
 The two categories should be united, for they really form but 
 one, and, when considered together, they will be better understood. 
 
 Natural law is the rule regulating human relationships prior 
 to the appearance of positive or social law. The latter is a some- 
 what artificial law, rational and conscious in its highest form, and 
 essentially societary, that is, founded upon social interest. Natural 
 law is to positive law what a reflex action is to a conscious action. 
 
 It is not true, as Rousseau declared, that natural law is just, 
 while social law is unjust. Natural law may be very unjust and 
 positive or social law very just. Natural law permitted and even 
 commanded private vengeance, and was unjust when, as often 
 happened, vengeance was excessive. It was social law which 
 rendered it just by interfering to limit it to a strict retaliation. 
 It was unjust also when it held an entire family jointly responsible 
 for the crime of a single member. Without aiming to be so, pos- 
 
CiL\p. XXV.J THE EVOLUTIOX OF CIVIL LAW 593 
 
 itive law was in turn unjust, in admitting the doctrine of the lim- 
 itation of actions, to the advantage of one who appropriated 
 another's property ; and in prohibiting the investigation of pater- 
 nity. It was just in requiring the publicity of acts and estab- 
 lishing various guaranties. 
 
 The criterion must be sought elsewhere. It is that natural 
 law is individualistic while positive law is social. 
 
 But in the process of socialization, positive law could not pre- 
 serve the nuances which characterize natural law. It had to 
 permit or prohibit *' en bloc " ; it was obliged to legislate accord- 
 ing to the maxim ** plerumque fit ", sacrificing the individual to 
 society where necessary, considering always and above all the 
 public good, and establishing stable forms. 
 
 This very valuable work may be beneficial as a general rule 
 and harmful in a particular instance; it may be helpful to good 
 order and a blow to progress, good for the people as a whole and 
 ill for a given individual. Indeed so injurious may it be, that we 
 regret the natural law which preceded it. In that case we strive 
 to preserve the advantages of positive law, while correcting its 
 defects, and to reincorporate in part the natural law which had 
 been displaced, purged, however, of its excessive individualism. 
 For example, investigation of paternity was admitted by natural 
 law. It was not an equitable motive alone which finally introduced 
 the principle, but conscience itself, which is individualism pure 
 and simple. The legislator, however, was influenced by the 
 numerous dangers of proof of such relationship. He, therefore, 
 in the interest of society, cut short the possibility by an absolute 
 prohibition which became the rule of positive law. Then, in turn, 
 the prohibition seemed unjust. Particular cases arose where the 
 strict rule had to yield. But it was then not natural law reappear- 
 ing but equity, which is a higher manifestation of nature. In 
 the French Civil Code exceptions were admitted to Article 340.^ 
 Equity is a higher form of natural law, which has refound a place 
 throughout the Code. Such is historical succession. 
 
 Natural law existed everywhere first of all. But there were 
 instances where it enjoyed short duration., especially in complex 
 societies, where as a defense it soon became necessary to pass to 
 the phase of positive law. So complete was the substitution that 
 
 ' [Art. 340: "Investigation of paternity is prohibited. In cases of 
 seduction when the date of the seduction is that of the period of con- 
 ception, the seducer may, upon demand of the parties in interest, be 
 declared the father of the child." — Translator.} 
 
594 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 natural law was almost smothered. Under the brutal compres- 
 sion that took place, its life was almost crushed out. In the 
 civil law of Rome the " patria potestas " came near to destroying 
 kinship by blood; the emancipated son no longer figured as a 
 member of the family while the adopted son was in all respects 
 absorbed. And yet adoption was an artificial institution. In a 
 large measure it took the place of the natural relation. In the 
 Middle Ages we may regard the customs as natural law. They 
 were dominated by feudal law which was artificial and social. 
 Everywhere positive law successfully established itself. 
 
 Then commenced the reaction in favor of natural law and 
 equity. It was long and bitter. A steady parallelism grew up 
 between the two forms, positive and equitable law, which almost 
 always ended in the positive law being drawn over to equitable 
 principles, 
 
 Roman law offers the most notable example. The praetor 
 created the body of praetorian law alongside of the " jus civile " ; 
 he introduced the '' dominium utile " alongside the " dominium 
 directum " ; the consensual alongside the literal and verbal con- 
 tracts ; the " bonorum possessio " in the law of inheritance ; the 
 *' actio utilis " beside the " actio directa " ; the trust entail outside 
 the strict law of wills. 
 
 Anglo-American law has followed the same course; a right in 
 law is opposed to a right in equity : hence such terms as equitable 
 title and equitable mortgage. 
 
 The final history of praetorian law is almost always its incor- 
 poration into legislative law properly speaking. Throughout 
 his work Justinian placed equitable principles above positive law. 
 
 In a less patent manner the role now played in France by the 
 equitable doctrines of the courts is of the same nature. It aims 
 to make equitable principles prevail over positive law. We shall 
 presently find numerous examples where we may note the effects 
 of this throughout the law. 
 
 We may mention at once those provisions of positive law still 
 contained in the French Civil Code which have compelled the 
 introduction of equitable principles. In addition to the early 
 provisions relative to civil death and the incapacity of foreigners, 
 both now abolished, there are the absolute prohibition against 
 the investigation of paternity; excessive power of the husband 
 over the wife ; deficient regulation of the authority of the father ; 
 denial of legal status to the adulterine or incestuous child ; unlim- 
 ited obligation upon the heir to pay the debts of the decedent; 
 
Chap. XXV .J THE EVOLUTION OF CIVIL LAW 595 
 
 excessive formality of wills and gifts ; prohibition imposed upon the 
 father from distributing his property arbitrarily; artificial rules 
 regulating joint liability, and joint ownership ; excessively numer- 
 ous prohibitions relating to evidence; distinction between mov- 
 ables and immovables in fhe law relating to marriage ; absence of 
 equality in the rules governing the hire of services; excessive 
 liability for torts and quasi-torts ; disastrous effect of the wife's 
 lien upon her husband's property to secure the restoration of her 
 marriage portion ; various periods of limitation of actions. x\ll 
 these matters belong to the strict rules, the excessively strict 
 rules of positive law. 
 
 The chronological order of the evolution is uniform : 1. natural 
 law ; 2. positive law^ ; 3. equitable law. It is worth noting the 
 coincidence of this development with the different phases of 
 customary law : 1. customary law ; 2. prescribed law ; 3. neo- 
 customary or judge-made law. And along with these : 1. oral 
 law ; 2. written law ; 3. codified law. Customary law is, in effect, 
 almost always natural law ; ordained law is almost always positive ; 
 and judge-made law is almost always equitable. 
 
 Here we again find the spiral curve of evolution. Equitable 
 principles are unquestionably a sort of return to natural law, 
 refined, generalized and deliberate. 
 
 § 6. From Local to General Law. Customs were at first binding 
 upon a very small number of persons. We may see instances of 
 this stage today in the local usages which in many matters still 
 preserve the force of law. They often extend over tiny regions 
 to which reference must be made in the legislative compilations. 
 
 The customs of early French law depict a similar situation. They 
 did not always extend over vast provinces such as Brittany or 
 Normandy. Within these larger areas were at first yet other 
 customs or usages more local still and in matters of detail these 
 were even further subdivided. 
 
 The jurisdiction of the royal ordinances was broader, applying 
 to the country as a whole. 
 
 Of particular interest here is the fact that the evolution of law 
 has always territorially proceeded in just this manner. Embrac- 
 ing originally but a small area, law continued to expand, that is 
 to say, to become more uniform. Let us see how this took place. 
 
 First as to custom. Those of the cities or of the residences of 
 the local sovereigns easily attracted to them other customs, since 
 they seemed superior. The domination of one part of the land by 
 another had the same effect; law was imposed. But this was 
 
596 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 not the most frequent process. It was at the time of the official 
 compilations that the excessive variances in customs were elim- 
 inated ; a real fusion took place, by giving predominance to the 
 customs of the most important city or region. 
 
 When uniformity was being effected among various provinces, 
 as by the adoption of the Civil Code in France, the same method 
 was again employed with respect to the part of the law still re- 
 maining customary. Uniformity had already been realized in 
 those parts covered by the royal ordinances. The greatest au- 
 thority was awarded to the '' Custom of Paris ", though the best 
 was taken from other custumals. 
 
 The medium of uniformity was often a dead law which con- 
 tinued to enjoy great authority. At first it was superimposed; 
 later it filtered down into the conflicting systems. This was the 
 history of Roman law in France after its reintroduction and in 
 Germany after its reception. Everywhere its general principles 
 received acceptance and local customs were subordinated to it. 
 The canon law, too, acted as an agent while the theoretic works 
 upon custom contributed largely toward uniformity. 
 
 Finally, the most powerful of the ferments was political. Forces 
 were working towards a homogeneous country and no country is 
 really so until it possesses a uniform law. Therefore, when a State 
 won political unity, it consolidated in this way its new individu- 
 ality, which it might not otherwise have secured until much later. 
 We find examples of this in France after the Wars of the Revolu- 
 tion, in Italy after her independence, and in Germany after 1870. 
 
 Such are the facts ; let us now look at the process. 
 
 Uniformity began within a province ; it then spread to different 
 provinces. However, a pause occurred in the process. Finally 
 it was achieved between confederate States. In the confederation, 
 each State long preserved its special legislation and even its body 
 of civil law. Then a distinction was drawn : public and adminis- 
 trative law remained as they were, while civil and criminal law 
 and those subjects which have come to form the great codes, were 
 made uniform. At least this was true of many such laws, for some 
 preserved their absolute autonomy. Evolution, however, was in 
 this direction. The United States has preserved a different body 
 of law in each State ; Germany has very lately adopted a uniform 
 Civil Code for all its States ; Switzerland is about to do the same.^ 
 England and Scotland have different civil laws upon many points. 
 
 1 [The Swiss Civil Code, adopted Dec. 10, 1907, was put into force 
 January 1, 1912. — Translator.] 
 
( iiAP. XXV.] THE EVOLUTION OF CIVIL LAW 597 
 
 The struggle has always been keen between those who favored 
 and those who opposed uniformity. Louis XI was perhaps the first 
 to conceive of applying this great idea to the laws of France. Later, 
 when the customs were officially compiled, Dumoulin publicly ad- 
 vocated it, as did Michel de I'Hospital. But the Parliaments re- 
 sisted the undertaking just as they opposed new ordinances. 
 
 In frequent instances today, certain French territories are gov- 
 erned by laws different from those of the country at large. Colo- 
 nial possessions are in this category; special legislation applies 
 to them ; only as they are assimilated to the home country, is 
 general French law extended to them. 
 
 The movement tov\^ards uniformity may cross the boundaries 
 of a State. There are numerous examples of this, and the process 
 is multiple. Sometimes uniformity is brought about through 
 conquest, and it then often persists after independence has been 
 regained ; sometimes it is the result of imitation between nations. 
 So Belgium, Holland, Luxembourg, the Canton of Geneva, part 
 of Italy, Poland, and the Duchy of Baden received the French 
 Civil Code through conquest and retained it afterward; so also 
 Sweden and Austria adopted the commercial code of Germany 
 through imitation. 
 
 The movement has been progressive. Uniformity has tri- 
 umphantly absorbed in successive stages : 1 . a whole province ; 
 2. a whole State; 3. a whole confederation. Finally it has 
 spread beyond territorial boundaries under its banner. 
 
 Will this movement go yet farther so as to embrace all nations ? 
 It will meet with energetic resistance, for each nation will believe 
 that to resist will be to defend its autonomy. We believe, never- 
 theless, that uniformity will be realized, because it is the necessary 
 goal towards which evolution aspires. 
 
 The present is not. the first time that such a colossal effort 
 gathered itself. Long ago Roman law accomplished it by her 
 conquest of all the peoples of the then known world. It made 
 a second efl'ort indirectly through its incorporation in the canon 
 law which in turn undertook the same conquest ; it strove again 
 directly in Germany, France, and even in the customary regions, 
 where it became a subsidiary law (in reality, in Germany, the 
 principal law). 
 
 In conclusion, we would call attention to the parallel between 
 this evolution and those already described. Purely customary 
 law, at least for a long period, was accompanied by wide local 
 diversity ; ordained law has extended over vast territories. 
 
598 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 § 7. From Simple to Complex Law. Law in its absolutely 
 original state, the law of savage man, was simple. Contracts 
 did not rise above the level of mere exchanges and were executed 
 as a barter. No contract could be entered into between members 
 of different clans ; ownership passed only by delivery ; matrimony 
 arose from cohabitation; the right of inheritance did not exist, 
 since property was as yet collective. But so soon as society evolved 
 into different forms, there succeeded to simplicity a complexity 
 which went on expanding and dividing until today the law is an 
 inextricable maze. 
 
 The first stage was of short duration, though it has been encoun- 
 tered again at each revival of law. The judgment of Solomon 
 might well have been rendered by St, Louis under the oak of 
 Vincennes. 
 
 But the period of complex law has been of very long duration. 
 Customs were at first relatively simple. When viewed from the 
 national standpoint they seemed multifarious, but when observed 
 within a restricted neighborhood, they could soon be known. At 
 least, there were few obscurities of text and exceptions were rare. 
 When officially compiled, they at once presented problems of in- 
 terpretation. But they were brief and the road was long to the 
 complex modern code of science. 
 
 Excessive complexity and also obscurity began with the science 
 of law, properly speaking, and legal exposition. Interpretation 
 enjoyed a free hand and each jurist exhibited his virtuosity to 
 admiring hearers. The clearest text of law did not resist the 
 attack ; it was tortured until it produced several meanings. What 
 then of laws that were obscure? The French Civil Code is of 
 modest proportions if we exclude from it all those Articles which 
 are pure platitudes. And yet each of its short Articles has been 
 eaten into by jurists as the leaves of the trees are stripped by pests. 
 The exegetic plague increased as ordained law developed. This has 
 been true of all countries at all times. Not so long ago the teaching 
 of law consisted mainly in exciting admiration of extravagant dia- 
 lectics ; it came to be impossible to choose from amongst the vari - 
 ous systems of interpretation (some already abandoned), the one 
 which had finally obtained. In this way the influence of legal 
 science perished in France. Judges would have studied this mass 
 of subtlety to no purpose, or perhaps to their great detriment. 
 
 It was far worse with procedure ; even its language might have 
 been termed baroque. Endless ceremonies made up a ritual 
 which was performed with delays and excessive expense. To 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 599 
 
 express this condition of things people called it briefly '' the 
 jungle of procedure." It was appropriate and true. From it 
 litigants often emerged ruined and invariably bewildered. 
 
 Complexity had another inconvenience. It necessitated judges 
 especially trained for that sort of juridical education, and capable 
 of playing with difficulties ; parties needed to be represented 
 and they must be skilful, a rare occurrence. It obstructed, conse- 
 quently, any reform in judicial organization or economy of costs. 
 
 How to return to simpler methods? The Court of Cassation 
 attempted the task, but its success was limited. It struck down 
 here and there a few dozen theories, as a necessary consequence 
 of its own progressive evolution. But difficulties sprang up again 
 in the path ; it had to overcome the views of jurists ; it could 
 proclaim common sense only by slow degrees. 
 
 The third stage belongs rather to the future than the present. 
 It has, however, been realized in some recent codifications. The 
 German Civil Code has aimed to inaugurate this last period of 
 legal evolution by enunciating broad, comprehensive principles 
 in preference to detailed applications. This means relative 
 simplicity. But it is very difficult to secure effect from these prin- 
 ciples ; and the Code has not, therefore, succeeded in its aim. 
 
 Two juridical monuments did, however, succeed in their effort 
 towards simplicity. The first was the Code of the Convention. 
 In this respect it was a model. It discarded all superfluous re- 
 strictions and provisions. Liberty was fully respected. It was 
 certainly by such a code as this that we should have progressed 
 by completing its more deficient parts. It did not require long 
 study to understand or apply it. The Code of Procedure shifted 
 the direction of the evolution. It takes pleasure in prohibitions 
 of all sorts. Everything is forbidden or limited, or under sus- 
 picion ; the testator is beset by pitfalls ; causes of nullity are sown 
 broadcast ; the dishonesty of the litigant and the subtlety of the 
 lawyer are ever made profitable; where strong expression is re- 
 quired in the interest of the public, the code is weak ; it all but 
 abolishes publicity in transfers of title and in the law of hypothec. 
 
 The second legal monument marked by great simplicity is as 
 yet a mere project, but one which is on the point of becoming law. 
 It is the Swiss Civil Code, a most remarkable work which we owe 
 to the learned jurist Huber.^ It is marked by the same sim- 
 
 *^ [See note, p. 596. C/. English translation by the Comparative Law 
 Bureau of the American Bar Association (Boston, 1915). — Trans- 
 lator. 
 
600 PROCESS OF LEGAL EVOLUTION [Part HI. 
 
 plicity as the Code of the Convention, but it is far more complete, 
 though perhaps a Httle brief in certain parts. It is curious that 
 in the country where law had reached its greatest complexity, it 
 has now regained the greatest simplicity. 
 
 All countries are due gradually to follow the same course. Law 
 w411 be made simple so far as possible. 
 
 Evolution again appears as a spiral. Law was exceedingly 
 simple at first ; then it acquired a baroque complexity, both em- 
 barrassing and useless ; and finally it became ultra-simple without 
 being deficient, and consequently marked by great clearness. We 
 have come near to the ideal code. 
 
 § 8. From Material to Immaterial Law. At the dawn of civil- 
 ization people living in savage and barbarous conditions were 
 incapable cf abstract ideas. For them everything was concrete. 
 They understood only what was material and tangible. Barter 
 was an instance. Trade was carried on exclusively in this fashion. 
 Men gave with one hand and received with the other. There was 
 no lapse of time between these acts ; no confidence was given, 
 no glimmer of credit. But was barter the fairest method of which 
 savage man had knowledge ? Ordinarily he resorted to less delicate 
 means : to conquest and violence, which were later moderated to 
 peaceful occupation and possession. Violence, or at least forcible 
 seizure, was the commencement of law with all peoples. At that 
 stage man's instinct was restrained only by fear of God. We shall 
 refer to this again in the following section. 
 
 As civilization dawned, this state changed slowly and by trans- 
 itions. We may easily note these throughout the evolution of 
 the Roman law. After first requiring a material act, the law was 
 satisfied by a simulacrum. It was the period of symbolic law. 
 A sale at first took place by bringing the movable object and de- 
 livering it over against payment of the price. To weigh out the 
 price in uncoined copper, a balance was needed, and to hold the 
 balance, a third disinterested party. Few explanatory words 
 were pronounced. But this was not possible in the case of land. 
 A clod of earth was then brought, which took the place of the land 
 sold, and the same ritual was gone through. These were the 
 beginnings of symbolic law. Later, while the presence of the 
 object, movable or immovable, was always required, it was no 
 longer indispensable that the copper be weighed out or even paid. 
 However, the weighmaster, the " libripens ", remained for the 
 sake of form. Those present were the transferor, the transferee, 
 the weighmaster and five witnesses. The weighmaster held in 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW GOl 
 
 his hand a slender rod of copper. The purchaser touched the 
 object and pronounced a formula by which he asserted his right 
 over it ; the vendor indicated his consent by silence ; the pur- 
 chaser then struck the balance with a piece of uncoined copper, 
 which he gave to the vendor by way of price. This fiction imitated 
 and replaced the reality. The " revindicatio " and the '* in jure 
 cessio " w^ere based upon the same principle ; each constituted a 
 fictitious " manci patio " ; they were symbols of symbols. The 
 same was true of the testament " per aes et libram." 
 
 Germanic law went through the same process. At first sanction 
 hung upon the accomplishment of a material act. The solemn 
 disseizin of the thing to be alienated was effected by an act of 
 renunciation which was performed by a yielding up of the object. 
 This took place on the land itself. The alienator surrendered an 
 object detached from the immovable, a clod of earth, or the branch 
 of a tree, and at the same time quitted the property. This was 
 the " chrenecruda " of the Salic law. Later came the symbol 
 of this act in the " festuca." It was enough to throw any object 
 at all (the " festuca ", or straw) towards a third party as evidence 
 that the owner w^as thereafter a stranger to the property in ques- 
 tion. A staff was also used, or a knife, coins, or branches of a 
 tree, which were thrown upon the ground or upon the person of 
 the purchaser. These ceremonies constituted what were called 
 in Germanic law the " fides facta " or the " adhramire ", especially 
 in obligations. 
 
 The " festuca ", like the " mancipatio ", served for a great 
 number of juridical acts, for example, in the formation of obliga- 
 tions. It was a general means, which had originated in the trans- 
 mission of property. 
 
 From svTTibolism evolution passed on to juridical acts which 
 were quite immaterial. This stage need not be described, for it 
 is that which exists today. Consent has become the dominant 
 factor. 
 
 However, traces remain of the purely material stage of law : for 
 example, occupation, tradition, possession, acquisitive prescription. 
 
 In passing from the idea of ownership to that of an obligation 
 the immaterialization of law was more difficult of attainment, 
 and the conception of credit consequently came later. To create 
 a tie of this kind between two persons at 'first seemed impossible. 
 It was believed that the person of the obligor, who was said to be 
 " nexus ", must be actually handed over ; in default of payment, 
 execution took place upon his person, not upon his goods. 
 
602 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 The manner of entering into an obligation was analogous though 
 not identical with that employed in the transfer of property. It 
 was grafted upon the latter, and so there grew up in Roman law 
 all that important group of obligations called real contracts (in- 
 volving the delivery of a "res")- Real contracts, properly 
 speaking, the " mutuum," etc., were entered into by the delivery 
 of a thing, and pacts became binding in the same way, that is, by 
 the execution of one of the promises. 
 
 vSo in Germanic law the obligation was undertaken through the 
 performance of a material act, the " res prestita " or tradition, 
 which gave force to a consent otherwise valueless. 
 
 This material act, which was complete and real, was often 
 replaced by a symbol, as by the giving of the " festuca." The 
 giving constituted the " fides facta ", which was symbolic of the 
 " res prestita." Later a yet more immaterial and symbolic 
 delivery came in, that of the delivery of a title deed. 
 
 Is immateriality the last evolutionary stage? In the law of 
 property and obligations, is the voluntary and contractual phase 
 the last? It would seem so at first. But contemporary legis- 
 lation shows the contrary to be true. Money, which is the most 
 immaterial medium possible, is very near to seeming antiquated. 
 The tendency is to make payments by setting off mutual accounts, 
 thereby suppressing money. Yet more practical and current is 
 the creation of negotiable instruments which aim to concentrate 
 in a paper the symbol or representation of the thing, of values, 
 indeed, of very considerable magnitude. The sale then takes 
 place by reciprocal deliveries, a true barter. 
 
 Here again we observe the spiral march of evolution : 1 . mate- 
 rial law ; 2. symbolic law ; 3. immaterial and abstract law ; 4. neo- 
 material law tending to revert to tradition as in the ancient law. 
 
 §9. From Formal to Formless Law. This title must not be 
 confused with the preceding, although a certain analogy exists 
 between them. The symbolic ceremonies just described are also 
 a mode of formalism, but with these differences : 1 . the formalism 
 of symbolism lies in acts and gestures, while the formalism that 
 we are now concerned with lies in words; 2. the formalism of 
 symbolism had a material origin, whereas the origin of the for- 
 malism now under discussion was intellectual, as was proper 
 through men's faith in the invisible world. 
 
 It is not to be thought, however, that the formalism we are 
 about to describe is in any way connected, at least directly, with 
 religious influence. We shall presently study this influence, 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 603 
 
 which also belongs to the period of the origin of law. The for- 
 malism which here concerns us arose from a yet more ancient 
 trait, the love of the miraculous which resides in the human mind 
 through superstition ; in other words, magic. 
 
 In a remarkable work Frazer ^ has described the force exerted 
 by primitive magic and its exact resistive power. It was not an 
 instance of divine worship. On the contrary savage man had a 
 presentiment that all the forces of the world were intimately 
 related and governed by laws which need but be known and put 
 into action for him to become master of the world and even of 
 divinity. Patient search for these laws was too long and dif- 
 ficult ; they must needs be found immediately. People endeav- 
 ored and believed that they had succeeded. These laws were 
 thought to be contained in magical words and gestures. They 
 were collected with care and were compiled in formularies. By 
 these means man believed he was placing himself above God, 
 above everything ; he was a divinity ; his science and his power 
 were magic. According to Christian doctrine, cannot the priest 
 by the use of sacramental words cause the Divinity to descend 
 in the form of the Host, whether He will or not ? 
 
 Necromancy has affected the law, though not, it is true, in all 
 its parts. With respect to the right of ownership, a material act 
 or its symbol might possibly suffice. But when it came to obli- 
 gations, actions at law, and marriage, these matters were too 
 exalted to have such an origin. And besides they were too ideal- 
 istic and tenuous to be realized in this way, for in them everything 
 depends upon consent, a frail and abstract thing, which, as we 
 have shown, never acquired great strength. 
 
 How could consent be given a force which it did not naturally 
 have ? Our intention today may not be that of tomorrow. We 
 make believe, it is true, that, when our mind meets another's, 
 it is thereby bound. But by virtue of what, pray? May it not 
 release itself? Then, moreover, may this meeting not be merely 
 momentary ? All the early Roman law so held. The four con- 
 sensual contracts: sale, hire, partnership, and agency did not 
 appear until late. The " real " contract possessed the material basis 
 described in our preceding section, and the same basis served for 
 agreements giving rise to obligations. Beyond this, consent had 
 no power to create a contract. How could a power be imparted 
 to it? By magical or sacramental words. These alone were 
 capable of binding the will. 
 
 1 ["The Golden Bough."] 
 
604 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Words of magic were utilized in several ways in the Roman 
 law, and the remarkable thing is that the same ceremony came 
 finally to serve for. all contracts. One was the form "verbis" 
 or the " stipulatio." It consisted of a question and answer con- 
 forming to a fixed formula, the words being spoken in a strict 
 order. If other words were used, though equivalent, the obliga- 
 tion was void. There were even words which only certain persons 
 might use. Thus " spondeo " could not be pronounced by the 
 peregrin so as to be productive of legal consequence. An absent 
 person, not being able to be heard, could not stipulate, even 
 through a representative. He could only do so through a slave, 
 because the persons of the master and slave were regarded as one. 
 If there was the slightest variance between the demand and the 
 answer, the act was without effect. The same was true, if too 
 long a time intervened between question and answer. If the words 
 were regular, the contract was binding regardless of the intention 
 of the parties. These facts stamped such a contract as one of 
 the strict law. It was also purely unilateral. The promisor 
 could not stipulate so as to bind the two promises. Each was 
 complete in itself ; each party made and closed his own promise. 
 The " dotis dictio " was yet more solemn. 
 
 The contract " litteris " required another sort of ceremony, 
 which did not relate either in any way to the question of proof. 
 The remarkable feature of this ceremony was that it was not the 
 debtor but the creditor who performed it by making an entry in 
 an account book. For purposes of proof such an entry would 
 have been without value. It was the writing which took the 
 place of the spoken word as an element of solemnity. 
 
 Confusion is easy between the solemnity of the spoken word, 
 the solemnity of the writing, and the proof which may be re- 
 quired although there is no identity between them. The stipu- 
 lation could, indeed, take place without writing or witness ; the 
 writing was the creditor's alone and consequently proved noth- 
 ing. 
 
 The solemn contract also existed in Germanic law. It was not 
 a stipulation, it is true, but in the last phase it was possible to bind 
 oneself by oath, which is closely akin to the order of ideas which 
 we find in necromantic words. 
 
 Procedure, which developed under clerical influence, bears 
 the same stamp. We know how Gains tells us that if the word 
 *' vites " were employed instead of ''arbores", though equivalent, 
 the action was immediately lost. For the rest, procedure was 
 
Chap. XXV .J THE EVOLUTION OF CIVIL LAW 605 
 
 grafted upon the form of the stipulation. Actions at law were 
 quasi-magical ceremonies. 
 
 A vast work of redaction of formulae followed the Twelve Tables. 
 The general character of these formulae was either the affirmation 
 or the negation of the right or fact alleged by the party pronounc- 
 ing the words. No modification was allowed. The framing of 
 the formulae fell to the pontifts alone, and interpretation conse- 
 quently to the patricians, until Flavins disclosed the formulae to 
 the public. It was, besides, impossible to transact legal business, 
 save on certain days, which were called ''dies fasti.'* 
 
 Such was the early state of the law in this regard ; these were 
 the ways by which the will could be bound. 
 
 In a more advanced stage this narrow formalism was abandoned 
 though never completely. Numerous examples survive today. 
 
 The French Civil Code and the Codes of Civil and Criminal 
 Procedure abound with them. We will cite but a few. 
 
 In civil law a certain number of contracts exist which are termed 
 solemn, in which not only the ordinary mode of proof does not 
 suffice, but where the agreement, though admitted, is valueless 
 unless sacramental words and forms are used. Let us examine 
 a few. * 
 
 The most solemn are contracts made without consideration, and 
 agreements affecting a person's status. In the former class are 
 gifts. The French Civil Code requires, under penalty of nullity, 
 that a deed of gift be executed before a notary, that the gift be 
 similarly accepted, and that it be subject to other conditions of 
 form. The will by public deed is still more solemn. Besides a 
 notary, there must be present several witnesses; the formalities 
 must be performed without interruption ; the will is taken down 
 by dictation; the circumstances of the execution must be men- 
 tioned ; the witnesses must have full capacity. If it is simply a 
 holographic will, the law requires that it be entirely written in 
 the hand of the testator and dated. It would be vain to attempt 
 to prove the date extrinsically so as to show that the testator 
 had capacity at the time ; in spite of such proof the will would be 
 void. A single word written by another than the testator, though 
 with his consent, annuls the whole. The same consequence flows 
 from the incapacity of a single one of the witnesses, though there 
 be three who have capacity besides the notary. The substantive 
 provisions of the will are subjects of strict law. 
 
 Civil and criminal procedures are yet more formal, indeed, dis- 
 astrously so. The most minute formality in civil matters is 
 
606 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 sanctioned by annulment of the act ; the whole process must be 
 repeated. The rules as to jurisdiction are based more upon 
 juridical symmetry than utility, and cause endless delays. The 
 action to recover possession conflicts with the action to try title ; 
 interlocutory proceedings conflict with final matters ; questions " in 
 personam " with questions '' in rem." A hair's breadth separates 
 them, yet it nevertheless may not be crossed. Suits are referred 
 from one jurisdiction to another upon the slightest pretext. 
 
 Criminal procedure still multiplies the formalism of word and 
 gesture. Its favorite ground is the Court of Assizes with its jury 
 trial. If any one is more nervous than the attorney appointed 
 for the defense, it is the presiding judge or the jury, but above 
 all the judge. At each turn he fears lest he may commit an error 
 involving a reversal. And he does commit them in spite of him- 
 self. A righteous man, they say, sins seven times daily; the 
 presiding judge under such circumstances will perhaps sin against 
 form still oftener during a single trial. Naturally, his mind is 
 occupied far more by questions of procedure than the merits of 
 the case. For one moment he is forgetful, the defendant is quick 
 to take advantage, and the whole edifice crashes to the ground. 
 An appeal is taken to the Court of Cassation ; the case is remanded 
 to some other Court of Assizes ; it again goes up to the Court of 
 Cassation. Its course is not unlike the popular scenic railway. 
 And all this is favorable to the defendant, whose position finally 
 arouses the pity of the jury or of the chief executive. Before the 
 trial commences come a series of ceremonies all required under 
 penalty of annulment of the proceeding. The rules of warning 
 to the accused, to his counsel, and to the jury have to be pro- 
 nounced in a sacramental form; the oath before God and man; 
 the verdict pronounced with the hand upon the heart ; the verbose 
 admonition posted in the jury room, are so many more formalities. 
 The verdict of the jury must be according to a fixed formula ; hun- 
 dreds of questions are often put to the jury, who go astray in the 
 labyrinth. It is the triumph of form. 
 
 Even practice is tyrannized by form. The notary slavishly 
 follows his book of forms in drawing up his documents ; the omis- 
 sion of a few words may be costly. 
 
 The whole law is replete with sacramental language^ rendering 
 it unintelligible to the public. 
 
 § 10. From Theocratic to Secular Law. Throughout their 
 control the arts and institutions of men were not only under the 
 authority of religion but really fell within its domain. With 
 
Chap. XXV .] THE EVOLUTION OF CIVIL LAW 607 
 
 regard to the arts, this has long been known. Architecture and 
 especially sculpture were first employed for the temple, and 
 music was first heard there. Philosophy, too, issued from the 
 same source, just as science later was itself born of philosophy. 
 We will find the same to have been true of law. 
 
 Law was of sacred origin, or nearly so, at least with a certain 
 number of races. It was secularized only gradually, and even 
 long afterwards preserved traces of its early state. 
 
 Let us observe this evolution : 1 . in the very sources of law, 
 in legislation ; and 2. in its various institutions. 
 
 The sources of law were often religious, especially where mono- 
 theism was strong. Law was not only influenced, but originated 
 through the divinity or his intermediary. We shall observe 
 this in detail later with regard to the Jews and Mohammedans. 
 Before proclaiming a new law, Moses ascended Mt. Sinai and 
 brought back the Tables. They were inspired laws, pronounced 
 by God Himself. The same was true of the Koran. It was 
 through divine inspiration that Mohammed claimed to have con- 
 ceived his concise code. It is yet more curious that not only was 
 law divine but also its judgments. They too were inspired. The 
 Hebrews, as we shall see, consulted Moses upon the law as though 
 he were a veritable oracle, and it was believed that his reply did 
 not come from him but from God Himself. God answered also 
 without apparent intermediary through the ephod. There was 
 then no mediation properly speaking by the priest, but rather 
 by the prophet. Such inspired judgments were later collected and 
 preserved as precedents for others. Mohammed also consulted 
 Allah, when called upon to judge differences, and his decisions, 
 being of divine origin, formed a body of divine case-law, so to 
 speak. 
 
 Roman law confirms the* existence of this evolutionary stage. 
 The law was revealed by the gods and constituted the " fas." 
 A violation of the law was an offense against the divinity, and 
 punishment was due as an expiation, that public calamity might 
 be avoided. The " sponsio " was at first an appeal to the gods. 
 
 The same was true of the earliest Germanic law. It was divine ; 
 priests executed its penalties; the days were made known which 
 were held propitious for each sort of enterprise. 
 
 Not till later was law secularized in the sense that it was no 
 longer directly a divine product. But it long remained in part 
 a monopoly of the priests. In Rome they had to be robbed of 
 the formulae upon which legal actions depended. Once the 
 
608 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 people mastered these, procedure took a new direction. Man 
 became the lawmaker; he it was who henceforth judged, still 
 surrounding himself with a numerous ceremonial. 
 
 But on the reawakening of civilization, the notion of the judg- 
 ment of God appeared again in the ordeal. At moments of dis- 
 tress when there seemed no way of securing proof, the only alter- 
 native at hand was to consult God, who would decide by trials 
 of fire and water, for example. But this sort of divine judgment 
 was often of secondary and later origin. It came into use as a 
 substitute only when the judicial duel was losing ground. 
 
 Indirectly divine law still dominated human law, in that the 
 enactments containing it were theological codes wherein it was 
 mingled with law in its pure sense. There were no civilizations 
 at the beginning governed by pure civil or pure penal law. 
 
 The second phase of law in the evolution which we are con- 
 sidering was that of secularization. It was long incomplete. At 
 first the lawgiver, even when temporal, still preserved a quasi- 
 divine character. In his own way he was regarded as inspired. 
 Then, as in the case of the ordeals, the spiritual elements of society 
 were constantly at work as a later and renewed influence in tem- 
 poral society. 
 
 A perfect type of this stage is found in the Middle Ages. We 
 are not speaking of the '' privilegium fori ", or jurisdiction re- 
 served to the Church over its clergy, but of rights affecting every 
 one. These included : 1 . jurisdiction over " miserabiles personae ", 
 widows, orphans, and crusaders ; 2. questions relating to the sacra- 
 ment and articles of faith, and consequently actions affecting 
 matrimony (marriage being a sacrament) ; betrothal, legitimacy, 
 status; 3. benefices, titles, patronage; 4. heresy, sacrilege, 
 sorcery ; 5. wills (because of the Church's interest in pious gifts) ; 
 6. usury; 7. adultery; 8. the right of asylum; 9. jurisdiction 
 over all contracts under oath. 
 
 Divine law and divine judgments did not exist with all races. 
 But wherever they were found, among the Jews and Arabs for 
 instance, they retained their divine force. Since books which 
 contained them, themselves sacred, were unalterable, it was only 
 through fictions that new law could be introduced. 
 
 The instances of clerical influence which we have found, in 
 France, for example, in the Middle Ages, were a secondary growth. 
 The privileges of jurisdiction only extended gradually, and the 
 ordeals are not discoverable until the judicial duel disappeared. 
 
 The third phase is that of almost complete secularization, as 
 
Chap. XXV. J THE EVOLUTION OF CIVIL LAW 609 
 
 in France today. But vestiges of the old state survive every- 
 where. The most important is the oath, which is a direct invoca- 
 tion to God. Its solemnity still dominates the whole of French 
 procedure. But it in turn tends to disappear, though slowly. 
 
 The three lines of evolution which have just been described 
 are very closely alike, so that they are easily confused, particu- 
 larly the last two. They are, however, distinct. 
 
 § 11. From Criminal to Civil Law. WTien we read the primitive 
 law books of a people, it is at once clear that there rarely existed 
 a civil code, properly speaking. But we often find in the sacred 
 books a well-developed criminal code in which were interpolated 
 fragments of civil law. From this we may at once infer that 
 criminal law was of much earlier date than civil law and that it 
 embraced the civil law. Chinese law, among other systems, 
 pro\ides a striking example. There separation of civil and crim- 
 inal law is unknowTi. All law is penal. Consequently a civil 
 breach entails, like a crime, a certain number of blows of a bamboo 
 stick. The Gothic law in Sweden, the Germanic, and the He- 
 braic laws were principally penal. The Salic law aimed to regu- 
 late a composition of offenses. Therefore (law being little known 
 anyway), people were much better and sooner acquainted with 
 penal than civil provisions. Knowledge commenced through the 
 criminal law. Furthermore one of the notions of many primitive 
 peoples was that the violation of a contract was an offense affect- 
 ing society and as such was punishable. The law was revealed 
 only through the penalty prescribed. Today we have a contrary 
 conception. Wrongs which are merely breaches of contract, even 
 where they affect the person, as in breach of trust committed 
 against a minor, or adultery, tend to lose their tortious character. 
 
 It is very natural to include the civil law within the penal law, 
 as it is very jiatural to include civil procedure in repressive 
 procedure. ^Mien uneducated persons suffer some injury, they 
 instinctively complain to the police and are astonished when, 
 instead of receiving their accustomed protection, the police 
 authority declares itself without jurisdiction and refers the com- 
 plainant to the civil courts. 
 
 As a general rule penalties disappeared in the civil law ; it won 
 for itself an autonomous existence; however, criminal law con- 
 tinued to exercise an influence. Thus in Roman law there were 
 frequent examples of actions which were at once civil and criminal. 
 They arose, it is true, out of torts, but at times out of certain un- 
 lawful juridical acts. So today certain penalties still attach to 
 
610 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 the civil law, as where an heir who fraudulently conceals property 
 belonging to the succession, is deprived of all claim in the part con- 
 cealed. Finally, in procedure the criminal action is preliminary 
 to the civil action or suspends it. 
 
 On the other hand, during a certain period of legal history, 
 criminal law became entirely private, as when murder and other 
 offenses were atoned for, not by punishment but by a pecuniary 
 composition. In that stage the whole law may be said to have 
 become civil. 
 
 Is future evolution in the direction of the distinction, almost 
 absolute today, between civil and criminal law? It would seem 
 that progress would be towards a yet more complete separation 
 of the two. For example, a breach of the law gives rise to a two- 
 fold action, penal in protection of society, civil in protection of 
 the individual injured. These often absorb one another, that is, 
 they are both brought in the criminal court or one in the civil 
 court. It would be expedient for all actions sounding in tort to 
 belong to one jurisdiction. That would mean that the criminal 
 law would embrace all torts from every point of view. On the 
 other hand the violation of a contract, for instance of the mar- 
 riage contract, gives rise to a criminal action. Many claim that 
 this action should be civil and that it should not effect more than 
 the annulment of the contract. 
 
 Tracing the evolution as a whole, we find it to have been : 
 1. civil law, not yet independent but contained within the crim- 
 inal law; 2. criminal law contained within the civil law; 3. the 
 imperfect separation of the two ; later a perfect separation. There 
 was a time when the second predominated, for example, in Roman 
 law. But the first did exist, as in the '' partes secanto." ^ 
 
 § 12. From Civil to Commercial and Industrial Law. We have 
 just said that the civil law was for a long while embodied in the 
 criminal law. So commercial law was contained within the civil 
 law, where it long remained " in embryo." The Roman law was 
 an example. It contained no commercial law though it regulated 
 a few contracts of a commercial nature. It was the same with 
 Barbarian law after the invasions. Here there was a fresh reason, 
 in that the invaders found a civil law already existing, and were 
 not traders, except in the sense of the Normans, who trafficked by 
 pillage. 
 
 1 [The allusion is to the paragraph in the Twelve Tables, permitting 
 the creditors of a defaulting debtor to divide his body into parts. — 
 Translator.] 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 611 
 
 Commercial law developed remarkably even in the Middle 
 Ages, and it possessed qualities peculiar to it, quite different from 
 the civil law. It was and it has remained a customary and highly 
 equitable law. It has not been bound by the juridical history 
 of antiquity ; it has become uniform through the continuous con- 
 tact of merchants of different races ; it created for itself instru- 
 mentalities, rapid and certain in their action ; from the very out- 
 set it has been a law developed by usage, and this fact has given 
 it great superiority. Commercial law^ has worked the greatest 
 evolution in the whole body of private law\ 
 
 It has invaded the civil law, which has shaped itself to it in 
 large part, especially in the matter of obligations and contracts. 
 The Swiss Federal Code of Obligations is both a commercial and 
 a civil code. In France the Civil Code has retained control of 
 everything relating to immovable wealth, while the Commercial 
 Code has taken over almost everything relating to movables. 
 
 It was commercial law which first, unconsciously, attempted to 
 bring uniformity into the law of the various nations. The Oceans, 
 indeed, are one country. The commercial law has everywhere 
 been looked upon with favor ; it has hewn a path through the old 
 obstacles, requiring only what is indispensable. It did not rest 
 content to create its own sphere of action ; it has lately undertaken 
 (and happily so) to invade the part of the Civil Code relating to 
 property. Thus quite recently civil partnerships have been as- 
 similated almost completely to commercial partnerships; civil 
 instruments of credit may be made negotiable, while many legisla- 
 tions have transformed civil insolvency into the bankruptcy or 
 judicial winding up ^ of the commercial codes. 
 
 As a law develops, we do not perceive that it bears the germ 
 of another law. As opposed to civil and commercial law, indus- 
 trial law or the Code of Labor was at first unknown. The French 
 Civil Code contained a few provisions relating to industry; the 
 Commercial Code devoted a chapter to the pay of the crew of a 
 vessel. Political and economic revolutions have called attention 
 to industrial law. Recently a draft of a code of labor was under- 
 taken by first uniting the scattered enactments and then merging 
 them into one body. As yet it remains a mere project. ^ Our 
 regard is now turned away from the old-time civil law towards 
 
 ^ [In France, as in most countries, bankruptcy is an institution of the 
 commercial law and not of the civil law. — Translator.] 
 
 2 [A law of Nov. 26, 1912, now constitutes the Code of Labor. — Trans- 
 lator.] 
 
612 : PROCESS OF LEGAL EVOLUTION [Part III. 
 
 this newer law. The Civil Code (which was designed for middle- 
 class traders) and the Commercial Code have lost vogue. Solici- 
 tude for the working class is no longer typical only of the politi- 
 cian, but of the sociologist and jurist. 
 
 The course of evolution has been regular: 1. inclusion of all 
 private law in the civil law ; 2. appearance of commercial law ; its 
 autonomy; 3. absorption by commercial law of the civil law by 
 a merger of the two ; 4. birth of industrial law. 
 
 § 13. From Political to Private Law. This movement has been 
 less perceived, or, at least, we believe that the factors which caused 
 it have not been properly estimated. 
 
 To make the title to this section complete, we should say : 
 " From Private Law to Political Law and from Political Law to 
 Private Law." 
 
 By the action of political law we mean the transformation of 
 private or individual law through the influence of pure political 
 law. For the status of persons and of property change under 
 external pressure, whether through conquest from without, or 
 domination or. bureaucracy of public authority from within. 
 
 Conquest early brought to civil law an institution not present 
 at the beginning when the slate was clean. This was slavery 
 and serfdom, which is but an altered mode of the former. A 
 conquered people who had been spared their lives was made to 
 labor, relieving their conquerors thereby to a degree. There arose 
 then two classes of persons, one superimposed upon the other : 
 the freemen and the slaves. Their condition was very different 
 and this fact reflected upon the whole of civil law, especially among 
 the nations of antiquity. It was external political law which 
 brought this about. The organization of the family, to whom a 
 new unit was thus added, felt the consequences. 
 
 Later this element disappeared, though traces of it were long 
 evident, as, for example, in the relations of domestic servants. 
 Again the early liberty emerged and private law shook off this 
 political yoke. 
 
 In many countries, though not in all nor from the outset, in- 
 ternal politics influenced the private law of the individual. There 
 was the feudal system, which we now know was not exclusively 
 a product of the Middle Ages nor of western countries, but was to 
 be found everywhere at a certain secondary stage of evolution. 
 
 The Merovingians did not practice the feudal system; it ap- 
 peared under the Carolingians. Public office assumed great im- 
 portance and was a road to wealth and, what counted most, to 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 613 
 
 landed wealth. At first it was held for life, but later it became 
 hereditary. Above customary law, which was the true private 
 law, was superimposed feudal law, another system of private law 
 wherein the political element dominated, or better, customary 
 law developed tow^ard feudal law in such a manner as to be en- 
 tirely impregnated by it. 
 
 The same phenomenon took place in China, where feudal law 
 was a later growth also. There, and also in Japan with her war- 
 like habits, it resulted from an overgrowth of military power. 
 
 Political influence disappeared entirely in the next evolutionary 
 phase. Its traces endured but in public law, not in private law. 
 In its turn private law, now^ emancipated, influenced public law, 
 as, for instance; in copyhold suffrage. Under such a system pos- 
 session of land alone gave political power and constituted the 
 condition of suffrage. Indeed toward the end of the feudal period 
 of law ow^nership of land had already exercised the same influence. 
 
 Political considerations acted upon private law in a third manner 
 through confiscation, political or penal. The latter, when oc- 
 casions for it became numerous, was also an invasion of private 
 law by political law. But the former was more powerful and more 
 directly political in nature. It was sometimes exercised individ- 
 ually, a manner frequently used in the times of the Roman em- 
 perors. It also operated collectively. Thus the French Revo- 
 lution confiscated all the property of the Church and nobility and 
 invested the purchasers with title ; in the same w^ay the English 
 at the time of the Conquest, and the Gallo-Romans at the time of 
 the Prankish invasion were partly despoiled. 
 
 But reversions to former conditions are frequent. We saw 
 earlier how in the present phase of the law when individual owner- 
 ship has been completely established, a breach was commenced 
 and is being enlarged by means of expropriation for a public 
 purpose. 
 
 § 14. From Collective to Individualistic Law. We need but 
 briefly refer to this movement, as the subject has already been 
 devel()i)ed in a former chapter. 
 
 Did the various legal rights belong exclusively to individuals 
 or collectively to groups having a higher standing, such as the 
 family or national group ? The answer varies according to the 
 period. 
 
 We shall examine successively the two principal sorts of law, 
 property and family. The law of property is subdivided into 
 two sorts, according as it governs movable or immovable objects. 
 
614 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 The former category belonged at the very outset to the individual, 
 at least as a general rule ; but its importance was then almost 
 insignificant. Immovables belonged to the family or clan, but 
 in each case ownership was collective and not individual. It was 
 only by usurpation that private property came into existence and 
 strengthened. There can no longer be any doubt about this. 
 
 When finally individual right had triumphed, the other, that is 
 to say, collective property, still left important and enduring traces. 
 With the Romans the " ager publicus " was everywhere a domain 
 of the State, and in France the property belonging to the munici- 
 palities is still enjoyed in common by the inhabitants. This 
 property may be considerable; but it may disappear, as in fact 
 is happening with municipal property in France. The time 
 came when immovable property was partitioned in this way until 
 private ownership gained the entire ascendency. 
 
 Another trace of collective ownership of land is the distinction, 
 still existing in principle in England, though only in form, between 
 the '' dominium directum " and the '^ dominium utile." The 
 latter is private property in the true sense ; the " dominium di- 
 rectum" is the remains of primitive collectivism, centered in the 
 sovereign and the State. It is this " dominium directum " which 
 may be the spark to fan the early communism into fresh life. 
 
 Yet another trace of the primitive collective ownership is the 
 need felt by society of giving fresh consent to each transfer of 
 individual ownership, as though the property reverted for a 
 theoretical instant to the collectivity. This was " investiture " 
 under feudal law, but is also found in present law. 
 
 When property was transferred under Roman law by the 
 " mancipatio ", there had to be present not only a " libripens " 
 but also citizen witnesses, representing the public. The notion 
 of representation was yet more striking in the will '' calatis comi- 
 tiis", in which the popular assemblage played a legislative role. 
 It was not possible to transfer the ownership of property at death 
 unless it reverted to the community, to emerge again immediately 
 by common consent. Germanic and customary law had resort 
 to the same investiture. Society had to intervene for the title 
 to be again transferred. In the draft of the German Civil Code 
 an investiture of form was still required. Finally the Torrens 
 system requires upon each transfer a fresh registration, which 
 is accorded by society after a verification of title. 
 
 Individual ownership was the second stage. It embraced im- 
 movable property, which had passed through the evolution just 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 615 
 
 described, and movable property, which had been owned individ- 
 ually throughout its history. Only in the most urgent cases 
 might expropriation for a public purpose be authorized. 
 
 Intellectual property remained yet longer plunged in a state 
 of public ownership. The fruit of intellectual labor belonged to 
 society as a whole. In France by the end of the 1700 s movables 
 and immovables had been entirely withdrawn from the early 
 collectivism, while intellectual property had not yet emerged. 
 From that time individual ownership was still further extended 
 and made yet more exclusive, so that by the middle of the 1800 s 
 the collective phase of the law had yielded all along the line to the 
 individual and exclusive stage. 
 
 Then evolution recommenced, moving spirally toward a new 
 collective stage. This evolution has finally become very marked 
 under the new doctrine of collectivism. But at first it was un- 
 conscious and without political significance. This time it began 
 with movables, which had increased enormously in value, equaling 
 immovable wealth. The process was indirect. Commercial and 
 industrial progress had been immense, especially since the intro- 
 duction of scientific machinery. But to set this in motion, capital 
 had to be accumulated. Enterprises came to be carried on by 
 thousands of persons placing their capital in common. Com- 
 panies, numerous and powerful, have become points of concen- 
 tration, so to speak, where joint and collective ownership has re- 
 appeared. The individual no longer owns this property except 
 in the form of shares of stock. 
 
 But private ownership of land persists, though the contagion 
 of collectivism may reach it too. Indeed, the new doctrine aims 
 to socialize all wealth. In France the progressive inheritance tax 
 has already made a beginning; the income tax stimulates the 
 movement ; government ownership of railroads and mines will 
 realize it in part. 
 
 The spiral progress of the law is again evident: 1. initial 
 collectivism ; 2. private ownership ; 3. tendencies toward a new 
 collectivism and their partial realization. We have already 
 explained how the new collectivism is to be distinguished from the 
 old. 
 
 A similar evolution has gone on in the law of persons and of the 
 family. 
 
 Marriage was at first really plural. In proof of this we need 
 not cite the period of promiscuity claimed by certain authors. 
 Indeed in a state of promiscuity there would be no marriage. 
 
616 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 However, such a state did exist at times, as in Lacedemonia ; 
 but it must be regarded as the exception. 
 
 It is almost certain that at least polyandry was the rule almost 
 everywhere. All the men of one clan were the husbands of all 
 the women of another. This was, if we suppose marriage at all, 
 the farthest possible point of indi vision. Later marriage to a 
 group of brothers restricted this situation somewhat. We find 
 traces of it among the Nairs. Brothers were husbands of the same 
 woman. Finally a woman could belong to but one. That was 
 the beginning of monandry; common ownership, marital collec- 
 tivism ceased. 
 
 The same man, it is true, might have several wives, so that 
 monandry constituted polygamy. But the woman was the pivotal 
 point of the family ; through her, filiation was rendered certain. 
 So long as she lived with but a single man, the child belonged to 
 two parents, who not only brought it into the world but possessed 
 it in common and raised it, endowing it with their race and goods 
 upon a determinable basis. 
 
 This was the matriarchal period ; patriarchy followed. 
 
 But there succeeded to this collectivism a secondary stage, of 
 a polygamous patriarchy. Man had several lawful wives. Some- 
 times of different ranks. Their rights were in a true sense col- 
 lective; each wife shared the husband. We get an ingenuous 
 picture of the relationship in the biblical story of Leah and 
 Rachel. 
 
 To polygamy succeeded monogamy, from which all notion of 
 collective right was excluded. It grew stricter with time. The 
 " concubinatus " was for a while tolerated ; then, when prohibited, 
 it descended to the lower and extra-matrimonial level of concubi- 
 nage. Monogamy pure and simple alone remained, just as in an- 
 other order of ideas the right of ownership became entirely in- 
 dividualistic. The evolution continued and it became agamy; 
 celibacy was extolled by certain religions. The marriage contract 
 became absolutely indissoluble. Then commenced an evolution 
 of the same nature as that which took place in property. The 
 marriage tie gradually loosened; divorce put an end to its in- 
 dissolubility. 
 
 First granted for determined causes, it finally takes place by 
 mutual consent. Morals have relaxed and matriarchy has re- 
 asserted its main features in what is known as feminism. Finally 
 we are reaching the stage of freedom of divorce, where the wife 
 is no longer a subordinate member, and where she reassumes her 
 
Chap. XXV .] THE EVOLUTION OF CIVIL LAW 617 
 
 independent personality. In this phase the increased uncertainty 
 as to paternity causes a reversion to primitive conditions. 
 
 After enjoying in her early history an absolute freedom, the 
 woman was imprisoned in the harem, and later in the gynaeceum. 
 Freed from these restraints she made her entrance into the outer 
 world, remaining merely an object of legal inferiority. Her 
 tendency today is to emerge from this, first obtaining her civil 
 rights and later her political rights. 
 
 So, like property, matrimony first traversed a phase of collec- 
 tivism, then a period of absolute individualism, and finally it has 
 returned to a new state, which, while it cannot be called a collec- 
 tivism, at least means an almost complete freedom to contract 
 new relationships. 
 
 § 15. From Esoteric to Popularized Law. Here, again, our 
 formula is incomplete and should read : " From a Law Possessed 
 in Fact by the People to Esoteric Law and to a I^aw Possessed 
 Juridically by the People." The evolution really shows three 
 stages. 
 
 In the beginning no direct publicity was thought of, nor was 
 there any need of it, since events transpired within limited areas, 
 under the eye of every one and close to the object affected. So far 
 as publicity was concerned, it was enough that a visible, repeated, 
 and notorious act should give notice to third persons that a com- 
 peting right could not longer be created which was capable of 
 destroying the first right. Especially in the law of property or 
 of the creation and transfer of rights " in rem " is such notoriety 
 necessary. Third parties are thereby warned and the owner of 
 the right is secured. 
 
 The Roman law of property recognized several modes of transfer : 
 tradition, " mancipatio " and the unilateral method known as 
 " usucapio." The last was an essentially public mode. WTien a per- 
 son was observed constantly in possession, it was a fair presumption ^ 
 that he had rights in the thing. When a vast tract of land was sold , 
 it may have been that certain parts of it had not been seen. But 
 if it was very limited, the fact of the sale itself was notorious and 
 was in every way equivalent to registration. With regard to the 
 hypothec, the external evidence was less.^ Indeed, there was 
 
 1 [The hypothec (the mortgage of the Civil Law) is a real right to 
 the satisfaction of an obligation over immovables. (Fr. Civ. C. Art. 
 2114.) It differs from the mortgage of the Anglo-American law prm- 
 cipally in the fact that it is not a conveyance but simply the granting 
 to a creditor of a lien or right of property over certain specific real 
 estate of the debtor. — Translator.] 
 
618 PROCESS OF LEGAL EVOLUTION [Part HI. 
 
 none unless we consider the simple, but highly effective pro- 
 cedure of the Greeks, who use posts to mark the land charged 
 with hypothec. Finally resort was had to another procedure, 
 the English mortgage. In this the whole title to the land is trans- 
 ferred to the mortgagee by the ordinary means, subject, however, 
 to the condition that it will be retransferred upon payment of the 
 debt. Here the same element of publicity exists as in an uncon- 
 ditional transfer of the property. With regard to movables 
 manual tradition sufficed, since the transferee is thereby materi- 
 ally secured. If social groups had remained limited as of old, 
 there would have been no need for any other sort of publicity. 
 
 But the circle widened and publicity resorted to other means 
 to be effective. These were not consciously sought at first. The 
 old notoriety disappeared without an effort being made to replace 
 it. Law became secret. Such was the situation in Rome, both 
 as to ownership and to hypothec. Early French law instituted 
 with regard to property a very indirect form of publicity resulting 
 from investiture ; but in the case of the hypothec there was noth- 
 ing. The idea of creating a publicity of status and capacity was 
 still more remote. This situation had many disadvantages. After 
 a violent reaction in the Revolutionary period when the Law of 
 II Brumaire, Year VII, aimed to create an effective publicity, 
 France plunged still deeper into the system of secrecy. 
 
 A definite return to publicity occurred in all countries during 
 the last century. France took her first step in the law of 1855, 
 regulating the hypothec; Australia offered a perfected model in 
 the Torrens Act, as did also the city of Bremen. The Prussian 
 law and the German Code followed and the example spread to 
 many countries. Here we have passed beyond the stage of a 
 simple publicity to a double publicity wherein the legality of the 
 act depends upon notoriety. Future evolution is directed toward 
 a greater and greater publicity. 
 
 Germany has introduced a vast system of another kind in her 
 various books of registry. Registers of personal status, the com- 
 mercial register, the register of inheritances, the marine register 
 were established. 
 
 The normal evolution has been: 1. publicity through visible 
 acts ; 2. secrecy ; 3. complete publicity by registration. 
 
 Incidentally publicity has destroyed many long-standing in- 
 justices, notably the usucapion. 
 
 Beyond publicity by registration, which would seem the limit, 
 there is appearing another method yet more complete and rapid, 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 019 
 
 consisting of the possession of instruments endorsable or to bearer. 
 He alone is recognized as owner who possesses the instrument 
 evidencing the title. What can be more public? The soil is 
 converted into a movable ; land is made negotiable and may be 
 carried in one's pocket; the instrument may be exhibited on 
 demand; it gives to ownership its highest form of material 
 proof. 
 
 § 16. From the Outward Act to the Mental Act as Creative of 
 a Right. We have seen that the two elements which may gen- 
 erate rights are the thing or the person^ that is to say, a material 
 fact or consent. These two powerful factors are wholly different 
 in nature. They did not exist contemporaneously at first; a 
 certain growth took place from one to the other. 
 
 A right was at first absolutely material ; it was the product 
 either of a violent act, of force, or at least of a physical act. The 
 real contract was the first to come into existence. In the " mu- 
 tuum ", I deliver over a sum of money on the condition that it 
 shall be repaid at a certain time. It is not so much the agreement 
 which becomes the " cause " (consideration or motive) of the 
 obligation, as the fact of having received another's money. This 
 fact is the *' justa causa." So pacts were powerless to create 
 obligations. They could do so only if bilateral and executed upon 
 one side. In that case a '' res " had been furnished and the con- 
 tract came into existence from that moment, being formed "re." 
 The same was true of the " mancipium " in so far as it was pro- 
 ductive of a transfer of title and of an obligation. The payment, 
 real or symbolical, by means of uncoined copper constituted the 
 " res." Finally the very numerous obligations arising out of 
 tort or quasi-tort were formed ** re '* ; the " res " was the damage 
 caused. In certain systems even marriage was complete and pro- 
 ductive of certain juridical consequences (dower, for instance) 
 only after consummation. 
 
 At that early period consent had almost no force to create a 
 right, and at first to bring about such an effect it had to be grafted 
 upon the " res." In this way a pact when formed " re " admitted 
 of collateral terms which were recognized as legal, such as the 
 " pacta adjecta." The quasi-contract was very much prior in 
 date to the contract. 
 
 But consent, which was at first very feeble, finally secured a 
 certain force. Roman law admitted it exceptionally in four con- 
 tracts. Sale was one of these, but exchange was excluded. Mar- 
 riage came to be consensual. With us today, all contracts either 
 
620 PKOCESS OF LEGAL EVOLUTION [Part III. 
 
 are or may be consensual ; indeed, the transfer of ownership may 
 be effected by the mere intention of the parties. 
 
 For intention to be binding it must come in contact with another 
 intent. Otherwise it is a mere offer having no decisive conse- 
 quence. And yet sometimes unilateral consent is enough to 
 create a unilateral obligation. But the principle is hardly ad- 
 missible and has been frankly enunciated only by the modern 
 German law. 
 
 In other systems, consent is inoperative without " considera- 
 tion ", that is to say, a valuable " cause." 
 
 We have determined the curve of the evolution. At one end 
 the contract formed solely by a " res " ; at the other end the con- 
 tract by consent. The domain of the ''real" obligation, the 
 quasi-contract, the tort and quasi-tort are still very vast. 
 
 In this evolution there is something analogous to the movement 
 from the visible to the idealistic. 
 
 Progress has brought us to a sort of juridical immaterialism. 
 But it has evidently been exaggerated, as we see by the law of 
 the transfer of property and of negotiable instruments. Owner- 
 ship, that is to say, the right opposable to third parties, cannot in 
 reason be transmitted by mere consent. There must be besides 
 some act notifying third persons, and this act (registration, for 
 instance), remains the " res." Even with regard to movables, 
 delivery or registration is still necessary if the right is not to re- 
 main strictly " inter partes." Finally delivery definitely pre- 
 vailed in the case of negotiable instruments and a material object. 
 The last stage of the evolution is therefore marked by the need 
 of bringing together " res " and " consensus." Intent alone is 
 too feeble ; it needs confirmation. 
 
 § 17. From Rights " in rem " or Real Rights to Rights " in 
 personam " or Personal Rights. The right " in rem " was cer- 
 tainly much prior to the right " in personam " and the passage 
 from one to the other occurred insensibly. After meeting with 
 numberless difficulties the latter dominated. It was the right 
 " in personam " which made credit possible and which imparted 
 great flexibility to the whole body of law in its purely economic 
 aspects; it is the indispensable element of commerce. But the 
 more it increased in elasticity and serviceableness, the more it 
 presented at first seemingly insurmountable difficulties. The 
 opposite was true of the right "in rem ", at least the right of owner- 
 ship, which has become extremely awkward. 
 
 The real right, above all that of ownership, which does not lean 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 621 
 
 upon another real right, was the simplest. It was attached directly 
 to the thing; there was a sort of union between a man and his 
 land. The causes which brought the tie into being disappeared ; 
 only their consequences continued to be felt. Xo other party 
 seemed involved, and this intimacy between man and his land or 
 his house made ownership seem the most natural thing in the world. 
 The same was not true of a personal right or obligation. Its ever 
 present *' cause " is rarely forgotten. A promise to pay the price 
 involves still a reminder of the object sold ; and obligation to lease 
 land involves a reminder of the rent. Moreover a constant and 
 often delicate relationship is established between the creditor and 
 the debtor, personal from every point of view. I am not indif- 
 ferent whether a particular tenant cultivates my land or whether 
 he procures another to cultivate it for him ; nor, above all, whether 
 a certain workman performs the work I have contracted for 
 or whether he secures another to perform it. In these cases my 
 right in the object is not direct ; it first passes through an inter- 
 mediate party, the owner. It is Evident how much less primitive 
 and natural the right of the creditor is than the right of the owner. 
 Add to this, that the debtor may be insolvent, but that this house 
 or land is less apt to be unproductive, and the hesitancy to be- 
 come a creditor is explained. Ownership had long existed when 
 the personal right of the creditor, an essential element of every 
 obligation, was still a thing of the distant future. 
 
 We may now follow the genesis of the obligation. When the 
 personal right first appeared in the Roman law, the same methods 
 were used as in the creation of the right of ownership. The 
 » creditor became the owner of the person of the debtor. This 
 was the oldest form, the '' nexum." The debtor declared in ad- 
 vance that he became his creditor's slave in case he did not pay. 
 Before the debt was due, he worked provisionally as a slave for 
 the account of his creditor until the obligation was satisfied. He 
 bound himself *' per aes et libram " ; he delivered over his person, 
 his goods and the freemen under his authority. The '' nexum " 
 was abolished by the '' Lex Poetilia ", but it is a good illustration 
 of the early sociological phases of the law. If the debtor de- 
 faulted he (the " nexum ") and his entire estate were sold. In 
 every case, the ordinary debtor, failing to pay, fell into slavery 
 by the *'manus injectio", whether he was "judicatus", or " con- 
 fessus in jure." The formalities of the " manus injectio " are well 
 known. The debtor was '* addictus ", that is, awarded to his 
 creditor. From that moment he lived " in servitude " as though 
 
622 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 he were a slave ; at the end of sixty days the creditor sold him as a 
 slave. The creditor was thus paid by realizing upon the pledged 
 person and goods of his debtor. 
 
 We have emphasized this point as being essential. It proves 
 how a personal right could appear at first only as a sort of property 
 right over the person of the debtor and that it could not reach his 
 goods exclusively and directly, nor create an abstract and im- 
 material tie between man and man. A bridge had to be thrown 
 across the abyss to reach the immaterial right constituting an obli- 
 gation. 
 
 Of course the law did not remain in that stage. The debtor 
 was liberated from his servitude. He was merely obligated, or 
 we might better say that the creditor's property right descended 
 from the debtor's person to his estate. If he failed to pay, his 
 creditor proceeded to sell his entire patrimony by the "bonorum 
 venditio." 
 
 Lastly the patrimony as a whole was unfettered. The creditor 
 seized only one object or part of the debtor's property, sufficient 
 in value to replace the object of the debt ; this was the '' bonorum 
 distractio." The system is still in force among us, except in the 
 case of bankruptcy, where we employ a procedure similar to the 
 " bonorum venditio." 
 
 But for a long time a trace remained of the primitive procedure 
 in the seizure of the person, which was a survival of the notion 
 that an insolvent debtor belonged in a way to his creditor. 
 
 Such has been the path from the real right and ownership to the 
 personal right. 
 
 The transition also took place in another manner. To strengthen 
 the creditor's right, solid guarantees had to be furnished and 
 that was only possible by those special forms of security, the pledge 
 and hypothec. The pledge was quite simple because the creditor 
 performed a visible act in taking possession. But the hypothec 
 was more difficult because the right was incorporeal. The debtor 
 remained in possession of his property; the creditor could only 
 be assured of his right by some symbol sensible to all, especially 
 by registration. But at first there was no public register, no 
 writing. The creditor would have had to take possession of the 
 land and that would have imposed a hardship upon the debtor who 
 could no longer cultivate it. Moreover other creditors would not 
 know by what title the lien creditor held the property, and so 
 might claim to compete with him. So much for the practical 
 aspects. While the transfer of the totality of an obligation by 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 623 
 
 giving possession was understood theoretically, it was less clearly 
 seen that a right in a right or a dismemberment of the property 
 right could be effected in the same way or any other way. The 
 difficulty was overcome by making a transfer of ownership the 
 basis of the hypothec. 
 
 In the Roman law the creditor's right in the hypothec was merely 
 the praetorian extension of the ** actio Serviana " ; the process was 
 therefore less visible. It was otherwise with the pledge. This 
 came into existence by a delivery to the creditor, qualified by a 
 " fiducia " clause, that is to say, an undertaking by the creditor 
 to retransfer the property upon payment. The personal right 
 thus had root in the real right. Pledge, too, was not the only 
 contract operating in this way. It was also true of the bailment. 
 The " fiducia " was an agreement added to the " mancipatio " 
 and the ''in jure cessio'', that is to say, to solemn acts, but not 
 to mere tradition. Later bailment became consensual. At first 
 a guardian was owner of the property under his management. It 
 would have been impossible then to have conceived of an adminis- 
 tration in any other way. The guardian turned over the property 
 when the ward attained the age of puberty. More than this, 
 the hypothec, even before the introduction of this equitable ac- 
 tion, could be formed by a transfer of the property subject to a 
 ** fiducia " clause. 
 
 The evolution was much more remarkable in English law. 
 The characteristic feature of the mortgage is the transfer of title 
 to the mortgagee, subject to an agreement by the latter to restore 
 the property in case of payment. In case of default he retains 
 the ownership without any further act. Moreover he collects 
 the profits, applying them to the debt. That is the situation at 
 law. Equity gradually restored the real aim of the mortgage. 
 But what is worthy of remark here is the manner of grafting a 
 right of guaranty upon a right of ownership. It was impossible 
 to create the guaranty without transferring title, the reason being 
 that the conception of a personal right was difficult. 
 
 It is true that Roman law was able to create a personal right by 
 a single act, without so involved a genesis, by means of the '* stipu- 
 latio." But then it was necessary to resort to superhuman inter- 
 vention, or to rites at first probably magical, which limited the 
 party's intent on every hand. We have already described it. 
 But when this ceremony had been performed, the effects of the 
 personal right were again directly a real or fictitious transfer of 
 property. 
 
624 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 In this way arose the personal right. Still feeble, though in 
 current use, it was this right in conjunction with the right of owner- 
 ship which created credit and commerce. It was destined to have 
 a fresh development; but it retained its foundation in the real 
 right much as banks of issue maintain a basis for their notes in 
 their reserve. The position of the creditor is but temporary. 
 In time he reconverts his right into material property, into a new 
 ownership. But for a while the chose in action lives of its own 
 force. To do so completely, the right arising out of the obligation 
 had to be transferable and also the solvency of the debtor had to 
 be adequately assured. 
 
 Now at first this right was untransferable ; it could not be 
 detached from the person of the creditor. The Romans for a 
 long period adhered rigorously to this view. It was impossible 
 to move a personal tie of this sort. The notion of such an assign- 
 ment implied a contradiction, for the right would no longer be 
 personal. The only solution was to resort to fiction. To reach 
 the debtor, the assignee had to secure from the original credi- 
 tor a "procuratio in rem suam." The original creditor thus re- 
 mained such in law and was regarded as the plaintiff. Another 
 method was the novation. The old relation was destroyed and a 
 new one established. But in this the consent of the debtor was 
 necessary. 
 
 To reinforce the solvency of the debtor was no less necessary 
 from the practical point of view. The owner is owner both in 
 fact and in law ; but a creditor risks being a creditor merely in law. 
 Unless the law departed from the sphere of personal rights, the 
 creditor's right had to be strengthened by another similar right, 
 that is to say, by several joint debtors, or at least a debtor and one 
 or more sureties. Today the surety is still frequently employed, 
 at least as a legal exaction, for the purely conventional surety 
 has become rather rare. In the beginning suretyship seemed very 
 natural because of family solidarity ; it was merely the extension 
 of family obligations to relationships beyond, and to strangers. 
 Cosureties were met with frequently; they originated from the 
 same principle as the compurgators of procedural law. 
 
 Thus reinforced the purely personal right acquired a certain 
 vigor, which it long retained. It presupposed a certain confidence 
 and a relatively simple state of society. 
 
 The creditor finally succeeded in transferring his right directly 
 without the debtor's consent; but the reciprocal debt remained 
 untransferable by the debtor under most law. The present 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 625 
 
 German Code has, however, introduced the rather abstract con- 
 ception of the " assignment of a debt." 
 
 But at the present time especially, the personal right is giving 
 away before a kind of return towards the real right, not as source, 
 but as security. Real guaranties have taken the place of personal 
 guaranties, especially in the civil law. The latter have endured 
 longer in commercial law. 
 
 Civil credit found a more solid basis in the hypothec, especially 
 since the amendment of the hypothecary system ; commercial 
 credit found its surest support in the pledge. Many kinds of 
 property have been made susceptible of hypothec which were 
 not originally : vessels, for example, and merchandise deposited 
 in a general warehouse. The commercial warehouse receipt 
 was the forerunner of the farmer's warehouse receipt.^ Distances 
 have been effaced ; personal credit counts for less ; good faith is 
 rarer or more suspect. It is certain that the confidence once 
 sought in personal solvency and above all in group solvency is 
 now found in property, so that in a certain sense there has been 
 a reversion to the right '* in rem." So far has evolution gone in 
 this direction that we now have the land charge, an instrument 
 highly typical in the sense that all personal obligation has been 
 eliminated. Ordinarily the real guaranty supports the personal 
 obligation. In this case it replaces it. If the pledged property 
 is insufficient, no right exists against the debtor for the balance. 
 This is understood in the creation of the right. 
 
 The spiral turn of the evolution is again evident, — from the 
 right " in rem " to the right '' in personam " and return, though 
 the real right today is distinct from its original. 
 
 § 18. From a Law of Nominate Relations to a Law of Innominate 
 Relations. This movement concerns, besides the form or external 
 appearance of the right, the mode of creation and of transfer. 
 
 At first all rights were nominate whether they were over things 
 or persons ; that is to say, the party entitled was designated and 
 could not be replaced by another. It was the strict state of 
 positive law, which we described in the preceding section. In 
 the case of the so-called right '' in personam " or obligation, it 
 was so personal that it was untransferable except by the fiction 
 of the " procuratio in rem suam." All the instruments evidencing 
 these rights named the party entitled, the object and the debtor, 
 if there was one. 
 
 Then this feature which was so marked began to change, and 
 1 [France, Law of April 30, 1906. — Translator.]- 
 
626 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 impersonality, that is to say, the avoidance of names, gradually 
 affected the different elements of the right : creditor, debtor, and 
 object. It was above all commercial law which rendered the 
 change necessary and realized it. 
 
 Already novation had effected a transfer, one after the other, 
 of each element of an obligation : now the debtor, now the creditor, 
 and now the object. But these elements though altered were yet 
 determinate at every moment. In the contracts we are about 
 to examine they could only be determined at the moment when 
 the right fell due and was discharged. 
 
 Impersonality of object consisted in its being fungible. Pre- 
 viously this quality had existed only where the right was to a sum 
 of money or to objects which by nature were consumed by use 
 and so were regarded as convertible " ex post facto " into money 
 value. In any other case the promisee might demand the un- 
 altered object ; a subrogation was not easily accomplished. There 
 are still today certain objects which possess a value in themselves 
 by association, and which we would not surrender for double 
 their intrinsic worth. Such are personal souvenirs, portraits, or 
 family furniture. More rarely they are land, as a particular 
 country estate where our parents lived, or where we were born, 
 or have always lived. Such affection has become rarer, but it is 
 very often met with. The inanimate object is endowed with a 
 personality borrowed from its owner. 
 
 The personality of the object is disappearing more and more. 
 The spirit of commercialism dealt the first blow; the narrowing 
 of the family group a second, and finally contemporary financial 
 methods have almost destroyed it. An object merely represents 
 a value ; everything which has a fairly determinable price is fun- 
 gible. If a man is wealthy, what does it matter whether he pos- 
 sesses one or another class of riches, provided that his revenue is 
 the same and that both are equally secure ? Fungibility is the 
 normal quality today, and to be fungible is in reality to be nominate. 
 
 In turn the impersonality of the debtor has become the rule; 
 at least, if he is known, he is not considered. There was a time 
 (it is still sometimes the practice among the peasant class) when I 
 would loan often without security to some one whom I knew, by 
 reason of my confidence in him. I would not have loaned to 
 another. Even in the case of the hypothec I was careful not to 
 deal with a dishonest or uncongenial debtor. I sought out my 
 prospective debtor directly. If a notary played any part in the 
 transaction*, he did so merely to execute the necessary formalities. 
 
Chap. XX V] THE EVOLUTION OF CIVIL LAW 627 
 
 If collateral were pledged, it was a mere complementary transac- 
 tion. Today it is the principal act. I apply to a broker who 
 promises me a hypothec of a certain value, without mentioning 
 to me even the name of the borrower. It is the broker, generally 
 a notary, who collects the interest or even pays it in anticipation. 
 The personality of the debtor no longer figures in the considera- 
 tion. Of course his name is known, since I have the deed in my 
 hand ; but I have not read it. 
 
 The identity of the debtor may be still further obliterated. 
 Of course he exists but I may never know him. I shall never know, 
 except as a fiction, the immensely powerful personality who comes 
 between the debtor and myself. Thus, continuing the example 
 of the loan, the notary is dispensed with and I deal with a mort- 
 gage bank (the *' Credit Foncier ", for example). 
 
 The bank alone will be directly my debtor. Now the bank 
 is a stock company and in the highest degree anonymous. Masked 
 behind the bank there is, no doubt, a person of flesh and bone who 
 has received the loan and who pays me the interest. But to this 
 person I, too, am unknown. I do not exist for him or he for me. 
 No one now appears at either end of the obligation. 
 
 More than this, the company or mortgage bank which inter- 
 venes between my debtor and myself is not a real person. It is 
 a mass of capital which has acquired a metaphysical personality 
 through a fiction. It does not even represent physical persons 
 who lie concealed beneath the fiction. There is only capital, and 
 even that is limited to sums subscribed by unknown persons who 
 receive the profits and who probably will never demand back their 
 capital. 
 
 By yet another method the debtor has become more really im- 
 personal. In this instance the borrower owes me nothing, I have 
 no claim upon him. He has substituted for the debt a piece of 
 land ; and it is to this that I must turn for satisfaction. If it 
 proves insufficient, I have lost the balance ; I may not come against 
 the debtor. Such is the German land charge (" Grundschuld "). 
 
 Now we reach the culminating point of the evolution. The 
 creditor in turn may become quite anon^Tnous. At first the 
 debtor knew his creditor and this was an important factor to him. 
 Might he not perhaps desire an extension of his debt with regard 
 to interest or capital? Indeed, the creditor has been often in- 
 convenienced in this way. To the merchant such a postponement 
 was still more annoying, for he too might be a debtor and if his 
 debtor defaulted, how was he to meet his debts ? There was of 
 
628 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 course one means of meeting such a situation. He could assign 
 the debt. But. we know how difficult such an assignment was at 
 first. And that difficulty has not been quite rid of yet. A deed 
 of assignment must be drawn, notice by a judicial officer given to 
 the debtor; and finally, if the debt is secured by hypothec, it 
 must be noted in the assignment. Moreover, the expense is 
 considerable. The consequence was that people refused to loan, 
 and credit was impaired. To remedy this there was but one 
 method : impersonalize credit and so minimize formality. The 
 debtor promised to pay the original creditor or any assignee sub- 
 sequently named upon the instrument who might present it. So 
 the negotiable instrument was reached. We are not concerned 
 here with its utility but merely with its semi-impersonality. With 
 such an instrument the creditor no longer dreaded the importu- 
 nities of his debtor. 
 
 But the impersonality of the creditor's right may be still more 
 absolute. In the negotiable instrument issued to the payee of 
 order, the debtor, it is true, pays to the ultimate creditor. But 
 the latter is obliged to exhibit regular endorsements upon the 
 instrument; he may encounter an irregular endorsement or a 
 forgery. It seemed advisable to suppress this last restriction of 
 the clause " or order." The result was the instrument payable 
 to bearer. Such an instrument may even be in the form of a land 
 charge.^ The obligation to bearer has been the object of much 
 theoretical study, into which we will not enter here. It has been 
 held to be an instance of a purely unilateral consent which is 
 nevertheless binding. 
 
 If the debtor is a stock company and the sum is made payable to 
 bearer, it is possible for both creditor and debtor to be impersonal. 
 
 Thus across the centuries may we trace the evolution of each 
 of the elements of a right : creditor, debtor, object. Describing 
 a curve from the personal to the impersonal successively in each 
 case, we reach a point where these elements are in the highest 
 sense innominate. 
 
 The last factor of a right which has not escaped the change is 
 the " cause ", technically speaking, the " causa civilis ", or gen- 
 erative element. Every right must have a " cause " and positive 
 
 1 [German Civil Code, Art. 1195. "A land charge may be granted in 
 such a manner that the certificate of land charge is drawn to bearer. 
 The provisions relating to obligation to bearer apply 'mutatis mutandis' 
 to such certificate." Cf. trans, by Wang, London, 1907; cj. also, "Col- 
 lection des principaux codes etrangers; Code Civil allemand" (Paris, 
 1906), Vol. II, Art. 1195 and note. — Translator.] 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 629 
 
 law frequently even requires that it be expressed. French civil 
 law dispenses with its mention in bills of exchange ; its existence 
 is presumed. In the promissory note to order the cause is ex- 
 pressed ; but it is a pure formality and always of the most general 
 character : as " value received ", etc. It is very vague and finally 
 in the promissory note payable to bearer it is suppressed altogether. 
 P^nglish law has constructed out of *' cause " the special doctrine 
 of consideration. Under this doctrine every contract must have 
 a " justa causa " which must be proved. The '' causa " consists 
 of either a reciprocal promise or act. But the '' causa " may 
 in its turn be innominate, that is, unexpressed and unknown in 
 the formal contract under seal or the deed. 
 
 § 19. From Concrete to Abstract Rights. We already touched 
 upon this subject when we traced the toilsome evolution from the 
 right ** in rem " to the right '' in personam." We have seen how 
 the right ** in rem ", when qualified by an auxiliary '' fiducia " 
 clause took the place of a personal obligation; for example, in 
 the Roman law. This same clause also served to create an 
 abstract, that is, a right touching only a partial use of the thing, 
 for example, the English mortgage w^here the mortgagee is the full 
 owner subject to reconvey. 
 
 We must first recall what is meant by an abstract as opposed 
 to a concrete right. A concrete right is a right over the object 
 itself, including all its uses without exception. The right then 
 shapes itself, as it were, to its possessor ; land and owner are but 
 one. But a day comes when the owner grants the usufruct of 
 his land to another, thereby depriving himself of all uses for the 
 time being. His right has become abstract from two points of 
 view : the object no longer appears entire, but to each claimant 
 belongs a special right. Again, one person is owner presently for 
 a certain period, another is owner in the future only, after expira- 
 tion of the period. The bare title is an abstract right; so is the 
 usufruct; a merger of the two would reunite the parts, and re- 
 establish the concrete right. 
 
 The human mind has a hate for the abstract and long refused 
 to proceed in this manner. It guarded the concrete even while 
 definitely aiming to obtain an abstract result. The owner did 
 not give the pledgee a partial or dismembered right. He preferred 
 to assign the whole. The pledgee became absolute owner ; only, 
 upon delivery of the pledged property, certain conditions were 
 attached to it, the " pacta adjecta." The creditor promised to 
 retransfer upon discharge of the debt. This was the " fiducia " 
 
630 PKOCESS OF LEGAL EVOLUTION [Part III. 
 
 clause. We , have seen how In the English mortgage this was 
 exactly the method followed. It was not till later that the debtor 
 remained owner and created an abstract right in his property, 
 after the conception of such an abstraction had finally ripened. 
 
 It was not merely before the idea of dismembering ownership 
 that the mind recoiled. It could not comprehend a legal effect 
 to endure until a certain date only. It had to continue forever. 
 This limitation was the origin of that remarkable rule of the Roman 
 law that a temporary real or personal right could not be created 
 because such a right was purely ideal or abstract. The Roman's 
 only conception of oneness or concreteness was to be owner in- 
 definitely or creditor until payment. During the classical period 
 and even up to Diocletian, any alienation for a specific period was 
 void, even though such a limitation was stricken out. It was 
 only allowable to employ the *' fiducia " clause which obligated 
 the creditor after a certain time to reconvey the property. On 
 the other hand property might be transferred after the expiration 
 of a period of time. In the same way servitudes could not be 
 granted for a certain period. The usufruct alone constituted an 
 exception, being temporary by definition. For the same reasons 
 a right " in personam " could not be subject to a condition sub- 
 sequent or to expire at the end of a fixed time. The civil law 
 ignored the condition and the obligation became absolute. By 
 way of exception it was admissible in sale and the other consensual 
 contracts, but upon the condition that it affected both sides of 
 the contract and not merely one. The nullity of an extinctive 
 period was recognized even in contracts '^ bonae fidei negotia.'* 
 In the " stipulatio " the contract was held to be unconditional. 
 
 These principles received an application in the deferring of 
 heirship. It was not permitted to institute an heir for a certain 
 time only, or to divide the mheritance. '^ Semel heres, semper 
 heres.'' Nor could a decedent have successively an heir at law 
 and a testamentary heir; nor, what amounts to the same thing, 
 might a testamentary heir be instituted " ex die." The institu- 
 tion was not void but the period was suppressed in both cases. 
 By extension of reasoning it was impossible to die testate as to 
 one part and intestate as to another part of one's estate. 
 
 A servitude also could not be granted for a limited term because 
 the servitude was perpetual like ownership itself. Only, whereas 
 the fixing of a term rendered the servitude void, in the case of 
 ownership such a condition was simply ignored. The difference 
 arose from the fact that the servitude might in the nature of things 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 631 
 
 be extinguished. A legacy of a servitude to take effect at a 
 future date was good. But such a limitation in the '' mancipatio ", 
 the " in jure cessio " or the adjudication of a servitude rendered 
 the whole agreement void. 
 
 Indeed these last forms of legal acts did not admit at all of a 
 condition precedent or a term ''a quo", at least unless tacit. 
 The reason seems to have lain in the formula by which the trans- 
 feree affirmed a positive and present right. It would seem that 
 it was a mere accident of procedure. 
 
 Thus we see that the general spirit of Roman law was repugnant 
 not only to the abstract idea of the dismemberment of ownership 
 (attaining the same results only by indirect means), but also to 
 that other abstract conception of a temporary or deferred owner- 
 ship. In the same way it rejected the conception of a personal 
 right upon these conditions. It demanded instant transfer, con- 
 crete and entire ; however, there might be a " fiducia " clause, 
 that is to say, collateral obligation to reconvey the property even- 
 tually. In that way the right remained stable and whole, and 
 the love of the juridical mind for concrete conceptions w^as not 
 shocked. 
 
 English law felt the same influence, but it seems to have led 
 to very opposite results. 
 
 We have seen that English law followed the principles of Roman 
 law with regard to the dismemberment of the hypothec and that 
 the title itself was conveyed subject to a " fiducia " clause of 
 defeasance. But when it came to the equivalent of the Roman 
 usufruct the English law was quite different. It treated the 
 right, at least as to its form, as if it were perpetual. It was not 
 a real usufruct but only a temporary ownership quite analogous 
 to the right of the first tenant of a trust entail. It was a special 
 form of tenure for life. It did not produce a mere dismemberment 
 of the property right but a full though temporary title. The '' bare 
 title " really has no existence in English law, nor is the French 
 usufruct found there any more than the hypothec. The English 
 system rejected the idea of the dismemberment of the right of 
 ownership, and, differing from the Roman law, held to the prin- 
 ciple of the undismembered and integral right, the concrete right. 
 
 French law possessed something analogous. While admitting 
 the principle of the dismemberment of a right, it did not allow in 
 the trust entail (" substitution fideicommissaire ") the distinction 
 between the bare and the usufructuary title. Yet it would have 
 been very simple to have converted the right of the grantee of the 
 
632 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 prior estate into a simple usufruct and that of the remainderman 
 or '* person called " into the bare title. The principle of the 
 concrete right was deemed preferable. The usufruct and trust 
 entail are so alike that we find the French Courts have upheld 
 entails though prohibited by law, by regarding them as usufructs. 
 
 Such are the traces left by the old domination of the concrete 
 right. The idea of its absolute necessity has generally disappeared. 
 It is usual today to dismember ownership ; the usufruct and the 
 hypothec are very general. The respective twofold situations 
 of the bare and usufructuary title are very frequently met with. 
 However, we saw in an earlier chapter that the situation presents 
 serious practical disadvantages. Cultivation of the land is neg- 
 lected ; numerous conflicts arise. The advantage of the dis- 
 memberment is extremely small and as a consequence of it the 
 land brings a low price. All this justifies the soundness of the 
 early repugnance to dismembered rights. Ownership should be 
 one and perpetual, without prejudice to the free right of transfer, 
 which assures its greatest usefulness. 
 
 There was, however, a kind of dismemberment which seems to 
 contradict the evolution which we have just described. The so- 
 called '' dominium directum " as opposed to the '' dominium 
 utile " was a different distinction from that between the bare title 
 and the usufruct, or that implied in a temporary ownership. It 
 is inconsistent with evolution in that it existed above all in the 
 early period of law and disappears in the modern stages. 
 
 This apparent anomaly vanishes under observation. The 
 '' dominium utile " was a full ownership granted by the ultimate 
 title holder, subject to a " fiducia " clause obliging a reconveyance 
 in specified cases, such as those justifying a forfeiture of tenure. 
 
 § 20. From Immediate to Deferred Rights. This evolution 
 approaches very close to one which we have already studied in 
 part; for the whole of evolution is interrelated. 
 
 The first mode of carrying on commerce was by barter. Neither 
 promise nor credit was known. Men gave with one hand and 
 received with the other, and an exchange involved a transfer of 
 ownership, when the transaction concerned a movable. This 
 process was originally the same everywhere. 
 
 In some countries, where other institutions helped to reinforce 
 it, it was of longer duration and remained very rigid. Thus in 
 Roman law by an analogy of principle it was not possible for a 
 decedent to be testate after having been intestate for a period. In 
 instituting an heir, a will had to produce its effect instantly upon 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 633 
 
 the death of the testator. In the same way ownership could not 
 rest in abeyance. Obviously there were particular reasons why 
 the " mancipatio " and the " in jure cessio " had to take effect 
 immediately, since the transferee affirmed a present right. 
 
 Furthermore when time enters as an element of a transaction, 
 there must be a certain amount of confidence and guaranty, and 
 these could not exist in a weak state of civilization. 
 
 But trade is built up essentially upon time as an element of a 
 transaction; time is its very soul. By definition trade implies 
 payment only when the object dealt in has been sold. The 
 supreme importance of time in commercial relations gave rise to 
 contracts or instruments of a special nature : the promissory note 
 and the bill of exchange ; and where the transport of money from 
 place to place did not enter, the check. Usage even has set the 
 ordinary periods, and these lengthen with the extension of con- 
 :fidence and business activity. The periods may be renewed and 
 these renewals are a source of profit to banks. 
 
 Finance has gone beyond commerce and has laid even greater 
 emphasis upon the importance and use of so-called time transac- 
 tions upon the e*xchange. The extension of these periods by carry- 
 ing over accounts to the next day of settlement is one of the most 
 essential elements in speculation, which is the force stimulating 
 all classes of enterprise. The condition of the sale and purchase 
 is thus reduced to a single one of provision for the future. 
 
 There were periods when measures, intended to repress usury, 
 checked the development of the time agreement by limiting credit. 
 But this restraint finally disappeared. A similar restriction was 
 created by the law prohibiting mere paper operations on the ex- 
 change. But in its turn even this obstacle has been removed and 
 the element of time is strengthened more and more. 
 
 Then there are institutions (like the '* Credit Foncier " of France) 
 where operations are carried on by amortizing their loans, grant- 
 ing very long terms to the debtor. Life insurance is contracted 
 for long periods, as also life annuities. Savings and benefit socie- 
 ties are extending more and more the period between the date 
 of the contract and the time when it is productive of effect. 
 
 § 21 . From Gratuitous to Commutative and Aleatory Trans- 
 actions. An evolution analogous along certain lines to the pre- 
 ceding has occurred especially in the change from the commu- 
 tative to the aleatory contract, that is to say, from the agreement 
 demanding a certain equality of consideration to that contem- 
 plating a profit arising out of a risk. But this movement was 
 
634 PROCESS OF LEGAL EVOLUTION [Pabt III. 
 
 preceded by a period when it was not the aim to wring from a 
 contract all possible benefit or even any benefit at all. 
 
 The gratuitous or benevolent contract, which should seem to 
 be the final form, on the contrary came first. It was the time when 
 the exchange value of objects was small, less than their use value. 
 The stage of absolute benevolence was no doubt always a rare 
 one ; donations were only made to children or members of the 
 family, and we are not now dealing with the will. However, in 
 the first place, the purpose of a sale was not to procure the highest 
 possible price, and secondly, the preferential right of the family 
 to redeem the thing set limits to the price. In this sense the 
 object did not belong exclusively to the individual; it still be- 
 longed to a certain extent to the entire family. 
 
 In primitive times sale was rare. It took place only for impor- 
 tant reasons, and these were not profit making but to extricate 
 a debtor from an embarrassment. Even today the person who 
 sells his belongings undoubtedly creates an unfavorable public 
 impression. Generally on such occasions it is the purchaser who 
 profits. The vendor does not receive full value, much less if he 
 endeavors to conceal the sale or if he sells within "his family. 
 
 For these reasons many systems of law accord the seller a right 
 to retract during a certain period. Where such a stipulation is 
 expressed, it is the right of redemption (remere). It has almost 
 disappeared, but it once enjoyed great usefulness in every country. 
 An express stipulation was not always necessary. 
 
 Contracts which unsettled the normal and fixed conditions seemed 
 unnatural. The right to retract one's decision was so customary 
 that it was fixed by earnest money, which is merely liquidated 
 damages for revocation of an unexecuted agreement. Thus 
 evolution passed to the commutative transactions which marked 
 the second phase, for the right of retraction was a corrective of 
 the sacrifice involved in the quasi-gift, which was necessarily 
 the character of sale at first. 
 
 The right to retract was granted to both purchaser and seller 
 in certain primitive systems, and it was extended to all forms of 
 contract. In Moslem law sale, gift, bailment for use, partnership, 
 agency, bailment for safe keeping, and marriage were revocable 
 at the pleasure of one of the parties during a certain period which 
 was gradually shortened. The Code of Manu gave ten days 
 to the p,urchaser and the seller. 
 
 Later the contract stiffened. However, the effort to maintain 
 the rigorously commutative quality continued in two ways. First 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 635 
 
 an action was given to rescind the contract for inequitable con- 
 sideration (lesion). This is recognized in present French law: 
 (a) in sale, (b) partition, (c) all contracts to which minors are 
 parties. Second, the rate of interest was limited in both civil and 
 commercial transactions in order to prevent a fresh injury of the 
 same sort. 
 
 The commutative stage in the evolution was not the last. By 
 degrees this class of transactions was freed frcm the impediments 
 which fettered it and which aimed to render it absc lutely commu- 
 tative. PVeedom of action was no longer hampered by the rule 
 that it was necessary to receive about the equivalent of what one 
 gave, without risk, gain or loss. Mercantile practice led people 
 to believe that the main end was large profits, even though coupled 
 with risk. This was the system of the aleatory contract. 
 
 It is a very frequent form and there are many forms which are 
 not prohibited, which, indeed, on the contrary, are encouraged. 
 Of this latter class are the difi'erent kinds of insurance. Materially 
 their purpose is to prevent the individual from falling frcm an 
 existing economic position. To this end, a portion of the annual 
 income is set aside. No purpose could be more moral ; it is in the 
 interest of conservation ; speculation does not enter into it. And 
 yet there is undoubtedly the element of risk, for in certain events 
 the economy will have been in vain. 
 
 Commercial risk is yet greater. An entire fortune may be lost 
 without acting adventurously, because profit does not recom- 
 pense work alone, but often flows from mere foresight or chance. 
 ^Maritime trade is yet more aleatory. When a loan is made for such 
 a purpose it is tei med a maritime venture (respondentia or bottomry 
 bond), though it is a real speculation in merchandise. Ordinarily 
 the profit still arises out of increased charges of transportation or 
 of retailing the merchandise ; the risk is accessory and covered 
 indirectly. 
 
 This is not the pure aleatory contract. That results primarily 
 from speculation. For example, I purchase with a view to resale ; 
 I buy more than I can sell at once and I have no idea when I will 
 be able to resell at a profitable price. Perhaps I will not be able to 
 sell except at a loss. This is speculation. 
 
 But evolution has carried the law further. For example, I buy 
 more than I can pay for. I hope to be able to discharge my obliga- 
 tion as soon as a profitable sale can be effected. But perhaps that 
 will never be. I can secure my discharge, without delivery, by 
 paying the difference, which may be enormous. This may mean 
 
636 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 absolute ruin, perhaps I shall even cause a great loss to my vendor. 
 We have now passed beyond speculation to the gambling stage. 
 
 Sometimes a contract may be frankly a wager, as when I gamble 
 upon horse races. I play some game of chance, putting up my 
 money, or promising to pay. When this degree cf risk is reached, 
 the law may come to my rescue, giving me a defense that the con- 
 tract was a garnbling debt. Sometimes, as in France to-day, I 
 am deprived of this defense when the contract is one of stock 
 gambling. The struggle towards the aleatory has then finally 
 broken all its restraints. Such is the actual stage of the evolution. 
 We have won a complete freedom to ruin ourselves. Far, indeed, 
 has been the road from the vendor's right of redemption and the 
 family right of repurchase of alienated property ! 
 
 § 22. From Legal Regulation to Liberty of Contract. We 
 have just indicated some of the restrictions relating to equality 
 of consideration of a contract. There were many others. The 
 defenses which the law set up were founded upon many motives, 
 and for a long while they were very numerous. At the very begin- 
 ning, it is true, interference was rare. But that was only for a 
 theoretical moment. Customary law soon came to furnish defenses 
 of a very imperative nature. Agreements were still feeble and 
 found but narrow fields within which to develop. 
 
 The restrictions set up by law were of several sorts. Some 
 were created in the interests of the family, others of society, and 
 others in the interests (not always well understood) of the in- 
 dividual himself. 
 
 The first class was directed above all at the devolution of the 
 inheritance. Testamentary devolution was unknown at first. 
 Intestate inheritance alone existed, based upon blood relationship 
 or the political composition of the family, which admitted of no 
 invasion of general principles. Such everywhere w^as the begin- 
 ning of this phase of the law. The principle " uti legassit " was 
 a later and secondary one at Rome. The early law rigorously 
 excluded the testament ; it was also wholly unknown to Germanic 
 law. It was only introduced into the Germanic system after the 
 invasions, through the Roman and Church law. There was no 
 trace of it in the ''Lex Ripuaria ", or in the law of the Frisians or 
 Lombards. It appeared in the Salic law, but in the form of the 
 institution of an heir before death. The reappearance of phenom- 
 ena is always similar to their origin. The Revolutionary period 
 of French law abolished the will, so far as disposing in benefit of 
 heirs at law was concerned, because of the fear of the privilege 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 637 
 
 of the eldest born. It adopted the system of the customary law 
 of absolute equality. 
 
 To refuse to recognize the right of disposing by will was equiv- 
 alent to prohibiting it. Revolutionary law virtually amounted to 
 a legal prohibition in benefit of the family, or of the nation. Here 
 liberty was practically destroyed. 
 
 But from the earliest phase the law passed in almost all the 
 nations to the later stage of testamentary liberty. At first it 
 was often one of complete freedom. Thus the laws of the Twelve 
 Tables established the right without limitation. In the Middle 
 Ages people did not enjoy so great liberty, but the will was intro- 
 duced, though limited by the " reserve " (undisposable portion) 
 of the customary law, and by the compulsory share of inheritance 
 of the Roman law. According to certain systems the " reserve " 
 only existed when there were descendants, and in all cases the 
 testator had the power to disinherit unworthy children. Under 
 other systems the " reserve " only included the property which 
 the decedent had inherited and not acquests (that acquired by 
 purchase). The liberty to dispose by will was thus seen to have 
 been incomplete. German law retained a large " reserve " in 
 benefit of the family and the Roman law never lost it from view. 
 
 However, the law came by degrees to the stage of complete 
 freedom. This occurred in the Anglo-American system, where 
 the right to dispose by will is not subject to any limitation, even 
 with respect to children. The consequence is rendered the more 
 serious by the fact that the " marriage portion " is not obligatory, 
 or even in use. In France a strong similar movement is taking 
 place, though it is meeting with opposition. The complete liberty 
 of the father is ardently advocated and seems to triumph; at 
 least partially, with respect to the right of gift and of apportion- 
 ment. 
 
 But a third period is discernible which, in a sense, is a return 
 to the first. The father owes maintenance and an allowance to 
 his descendants even after he is dead, above all when he dies 
 possessed of inherited property. He is free; the debt he owes 
 his children does not involve his entire patrimony or even a part 
 of it, but an annuity to maintain them, especially when they are 
 in want. This has been recognized by some of the later legisla- 
 tion, particularly the Mexican Code, which borrowed .its system 
 of freedom of testamentary power from the United States, but 
 moderated the rule by establishing a *' reserve " in favor of the 
 children consisting merely of a right of maintenance. 
 
638 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 In the same way Roman law, after sanctioning unlimited tes- 
 tamentary power in the Twelve Tables, later restricted it by the 
 " querela in officiosi testamenti " and the compulsory share of 
 inheritance. 
 
 Legal restrictions in the interests of the family also included the 
 rule of the inalienability of the marriage portion. It was not 
 found in primitive law ; it only existed in Roman law since Jus- 
 tinia'n. In customary law the inalienability of dower corresponded 
 to it. Previously the husband had enjoyed complete liberty, 
 where the wife had been married in " manus ", and both enjoyed 
 it where the wife had not been so married. The inalienability 
 of the marriage portion in the interests of the wife succeeded in 
 destroying this testamentary liberty. This was one of the most 
 important of legal restrictions ; it was fortified by the Velleianum 
 decree of the senate. 
 
 The later tendency was to shake off this restriction, but success 
 was slow. The marriage portion system still predominates in a 
 part of France. But its consequences are eluded either by notarial 
 or judicial practice. The power to sell the marriage portion upon 
 condition that the proceeds be reinvested is being more and more 
 frequently stipulated ; the courts appear to incline more and more 
 toward alienation. By a gradual process of undermining, this 
 very generally condemned regime is disappearing and liberty of 
 contract is being restored. 
 
 Another restriction in benefit of the family arose from custom, 
 namely, the different feudal rights of repurchase, as of an alienated 
 inheritance redeemed by relatives of the deceased ("lignagers ")» 
 etc. They are things of the past, but they have left a few feeble 
 traces today in the repurchase by a co-heir. 
 
 We now come to a group of restrictions created in the interests 
 of the individual. He is protected against himself. At first no 
 precaution of any kind was taken with this object. The minor 
 was not placed under a guardian; the law merely declared him 
 without capacity until the age of puberty ; it was silent as to the 
 insane. Later, protective measures were introduced and the first 
 of these was to allow proof in fact of incapacity. As to the person 
 sound in mind, it was his duty to act prudently ; his liberty re- 
 mained complete with regard to every act. 
 
 Later the law shielded the individual against inequitable consid- 
 eration and usury ; his consent was made secure against fraud ; he 
 was prohibited from doing a great number of acts which might in- 
 jure him ; a certain part of his property was declared inalienable. 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 639 
 
 But it was often evident that these precautions turned to his 
 disadvantage and that the penalties attaching to the prohibitions 
 were too severe and injured him. He sought the restoration of his 
 liberty and in almost every particular the civil law has granted 
 it. The rate of interest was raised ; no restriction was laid upon 
 his gambling ; inequitable conditions no longer annulled an obli- 
 gation. This was the period of full liberal of contract, which is 
 still advocated by a certain liberal school. In the field of in- 
 dustrial law the shackles of the guild system were broken. 
 
 Evolution still advances. Complete liberty of contract has so 
 isolated and weakened the individual that the present effort has 
 been away from this situation at the expense of something of his 
 liberty. The guild system has undergone reform, and has been 
 changed in character. Property has a tendency to come together 
 into masses which, if not perpetually inalienable, are at least 
 unattachable during a certain period. The " homestead " ap- 
 peared in the United States, while in France it is proposed again 
 to recognize " personal belongings ", or inherited as distinguished 
 from purchased property. 
 
 Finally at an intermediate period in the evolution, after complete 
 liberty, legal prohibitions appeared in the interests, true or alleged, 
 of society. These are the most numerous and most severe class ; 
 they increase as society grows more complex. We mean the 
 annulment of contracts for reasons of public policy. 
 
 It would take too long to enumerate all these causes of nullity. 
 The prohibited acts, even of the civil law, are very numerous; 
 and they are not merely acts, but conditions, motives, etc. In 
 this respect legislation runs contrary to natural law. Investiga- 
 tion of the paternity of a bastard is unlawful, a matrimonial agree- 
 ment after marriage is unlawful, a revocable gift is unlawful, 
 adoption in a host of ca-ses is unlawful, the sale of something be- 
 longing to another is unlawful, trust entails are unlawful, sale 
 between husband and wife is unlawful, many provisions in the 
 contract of partnership are unlawful. It becomes impossible 
 to take a step in the present Civil Code without encountering a 
 grave invasion of individual liberty. 
 
 The German Code, though very recent, has not gotten away 
 from this state, although it has diminished the number of pro- 
 hibitions. 
 
 Public policy is a veritable obsession of the lawmaker, a fact 
 which is the more unfortunate in that nothing is more elastic or less 
 solidly grounded. Alleged immoralities and dangers which the 
 
640 PKOCESS OF LEGAL EVOLUTION [Part III. 
 
 law would suppress are not such in reality. And besides, in the 
 name of public policy, by some general formula, it is possible to 
 suppress all voluntary acts. 
 
 However, there is already promise of an improvement and of a 
 return to liberty of contract. Without entering into a long de- 
 velopment of the subject, we may mention the Code of the Con- 
 vention of 1793 and the draft of the Swiss Civil Code, to both of 
 which we referred in speaking of their simplicity. The latter 
 proposes to limit to a minimum that unhelpful branch of the civil 
 law which we term public policy. 
 
 § 23. From the Unilateral to Bilateral Agreements, The 
 division of the law into unilateral and bilateral is very far reaching. 
 The conception of the unilateral is the simpler and, therefore, 
 appeared first. In reality the bilateral right is the union of two 
 unilateral rights moving in opposite directions, closely bound to 
 one another and made mutually dependent. We established this 
 principle earlier in our discussion. Obviously the union of two 
 rights came subsequent to their existence. 
 
 History, especially the well-known history of Roman law, con- 
 firms this. A unilateral right was created by a " res," a " sti- 
 pulatio '^ or a writing ; it was also the right arising out of an 
 innominate (or generic) real contract, since it was only by the 
 execution of one of the promises that the other became binding. 
 The true domain of the bilateral was very restricted; including 
 the contract of sale, hire, and partnership. 
 
 It was especially the '' stipulatio " which remained the type 
 of the unilateral right. In this formality there were often two 
 distinct promises, though they were not bound to one another. 
 Doubtless intention did unite them, but that was not a juridical 
 bond. The unilateral contract was furnished with a special action 
 which was very much in use : the '' condictio." It was neces- 
 sarily '' stricti juris." Its advantage was immense in ascertaining 
 the terms of an agreement, even one which might have been made 
 bilaterally. It was divided into two different and successive 
 stipulations by a procedure of general application; they were 
 the stipulation " subjecta " and " subdita." 
 
 The bilateral right appeared later. A few of these, rigorously 
 classified, were all that were to be found in the Roman law. They 
 were generalized later into pacts. The French law, which is a 
 derived law, and which, in the field of contracts, was inspired by 
 Roman law, more than any other, early recognized the bilateral 
 form. The promises forming the contract were made mutual and 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 641 
 
 dependent one upon another. This period of bilateralism co- 
 incided with the stage of consent and of the autonomy of the will. 
 It was a highly equitable phase but contained practical disad- 
 vantages. Since it was impossible to separate the two rights 
 from one another, they could not be transferred except together, 
 that is, each one with its dependence upon the other. A third 
 person was wary of such a right. Not only was he discouraged 
 by the formality of official notice to the debtor, but he was subject 
 to the defenses which the debtor might have raised against the 
 promisee. So long as the right remained untransferable from the 
 patrimony of the creditor, the inconvenience which the commer- 
 cial need of rapidity of action has rendered very evident was not 
 felt. 
 
 In the bilateral right the two promises did not play the same 
 roles. Each party contracted a different obligation. In the 
 sale the vendor promised to transfer the property and the vendee 
 to pay the price. These two rights, bound one to the other, moved 
 in opposite directions. There were times when the mutual rights 
 were identical though still moving toward one another. Such 
 groups of inseparable promises became polylateral, giving rise to 
 the contract of partnership. This was a more complex relation- 
 ship and appeared in a subsequent phase of the evolution. 
 
 By reason of the disadvantages which we have pointed out, the 
 bilateral right frequently tended to resolve into unilateral rights ; 
 separation of the combination took place, especially in commercial 
 contracts. 
 
 The two mutually related rights being the " cause " one of the 
 other, each was separated from its '* cause " and treated as single. 
 In a sale contracted by two merchants, there remained in reality, 
 after delivery of the object, but a single promise, that of the buyer 
 to pay the price. If this were transferred along with the original 
 and surviving conditions, such as the guaranty against defects, 
 want of title, capacity, etc., the assignee would feel his insecurity 
 and would withdraw. To avoid this it was sufficient to suppress 
 the '* cause " or to express an indeterminate " cause ", such as 
 *' value received ", and complete security was acquired. This 
 happened. The right again became unilateral and was transfer- 
 able by endorsement to a person's order or even without endorse- 
 ment, to bearer. 
 
 The reversion to the primitive phase was thus completed ; evo- 
 lution had turned upon its spiral course; commercial law had 
 recovered the effects of the " stipulatio " of the Roman law. 
 
642 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 § 24. From Family to Individual Right. The most ancient 
 of all rights were certainly the family rights, and primitive custom 
 sought to uphold them in every possible way. Social right was 
 the first to enter into rivalry; but the struggle between society 
 and the family falls rather within the subject of political organi- 
 zation. 
 
 The dominance of family right was manifest in many institu- 
 tions : the husband's and the father's power of control and the 
 master's authority over the slave, all of which were at first very 
 absolute. It was also evidenced by the collective property in- 
 terests of the family. As evolution progressed each of these powers 
 moderated and separated rights gradually succeeded to collective 
 interests. Let us examine each one of these subjects separately. 
 
 First of all there was the father's power of control. We know 
 to what extremes it was carried in the early Roman law. There 
 was no thought of protecting the child by law. Among the Ger- 
 manic tribes, on the contrary, while the father's authority was 
 very great, it was in the interest of the child and constituted a 
 sort of guardianship. This was the " mundium." In both 
 instances it moderated. At Rome the power of life and death 
 disappeared; the child was given an allowance; he could be 
 emancipated. But in principle the " patria potestas " continued 
 during the life of the " pater familias." It was of course as rep- 
 resentative of the family that the father exercised his power, and 
 in certain countries he had to receive the approval of a sort of family 
 tribunal. 
 
 Much later, in modern law, we find the power of control belong- 
 ing to the father only until majority ; his rights of correction are 
 limited ; he may only manage and enjoy the usufruct of his son's 
 property; he may be deprived of his authority. In France the 
 son may have recourse to the protection of the court ; the daugh- 
 ter may no longer be married without her consent. Individual 
 rights have increased while family rights have diminished both 
 in duration and intensity. 
 
 The same was true of the second subordinate element of the 
 family, the wife. She was first the slave of her husband, who 
 might repudiate her at will. Her property passed to him in the 
 most absolute manner, as it did under the English common law 
 and under the '' manus " of the Roman law. Under oriental 
 polygamy the wife's individuality was yet more absorbed. The 
 harem, the gynseceum, the home closed about her. But with 
 time her freedom grew. Under the system of the marriage por- 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 643 
 
 tion of the Roman law she was recognized as having a distinct 
 estate, which was returned to her in case of divorce. The com- 
 munity system was a fresh subjection ; she was declared without 
 capacity. But if unmarried she no longer remained under a 
 perpetual guardianship. She had greater personal liberty. With 
 each day her autonomy became more pronounced. In the last 
 century England at one blow struck the chains from her with re- 
 gard to her estate. Lastly the feminist movement has won her 
 greater and greater independence; the German Civil Code has 
 created a special court to regulate conflicts between husband and 
 wife. It is a second triumph of the individual. 
 
 The third element of the family, the slave, after many vicissi- 
 tudes, finally left the family to become a free wage earner. The 
 slave gained, while the family lost one of its essential elements. 
 The emancipation of the slave was a slow process with many re- 
 treating steps. 
 
 It was not alone the various units of the family as opposed to 
 the family head who won recognition of their own personality. 
 The patrimony, also, from collective became separate. At first 
 absolute indivisibility endured so long as the father lived. Some- 
 times it continued permanently, the son succeeding to the father 
 and retaining his power not only over his own descendants, but 
 over his younger brothers. Later the emancipated children 
 emerged from his authority and were given a part of the family 
 estate, and even out of the patrimony which remained in common, 
 allowances were given without the donees leaving the family circle. 
 Finally the indivisibility of the estate broke down and inheritance 
 properly speaking appeared. For centuries the idea of the in- 
 divisibility of the patrimony was legally fortified by the rights of 
 primogeniture, of the male line, and by entails. In turn this 
 phase, too, disappeared. Equal partition was decreed and there 
 were as many estates as individuals. 
 
 Again, and no less important, the family bond was long rein- 
 forced by the obligation of the father to respect the '' reserve " 
 in disposing of his estate. This rendered each member of the 
 family dependent upon him. Later the ** reserve" was weakened 
 and entirely disappeared in certain systems, notably the Anglo- 
 American. That was the signal for the younger son or the less 
 favored child to leave his family or even his country to colonize. 
 Individualism thus became complete. 
 
 This marked the end of the second stage. The family had 
 disintegrated under the influence of divorce, feminism, equal 
 
644 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 partition of estates, and social equality; the disruption seemed 
 excessive. Then society began the reconstruction of the family 
 unit, at least with regard to the family estate. Thus the '' hofe- 
 recht " and the distinction between inherited and purchased prop- 
 erty, already described, appeared. For the legal " reserve " was 
 substituted the family right to an allowance for maintenance. 
 Evolution was turning upon itself. 
 
 § 25. From Ethnic to Territorial Law. Law arose out of cus- 
 toms which grew up in a given race. If the race changed its 
 place of abode, it carried its law with it. When isolated members 
 of that race left their own realm, they continued to be governed 
 by their own law. In other words personality of law obtained 
 at first. The conquered retained their laws, at least as between 
 themselves, so long as they were not unfavorable to the conqueror. 
 They did not adopt those of the conqueror. The foreigner, too, 
 preserved his law. That of the land where he resided for the time 
 being, as on a voyage, could not be used against him. Man was 
 not yet rooted to the earth; territoriality had not yet acquired 
 its full force. 
 
 It is evident that the principle of material law is operative in 
 two different spheres; (a) within the individual's own country; 
 (b) in a foreign country where it supplies the rule as to the proper 
 law. It operates to determine whether an individual belongs to 
 one nation or another " jure sanguinis " or '' jure soli." 
 
 We cannot here follow the whole course of the law's develop- 
 ment; let us note merely its principal features. 
 
 Personal law^ governed at first in a conflict of laws within a given 
 country. Each race followed its own law. After the barbarian 
 conquest of Gaul, the Gallo-Romans were governed by their 
 personal law which was the '^ Lex Romana Visigothorum " and 
 the " Lex Romana Burgundiorum ", while the barbarians were 
 under their own law which was the " Lex Salica ", the " Lex 
 Ripuaria " and the Burgundian and Visigothic law. In their 
 relations to one another, each race preserved its own laws ; ques- 
 tions arising between Gallo-Romans and barbarians were governed 
 by the barbarian law, since one law or the other had to be chosen. 
 This was the extreme period of personal law. 
 
 Then a syncretism, or fusion, took place between the bar- 
 barian and the Gallo-Roman law. A mixed system resulted 
 that was both of these at once. The question of the proper 
 law no longer arose, since there was but one law. But this 
 reduction was a result of the influence of the land. By its 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW G4o 
 
 attraction it merged different races and different laws. Terri- 
 toriality triumphed. 
 
 Today we see again, after new conquests, a renascence of the 
 early personal law. In Algeria the Arabs follow the Moslem 
 law wherever a Frenchman is not involved. 
 
 The rules of international law determine whether the law of 
 the person's nationality or of his domicile are to govern whenever 
 a conflict arises between the two. In this science a similar evolu- 
 tion may be remarked, though less restrained by the pressure of 
 legislation and developing with greater freedom. The subject 
 is too vast for discussion here and we can but briefly sketch it. 
 
 The first principle to appear was again that of personality. 
 Italy originated the study of this difficult problem and adopted 
 this solution, though with certain limitations. The doctrine was 
 supported by Bartolus and adopted by Guy Coquille and Du- 
 moulin, who put it into definite form. It governed exclusively 
 up to the 1500 s. Since then, according to this rule, the statutes 
 regulating procedure and the form of the act are purely territorial. 
 In the remaining questions, a distinction was drawn in contracts 
 between matters which were left to the intention of the parties 
 and those regulated by law; and in the latter a difference was 
 made between matters governed by real and by personal statutes. 
 The personal statute predominated. In the first years of the 1700 s 
 this theory broke down and lawyers rallied to the contrary theory 
 of d'Argentre. 
 
 This jurist of Brittany opposed the principle of personal law 
 and aimed to establish that of territoriality. There took place 
 then in the conflict of laws between nations the same conversion 
 as in the old conflict between the various systems in force within 
 a given country, that is to say, the conversion from personal law 
 to territorial law. This author reduced all statutes to two, the 
 real and the personal, and the latter was made to govern by way 
 of exception. Lastly he created the mixed statute, applicable 
 at once to persons and property, assimilating it to the real statute. 
 The Dutch jurists espoused this movement and later the French, 
 though slowly. 
 
 During the 1700 s territoriality triumphed, although status 
 and capacity were governed by the law of the person. The sit- 
 uation remained the same under the French Civil Code, which has 
 dealt very unsatisfactorily with the problem. Police regulations, 
 immovable property and the form of acts are governed by the real 
 statute ; with regard to movable property and contracts the Code 
 
646 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 is silent. As to movables, while often following the domicile 
 of their owner, decisions show a strong tendency to subject them 
 to the real statute, as in case of attachment, replevin, or lien. 
 As to contracts, the French courts lean towards the rule of terri- 
 toriality, which may be considered as a fundamental principle of 
 our law. 
 
 The principle of pure territoriality, that is, without any of the 
 moderating exceptions which French law admits, obtains in Eng- 
 land, Anglo-American countries, and the Baltic provinces of Russia. 
 It has been tempered only in its applications. 
 
 Such have been the evolutionary stages which the law has com- 
 pleted. A new doctrine is now emerging which tends to revert 
 in part to the personal stage. It originated in Italy and is known 
 as the neo-Italian system. It leaves to territorial law questions 
 of police, internal security, immovable property, and the form of 
 acts, while all the rest is governed by the personal law, indeed by 
 the national law properly speaking and not that of the domicile. 
 This reform relates especially to the law of inheritance. Under 
 the present system movables follow the law of the domicile and 
 immovables that of their situs; the Italian doctrine governs 
 both by the law of the decedent's domicile. 
 
 Lastly the evolution which we have been describing has been 
 felt in the determination of nationality. Is nationality deter- 
 mined '^ jure sanguinis " or " jure soli ", by race or by soil ? Here 
 there has been a parallel development. 
 
 At first a person's nationality was determined " jure sanguinis." 
 The personal element controlled. This rule obtained in Greece 
 and Rome. Accident of birth in a certain city had no part in 
 determining the point. In Greece both father and mother had 
 to be Greeks. In Rome children of a civil law marriage followed 
 the nationality of the father ; while that of a marriage according 
 to the " jus gentium " followed the nationality of the mother. 
 The Germans had a somewhat different system. It was neither 
 place, birth nor race which counted, but affiliation with a tribe. 
 The test was still one of race, but of adoptive race. 
 
 After the barbarian conquests the rule changed. The rule of 
 " jus sanguinis " finally disappeared entirely. Every one born 
 upon the soil of the overlord belonged to it. The whole of feudal 
 law and later Pothier and Domat followed this theory. Place 
 of birth was enough ; the child born abroad of French parents 
 was a foreigner. This was the feudal ideal, which placed land 
 above everv other consideration. 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW ^7 
 
 At the close of the Old Regime the force of territoriality had 
 spent itself. French citizenship was attributed retroactively 
 to children born abroad of French parents, upon their return to 
 France. Often even it was enough that they persevered in their 
 intention to return. The Civil Code adopted the principle of per- 
 sonality. A child is French, " jure sanguinis." If born abroad of 
 French parents, he is French ; if born in France of foreign parents, 
 he is foreign. But the "jus soli " has left a few traces in the 
 special rule favoring the naturalization of a foreigner born in 
 France of foreign parents who were themselves born there or even 
 of foreigners who were not born on French soil ; as also of the 
 child born in France of unknown parents; and finally in the 
 obligation of military service. The consequence has been a 
 system in which the " jus sanguinis " predominates. So the 
 evolution of the law has returned to its point of departure. 
 
 § 26. From Exclusion to Admission of Foreigners. We are here 
 concerned with two different though related ideas : (a) the admis- 
 sion of foreigners to civil rights ; (b) naturalization of foreigners. 
 
 The admission of foreigners to civil rights was not at first recog- 
 nized. At Rome there were two classes of foreigners: the bar- 
 barian and the peregrin. The former had no rights ; he was a 
 perpetual enemy until he settled down upon the confines of the 
 Empire. The peregrin was a unit of the Empire, though he occu- 
 pied a position inferior to the Roman citizen. He retained his 
 own law, but in his relations with the Romans he enjoyed no civil 
 rights. The hate for the foreigner was fundamental and rested 
 in part upon religious causes. Commerce alone has moderated 
 somewhat the hate of nations. Henotheism was the consequence 
 among certain peoples, for example, among the Jews. 
 
 Commerce attracted foreigners without according them any 
 true civil capacity. War introduced them as slaves. They 
 could not hold land. At Athens the barbarian had no rights ; the 
 " metoikoi ", or foreigners whose residence was authorized, could 
 not make a will, receive a legacy, contract marriage under the 
 civil law, or sue except through a patron ; the " isotiles ", or for- 
 eigners with whom a treaty had been signed, might obtain a 
 partial enjoyment of rights. Similarly Lacedemonia rigorously 
 excluded all foreigners. • 
 
 Under the Roman law some of the Italian cities enjoyed the 
 " jus latii " which gave partial rights, while others enjoyed com- 
 plete rights. The peregrin was refused the "jus connubii " and the 
 " jus commercii ", and was protected only by the " jus gentium.'? 
 
648 PROCESS OF LEGAL EVOLUTION [Part III. • 
 
 With the Franks the foreigner was not recognized as having 
 either property or family ; he could not marry a Frank or have 
 lawful children. 
 
 Under the feudal system the foreigner was no longer necessarily 
 of a different race, but merely born outside the feudal lord's 
 jurisdiction. His incapacities were numerous. 
 
 Under the monarchy he acquired partial capacity similar to 
 the peregrin of the Roman law; he was protected by the "jus 
 gentium." 
 
 The French Revolution abolished the rule excluding the for- 
 eigner from civil rights. Some writers believe that under the 
 French Civil Code the exclusion of the foreigner is still the rule, 
 and his admission the exception ; others hold that he enjoys every 
 right derived from natural law but no others. This is the ruling 
 opinion of the courts. Yet others maintain that he possesses 
 full rights, subject to exceptions. Evidently the law is far from 
 explicit. 
 
 Since the Code was adopted, acts have been passed granting 
 the foreigner many of those rights which were formerly denied 
 him. But his civil capacity is still incomplete. It tends steadily, 
 however, toward the assertion of greater right; its evolution is 
 in that direction. 
 
 The second question with which we are here concerned is that 
 of naturalization. Where it is rendered easy, most of the dis- 
 criminatory factors which we have just mentioned disappear. 
 It is indeed becoming increasingly easy. Athens made broad 
 concessions ; Caracalla gave it to all peregrins ; the German bar- 
 barians made affiliation with their tribes a simple matter. 
 
 On the other hand the early French law was slow to grant 
 naturalization. The situation continued so up to the second 
 half of the last century. Since then numerous laws have greatly 
 facilitated it. The evolution of naturalization had advanced 
 parallel to and abreast of the admission to civil rights. In addi- 
 tion to ordinary naturalization there exists in France a privileged 
 form in favor of the child of a former French citizen, also of the 
 child of a foreign mother who marries a Frenchman. Besides 
 this the recovery of lost citizenship has been made easy; and 
 lastly there exists a mixed condition between the national and the 
 foreigner, namely, authorized residence in France. 
 
 Instead of being merely permitted or even facilitated, natural- 
 ization may be encouraged and rewarded whenever a national 
 territory is too extensive for the existing population. It then 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 649 
 
 holds out attractions to foreigners to immigrate either in limited 
 numbers, or in great masses, as has happened in the Argentine 
 Republic and the United States. Economic interest energizes 
 the movement. 
 
 Often, on the contrary, this same motive repels the foreigner. 
 It is desirable to avoid dangerous competition of foreign labor. 
 This has happened in the case of the exclusion of the Chinese 
 from the United States. 
 
 Last of all there is a fear of the contamination of blood or the 
 absorption of the superior by .the inferior type, for example, of 
 the whites by the negroes. Here anthropological reasons in turn 
 become uppermost and a regression takes place. 
 
 § 27. From a Law of Violent Methods to a Law of Peaceful 
 Methods and of Equitable Aims. Law reposed at first upon force. 
 All history testifies to this, and we need cite but a few examples. 
 Even today one whole field of law (with which, it is true, we are "^ 
 not concerned here), is governed for the greater part by violence. ^ 
 The law of nations, properly speaking, is in a perpetual state of 
 obscuration. Peace is but a truce, and as soon as a nation's 
 strength is regained it breaks the treaties which it has solemnly 
 signed. No organization has yet contrived to realize the triumph 
 of right without the shedding of blood. 
 
 In the beginning it was not only public law, but also private law 
 which was enforced by violence. Controversies between indi- 
 viduals were settled by strife between them and in the Middle 
 Ages by war between castle and castle. It was known as private 
 war. 
 
 This sociological stage is still recognized, and we will not delay 
 to describe it. In all savage races it was found in its pure state. 
 With time society interfered to moderate its violence, just as we 
 diminish warfare today by arbitration. But for a long while the 
 rule of force stood, and, indeed, still stands. 
 
 Thus we see how in criminal law each rendered justice unto 
 himself, by taking private vengeance. The penalty inflicted 
 was without limit. Later civilization intervened, not at first 
 with a view to settle the conflict but to mitigate it. It limited 
 vengeance by the " lex talionis " or ** an eye for an eye." Then 
 through pecuniary composition it converted corporal punishment 
 into the payment of damages. 
 
 Civil procedure was at first just as violent as criminal pro- 
 cedure; indeed they were identical, for no clear distinction was 
 then made between the two forms of law. However society in- 
 
650 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 terfered more directly by being present at the contest, counting 
 the blows, and proclaiming the victor. Nevertheless, the parties 
 were still waging private war though regulated by the directing 
 and sanctioning hand of society. Procedure was still violent. 
 There was the judicial duel, the ordeal, and the oath. In the 
 first of these, the force of the contending parties decided the issue ; 
 in the second, divine was substituted for human force ; in the 
 third, it was not apparent. But it was there, for to the Christian, 
 perjury might bring beyond the grave or even instantly the 
 most terrible punishment. 
 
 When law passed to a higher phase, where violence was pro- 
 hibited and where society itself settled conflicts, traces remained 
 of the old state. Many acts of procedure were still symbolic 
 of the brute force to which they had succeeded. At Rome the 
 action known as the '' vindicatio " clearly preserved this charac- 
 ter. The plaintiff, armed with a lance, touched the object which 
 he claimed and said : " aio rem meam esse ex jure Quiritium." 
 Then he laid the lance upon the thing. The defendant did like- 
 wise. The magistrate did not decide, at least not at once nor 
 directly. A fictitious combat took place, the " manuum conser- 
 tio." This being inconclusive, the praetor intervened. But he 
 did not yet give judgment. From violence the parties passed 
 to a wager upon which he decided. But the wager was volun- 
 tary, like a treaty after war. The praetor then declared who won 
 the '' sacramentum ", which was the object of the wager. 
 
 In the same way when the obligatory oath conclusive of the issue 
 disappeared from French common law procedure, it left many 
 traces and the oath is still in frequent use. 
 
 The word " seizure " in French procedure is a sign of the early 
 condition. It is a violent laying on of hands, just as an arrest. 
 It is, however, effected by society. 
 
 Marriage ceremonies, while now consensual in all races, bear 
 marks of their violent origin in the early forcible capture. For 
 capture was everywhere simulated and consequently consent 
 excluded, not in reality of course, but in form. And yet in this 
 matter force was more odious than in other parts of the law and 
 even the semblance of it would have been abolished had not the 
 tenacity of historical habit triumphed. 
 
 It was in the creation of the right itself, and yet more in com- 
 pelling obedience to it, that force long dominated in the law, 
 at first in reality, and later symbolically. So great has been the 
 progress that the second stage, in which we are now living, seems 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 651 
 
 to many of a very different and opposite nature. To physical com- 
 bat has succeeded peace ; to force has succeeded consent ; and to 
 iniquity, justice. But satisfaction is really one of words. The 
 reign of justice is not yet come. To violence has succeeded not 
 justice but stratagem, not only in the law itself but above all in its 
 execution. And strategy often produces consequences similar 
 to force. To realize this well, we should not look alone at the law 
 but also at the use which is made of it. If we examine merely 
 substantive law, this is true ; how much more so when we observe 
 it in operation ! 
 
 Let us take marriage as an example. It is regularly contracted 
 and its effects, often so hard upon the woman, are but the conse- 
 quences of her own consent. The overbearing character of the 
 husband will be tempered by mutual affection; the excessive 
 control which the matrimonial regime confers upon him (to her 
 ruin) will be moderated in reality because of her happy choice 
 and because he will be just. And yet even so, the situation of the 
 wife is precarious, because, without wrongful intention, the hus- 
 band may by unfortunate speculation carry her down with him 
 in his ruin, becoming hardened and embittered by these circum- 
 stances. But how much more is her plight aggravated by the 
 deceit which the law allows and even abets ! The marriage is 
 generally contracted without the woman's real consent and without 
 wise advice from any hand; the parents' desire is uppermost; 
 the future husband hides his true economic and real self and in 
 the case of a certain class of maladies, his physical condition. 
 He may be a spendthrift, or penniless ; if so, the embarrassments 
 which have been mentioned become veritable dangers. 
 
 " Summum jus, summa injuria " still epitomizes the situa- 
 tion. The father, protected by the law, refuses to recognize his 
 illegitimate child, although convinced that it is his ; he offers no 
 assistance but abandons the woman he has seduced. All this is 
 strictly according to law. Can we then pretend that the reign 
 of justice is at last come? Suppose I have an undisputed right. 
 I may abuse it. As creditor I am not content merely to press a 
 poor debtor for payment ; I pile up every possible formality and 
 cost against him. He should have paid me, of course, but by this 
 manoeuvre I double his debt and make it impossible for him to 
 pay. He tenders capital and interest : I refuse, demanding my 
 costs and continue to add new ones. If the creditor covets his 
 debtor's property., the code lends its assistance to his inhumanity 
 and perhaps his deceit. But today we see emerging the ideal 
 
652 PROCESS OF LEiGAL EVOLUTION [Paet III. 
 
 that an abusive exercise of a right should be punished. It has 
 been formulated in this way in the German Civil Code. 
 
 More than any other department, civil procedure has shown 
 the rule of deceit succeeding to the law of force and bringing with 
 it almost the same disasters. It is in effect a conflict " sui generis " 
 which has been substituted for the primitive conflict of force and 
 which seems but a mimicry of it. Its wounds are often as deep, 
 its risks as serious; numerous indeed are those who have fallen 
 upon the battle field of procedure. Each day it becomes more ap- 
 parent. The struggle is not in the open; it is assassination or 
 a guerilla warfare in the thickets. This battle of craft is enacted 
 by the parties under the eyes of the judge, who rarely has the right 
 to interfere. Even the terminology is significant;, the party 
 attacked is the " defendant." The struggle begins as in real war- 
 fare, by skirmishes; later and before the gist of the matter is 
 reached there are brilliant passes at arms : questions of jurisdic- 
 tion and of nullity. Each step of the procedure is an engagement. 
 Ammunition is expended broadcast, at first in small sums, which 
 are like the clashes of the advance guard, then in floods, when 
 the parties come to pay for the taking of testimony, for experts, 
 and for the judgment. Damages are the war indemnity. But 
 why continue a comparison which must be evident to every mind ? 
 
 We would emphasize the fact that the period of legal deceit is now 
 at its height. Each pleader strives to conceal what is contrary to 
 his interests and to take advantage of everything that helps his 
 cause. Each tries to deceive the judge, even when his right is clear. 
 Not only are facts misrepresented but also the law, whenever pos- 
 sible, and that is easy where the law is as obscure as in France. 
 
 This is a picture of procedure. No ^oubt craft is preferable 
 to violence from the point of view of social order, but the risk 
 that the judgment is wrong is at times as great. 
 
 The winner of a lawsuit is often as cruel as the victor of a judi- 
 cial duel of old. Pitilessly, without mercy or truce he follows up 
 his victory by a forcible levy carrying ruin with it. 
 
 But the debtor meets ruse with ruse and his may be quite as 
 unjust. During the suit he may bring about his own insolvency 
 and in ordinary cases he succeeds in doing so without his adversary 
 being able to prevent it. His creditor can obtain no preventive 
 measures. As the castle is surrendered it is blown up. After 
 trial there is appeal and a new trial. The creditor suddenly finds 
 he is dealing with an insolvent. 
 
 It is true that sometimes the creditor is allowed to secure his 
 
Chap. XXV .J THE EVOLUTION OF CIVIL LAW 653 
 
 position by a preliminary attachment. But then he in turn abuses 
 his right and immobilizes alt his adversary's assets. 
 
 There is one state of facts prohibitive of an action at law and 
 that is the debtor's clear insolvency. But the debtor will profit 
 thereby by other ruses, harassing his creditor and obliging him to 
 advance considerable costs. 
 
 It is evident that the vicissitudes of this new kind of warfare 
 are many and that it is far from ideal. And yet that is not the 
 worst, for the litigant has yet to count with the agents, the retain- 
 ing fees and costs. 
 
 Lawyers are no doubt indispensable, since most litigants are 
 not competent to direct and explain their affairs ; and, moreover, 
 they have not the time. But many codes vie in multiplying these 
 agents : the solicitor, the attorney of the commercial courts, the 
 barrister, the process server. Each one contributes his special 
 parasitism, without counting the State which levies upon the 
 public the whole weight of its judiciary tax. These agents 
 add their own deceptions to those of the litigants, sometimes to 
 aid, sometimes to injure them. The law is their accomplice, 
 multiplying subtleties by which they profit. The costs multiply 
 tenfold in this way. La Fontaine's story of the two litigants 
 and the oyster is no longer a fable but a truism. Gratuitous 
 justice is the worst of all ironies. And we are not yet done. 
 Lawyers' fees, though regulated, are often set at a higher figure by 
 custom or by the officer charged with fixing them. They are in- 
 creased by unforeseen expenses. Finally these agents demand 
 preliminary fees which are rarely accounted for in the end; yet 
 without them, the parties may not go on, for like soldiers, they 
 cannot fight without ammunition. 
 
 Everywhere in juridical evolution strategy has succeeded to 
 force. It thrives upon formalism, which is characteristic of our 
 period, and draws from it its best nourishment. 
 
 In concluding, it should be remarked that the most violent 
 and warlike races have • become the most litigious. The fact 
 might at first astonish us. The explanation is that legal process 
 is another kind of war ; each judicial debate is a kind of combat. 
 The Romans, conquerors of the known world, developed a law 
 which was long accepted and which dominated all other systems. 
 So the warlike Germans have given special attention to the devel- 
 opment of their law; and the Normans before whom Europe 
 trembled, are rightly or wrongly regarded in France as its most 
 litigious class. Procedure is a mimic warfare. 
 
654 PROCESS OF LEGAL EVOLmON [Paet m. 
 
 Though we are now only at the dawn of such a future, the 
 time will come when violence and stratagem will give way to the 
 reign of humanity. In the economic world something of the same 
 sort has taken place. There was first the struggle for life between 
 individuals or nations, carried on by violence. Because we seem 
 to have successfully suppressed violence (we have not in fact yet) 
 we think that everything has been won. This is illusion ; to the 
 struggle for plunder has succeeded the purely economical conflict 
 waged with the arms of strateg>' and also, it is true, with the might 
 of capital, over the whole world or local market. The richest, if 
 also the most astute and the least upright, eliminates aU competi- 
 tors, reducing them to miseiy and famine imtil they are destroyed. 
 His attitude is the same towards the laborer, whom he oppresses 
 by the mere play of what is called " the iron law." 
 
 There are, however, sure though rudimentary- signs of the 
 coming of equity-. In the economic world competition, as the sole 
 regulative mechanism, is being discarded and, without being 
 suppressed, is being moderated by the conception of solidarity-. 
 In law the movement is toward the abohtion of formalism, the 
 strict rules of positive law, Uteral interpretation and legislative 
 immobihtA', traits which have donynated up to the present time. 
 Above all procedure is undergoing simplification. The expense 
 of justice is reduced, though deceit goes unpunished ; the number 
 of intermediar\- agents is being reduced to a minimum ; all that 
 can be regulated is r^iulated in advance, and without useless 
 inhibitions. We shall see later how applied sociology- may bring 
 about the new era. 
 
 §28. From Oral to Written Form and the Return to Oral 
 Form. In all branches of institutions or of human knowledge, 
 the oral preceded the written phase, for the simple reason that 
 writing was at first unknown or barely known. WTien it was 
 invented it was in form of inscriptions upon stone and natiu^Uy 
 was rare. Later came parchment, but it could not be used lav- 
 ishly. A durable material was needed which would sm^-ive the 
 centuries and not require renewal. StiU later printing was dis- 
 covered and manuscripts were multiplied endlessly. But a knowl- 
 edge of writing was still exceptional. It was only in our day that 
 such a knowledge became g«ieral. 
 
 During all that period memory' was ob\-iously the only instru- 
 ment of conservarion. Ideas, legal maxims, the elements of science, 
 philosc^hic thought were transmitted " \-iva voce " from genera- 
 ticHi to generation by verses. The lower classes still retain in 
 
Chap. XXV.] THE EVOLUTIOX OF CIVIL LAW 655 
 
 some countries, especially in Germany, legal maxims in rh\Tne 
 and assonance; even the jurists of long ago clothed their ideas 
 in characteristic verses by which they have been preserved. For 
 a long while there was no wTitten record, ever\1:hing was entirely 
 oral. 
 
 This state of things was observable in the law, the judgment, 
 the procedure and the proof. 
 
 At first oral law was unwritten custom. This stage paralleled 
 that of the production of customary law, just as ordained law 
 was contemporary with a knowledge, such as it was, of writing. 
 There^ resulted a veritable juridical folklore, highly interesting 
 to observe. We have already studied customary law and shall, 
 therefore, not dwell longer on it here. From oral customary 
 law the evolution passed to WTitten customary law by a curve which 
 we have already described and which leads to ordained law, and 
 from thence to codified law. 
 
 In the same way judgments were in the beginning pronounced 
 orally and not written. No trace of these decisions remained 
 except in the memory. Under such conditions there could be no 
 such thing as a true body of judge-made law. But soon, in France 
 for example, judgments were committed to writing and finally 
 brought together in the collection known as " Olim." 
 
 But the profound distinction between oral and written law is 
 yet more remarkable arid more persistent in the subject of the 
 judicial investigation of facts preliminary to trial (" instruc- 
 tion ") and of evidence. These two subjects we should distin- 
 guish, and with regard to judicial investigation we must differen- 
 tiate between criminal and civil law. 
 
 Of these two forms of preliminary judicial investigation, the 
 criminal is outside our program. And yet it may throw a great 
 deal of light upon it. All systems of preliminary criminal investi- 
 gation fall into two groups : the written, or informative, and the 
 oral. The first of these has dominated in France and still per- 
 sists to a large measure. there and in southern nations ; the second 
 is the Anglo-American system. They represent respectively the 
 system of secret and of public procedure. 
 
 In the strict regime of written procedure, the entire drama im- 
 folds in the chambers of the judge charged with the preliminary 
 investigation, who prepares the information. Later the court 
 passes judgment upon this record, which is transmitted to it. The 
 decision is consequently upon a \sTitten record ; there is no oral 
 debate. This was the method of the Chamber of Accusation of 
 
656 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Imperial France; the same was formerly used in every prelimi- 
 nary investigation which was inquisitorial. 
 
 In a mixed system the preliminary investigation is secret and 
 written, but, when the case comes before the courts, the record 
 is merely informative and at the trial the argument, which is 
 entirely public and oral, reopens. Witnesses testify orally, the 
 presiding judge questions, the accused replies and the prosecutor 
 and attorney proceed orally in the same manner. This is the 
 present French system. 
 
 Finally, in Anglo-American countries the preliminary investi- 
 gation is oral, public, and contentious, as the trial itself. The 
 oral phase has reached its climax. 
 
 We should note, however, that in early French law and wher- 
 ever the written form of criminal procedure dominated, oral 
 procedure existed first; and not unnaturally since writing was 
 scarcely known, and besides the parol method suited the simplicity 
 and the character of the age. 
 
 The course of the evolution is easy to trace : (a) oral criminal 
 procedure; (6) written procedure, except for those countries 
 which have retained and seem destined to retain oral procedure, 
 as in England. 
 
 But when these two stages had been completed in certain 
 countries, as in France, the evolution did not cease. An evident 
 return is taking place towards oral procedure. In France we have 
 imitated the English system, though awkwardly it is true. The 
 preliminary investigation of the accused is not public, but both 
 parties are heard and it is oral in part, while its tendency to be- 
 come more so becomes more marked. 
 
 The same is true of civil procedure. It also has passed through 
 three stages. The great force of the evolution has been exercised 
 in Ihe taking of testimony by witnesses. After having been 
 originally oral like all procedure, the taking of testimony became 
 secret and written, like that provided for by the common law of 
 France. It is not given in public session, but before an adjutant 
 judge, and is immediately taken down in writing. It is solely 
 upon this writing that later arguments are based and judgment 
 rendered, and this continues to be true later before the Court of 
 Appeal, which decides upon the record. This is why, if by ex- 
 ception the testimony is given at the trial, it is taken down in 
 writing in view of an appeal. 
 
 However there are some survivals of the oral period. In sum- 
 mary actions, the court itself hears the witnesses at the trial and 
 
ClL\P. XXV. j THE EVOLUTION OF CIVIL L.\W 657 
 
 if the case is not susceptible of appeal the evidence is not taken 
 down in writing. 
 
 The system of written testimony has been much criticised but 
 a discussion over merits would be outside our present work, which 
 is merely to record the evolution. In line with the criticism there 
 is taking place a movement favoring oral evidence. The new 
 German Code of Procedure makes it the rule and written evidence 
 the exception. In France the tendency of the progress in proce- 
 dural reform is similar. 
 
 We cannot follow out this parallel but it exists elsewhere in 
 procedure. Thus in interrogatories directed to the parties to a 
 suit to obtain evidence or an admission, two different methods 
 exist, the written and the oral. The first consists of an interrog- 
 atory upon specific recitals of fact, the other of a summons of the 
 parties. The first has in practice been completely abandoned; 
 tlie second, on the contrary, is relatively in favor. 
 
 Procedure, as a whole, is generally part oral, part written, and 
 composed of pleadings and the "formal declarations of claims by 
 the parties. In certain special cases it is merely written and 
 terminates by being referred to one of the judges for a special 
 opinion. The latter mode is much less frequent; almost all 
 forms either are or are becoming part oral and part written. For- 
 mal declarations of claims are the only solid and enduring part 
 of the record, being a summary of the pleadings and valueless 
 except through them. 
 
 But it is above all in the various methods of proof that the an- 
 tithesis between the oral and the written is most evident. The 
 three periods have succeeded one another in this way : (a) a 
 witness prevailed as against a document; (6) a document pre- 
 vailed as against a witness ; (c) finally progress is now marked by 
 a return to the first principle, at least in part. The first stage 
 received acceptance everywhere, at Rome and amongst all the 
 Latin and Germanic peoples. The reason was simple: writing 
 either did not exist or was difficult. It was not because of the 
 greater accuracy of oral testimony, but of its inaccuracy, that 
 at a still earlier period the judicial duel and the ordeal were 
 resorted to. 
 
 The first stage continues even today among the Germanic 
 races, notably the Anglo-Americans, with whom it has been sub- 
 ject to but few restrictions. But among the Latin races writing 
 early supplanted oral testimony, which has been retained only 
 in cases involving small amounts, for example, under one hundred 
 
658 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 and fifty francs in France. There is a real exception where there 
 is what is known as " a commencement of written proof " when 
 the writing imparts something of its own probative force. 
 
 But this condition has changed and progress advances in a 
 spiral. The letter of French law remains the same, but the courts 
 have everywhere broken in upon the principle, while a rival body 
 of law is extending its influence. The antagonist in the field is 
 commercial law. From the earliest time it has admitted oral 
 proof with no limitations as to the sum involved or other condi- 
 tions, except in the case of a certain few contracts. It has cer- 
 tainly, generally speaking, swept the civil law along with it, for 
 it is not easy to see why what is permitted in the commercial world 
 should not be allowed in civil life, all the more as commerce in- 
 volves far greater sums of money. 
 
 But the decisions of the courts in their equitable function 
 have acted powerfully to modify the rule. For example, in the 
 summons of the parties the courts have often found partial ad- 
 missions which they have construed as a " commencement of 
 written proof " by which the admission of oral proof has been made 
 possible. 
 
 § 29. From Immovable to Movable Property. The successive 
 importance of immovable and movable wealth is well known. 
 Now the more important of these forms of wealth could not be 
 regulated in exactly the same manner as the less important form. 
 But, as the relative position of the lower form changed, the law 
 should have moved with it so as to maintain harmony between 
 the two and respect the practical usefulness of each. Unfortu- 
 nately this has not happened. The evolution of law is much slower 
 than the progress of practical affairs, especially where the law 
 has been codified. The result is at times a complete discord 
 causing injustice and injury. 
 
 This has been true of the slow progression from immovable to 
 movable wealth. We still suffer from the want of harmony in the 
 matrimonial law. The system of general community evidences 
 it. All movables fall into the community, while immovables are 
 excluded, so that where the estates of the husband and wife are 
 of equal value one of them might retain as a separate estate all 
 his property and acquire half of the estate of the other, who is 
 the loser to that extent. This results from the law's slow re- 
 sponse to progress. However the discord is not absolute; an 
 evolution is going on and as movable wealth assumes the ascend- 
 ency we find it transforms its own particular rules, even exerting 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 659 
 
 an influence upon the law of immovables and tending to impart 
 to them its own qualities. We shall now briefly examine this 
 evolution. 
 
 Wealth was at first movable. That was at an epoch that 
 might be called pre- juridical, when the land was not yet possessed. 
 Such wealth, consisting of clothes, utensils, and arms, was insig- 
 nificant. Later, though the people became agricultural, the situ- 
 ation was not at first changed, because property was owned in 
 common by the nation or the family. Private ownership had to 
 arise for immovable property to acquire its later importance. 
 
 But then its significance became excessive. Under the feudal 
 regime or otherwise land alone counted, improved or unimproved. 
 The whole body of the law was concerned with this form alone; 
 and this was true of all nations. Even commerce provided only 
 a temporary channel for wealth, a means to acquire land. 
 
 Later, due especially to commerce, movable wealth assumed in- 
 creasing importance and the two became parallel. They have 
 grown up, governed by very different principles. The land is 
 fixed, its transfer is an exceptional event ; it remains in the family ; 
 its inheritance is strictly regulated; the public, whether under 
 the feudal hierarchy or through the principle of eminent domain, 
 has retained a hold upon it. On the contrary movable wealth is 
 free from all these hindrances. It enters into commercial risks, 
 is transferred easily and without formality, and bestows its own 
 flexibility upon the law. 
 
 However, to maintain an equilibrium, certain important forms 
 of movable property were treated as immovables. For example, 
 in early law, offices were held to be immovables; the same was 
 true of rent charges, and this is the more important since personal 
 rights did not exist. So mining rights and certain other forms of 
 property were immobilized. 
 
 Later this mode of resistance broke down and the balance 
 swung definitely to the side of movable property, though each 
 class preserved its own rules. Present English law cannot be 
 studied without understanding the fundamental distinction. 
 
 Today a third stage appears. Movable property has in turn 
 reacted upon immovables. These are becoming as mobile as 
 the former. Their transmission is as simple ; the tendency is to 
 merge the two classes. In practice this stage becomes apparent 
 in the matrimonial system, in the frequency of the choice of the 
 system of community limited to acquests in which both classes 
 are governed uniformly. Movables are treated as immovables 
 
660 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 whenever it is of advantage, by storage in general warehouses, 
 by charging them with hypothecary Hens, as in the case of vessels, 
 or by giving them in pledge. On the other hand land is treated 
 as movables by classing land speculation as a commercial act; 
 by making the hypothec transferable like a negotiable instrument 
 or by creating a hypothec upon one's own land in favor of 
 oneself.^ 
 
 The end of the evolution is a complete assimilation of the two 
 forms of wealth except for those differences which may survive in 
 the case of certain movables by reason of the impossibility of fix- 
 ing them even momentarily. 
 
 § 30. From Reajity to Fiction. The law was first made mani- 
 fest by realities, by something concrete and therefore natural. 
 This stage did not endure as long as one might first believe. There 
 is no doubt that the point of departure must have been the family 
 in a state of nature. It may have been of an isolated couple, 
 of the type at once paternal and maternal ; or it may have been 
 maternal alone, composed of a group of men where maternity 
 alone was ascertainable. 
 
 But soon for various reasons fiction made its appearance. The 
 clan was a fictitious family, for the traces of a true family living 
 in a state of nature could not be preserved by memory. For the 
 same reason adoption sprang up very early among all races to 
 complete the ideal of the family. It was a pure fiction. We have 
 seen that it was customary to adopt a child or a brother. The 
 latter is no longer possible. The Roman testament was at first 
 merely the fictitious adoption of an heir. The praetorian law of 
 Rome quite generally paralleled the direct action with the ficti- 
 tious action moulded upon the former and presuming an existent 
 right. In the French law fictions abound. There are the legal 
 prescriptions which presume the truth of the very matter in ques- 
 tion : the truth of " res adjudicata", of ownership after a certain 
 period of possession, the rule " pater est quern nuptiae demon- 
 strant", the presumption of survivorship. 
 
 There are yet more direct fictions which presuppose states of 
 fact which certainly never existed. First, for example, there is 
 adoption. Ordinarily the one who adopts is not the father. 
 Again there is the fiction of retroactivity in partition, as formu- 
 
 1 [The advantage of giving a hypothec upon one's own land in one's 
 own favor is that the deed may be held until recorded and then assigned 
 or dehvered. Recording the instrument before delivery obviously makes 
 it a more instantaneous instrument of credit. — Translator.] 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 661 
 
 lated in Article 883 of the Civil Code.^ In reality each heir has 
 taken instantly an undivided part of the entire inheritance and 
 if the shares are later divided it would not seem that that could 
 operate retroactively. INIoreover the principle is inconsistent, 
 since the choses in action and debts are divided immediately by 
 effect of law,- a rule which renders the situation confused and 
 illogical. Another remarkable example of legal fiction is the 
 juridical personality accorded to partnerships, and stock com- 
 panies. In reality for a long while in France according to the 
 civil law, the partnership was merely an aggregate of property, 
 distinct from joint ownership in that it was an active ownership 
 whereas the latter was purely passive. It was managed, like all 
 joint property, either by some one from within or from without. 
 But through the efforts of jurists and the popular tendency to 
 visualize everything, it has become almost a person of flesh and 
 bone. This fiction has come to dominate the law and is spreading. 
 From commercial partnership it has extended to civil partnership 
 and to the unincorporated association. It is true the approval 
 of the government is still a prerequisite. But this last barrier 
 tends to fall. 
 
 The Roman maxim, " Hereditas defuncti vices sustinet " was 
 also a fiction, and a very powerful and useful one. It was far 
 preferable to the opposite doctrine of retroactivity (Article 883 
 of the French Civil Code). It carried many other theories wfth 
 it as corollaries. 
 
 In political law, the rule that the minority is represented by 
 the majority is a pure fiction which grew by degrees. The same 
 is true of the power of the majority of the creditors of an insolvent 
 in commercial law. 
 
 The third stage shows a tendency opposed to absolute fictions, 
 and lays open to doubt the most uncontested rules. The fiction 
 " pater est quem nuptiae demonstrant " tends to weaken before 
 proof to the contrary. The authority of " res ad judicata " breaks 
 down before new evidence. The retroactive operation of parti- 
 
 ^ [When several heirs inherit, they are seized of all the property by 
 virtue of law, holding it in an undivided state and liable for the debts of 
 the decedent and the distribution of legacies. (French Civ. C. Art. 724.) 
 When partition takes place among these heirs, the law attributes to it a 
 retroactive effect so that each heir is regarded as having never been seized 
 of any part save the particular property allotted to him by the partition. 
 (French Civ. C. Art. 883.) —Translator.] 
 
 2 [French Civ. C. Art. 1220. There is considerable doubt whether the 
 effect of this Article is to partition the debts and claims of the decedent 
 among his heirs. Cf. Baudry-Lacantinerie, *' P*r6cis de droit civil " (9th ed. 
 Paris, 1906), Vol. Ill, sees. 777 and 778. — Translator.) 
 
662 PROCESS OF LEGAL EVOLUTION [Part m. 
 
 tion has numerous disadvantages and after the rule had been 
 extended in a mistaken spirit of equity, the present tendency now 
 is to restrict it. The fiction of survivorship among " commorien- 
 tes " has been abandoned in the modern codes. Finally the 
 fictitious personality of partnerships, after having spread from the 
 commercial into the civil law, is now attacked as oversubtle ; at 
 least the conception is being limited and, to the partnership of 
 juridical personality, is contrasted that '' in gesammter Hand." 
 This last evolution is very remarkable ; the tendency is to return 
 from fiction to reality, thus completing the spiral curve. 
 
 Topic II. Intensity of the Evolutionary Movement 
 
 § 31. Arrestment. We have been examining the sociology of 
 dynamic civil law with respect to its direction, and we have shown 
 that it advances along a spiral curve like every other form of evolu- 
 tion. But in dynamics or the science of movement there are 
 other factors than direction to be observed. 
 
 Motion is also susceptible of acceleration, retardation, oscilla- 
 tion, arrestment even, and of resumption. These are the phe- 
 nomena to which we will now turn our attention. 
 
 An arrestment occurs in certain historical periods where there 
 has taken place a tightening of the law. This generally happens 
 after a period of activity, when it is commonly believed that the 
 law has been brought to its perfection. Thus with the Justinian 
 compilation everything seemed to have been said and determined 
 forever. In effect, the eastern Roman law scarcely changed. 
 So, after the French Civil Code, for fifty years juristic thought 
 bowed before it as though it were " written reason." People were 
 content with a narrow and servile interpretation ; no one disputed 
 the solution of the lawmaker and his errors were glossed over. 
 The legislator who came after showed himself no more courageous 
 than the courts. Scarcely a new law appeared to rufile the sur- 
 face. What more was possible when perfection seemed to have 
 been attained ? 
 
 This period should not have been one of complete satisfaction. 
 It was legal stagnation. Having become stationary, the law soon 
 no longer adapted itself to men's habits nor answered the needs 
 of society. It became a veritable anachronism. There was no 
 progress, merely a deceptive calm; the living became dead law. 
 We shall see how external facts were able to impart a new life. 
 Clearly such an arrestment might endure a long while, a half 
 
Chap. XXV.] THE EVOLUTION OF CIVIL LAW 663 
 
 century or perhaps several centuries. WTien the want of harmony 
 between law and custom was complete, this condition was sud- 
 denly realized and the courts strove to fill the deficiencies, and by 
 a process of underpinning, so to speak, to correct and improve 
 the law on every occasion. 
 
 § 32. Oscillation. Besides the arrestment of legal evolution 
 we must note its oscillation. This movement is universally typi- 
 cal of progress ; we even find it in the stellar world. Every ad- 
 vance is accompanied by short oscillatory movements leaving the 
 general course undisturbed. It is observable in both judge- 
 declared law and legislation. The Court of Cassation at times 
 shrinks before its own hardihood. Having ruled, through con- 
 scious fictions, that all entails are permitted, it raised new re- 
 strictions ; having placed the father under the same obligations 
 as a guardian in respect to a minor child's estate, it exempted him 
 in part ; so also, it hesitated before the ultimate consequences of 
 the " included marriage portion." The law has at times taken 
 backward steps but it has cost a greater effort, for its decrees are 
 permanent. After the limitations regarding the rate of interest 
 had been removed they were replaced after 1807, and then re- 
 moved once more. 
 
 § 33. Regression. The regression is a more complete return 
 towards the past. As such may be classed the abolition of divorce 
 after its introduction in 1791 and its continuation in the Civil 
 Code ; the re-establishment of the " majorat " (perpetual entails 
 in favor of the eldest male heir) under the First Empire. Exam- 
 ining the various historical periods, we find that the government 
 of the Carolingians was theocratic while that of the Merovingians 
 was not, and that the rule of Louis XVI was more so than that of 
 Henry IV. Titles of nobility have passed through three phases. 
 P'irst they were hereditary ; they then came to be granted for life ; 
 later they reverted to the hereditary stage. This constituted a 
 regression. Certain posts held by license from the government 
 C* offices ministeriels "), which were property under the Old Re- 
 gime became functions under the Revolutionary law. But in 
 1816 venality reappeared. 
 
 § 34. Resumption. The regression may be so strong as to 
 seem an extinction and then be followed by a resurrection or 
 recommencement. To take an example. After the barbarian 
 invasions each race preserved its personal law for a while. Roman 
 and barbarian law existed everywhere side by side. So long as 
 this racial situation continued, the evolution was not modified. 
 
664 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 But there eventually took place a merger of the two kinds of law, 
 or more exactly a compression of each. A veritable juridical 
 chaos followed ; it was the death of law. Was there any escape ? 
 How could it come about ? 
 
 In this amalgam, numerous centres of new legislation formed. 
 In other words a mass of local customs, like dissolved crystals, 
 reformed into new clusters. These customs resembled but little 
 their forerunners. They were thought to have been a fresh, 
 spontaneous growth and that was equivalent to saying that their 
 evolution marked a new line, a recommencement. These in turn 
 increased, were generalized and traversed various stages of prog- 
 ress. But the antecedent development did not influence them. 
 
 The resurrection or resumption of law operated in another 
 manner as well. A nation with a well-developed civilization, 
 enjoying an orderly legislation, sent forth colonists to cultivate 
 a virgin soil in the solitude of some uninhabited land or amongst 
 savage tribes. It might be expected that these pioneers would 
 retain and develop the home civilization, merely adding to it. Not 
 so. We kno\^ that they returned to a primitive state, rejecting 
 the latest methods of agriculture and re-establishing a primitive 
 co-ownership. The reasons for this are plain. The condition 
 of the new environment rendered the methods of the mother 
 country inapplicable for the time being; like causes produced 
 like consequences. 
 
 § 35. Acceleration and Retardation. Above all it is accelerated 
 evolution which is remarkable, for the other movements in the 
 long run are neutralized by the general movement in advance. 
 The law's movement is generally even, tending however toward a 
 retardation, often quite marked. The law is far from synchro- 
 nizing with the other lines of evolution. Sometimes it lags behind 
 a century or more. We would indeed despair of progress did no 
 finger advance the hand of time. But each shock from without 
 sets up an agitation which accelerates the movement. 
 
 The shocks which energize the acceleration are of several kinds 
 and follow different principles. They are analogous to the laws 
 of nature and may be compared to the laws of gravitation, of 
 chemical combination, and of mechanical shock. 
 
 (l) The force of gravitation as applied to law works at first through 
 the influence of a foreign law which draws us whether we will or 
 not. It is the principle of imitation so dear to Gabriel Tarde. 
 Foreign laws are suggestive because of their proximity or of a real 
 or supposed excellence. We introduce them and they modify 
 
Chap. XXV.] THE EVOLUTIOX OF CIVIL LAW 665 
 
 % 
 
 even our old institutions, for everything must adjust itself mu- 
 tually. In France we have drawn upon England by preference ; 
 a sort of Anglomania has been at work in the most important 
 parts of our law. We have the jury and parliamentary govern- 
 ment. Today we seem to be aiming toward the Torrens mortgage 
 system, feminism, new forms of insurance, commercial and ag- 
 ricultural warehouse receipts. France in turn, at the beginning 
 of the last century, influenced certain codes of Europe through the 
 force of her reason. And lastly the force of attraction may be 
 exercised by a dead system of law. This was exerted by the Roman 
 law, not that which survived in certain of the old Roman prov- 
 inces, but the system which was newly received in France and 
 Germany at the time of the renascence. So the influence of Greece 
 was felt on Rabbinical law. 
 
 (2) The second principle is combination, or (more exactly) in- 
 grafting. Ordinarily it operated when one race was placed under 
 the domination of another race. The law of the victor triumphed 
 entirely or introduced many of its principles into the law of 
 the vanquished. Such a progress might be affected directly 
 by combination or mixture, or indirectly by disturbance. For 
 example, by the wars of the First Empire the French Code was 
 imposed by conquest upon several countries and endured after 
 the force was removed. In the Middle Ages the "Assizes of 
 Jerusalem ", that remarkable summary of feudal law, was imposed 
 upon the Orient through the crusades. Roman law ruled all the civi- 
 lized world and in the canon law it has had an heir to perpetuate 
 its influence. Armenia was feudalized at the time of the crusades. 
 The Moslem law was introduced wherever conquest spread. 
 
 Combination has taken place by the introduction of hetero- 
 geneous into homogeneous elements, just as happens in a chemical 
 combination which requires two substances of a different nature. 
 In law the foreign element which penetrates the national element 
 is a heterogeneous factor. 
 
 (3) The most curious effect is. that produced by the simple me- 
 chanical principle of shock. When a ball is rolled, its velocity 
 gradually decreases until it stops. But if during its course it 
 is struck, its movement is continued and accelerated. The same 
 phenomenon may be observed in the juridical world. And it is 
 worthy of remark that the external agent is not necessarily itself 
 juridical. It may be anything; it may belong to an order of 
 thought wholly difi'erent. It does not act as a special influence 
 but merely as a propulsive agent. 
 
666 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 * 
 
 The impulse may come from without or from within the nation. 
 The former is war. Its effects are not limited to the law but also 
 reach social conditions. After the invasion of France and the 
 Napoleonic wars a literary revival took place. And yet what 
 relation is there between literature and war ? A less accentuated 
 movement, yet very strong, followed the defeat of 1870. The new 
 realistic school of literature succeeded the earlier school just as 
 romanticism followed classicism. The same was true of law. It 
 was during a period of foreign war that the Civil Code of 1804 
 appeared ; after the Franco-Prussian war Germany codified and 
 unified her legislation. The same occurred in Italy. In France, 
 it is true, the old Civil Code continued in force after the war of 
 1870; but France was defeated and defeats are less productive. 
 War has ever been a great disturber of ideas and institutions. 
 
 Within the nation there is an agent as powerful as war itself, 
 revolution. Its agitation is so great that the whole fabric is 
 affected, and even more so after the restoration of calm. After 
 a revolution a new state of society arises and nothing is adjusted 
 to the new order. The French Revolution was followed by a 
 total reshaping of the law. On every hand new principles sprang 
 up which an undisturbed evolution would not have produced for 
 centuries. The Empire rejected some of these after the " coup 
 d'Etat ", but only a part, because such a political measure cannot 
 rise to the force of a true revolution. The Revolution of 1848 was 
 the point of departure for an entirely new body of legislation, 
 which was suddenly checked by the Second Empire. The Rev- 
 olution of 1870 was not legally productive at first, because the 
 change was merely nominal. When it became real, especially 
 from 1890, the spring of legislation recommenced to flow. 
 
 Thus the two great factors of the history of nations, revolu- 
 tion and war, are the two most powerful instruments accelerating 
 juridical evolution. 
 
 § 36, Conclusion. We have traced the important lines of 
 legal evolution, as it has been influenced by general forces. We 
 do not pretend to completeness. On the contrary, we have aimed 
 only to give a few illustrations and to shed some light upon the 
 sociology of dynamic law as a whole. 
 
Chapter XXVI 
 THE PERPETUAL EVOLUTION OF LAW ^ 
 
 § L General Aspect of Jural Evolu- 
 tion. 
 
 §2. The Evolution of Law — Ex- 
 ternal and Internal. 
 
 § 3. The Fixed and the Mobile 
 Parts of Law. 
 
 § 4. Schematic Representation of 
 Evolution of Law. 
 
 § 5. Abstract and Concrete in 
 Jural Evolution. 
 
 § 6. Epochs in Legal Evolution. 
 
 § 7. Ordinary Path of Jural Evolu- 
 tion. 
 
 § 8. Importance of the Historic 
 Aspects of Law. 
 
 § 1 . General Aspect of Jural Evolution. The Evolution of Law ? 
 Or, its Genesis, Metamorphoses, Avatars, Ontogeny, and Palin- 
 genesis? Or, its Decomposition, Detrition, and Transformation? 
 Or, its Becoming and Parturition? Or, the Continuity of Jural 
 Re-Creation ? 
 
 But why these tautologies? Why so many words to describe 
 the same thing ? Because the idea of Evolution is still so confused 
 that the attempt to define it ends in a sort of verbal anarchy. 
 
 The truth is that Law in the abstract (like all Nature, physical 
 and intellectual alike) is in an unceasing state of change, in the 
 objective world of its concrete manifestations. In its very essence 
 it is shifting and protean. Forever it is in the process of unmaking 
 and of remaking, — a state of perpetual becoming. It unrolls 
 constantly like a web of cloth fed out from the monstrous loom 
 of Destiny. Out into space it projects its internal energy inces- 
 santly in new forms. It is an unbroken flux of transient phenomena, 
 each in turn replaced by others. It is that jural member of the 
 social body which forms itself by Nature's inexorable logic of 
 generation. 
 
 History at large is full of the sequences of Law ; and History 
 
 1 [By Edmond Picard, Professor of Law in the New University of Brus- 
 sels, Senator of Belgium, and former President of the Brussels Bar Associ- 
 ation. 
 
 This chapter is §§ 135-139, 155-157 of the author's ** Le Droit pur", 
 Paris, Ernest Flammarion, 1910. The sections have been renumbered 
 here. 
 
 The translation is by John H. Wigmore, co-editor of this Series.) 
 
 667 
 
668 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 may be divided into jural stages corresponding to the general 
 periods of Civilization. When the Roman Empire of the West 
 fell at last in the 400s under the invasion of the Barbarians, the 
 Germanic law supplanted in Gaul the Roman law and relegated 
 it to the background ; just as the Roman law itself, after Caesar's 
 conquest of Gaul four centuries before, had overwhelmed the 
 Celtic law. 
 
 In the course of this Evolution, we may discern, from time to 
 time, periods of slackening, of weakness, of loss of force, of arrest 
 of motion, of quietude, sometimes even of an apparent paralysis 
 or of tremulous retreat. But never do we see Death. Astounding 
 is Law's energy of renewal. Even when no reason remains for 
 its existence, it adapts itself to the metamorphoses of social life. 
 For, bound as it is by the axiom of the continuity of history, what- 
 ever the breaks in the chain of outward events, it exists as Cause 
 before it becomes Effect, and as Effect before Cause. Its moments 
 of stagnation are but its self-appointed halts for breath. It is 
 an irresistible stream, stopped now or then, here or there, by cir- 
 cumstances which are no more than the puny barrier of a mill-dam 
 to the mighty flood which soon overwhelms it and rushes on. 
 Like the mainspring of a mighty clock, it has its oscillations and 
 variations, sometimes so minute as to defy detection, but the per- 
 manence of its miracle is that the innermost spring is forever 
 taut. 
 
 It is therefore an error to believe that there is an absolutely 
 fixed Law, either for a particular epoch, or (as the adherents of a 
 supreme Natural Law believe) for some ideal future. There is 
 indeed in statutes a certain stability ; but they are only artificial 
 utterances of human will, outside and above the real jural life of 
 the community, inspired by it, but not identical with it. The 
 fixity of statutes is incessantly subjected to the reaction of custom, 
 — that custom which never rests in its operation and finally ac- 
 complishes its gradual task of decomposition of the body and of 
 resurrection of the soul. Law has never succeeded in keeping 
 intact and changeless, — unless when it has become a dead shell ; 
 the Roman law, for instance, which none now practise ; like the 
 ancient Latin and Greek languages, which are dead, for no one 
 speaks them. 
 
 § 2. The Evolution of Law, External and Internal. This evo- 
 lution, in affecting the whole, affects also the parts. Each par- 
 ticular jural institution is itself evolving, in forms individual to 
 itself, while it is being carried along in the general motion. It is 
 
Chap. XXVI .] THE PERPETUAL EVOLUTION OF LAW 669 
 
 a planetary system. The external history of jural changes is 
 complemented by an internal history. 
 
 French civil law exliibits an interesting and excellent example. 
 In its general course, it can be seen starting from the juxtaposed 
 diversity of its five great original components (Celtic, Roman, 
 Germanic, and Canon law, and the spirit of nationality) ; then, 
 by the mingling of these elements, passing into a single complex 
 mass, the regional Customs, thus realizing a basic unity while 
 preserving differences of detail ; then effacing even these differ- 
 ences in the great unification of the Code Napoleon ; and finally 
 this Code itself, with its spirit of capitalism and commercialism, 
 undergoes the pressure of socializing ideas and is forced to admit 
 the proletarian masses to a share of legislative benefits adapted 
 to their needs. In the other aspect, that of its specific institutions, 
 we see the interior transformations. The law of Family, Property, 
 Succession, and the rest, as the centuries pass on, exhibits the 
 transforming influence of the several periods, and in turn reacts 
 upon those influences. 
 
 § 3. The Fixed and the Mobile Parts of Law. Underneath the 
 mobility of Law, there is nevertheless a part that is fixed or 
 constant. Evolution, though we refer to it as something espe- 
 cially fluctuating, is after all, as we seek to discover it here, pre- 
 cisely this permanent body of principles. Law is both one and 
 many ; one, by nature, but many, incidentally. It contains a Sub- 
 stance, which is immutable, and a Form, which is forever changing. 
 Cosmic principles lie hidden beneath the undulating surface of 
 historical events. It is the combination and contrast of Being and 
 Becoming, " Idem sed aliter." One may plumb its depths unceas- 
 ingly, but it is as inexhaustible ; just as Nature itself, creating yet 
 devouring, leaves almost nothing extant, from one millennium to 
 another, of that which formed our nourishment or our pleasure, 
 throughout the vast panorama of living things, animal or vegetable. 
 
 The constant element in Law is found in its permanent struc- 
 ture. A particular law cannot be conceived without the four 
 elemental features of subject, object, relation, and coercion ; any 
 more than one can conceive of the elementary processes of arith- 
 metic without the inherent rules which govern them. This part 
 of Law belongs among the great instincts of every race, as immu- 
 tably as the instincts of Religion, of Art, or of Language. Law 
 may thus be said to be emancipated from the conditions of Time ; 
 it is a permanent whole, — a perdurable rock upon which the 
 waves of circumstance beat in vain. 
 
670 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 The mobile element in Law is found in the indefinite variations 
 of particular institutions. It is the limitless reserve army of the 
 law. Inexhaustible in its youthful levies, and destined to a 
 stubborn decrepitude, it is eternal and yet contingent in its ex- 
 istence. At first full of valor and life, it is overcome by fatigue, 
 then worn out. It reveals itself in a rosary of new formations; 
 or rather, in a single tree-trunk sending forth its many shoots^ 
 Darwin named this phenomenon Transf ormism ; Bossuet, the 
 law of Change ; Heraclitus, the law of Flux and Reflux. Law's 
 pace is now a walk, now a gallop; sometimes it turns slowly, 
 sometimes it suddenly reverses in its career, again it leaves the 
 path with the mad velocity of a kinetoscope. 
 
 Constant yet mobile, Law is permanent in its elements, yet 
 changeful in its successive products. 
 
 § 4. Schematic Representation of Evolution of Law ; Theory 
 of Jural Progress. Law, in its most normal aspect, would evolve 
 in harmony with the epoch, of which it represents the welfare. 
 Laws may often be seen (in Ihering's phrase) piling up like the 
 clouds in the sky when it is overcast; but when, instead, the 
 clouds pass rapidly on without leaving a trace, laws of this sort 
 may be left aside as the waste and debris of History's labors. 
 
 But is the evolution constantly in the direction of progress, i,e. 
 from the less good to the better ? Is there a constant ascendency ? 
 
 This question one must hesitate in answering. We are conscious, 
 to be sure, of an optimistic tendency to believe easily in Progress ; 
 and the evidence which this mere instinct offers is not to be de- 
 spised. But there are many facts which are only ambiguous or 
 puzzling in their meaning. After all, has our life or our universe 
 a meaning? Need they have one? Opinions here are contra- 
 dictory enough; and the greatest names are found arrayed in 
 opposing philosophies. It may be true that the most obvious 
 aspect of the universe is a Becoming — that " perpetuum mobile " 
 above referred to; but doubts and controversies begin when we 
 seek to discover whether among the various elements of this 
 panorama there are relations of cause and effect, — whether 
 there is any organic series, either progressive or regressive or both 
 {i.e. a mixture of forward and back again), or whether it is all 
 merely a kaleidoscope, a succession of phenomena having no other 
 bonds between them than the events of a dream. 
 
 One theory advanced is that of Deviations and Recessions; 
 another is that of alternating Integrations and Differentiations. 
 The former theory plots the succession of events in a line con- 
 
Chap. XXVI.] THE PERPETUAL EVOLUTION OF LAW 
 
 671 
 
 stantly ascending in space. The latter theory plots it in an 
 undulating or an angled line, made of ups and downs ; a progress 
 and a regress, to which Pascal's striking description would apply : 
 " Two steps forward, then one step back ; hesitation followed by 
 rest ; then three steps forward and one step back ; then a stop ; 
 and then finally ahead again." 
 
 Vico's theory represents the line as a periplus (the course of a 
 navigator circling a sea-shore), a cycloid, a line which returns by 
 a circle to its beginning, thence to start once more over the same 
 path ; but is not this figure a discouraging one ? 
 
 De Greef proposes a helicoid line, i.e., a spiral which ascends 
 straight over itself. Other philosophers depict evolution as a 
 parabola, emerging from the mystery of the past and disappear- 
 ing in the mystery of the future. Each of these hypotheses is 
 supported by numerous data. While optimism, incurably hope- 
 ful, tends to possess the unthinking many, the philosopher pro- 
 claims a pessimistic interpretation, and takes a melancholy pleas- 
 ure in pointing to the setbacks and the antitheses which abound 
 in history. 
 
 In Goethe's conception (showing that inspiration of genius which 
 is analogous to the no less mysterious insight of instinct), the de- 
 velopment of the universe in time is portrayed in a symbolic 
 figure which to my mind best takes account of the vast varia- 
 bility of things, especially in Law, and marks their prophetic 
 tendencies. His figure is that of a rising spiral, whose curve 
 broadens as it rises. 
 
 ^xctfs_C^ 
 
 De Q-eef s Spiral 
 
 Goethe's Spiral 
 
672 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 Humanity does indeed return upon its path ; and at first sight 
 this return seems to be as barren in its achievements as in its hopes, 
 — a retui-n to the starting-point. But the return-path leads to 
 a higher stage and has a broader diameter. Perhaps there is to 
 be a highest point, whence by regression and continual descent, 
 corresponding to the gradual rise, the maximum development 
 will be followed by a decadence. But in its entirety the phenom- 
 enon cannot be measured in a single people's birth, growth, and 
 death ; we must include in our observation the collective peoples 
 of each race. The torch of civilization is passed on from one to 
 the other ; and the continuity of their achievement is interrupted 
 in appearance only by the death of one and the rise of the next. 
 The pomp and glory of Greece and Rome are gone from our eyes ; 
 but upon the same path which they trod in triumph we now see 
 their successors — their descendants, in truth — the nations of 
 modern Europe. In them still lives the Greek and the Latin 
 soul. And this survival explains the tenacious instinct of the 
 moderns to maintain so thoroughly, in education, the study of 
 ancient life and language. 
 
 To illustrate : Primitive communal property, held by the tribe 
 or the family, passed into the stage of individual property, and 
 now tends once more in the direction of collective ownership. 
 But this apparent reversion to the original form has a real differ- 
 ence ; it is more altruistic, because it now aims to share the benefits, 
 not merely, among a tribe or a family, but among the entire com- 
 munity. Again, when a member of the primitive group died, his 
 goods went to the whole group, the " gens." But now, the same 
 principle, though once more to be seen in the movement for the 
 abolition of inheritances, would result in a transfer of the goods 
 to the whole nation. In procedure, the decision of a controversy 
 over rights was formerly left to personal feud, and afterwards to 
 the judicial duel. Now, it is once more decided by a contest and 
 a duel, but in this stage the combat is the intellectual one of 
 counsel at the bar. In the primitive "wergeld" of the Germanic 
 tribes, the blood-price, the purchase of peace after wrong done, 
 was fixed by a schedule of different amounts for different injuries ; 
 now it recurs in the form of damages or penal clauses in contracts, 
 shorn of its primitive crudeness. 
 
 And so one could review all the institutions of the past, compare 
 them with those which succeeded and are yet to follow, and verify 
 their series by the criterion of Goethe's spiral. And the result 
 would plainly show us that, out of the chaos of historical facts, 
 
Chap. XXVI.] THE PERPETUAL EVOLUTION OF LAW 673 
 
 prodigiously varied though it be, there emerges the plausible 
 conclusion that in the law, as elsewhere, there is progress. 
 
 § 5. Abstract and Concrete in Jural Evolution. We should 
 not confuse the tramformation of law with the history of law. 
 Together, they constitute evolution in its entirety. But the 
 former concerns the abstract and permanent principles of jural 
 change, the general and encyclopedic and philosophic structure 
 of their movement in time. The latter concerns the concrete 
 facts and instances in which this transformation materializes 
 and realizes itself, — its biologic results in the different peoples 
 and periods. 
 
 This life that moves within each specific legal institution must 
 not be misconceived. We are not to think of each institution, in 
 relation to its predecessor, as forming a succession cf fragments 
 welded one to the other; it is the same institution, pushing on- 
 wards and developing in forms inseparable from that development. 
 The branch of a tree (as Reclus tells us) is not simply one piece 
 added to lengthen another. The flower is not simply the pro- 
 longation of the leaf, nor the pistil of the stamen. The ovary 
 differs from the organs which produced it ; the son is not merely 
 the continuation of the father or the mother. The genealogic 
 tree of humanity, like the tree in nature, is a unity of branches 
 each of which finds its strength and life in the sap which nourishes 
 the whole. So in Law, each new form needs the prior one, but 
 differs from it ; the sap is one and the same intrinsic power which 
 nourishes all the parts and leads to their unfolding. In evolution, 
 all the phenomena of law imply at the same time both death and 
 life ; hence the opposing views of their nature and value. Each has 
 it obverse and its reverse. New law both differentiates and con- 
 tinues that law which it supplants, in the endless being of human 
 life. 
 
 § 0. Epochs in Legal Evolution ; the Mistake of Legislating 
 en bloc. Law in each epoch differs; and this diversity is the 
 manifestation of evolution. All the factors ^ of evolution, operat- 
 ing in a general and convergent process, issue in results which are 
 constantly new yet systematic. Man in prehistoric law has 
 little resemblance to jural man of to-day. Each period is an orig- 
 inal, not a copy ; each epoch has its own law. 
 
 The epoch is not, strictly speaking, itself one of the factors; 
 it is rather their visible result. It is an external and concrete 
 
 ^ (See this author's chapter on " The Factors of Evolution ", chap. IV 
 of this volume. — Ed.] 
 
674 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 mark of the point reached in jural growth. It is a round in the 
 ladder. It is the surveyor's pole marking a stride forward, — 
 a stride which had its necessary support in the former one and it- 
 self makes possible the next one. Without this stage, one could 
 not quicken the arrival at the next, nor expect to pass over some 
 obstacle by a digression of twice or four times the distance. 
 
 The epoch influences law, not only by its advance, but also by 
 its delay. It is both whip and brake for the law's stagecoach. 
 When a people, therefore, has arrived at a certain point in the 
 evolution of its law, it is impossible to change that law at a single 
 stroke. Conversely, it is impossible to hold it fast and to chain 
 it at that point. 
 
 The mere enumeration of the most noticeable factors that con- 
 trol evolution,^ their multiplicity, the difficulty of forecasting or 
 even of detecting their influence, the fateful operations of their 
 intricate mechanism, — these considerations teach us plainly 
 the error of believing that a complete system of law can be newly 
 devised and established by some ambitious legislator. Rousseau 
 in his conceit drafted an entire constitution for Poland (where, 
 to increase the paradox, none had before existed). The idealist 
 leaders of Socialism — Saint-Sinjon, Fourier, Cabet, and the rest 
 — believed that they were erecting monuments of wisdom which 
 would defy the storms of centuries, — instead of fragile and pic- 
 turesque structures of the imagination which (like the temporary 
 buildings of an international exposition) were torn down after 
 the brief popularity of their day. The same delusion leads us, 
 in history, to credit Solon and Lycurgus and Moses with the 
 spontaneous creation of legal systems; yet these sages, far from 
 inventing novelties, really achieved no more than Justinian or 
 Napoleon, i.e. they gave a system and coordination to jural facts 
 already existing and adapted them to the epoch. Similar sophis- 
 tries misled the French Revolutionists; but the speedy and ir- 
 resistible revival of many of the abolished institutions revealed 
 the vanity of the illusion. Law cannot be revised by the mere 
 fiat of decrees enacting theories. Law must rise from below, 
 like the plant from its seed — not descend from above, like the 
 thunderbolt from the sky. 
 
 A people can assimilate only such a law as could have emanated 
 
 from that people itself. Artificial fertilizations of it never succeed. 
 
 The dictatorial idea of law is exactly opposite to the truth. Law 
 
 exudes from the people itself, — the resultant of convergent and 
 
 1 [Ante, chap. IV of this volume. — Ed.] 
 
Chap. XXVI.] THE PERPETUAL EVOLUTION OF LAW 675 
 
 commingled factors, some palpable and some invisible; but the 
 dictatorial conception of law would have it dart out metaphysically 
 from one or more master minds and impose itself on the com- 
 munity. Such a process is impossible ; for it is contrary to Nature. 
 In law, as in art, one must '' please the public." 
 
 The formulation of positive law is similar to the instinctive 
 activities of bees or ants ; thousands of beings are laboring to the 
 same end, without concert or plan, and yet governed in their puny 
 energies by a destiny as rigid as that of the stars in their glory. 
 We like to believe that law is a product of intelligence and volition. 
 Perhaps this illusion has been implanted in us by the cosmic 
 engineer, as a necessary cog for that purpose. Certain it is, at 
 any rate, that human personality possesses a jural energy inde- 
 pendent of any one of the specific legal systems — a power that 
 is the matrix of them all. Law is a natural function common to 
 humanity, not a special privilege for a few predestined ones. 
 We all perform our several shares in this tremendous jural task, 
 without quite understanding what our role is. He who believes 
 that he alone was endowed with an aptitude for it should reflect, 
 with chagrin, that his misguided efforts are merely despoiling 
 society at large, for his own personal gain, of one of its most 
 obvious and most vigorous talents. 
 
 § 7. Ordinary Path of Jural Evolution. When we attempt 
 to synthesize the details of any particular jural evolution, its 
 path ordinarily appears to proceed from a so-called savagery, 
 through a barbarism, to a civilization. These stages represent 
 the dawn of law, its morning, its noon, and sometimes its dusk. 
 A typical example may be seen in property in goods. It starts 
 with a family-community of ownership, then becomes a village 
 community (or horde, clan, tribe), and emerges in a national 
 community of ownership (as in the modern collectivist theory) ; 
 it has passed from the one to the other, with individual ownership 
 as a lateral and intermediate form. And the latter apparently 
 serves to pave the way for absorption by the State and its succes- 
 sors, in that it leads to an excessive capitalist concentration of 
 property in the hands of individuals or of corporations. 
 
 Comte advanced a different formula, not specifically for law, 
 but for social evolution as a whole. Humanity started, he main- 
 tained, in the religious stage, passed on through the metaphysical, 
 and arrived finally at the positivist or realistic stage. This prin- 
 ciple does indeed find verification in most instances ; except that 
 it appears more applicable to the thinking elite than to the masses ; 
 
676 PROCESS OF LEGAL EVOLUTION ^ [Part III. 
 
 for, in the latter, the metaphysical stage can hardly be distin- 
 guished. The truth is that the masses are always close to the 
 realities of life, — in other words, they are always positivist, in 
 differing degrees of intensity, especially in the law; the strong 
 element of religiosity which they possess at the outset arises from 
 their incapacity to comprehend and measure the mysterious and 
 terror-striking forces which govern the world; for the primitive 
 mind is keenly alive to their pressure without understanding 
 their nature. 
 
 In history, then, Law does not repeat itself, except for its per- 
 manent elements, which are abstract or universal. Its various 
 stages, forever changing, rest on one great immovable base. Its 
 changes follow the new interests and necessities of life. The 
 jural elements keep rising one out of the other. The organism 
 develops by reason of its inward energy. Its birth and growth 
 follow the uterine and embryonic life of the rudimentary jural 
 principles. There is a succession of eliminations and assimila- 
 tions, like the secretions and exudations of physiology. In law, 
 as in all evolutions, the death-shroud of departing principles serves 
 as the swaddling-cloth of the new born, — death and life succeed- 
 ing each other every moment. 
 
 But these jural periods are not necessarily of the same duration 
 in all systems. Instead of a synchronism, there is a certain 
 heterochronism. Usually this takes the form of an acceleration, 
 i.e. the periods are constantly shorter as the development pro- 
 ceeds. This feature may be seen in the vast productivity in legal 
 systems to-day, as compared with the slow and moderate pace of 
 earlier systems. Never before did the wheel revolve with such 
 velocity. 
 
 Sometimes, indeed, the intermediate stages escape our observa- 
 tion. Hiatuses appear. It is the task of science to fill these by 
 its hypotheses. Sundry ingenious attempts at reconstruction 
 bear witness to the fulfilment of this task, especially in the realm 
 of primitive law. 
 
 But we must look upon the records of former jural stages merely 
 as documents to be consulted, not as models to be followed. At- 
 tempts at the resurrection of earlier types are as dangerous and 
 as futile in the domain of law as in that of art. The beauteous 
 things of the dead past may excite our admiration and enthu- 
 siasm, but should not tempt us to restore them. That they lie 
 cold and lifeless in their tombs is to our gain, not our loss. This 
 at least we may assert for the Europeo-American race, ever a 
 
Chap. XXVI.] THE PERPETUAL EVOLUTION OF L.\W G77 
 
 progressive one. Moreover, it is not merely our ideas that have 
 progressed, but probably (as modern research shows) our very 
 brain-matter has changed and become more sensitive and our 
 cranial dimensions have enlarged. How, then, with these in- 
 struments subjectively altered, can we expect to comprehend 
 accurately the significance of tasks achieved by our ancestors 
 with different brain-tools long since in the grave? 
 
 Posterity, then, will always have a different conception — pos- 
 sibly a better one — than contemporaries of the reasons for the 
 law of a prior epoch. The penalties of criminal law were, at the 
 outset, nothing but a satisfaction of the sentiment of vengeance, 
 the '* talio ", a brutal reflex-action ; later, they took on the char- 
 acter of expiation, ensuring to the offender peace after death, 
 and accepted as such by him with resignation and even with glad- 
 ness ; to-day, they are looked upon merely as a measure of restraint 
 and of social defence, meant to influence and curb in advance the 
 impulse to crime. So, too, the Crusades, in the time of Peter 
 the Hermit and St. Louis, were aimed, in the thought of men of 
 those days, solely at the deliverance of the holy places of our 
 religion, in testimony of the touching story of God who became 
 man, of his birth and cruel death ; but to-day, history reveals 
 them as an episode in the immemorial struggle of Aryan against 
 Semite, destined to ensure the mutual independence of the two 
 races. And when Philip H of Spain expelled the last of the Moors, 
 he was moved only by religious fanaticism ; but we are now 
 beginning to understand that this was simply the last belated 
 and futile effort of Spain to cleanse itself of those African infiltra- 
 tions which forever destroyed the purity of its Aryan stock and 
 apparently have led to its irremediable decadence, from the 
 European point of view. 
 
 § 8. Importance of the Historic Aspects of Law. To sum up : 
 Out of that vast cosmic reservoir in which Law lies latent in a 
 potential stage, arises constantly the Law in its positive stage, 
 changing as history changes. This inexhaustible reservoir of 
 indestructible energy supplies the entire jural nourishment of 
 the human race, without ever slacking, throughout the diversity 
 and breadth of space and time. Law diffuses itself thence, through 
 human brains, with the same regularity and inevitableness as a 
 shadow lengthens along a wall. It flows into the realities of 
 history, distributing itself in varied quantfty and quality, and ex- 
 panding constantly in its action, like all the other cardinal forces 
 of Nature. Law exhibits forever new depths, which our minds 
 
678 PROCESS OF LEGAL EVOLUTION [Part III. 
 
 strive to penetrate. History is full of guesses and hypotheses. 
 Some are verified; others are found to be false and disappear. 
 But Law's activity never tires and never exhausts itself. 
 
 All of which demonstrates the importance of jural history for 
 the valuation and criticism of to-day's law and for our prepara- 
 tion to meet its new changes. Since it is a continuous new crea- 
 tion, how can we comprehend the coming parts of the series if 
 we do not understand the prior links? With a clear view of the 
 past, we are well instructed in the future. We must sense the 
 evolution of Law. Otherwise, our knowledge lacks both clearness 
 and permanence. Our work is done at random, amidst the dark- 
 ness of our guesses, on an ocean of chimeras. 
 
 Yet we cannot expect to forecast with certainty for more than 
 a brief space into the future. The past of Law, as it is known to 
 us, is too short; the visible curve of jural forces is but a small 
 fragment of the whole. Its beginning and its end are alike wrapped 
 in obscurity. No positive projection of its entirety can be 
 calculated. History (as some sceptic has wisely said) may be 
 perhaps no more than a momentary deviation which we mistake 
 for a part of the normal line of evolution. Is Law's path, as we 
 see it, merely that of a wandering comet, or that of a harmonious 
 planetary system? Law, and the innumerable legal systems 
 which go to make it up, abounds in accidents (as languages do) 
 which deviate from logical symmetry. The irrational (or what 
 seems to us as such) plays a vast part in the operations of the cos- 
 mos, and is the most misleading of its enigmas. 
 
 But, at any rate, we may trust that the future holds in reserve, 
 as a continuation and natural blossoming of the jural institutions 
 of the present, better forms than any of those known to us, — 
 better perhaps than those of any Utopia. We may look forward 
 to new days on other planets, inhabited by other humanities, 
 to undisclosed riches of jural force, — a force which never is para- 
 lyzed in disease or death, — which leads to a purpose never finite 
 and fixed, but ever moving onwards. The majesty of this force 
 makes for the philosophy of law its kinship with poetry as well 
 as with science. Petty minds may be terrified by these overwhelm- 
 ing prospects, and may see in them the omens of catastrophe. 
 But in truth they signify that normal and divine equilibrium of 
 Law's evolution, which, like all Nature's evolution, only inspires in 
 great souls the solemn gladness recorded in the lines of Lucretius : 
 
 " Cedit enim rerum extrusa vetustas 
 Semper, et ex aliis aliud reparare necesse est." 
 
INDEX 
 
 [References are to pages] 
 
 Abban, II, 424 f . 
 
 Abortion, general practice of, among 
 
 the Kaffirs, i, 316, 318; in, 228, 
 
 230 f. See Infanticide. 
 Accadian Laws, i, 385 f. 
 Accident, no primitive distinction 
 
 from Design, ii, 140 f. 
 AccusatioD, false, punished by 
 
 death, i. 387 '^Bab.) ; of sorcery, 
 
 I, 389 (Bab.) ; of adultery, i, 413 
 (Bab.) ; against absent person, i, 
 504 (Lex Sal.). 
 
 Actio, famosa, ii, 358; legis, i, 620 
 f., II, 516 f., n, 586 f., ii, 597, ii, 
 670 f . ; per judicis postulationem, 
 
 II, 672 ; per condictionem, ii, 673 
 f . ; per manus injectionem, ii, 
 
 674 f. ; per pignoris capionem, ii, 
 
 675 f . ; redhibitoria, ii, 434 ; Ser- 
 viana, in, 623. 
 
 Actiones famosae, ii, 358. 
 
 Acts, distinction of intentional and 
 unintentional, not recognized in 
 primitive society, ii, 129 f. ; no 
 distinction between accident and 
 design, ii, 140 f. ; formal charac- 
 ter of, II, 645 f. ; punishment of, 
 indiscriminate, in, 186. 
 
 Adams, Brooks, Views of civilization 
 and decadence, in, 11. 
 
 Adelphiarehy, i, 265 (Son Indians). 
 
 Adhramire, in, 601. 
 
 Adoption, i, 149 (Iceland); i, 249 
 (Eskimos); i, 267 f. (Sen In- 
 dians) ; I, 281 (Wyandots) ; pre- 
 cedes marriage among Wyandots, 
 
 I, 284 ; of prisoners, i, 290 (Wyan- 
 dots) ; I, 291 (Wyandots) ; regu- 
 lations among the Fantis, i, 326 ; 
 in Babylon, i, 426 f . ; laws of 
 Gortyn, i, 462; deed of, i, 683 
 (Bab. Doc.) ; of captive children, 
 n, 80, II, 130 note; of murderer 
 into the clan, ii, 82; religious 
 character of, n, 105 ; fiction of, its 
 importance for civilization, ii, 
 176; and artificial relationship, 
 
 II, 341 f. (Kohler); religious 
 
 basis of, II, 344 f. (Fustel) ; effect 
 
 of, on inheritance, ii, 548 f., ii, 
 
 561 ; fiction of, in, 660. 
 Adstantes, ii, 653. 
 Adultery, unknown in Sparta, i, 69 
 
 (Plutarch) ; rare among Germans, 
 
 I, 105 (Tacitus) ; offense on part 
 only of wife, i, 317 (Kaffi.rs) ; paci- 
 fication fine for, i, 335 (Fantis) ; 
 wife cast into river, i, 386 (Ac- 
 cadia) ; punished by drowning, i, 
 412 (Bab.) ; accusation of, by 
 husband, i, 413, n, 303 note 
 (Bab.) ; ordeal to prove inno- 
 cence of, I, 413 (Bab.) ; i, 496, ii, 
 316 f. (Manu) ; adulterer must 
 provide another wife, i, 515 
 (iEthel.) ; among savages, ii, 
 272 ; in Athens, ii, 328 ; in China, 
 
 II, 319 ; in Egypt, ii, 310 note. 
 Aetleidung, n, 342. 
 
 Affatomie, ceremony of, i, 506 (Lex 
 Sal.) ; II, 653 (Heusler). 
 
 Agency, i, 406 f. (Bab.). 
 
 Ager privatus, in, 249. 
 
 Ager pubUcus, in, 249 ; in, 614. 
 
 Agnates, succession of, i, 466 (xii 
 Tab.); ii, 213, n, 537; distin- 
 guished, II, 189 ; II, 197 f . ; n, 297 
 f.; II, 354; ii, 381, 385, 391; ii, 
 487. 
 
 Akarita, in, 136, 138. 
 
 Alcheringa, the, i, 219, 226, 227, 229, 
 230 note, 233, 235. 
 
 Aliens, legal position of, in ancient 
 world, n, 110; relation of, to 
 commerce, ii, 407, 415, 420; 
 market protection of, n, 428 f. ; 
 use of ordeal by, n, 613. 
 
 Allmend, in, 549, 551. 
 
 Allod, II, 391 ; n, 564. 
 
 Althing, the, i, 124, 137 f., 142 f., 
 148 f., 155 f., 179 f. ; law and cus- 
 tom of, I, 197, 201; as a tribal 
 assembly, n, 127. 
 
 Ambachten, in, 565. 
 
 Ambilian marriage, in, 106 f. ; rela- 
 tion of, to relationship systems, in, 
 109 f . ; relation to domestic power, 
 
 679 
 
680 
 
 INDEX 
 
 III, 112; relation to property, iii, 
 112; relation to obligations, iii, 
 113; relation to inheritance , iii, 
 117; relation to political institu- 
 tions, III, 119; relation to penal 
 institutions, iii, 119; relation to 
 procedural institutions, iii, 121 ; 
 causes of, iii, 124 f. ; connection 
 of, with gentilic society, iii, 126 ; 
 summary of relations to other 
 jural institutions, iii, 127 f . 
 
 Analogy, value of, ii, 171 (Maine). 
 
 Anaya, ii, 430, iii, 497 f. 
 
 Ancestors, worship of, succeeded 
 totemism, ii, 88. 
 
 Andamanese, administration of jus- 
 tice, II, 130 ; family relations, ii, 
 243, 251 ; penal law, ii, 130 note. 
 
 Anglo-Normans, forms and organs 
 of law among, iii, 155. 
 
 Animals, injuries by, laws of Solon, 
 I, 86 (Plutarch) ; i, 436 f. (Bab.) ; 
 
 I, 467 (xii Tab.) ; i, 488 (Manu) ; 
 laws concerning, i, 549 f . (Welsh) ; 
 punishment of, ii, 143 ; societies 
 of. III, 268 f. ; mammals, iii, 275 ; 
 societies of, analogous to primitive 
 human societies, iii, 283 f . 
 
 Antenuptial debts, i, 417 (Bab.). 
 
 Antomosia, ii, 624 f . 
 
 Appius Claudius, iii, 189. 
 
 Arbitration, i, 145, 164, 208 (Ice- 
 land) ; I, 23 (Homer) ; by the 
 elderwoman, i, 259 (Seris) ; early 
 courts of, priestly, ii, 575 ; func- 
 tion of Pontifices in, iii, 198 ; and 
 guaranty in the origin of law, iii, 
 485 f. 
 
 Archaeology, and the village com- 
 munity, II, 397. 
 
 Archon, ii, 580. 
 
 Areopagus, council of, i, 591 ; gods 
 as judges of court of, i, 601. 
 
 Aristocracies, as depositaries of law, 
 
 II, 167 (Maine). 
 
 Aristotle, ideal code of, ii, 93 ; ii, 99, 
 102 ; the family as the unit of the 
 State, II, 196; iii, 364 f . ; on 
 slavery, iii, 468. 
 
 Arrha, ii, 652 f. 
 
 Artificial relationship, gossipry, i, 
 192 (Iceland) ; survey of, ii, 341. 
 See Adoption. 
 
 Ashkeray, ii, 423 f. 
 
 Assembly, the, i, 3, 4, 9, 30, 32, 57 
 (Homer) ; i, 101 (Tacitus) ; i, 
 124, 137, 142, 148, 155, 179, 197, 
 201 ; II, 127 (Iceland) ; ii, 596. 
 
 Assessors' courts, ii, 579. 
 
 Asturaro, on the economic factor of 
 law. III, 184, 192. 
 
 Asylum, i, 60 (Plutarch) ; in, 608. 
 See Sanctuary. 
 
 Atavism, as a factor of legal evolu- 
 tion, III, 176 (Picard). 
 
 Atkinson, ii, 216 f. 
 
 Atonement, i, 11 f., 17 (Homer); 
 for accidental killing, i, 467 (xii 
 Tab.) ; for murder, in the clan, ii, 
 82 ; no money, for death of Roman 
 citizen, ii, 125. See Blood Re- 
 venge and Composition. 
 
 Attorneys, unknown in ancient Ger- 
 manic law, II, 644 ; in China, etc., 
 II, 702, 704. 
 
 Auflassung, in pledge, ii, 461, 467, 
 468 f. 
 
 Augury, relation of, to ordeal, ii, 676. 
 
 Austin, criticism of his theory of 
 law, II, 165 (Maine). 
 
 Avenger of Blood, ii, 141 f. See 
 Blood Revenge. 
 
 Award, in arbitration, i, 166, 208 f. 
 (Iceland) ; i, 23 (Homer). 
 
 Babylon, laws, i, 387 f. ; trials, i, 
 581 f. ; documents, i, 680 f . ; 
 family institutions, ii, 301 f . ; 
 penal justice, ii, 134, 136, 139 
 note, 142; commercial law, ii, 
 413, 416 note, 419 ; procedure, ii, 
 654. 
 
 Bachof en, i, 204 ; iii, 353. 
 
 Bacon, m, 316. 
 
 Ba^ehot, in, 318, 338 ; on the Use 
 of Conflict, III, 451 f . ; the mys- 
 tery of progress, in, 451 f . ; in, 
 554. 
 
 Bailment, i, 435, 438 (Bab.) ; i, 483 
 
 ■ f. (Manu). 
 
 Bancroft, in, 380. 
 
 Banking, origin of, n, 412 f. 
 
 Barbarism, patriarchy and nomad- 
 ism concur in, n, 74; definition 
 of, II, 83; classified, in, 23, 47 
 (Morgan) ; invention of pottery 
 separates, from savagery, in, 50 
 (Morgan) ; in, 52 f. (Sutherland). 
 
 Barter, i, 8 (Homer) ; of slave 
 won at gambling, i, 108 (Taci- 
 tus) ; origin of, n, 407 f. (Gold- 
 schmidt) ; survey of law of, n, 
 435 f . (Kohler) ; in primitive soci- 
 ety, II, 439 f. (Somld) ; in boy 
 society, in, 343 f. (Johnson) ; in, 
 632. 
 
 Bartolus, in, 645. 
 
 Basutos, villages of described, ii. 
 401 f. 
 
 Battle, wager of, i, 130, 135, 138 
 (Iceland) ; marriage by, n, 81 ; a 
 refinement of the blood feud, n, 
 148, 280 ; n, 588 ; not widespread. 
 Ti, 691. 
 
INDEX 
 
 681 
 
 Beneficium excussionis, ii, 479. 
 
 Bentham, criticism of his theory of 
 law, II, 165 (Maine) ; criticism of 
 fictions, II, 176; criticism of idea 
 of sovereignty, in, 492. 
 
 Bernhoft, ii, 59 ; ii, 205. 
 
 Bet, element of, in pledge, ii, 
 457 f. 
 
 Bill of exchange, formalism of, ii, 
 649. 
 
 Biologic factor, in, 267 f. 
 
 Bio-psvchical cause of law, iii, 195. 
 
 Blacks*tone, ii, 594, 597 ; in, 216. 
 
 Blood feud, purchase of, i, 17, 18 
 (Homer) ; i, 139 f., 143 ; followed 
 by the next of kin, i, 144, 150 f., 
 152 f., 177; I, 158, 162, 164 f. ; i, 
 167 ; I, 207 f . (Iceland) ; an alter- 
 native remedy among Wyandots, 
 
 I, 287 f . ; a religious duty, n, 124 ; 
 as regulated vengeance, n, 133 f . ; 
 relation to economic facts, in, 184. 
 See Blood Revenge. 
 
 Blood fraternity, i, 290 (Wyandots) ; 
 
 II, 341, 343. 
 
 Blood price, i, 23 (Homer). 
 
 Blood revenge, i, 55 (Homer) ; 
 among the Germans, i, 106 (Taci- 
 tus) ; I, 167 f. (Iceland); chief- 
 tainry prevents, ii, 97 (Kohler) ; 
 obligation of, in primitive society, 
 II, 133; avenger of blood in He- 
 brew law, n, 141 f. ; n, 145 ; 
 blood fraternity (q.v.) as starting 
 point of, n, 343; for death of a 
 merchant, n, 423 f. ; among the 
 Semites, ii, 655 f. ; in, 412. 
 
 Bonorum possessio, n, 571. 
 
 Bossuet, in, 380. 
 
 Bote, I, 513 f. (JEthel); certain 
 offenses not subject to, n, 135 f . ; 
 distinguished from \\'ite, n, 147. 
 
 Boundaries, god of, i, 77; n, 428; 
 law of, I, 488 f. (Manu) ; estab- 
 Hshed by religion, n, 105; of- 
 fender against, sacer, n, 132 note ; 
 II, 368 f. 
 
 Bracton, n, 595; in, 376. 
 
 Brehm, in, 276, 279, 285, 308. 
 
 Brehon Laws, retaliation in, n, 123 ; 
 tribal assembly in, n, 125 f. ; dis- 
 tress in, II, 599 f . ; compared to 
 law of Ossetes, in, 169 ; compared 
 with Roman law, in, 420. 
 
 Briborv, in lawsuits, i, 148 (Ice- 
 land); I, 390; I, 450 f. (Egypt); 
 II, 665 (Bab.). 
 
 Bride price, i, 33, 48 (Homer) ; n, 
 302 f. 
 
 Bridges, in, 556. 
 
 Brokers, origin of, n, 407 f. (Gold- 
 schmidt) ; evolution of, n, 425 
 (Koehne). 
 
 Brother and sister marriage, i, 40, 
 41 (Homer) ; n, 308 (Egypt). 
 
 Bryce, on the Influence of National 
 Character and Historical Environ- 
 ment, in, 369 f. 
 
 Biieher, II, 446, 448; classification 
 of societies, in, 8, 38 f. 
 
 Buckle, III, 198, 203, 352. 
 
 Building contractors, regulation of, 
 I, 433 (Bab.). 
 
 Burden of proof, on defendant in 
 primitive law, i, 291 (Wyandots) ; 
 I, 302, 314; n, 695 (Tarde). 
 
 Biirgergemeinde, in, 549 f. 
 
 Burial, law of Solon regulating, i, 84 
 (Plutarch) ; ceremonies of, in 
 Gaul, I, 92 (Caesar) ; among the 
 Germans, i, 108 (Tacitus) ; con- 
 tributions to pay for, i, 331 (Fan- 
 tis); I, 468 (xn Tab.).^ 
 
 C 
 
 f. 
 
 C^SAR, commentaries, 
 
 Camorra, in, 239. 
 
 Capio, I, 381 ; n, 606. 
 
 Capital, investment of, i, 126, 127, 
 132 (Iceland) ; i, 406 (Bab.). 
 
 Capitis deminutio, n, 353 (Sohm). 
 
 Capito, III, 365, 420. 
 
 Caravens, history of, ii, 409 f. 
 
 Carlyle, in, 462. 
 
 Carriers, regulation of, i, 408, 434 
 (Bab.); i, 481 (Manu). 
 
 Cartularium Langobardicum, ii, 652, 
 654. 
 
 Case-law, Kaffir, i, 299, 314. 
 
 Caste system, i, 470 f . (Manu) ; ii, 
 172; II, 441 f. 
 
 Catalogue of peoples, in, 3 f. 
 (Steinmetz). 
 
 Causa civihs, in, 628 f. 
 
 Cautio, II, 516 ; in, 624. 
 
 Ceremonial acts, i, 223 f . (totemic) ; 
 I, 283 (tribal council) ; i, 307 f. 
 (marriage) ; i, 381 f., 507 f. (en- 
 forcing payment) ; i, 506 (trans- 
 fer of property) ; i, 510 (Chrene- 
 cruda) ; i, 660 (ordeal) ; n, 499, 
 506 (contract) ; n, 518 (sale) ; 
 n, 567 (will); i, 620 f., n, 587 
 (procedure) ; origin of, n, 649 f. ; 
 in, 602 f. 
 
 Cessio in jure, n, 522; in, 623, 
 631. 
 
 Chamberlain, on the Race Factor in 
 Legal Evolution, in, 355 f. 
 
 Champion^re, Simon de, on enmity 
 of lawyers to working classes, in, 
 261. 
 
 Chefeites, ii, 50. 
 
 Cherry, Richard R., on Primitive 
 Criminal Law. ii, 122 f. 
 
682 
 
 INDEX 
 
 Chieftainry, among the Germans, i, 
 102 (Tacitus) ; i, 123 f., 168, 176, 
 180 (Iceland) ; i, 284 f . (Seris) ; i, 
 281 f. (Wyandots); i, 292 f. 
 (Kaffirs) ; in the clan group, ii, 
 78 ; cultural importance of, ii, 96 f . 
 (Kahler) ; in primitive commer- 
 cial law, II, 432. 
 
 Children, rearing of, in Sparta, i, 70 
 (Plutarch) ; laws of Solon, i, 84 ; 
 among the Germans, i, 105 (Taci- 
 tus) ; killing of, I, 228 f. (Aus- 
 tralia) ; betrothal of, among the 
 Eskimos, i, 241 ; Eskimo, i, 246 f . ; 
 belong to the mother, i, 285 
 (Wyandots) ; adulterous, are il- 
 legitimate, I, 338 (Fantis) ; named 
 according to days of the week, i, 
 340 f. (Fantis) ; kidnaping 
 punished by death, i, 393 (Bab.) ; 
 disinheritance of, i, 422 (Bab.) ; 
 of slave, I, 423 (Bab.) ; dowry of 
 daughter of concubine, i, 425 f. 
 (Bab.) ; born after divorce, dis- 
 posal of, I, 455 (Gortyn) ; third 
 sale of son emancipates, i, 466 
 (xii Tab.) ; fine for kilUng, i, 504 
 (Lex Sal.) ; son of surety respon- 
 sible, I, 526 f. (Welsh) ; adoption 
 of captive, ii, 80, 130 note ; father 
 responsible for torts of son, ii, 
 296 ; relation of, to family, ii, 336 
 f . ; betrothal of, rare in ambilian 
 marriage, iii, 126; infanticide, 
 III, 130 f. 
 
 Chinese, legal system, iii, 199, 204. 
 
 Chrenecruda, i, 510 (Lex Sal.) ; iii, 
 601. 
 
 Churinga, i, 219, 224, 225, 231 note, 
 233 ; inherited, i, 234 f . 
 
 Cicero, speech for Milo, i, 623 f . ; 
 religious character of his plan of 
 legislation, ii, 104 ; in, 164, 379 ; 
 orations of, compared with Isaeos, 
 III, 420. 
 
 Cities of refuge. See Sanctuary. 
 
 Citizenship, laws of Solon, i, 86 
 (Plutarch) ; right to bear arms 
 test of, among the Germans, i, 102 
 (Tacitus) ; capitis deminutio, ii, 
 353 (Sohm) ; evolution from 
 ethnic to territorial law of, in, 
 644 f. 
 
 Civilization, phonetic writing as dis- 
 tinctive mark of, in, 51 (Morgan) ; 
 characteristics of, in, 54 (Suther- 
 land) ; beginnings of, in, 454 f. 
 (Bagehot). See Classification. 
 
 Clan organization, i, 258 f., 264 
 (Seris) ; as a state of nature, n, 
 28; leviratical marriage under, 
 n, 29 f . ; based on kinship in fe- 
 male line, II, 74 ; system of rela- 
 
 tionship, II, 76 ; each clan receives 
 totemic name, n, 77; exogamy 
 in, II, 81 ; is basis of all modern 
 civilized States, n, 88; two dis- 
 tinct systems of, ii, 188 ; char- 
 acteristics of, II, 189 f. ; relation 
 to tribe, n, 277. 
 
 Classification, stubbornness of, in 
 ancient law, ii, 388 ; of social 
 types, III, 3 f . (Steinmetz) ; vari- 
 ous systems, in, 16 f . ; natural 
 and artificial, in, 17 f. ; purpose 
 of sociological, in, 20 f . ; attempts 
 at sociological, in, 22 f . ; defini- 
 tion of artificial, in, 24 ; Coste, in, 
 24; Fouillee, in, 25; Ward, in, 
 27 ; Spencer, in, 28 ; Durkheim, 
 III, 31 ; Giddings, in, 33 ; Liszt, 
 III, 36; Hildebrand, in, 37; 
 Biicher, in, 38; Grosse, in, 40; 
 Hahn, III, 41; Le Play, in, 43; 
 Demolins, in, 45 ; Vignes, in, 46 ; 
 Morgan, in, 47 f . ; Sutherland, 
 III, 52 f . ; Comte, in, 58 f . ; Vier- 
 kandt, in, 61 f . ; Ratzel, in, 66 ; 
 plan of sociological, in, 68 f. 
 (Steinmetz) ; nomenclature, in, 
 14; method of, in generalizing 
 data of legal evolution, in, 77 f. 
 (Mazzarella) ; stratigraphy, in, 
 82 ; coefficient of concomitance of 
 legal norms, in, 85 ; general socio- 
 logical, impossible, in, 85 ; ethnic, 
 III, 104. 
 
 Climate, effect of, on law, in, 203. 
 
 Codes, dates of ancient, i, 387 ; 
 Accadian laws, i, 385; of Ham- 
 murabi, I, 387; the Pentateuch, 
 
 I, 443; laws of Gortyn, i, 453; 
 the Twelve Tables, i, 465 ; laws 
 of Manu, i, 469; Lex Salica, i, 
 500 ; iEthelbirht's dooms, i, 512 ; 
 laws of Howel, i, 519 ; contradic- 
 tory content of, explained, n, 107 ; 
 era of, n, 169 f. (Maine) ; as end 
 of spontaneous legal development, 
 
 II, 173; of Narada, law of mar- 
 ' riage in, n, 313 ; in barbarism and 
 
 civiUzation, in, 53 f . ; analogies 
 in, in, 169; code Napoleon im- 
 posed by conquest, in, 171 ; of 
 Lycurgus and of Solon, in, 175; 
 in, 490 ; evolution from oral law 
 to. III, 587 f . ; Swiss, in, 599 f . ; 
 German civil, in, 599; of com- 
 mercial law. III, 611 ; effect of 
 war upon, in, 666. 
 Code Napoleon, n, 609; imposed 
 by conquest, in, 171 ; imitated 
 by Japanese, in, 173; influence 
 of droit ecrit upon, in, 202; on 
 landlord and tenant, in, 258 ; in, 
 260 ; III, 582 ; in, 590 ; character 
 
INDEX 
 
 683 
 
 of, III, 598 f. ; formalism in, iii, 
 605; no commercial law in, iii, 
 611; territorial principle in, iii, 
 645; rights of foreigners in, in, 
 648 ; as written reason, in, 662 ; 
 III, r)(>9. 
 
 Coetlicient of concomitance of legal 
 norms, in, 85 f. (Mazzarella). 
 
 Coemtio, n, 290, 330, 493. 
 
 Cogliolo, criticism of view of, in 
 legal evolution, in, 153 (n). 
 
 Cognates. See Agnates and Kin- 
 ship. 
 
 Collinet, Pol, on sponsio and primi- 
 tive contract, n, 512 f. 
 
 Comitia calata, n, 565 f. 
 
 Comitia curiata, n, 382, 565 f. 
 
 Commenda, ii, 416. 
 
 Commendation, i, 327 (Fantis) ; 
 symbolism in, ii, 653. 
 
 Commensalism, in, 269. 
 
 Commerce, origin of institutions of, 
 n, 407 f. ; rise of sea, n, 410 f. ; 
 evolution of, n, 416 f. ; primitive 
 law of, II, 420 f. 
 
 Commercial honor, n, 414 f. 
 
 Commercial Law, primitive, n, 420 
 f. (Koehne) ; evolution from civil 
 to. III, 610 f. (Grasserie). 
 
 Commercial paper, origin of, n, 412 f . 
 
 Common Law, characteristics of 
 English, in, 369 f. (Bryce) ; race 
 factor in, in, 371 ; geographical 
 factor in, in, 376. 
 
 Communal marriage, i, 245 (Eski- 
 mos). See Group Marriage. 
 
 Communism, forms of, n, 377 f . ; 
 primitive, n, 450 f. ; in, 320. 
 
 Comparative Law, likened to com- 
 parative philology, II, 4 f. (Koh- 
 ler) ; chronological connection of 
 legal customs not applicable, n, 
 23 f., 34 (Post) ; science of uni- 
 versal, II, 61 f. (Del Vecchio) ; 
 cannot be complete, n, 61 ; ab- 
 scence of, in curricula of study, ii, 
 62 ; study of, based on the unity 
 of human nature, n, 65 f. ; scope 
 of. III, 79 (Mazzarella). 
 
 Complementary reconstruction, in, 
 97. 
 
 Composition, i, 140, 141, 145, 153, 
 155, 162, ItH, 165, 207 f. (Ice- 
 land) ; I, 509 (Lex Sal.) ; bote, i, 
 513 (iEthel.); galanas, i, 534, 
 534 f. (Welsh) ; table of penalties 
 for corporal injuries, i, 547 f. 
 (Welsh); in the clan, ii, 82; 
 second stage of criminal law, n, 
 124 ; II, 134 f. ; system of, com- 
 pared with modern law, n, 643; 
 relation of ambilian marriage to, 
 in, 121. 
 
 Compurgation, i, 537, 539 (Welsh) ; 
 substitute for blood feud, ii, 148 
 f. ; origin of, n, 578 ; oath of, n, 
 629 ; natural basis of, n, 696. 
 
 Comte, classification of social 
 changes, in, 58 f. ; in, 267 ; in, 
 460; on death as a progressive 
 agencv, in, 558. 
 
 Concubinage, i, 16, 36, 42 (Homer) ; 
 
 I, 306, 320 (Kaffirs) ; i, 337 (Fan- 
 tis) ; I, 410, 416 f., 423 (Bab.) ; 
 children of, inherit, i, 422 (Bab.) ; 
 dowry of daughter of, i, 425 f. 
 (Bab.) ; i, 598 (Greece) ; in primi- 
 tive society, n, 328 note (Hob- 
 house) ; II, 244 ; in Babylon, ii, 
 303 ; in Egypt, ii, 310 ; in China, 
 
 II, 318 ; in Greece, ii, 327 ; female 
 slave in, n, 348. 
 
 Condictio, in, 339. 
 
 Confarreatio, ii, 288, 290, 330 ; in, 
 189. 
 
 Consideration, doctrine of, in 
 Roman-Dutch law, in, 207; in, 
 629; "cause", in, 641. 
 
 Contempt of court, i, 148, 198 (Ice- 
 land) ; I, 305 (Kaffirs); i, 509 
 (Lex Sal.). 
 
 Contracts, of service, i, 38, 51 
 (Homer) ; of work and labor, i, 
 438 f. (Bab.) ; i, 466 (xii Tab.) ; 
 enumeration of void, i, 482 
 (Manu) ; of work and labor, law 
 of, I, 486 (Manu) ; law of, i, 527 
 f. (Welsh) ; curse of the gods for 
 violation of, i, 585 ; of Hepzephi, 
 
 I, 667 f. (Egypt); plurality of 
 personality in, i, 668, 673 (Egypt) ; 
 of hiring of servant, i, 681 (Bab.) ; 
 of partnership, i, 682 (Bab.); of 
 loan, I, 682, 683, 685-6 (Bab.); 
 of adoption, i, 683 (Bab.) ; con- 
 tract tablets, I, 685 f., 694 f . ; 
 sacramental character of ancient, 
 
 II, 108 f. ; of early law not by in- 
 dividuals, II, 385; evolution of, 
 II, 481 f. ; origin of formal, ii, 
 495 ; early history of, n, 498 f . ; 
 Roman forms of, n, 505; forms 
 of Roman consensual, n, 508 f . ; 
 sponsio and primitive, n, 512 f. ; 
 of arbitration, n, 625; oath in, 
 632 f . ; formal in Germanic law, 
 II, 651 f . ; relation of ambilian 
 marriage to, in, 115; of loan, in 
 India, in, 133 f., 135; economic 
 basis of. III, 257 f. (Loria) ; con- 
 tracts of Roman law, in, 603; 
 solemn, in Germanic law, in, 604 ; 
 the aleatory, in, 635; evolution 
 of law from regulation to liberty 
 of, in, 636 f. ; evolution from 
 unilateral to bilateral, in, 640 f. 
 
684 
 
 INDEX 
 
 Convention, as nucleus of the eon- 
 tract, II, 499. 
 
 Convergence, none in legal develop- 
 ment, III, 353. 
 
 Cook, Stanley A., on Ancient Semitic 
 Procedure, ii, 654 f. 
 
 Corporal injuries, fines and punish- 
 ments, I, 427 f. (Bab.); i, 491 
 (Manu); i, 503 (Lex Sal.); i, 
 515 f. (Eng.) ; i, 547 f. (Welsh) ; 
 composition for, in the clan, ii, 
 82. ^ 
 
 Corporation, ecclesiastical, in 
 savagery, ii, 79, 82; the Roman 
 family as a, ii, 558. 
 
 Coste, classification of societies, iii, 
 24 f. 
 
 Coulanges, Fustel de, ii, 39, 46 ; on 
 Omnipotence of Ancient State, ii, 
 92 f . ; on Kingly Authority, ii, 
 99 f . ; Religious Origin of Ancient 
 Law, II, 104 f . ; Religious Basis of 
 Family, ii, 283 f . ; Marriage in 
 Greece and Rome, ii, 285 f . ; Re- 
 ligious Basis of Adoption, ii, 344 
 f . ; Religious Basis of Property, 
 
 II, 361 f. ; Religious Basis of In- 
 heritance, II, 5421 ; on Ancient 
 Magistracy, ii, 580 f . ; criticized, 
 
 III, 426 ; III, 493. 
 
 Council of Elders, i, 4, 5, 10, 11 
 (Homer) ; i, 61 (Plutarch) ; i, 
 266 (Seris) ; i, 293 f . (Kaffirs) ; 
 usurped the function of the king, 
 II, 166 (Maine). 
 
 Courts, of the Druids, i, 91 (Csesar) ; 
 priestly, among the Germans, i, 
 98 (Tacitus) ; Iceland, i, 124, 130, 
 138, 144 f ., the fifth court, i, 148 f ., 
 183, 185, jurisdiction, i, 187 f., 
 197 f . ; I, 469 f . (Manu) ; Welsh 
 laws of, I, 521 f. ; council of 
 Areopagus, i, 591, 601 ; of Deliaea, 
 I, 593 ; the Ephetae, i, 594 ; gods 
 as judges in court of Areopagus, i, 
 601 ; of Palladium, i, 602 f. ; of 
 Delphinium, i, 603; the Pry- 
 taneum, i, 604; Phreatto, i, 604; 
 priestly character of ancient, ii, 
 105 f., 580 f. ; early judge essen- 
 tially a peacemaker, ii, 145 ; kinds 
 of ancient, ii, 579; among the 
 early Semites, ii, 655 f . ; held at 
 the city gate, ii, 660 f . ; judge at 
 Rome was private person, ii, 670 ; 
 clerks necessary to, but not law- 
 yers, II, 704; development, iii, 
 413. See Arbitration; Pro- 
 cedure ; Witnesses. 
 
 Credit, origin of, ii, 412 f . ; absence 
 of in primitive law, ii, 457 ; debts 
 an anomaly in early law, ii, 503 ; 
 use of in boy society, iii, 347 f. 
 
 Crimes, punishment of, among the 
 Germans, i, 101 (Tacitus) ; enu- 
 meration of, I, 287 (Wyandots) ; 
 failure to observe forms in prose- 
 cution for, is proof of innocence, i, 
 288; I, 300 f., 313 f. (Kaffirs); 
 cannot be compounded, i, 314; 
 distinction between wilful and 
 accidental homicide, i, 315 ; ex- 
 piation blots out, I, 493 (Manu) ; 
 economic basis of, iii, 261 f. See 
 Composition; Punishment. 
 
 Criminal anthropology, iii, 263. 
 
 Criminal Law, evolution of, ii, 122 
 f. ; early stages, ii, 122 f . ; de- 
 velopment of, II, 128 f . ; origin of 
 punishment, ii, 151 f. ; relation 
 of ambiUan marriage to, iii, 119; 
 economic basis of, iii, 261 f. 
 (Loria) ; criminal classes, iii, 263 ; 
 evolution from, to civil law, iii, 
 609. 
 
 Criteria of legal evolution, iii, 3 f . 
 
 Culture, characterisitcs of, iii, 55 
 (Sutherland). 
 
 Curia, Roman, iii, 32. 
 
 Curse, the, as a punishment, laws 
 of Solon, I, 86 (Plutarch); for 
 fraud of patron, i, 467 (xii Tab.) ; 
 for violation of contract, i, 585; 
 for removal of boundary stones, 
 II, 373 ; as a sanction, ii, 575 f . ; 
 relation to oath, ii, 621 ; in Se- 
 mitic procedure, ii, 663. 
 
 Custom, contract breaks, i, 528 
 (Welsh) ; social, is organic, ii, 35 ; 
 law of, subsequent to Themistes, 
 
 II, 164 (Maine) ; coutumes of 
 France, iii, 171 ; evolution of, iii, 
 
 .576 (Grasserie) ; iii, 588 f. ; neo-, 
 or judicial stage of, iii, 591 f. ; 
 
 III, 595 f . 
 
 Cuvier, classification of, iii, 18. 
 Cyclops, the, i, 39, 40 (Homer) ; ii, 
 196 ; III, 457. 
 
 Dareste, II, 37, 43, 49, 52, 59. 
 Dargun, ii, 204 f . ; classification of 
 
 societies, iii, 41. 
 Darwin, ii, 38 f. ; ii, 216 f. ; in, 170 ; 
 
 III, 204; III, 283; iii, 317; iii, 
 
 352, 354; iii, 375; in, 434 f . ; 
 
 principle of antithesis, in, 492. 
 Daughter's portion, i, 127 (Iceland). 
 Daysman, i, 23 (Homer) ; i, 145, 
 
 164 (Iceland). 
 Death fine, ii, 124. 
 Debtor and Creditor, law of, i, 473 
 
 f. (Manu). See Debts. 
 Debts, release of, by Solon, i, 80; 
 
 imprisonment for, i, 382 (Fantis) ; 
 
INDEX 
 
 685 
 
 husband and wife jointly liable, i, 
 418 (Bab.) ; debtor imprisoned 
 and cut to pieces, i, 466 (xii 
 Tab.) ; pajnnent of, by labor, i, 
 483 (Manu) ; servitude for in 
 Rome, II, 371, 520: in Africa, in, 
 257 ; debtor pledged his person in 
 Rome, III, 621. See Nexum and 
 Slavery. 
 
 Deed, of house, i, 680, 681 (Bab. 
 Doc); of partition, I, 684 (Bab. 
 Doc.) ; Assyrian, i, 691 f. 
 
 Defamation, law of, i, 490 (Manu). 
 
 De Greef, in, 192 ; concept of legal 
 evolution as helix, iii, 536; in, 
 561 ; III, 671. 
 
 De la Grasserie, criticized, in, 532, 
 535 f. ; on the Evolution of Civil 
 Law, III, 571 f. 
 
 Delbruck, n, 204 f. 
 
 Delphinium, court of, i, 603. 
 
 Del Vecchio, on Science of Universal 
 Comparative Law, n, 61 f . ; view 
 of, examined, in, 154. 
 
 Demesne land, i, 24, 25 (Homer) ; 
 in Babylon, i, 397 f . 
 
 Demolins, classification of societies, 
 III, 45. 
 
 Demoor, Jean, on Degenerative 
 Evolution, III, 542 f. 
 
 Demosthenes, Oration against Aris- 
 tocrates, i, 587 f. 
 
 Deodands, jurisdiction of the Pry- 
 taneum, i, 694; n, 143. 
 
 Depositaries, regulation of, i, 409, 
 410, 411 (Bab.). 
 
 Descent, of dowry, among the Ger- 
 mans, I, 105 (Tacitus) ; in female 
 line, I, 213, 218 (AustraUa), i, 326, 
 372 (Fantis) ; in paternal line, i, 
 218 (Australia). 5ee Succession. 
 
 Deschamps, in, 555. 
 
 Desertion, effect of, on marital rela- 
 tion, I, 414 (Bab.). 
 
 Dessah, in, 546. 
 
 Devancel, in, 280. 
 
 Dhama, n, 208. 
 
 Dharma, n, 208. 
 
 Dharmasutric Period, jural geneal- 
 ogy of loan in, in, 133 f., 138 f. 
 (Mazzarella). 
 
 Dharna, as a mode of enforcing 
 payment, i, 381; n, 606, 700; 
 in, 495. 
 
 Dialogus de Scaccario, n, 594. 
 
 Dies Fastus, in, 189, 605. 
 
 Diffareatio, n, 290, 330; in, 189. 
 See Divorce. 
 
 Digby, on English land law, in, 421. 
 
 Dike, n, 164. 
 
 Diomosia, n, 624. 
 
 Discretion, want of, in early law, n, 
 642 f . ; in modern law, n, 647 f. 
 
 Disinheritance, i, 422 (Bab.) ; desire 
 for, as explanation of the will, 11, 
 564 f. 
 
 Distress, i, 409, 435 (Bab.) ; i, .507 f. 
 (Lex Sal.) ; against trespassing 
 animals, i, 551 (Welsh) ; origin of, 
 II, 591 f . ; as a survival, n, 597 ; 
 in Brehon law, n, 599 f . ; in 
 Roman procedure, n, 676 ; n, 700. 
 
 Dius fidius, II, 481 f. 
 
 Divination, in administration of 
 justice, II, 81 ; n, 576, 619, 639. 
 
 Division of labor, circulation of 
 goods without, II, 445 f. 
 
 Divorce, allowed only to husband, 
 I, 61 (Plutarch) ; i, 128 f. (Ice- 
 land) ; Eskimo, i, 243 f. ; Kaffir, 
 
 I, 321 ; Fanti, i, 339 ; i, 386 (Ac- 
 eadia) ; i, 414 f. (Bab.) ; i, 454 f., 
 463 (Gortyn) ; Welsh, i, 523 f . ; 
 in primitive society, 11, 243 ; n, 
 250 f . ; early marriage indis- 
 soluble, II, 290; in Babylon, n, 
 302 ; in Egypt, n, 305 ; in India, 
 
 II, 315; in China, n, 319; He- 
 brew, II, 322 f . ; Arabian, n, 324 ; 
 in Rome, n, 330, 333; to effect 
 inheritance, n, 546 ; no connec- 
 tion with ambiUan marriage sys- 
 tem, III, 109; diffareatio, n, 290, 
 330 ; III, 189. 
 
 Domesticism, in, 269. 
 
 Dominium, origin of term, n, 501. 
 
 Dooms, I, 40, 41 (Homer) ; i, 123, 
 165; of ^thelbirht, i, 512 f. 
 
 Dowry, i, 12 (Homer) ; law of 
 Solon, I, 83; in Gaul, i, 92 
 (Caesar) ; among the Germans, i, 
 104 (Tacitus) ; action to recover, 
 
 I, 130, 135 f. (Iceland) ; i, 307, 
 309 f., 311 f., 320 (Kaffirs); i, 
 414 f., 420 f. (Bab.); i, 456; n, 
 302 (Gortyn) ; n, 305 f. (Egypt) ; 
 
 II, 313 (India) ; n, 325 (Moham- 
 medan) ; II, 333 (Rome). 
 
 Draco, laws of homicide, i, 591 f . ; 
 little of system in code of, n, 170 ; 
 in, 366. 
 
 Draft, formalism of the, n, 650. 
 
 Druids, as judges, i, 90 (Caesar). 
 
 Dugmore, on Kafir Laws and Cus- 
 toms, I, 292 f . ; II, 608 ; in, 492. 
 
 Durand (de Gros), on classification, 
 
 III, 16. 
 
 Durkheim, n, 224, 444; classifica- 
 tion of societies, in, 5, 31 f. 
 
 Dyaks, villages, described, n, 400. 
 
 Dynamic unity of law, in, 181 
 (Picard). 
 
 E 
 
 Earnest Money, to bind sale of 
 land, I, 367 (Fantis). 
 
INDEX 
 
 Economic factor, in ambilian mar- 
 riage, III, 125 ; as a cause of law, 
 III, 184, 190, 194 (Nardi-Greco) ; 
 III, 234 f. (Loria). 
 
 Egypt, laws, i, 446 f. (Harmhab) ; 
 trials, I, 557 f . ; documents, i, 
 665 f. 
 
 Einwohnergemeinde, iii, 549. 
 
 Elderman, head of the clan group, 
 II, 76 ; and the Shaman, ii, 79. 
 
 EUero, in, 265. 
 
 Emancipation, correlative of adop- 
 tion, II, 346 ; by triple sale, ii, 
 523 ; effect of, on inheritance, ii, 
 548. 
 
 Emptor famihae, ii, 382, 568 f. 
 
 Emphyteusis, in, 258. 
 
 Enatic kinship, ii, 189. 
 
 Endogamy, tribal, i, 274 (Seris) ; i, 
 284 (Wyandots) ; many varieties, 
 II, 245 f. ; explained, ii, 282 
 (Powell). 
 
 Engels, II, 450. 
 
 English Law, private vengeance in, 
 
 II, 123 ; reaction of Roman law 
 on, III, 200. 
 
 Environment, as a factor of legal 
 evolution, in, 170 (Picard) ; Mon- 
 tesquieu on. III, 170; Hegel on, 
 in, 170. See Geophysical Fac- 
 tors. 
 
 Equity, as an agency of legal 
 growth, II, 175 f . 
 
 Eskimo, the Point Barrow, i, 237 f. 
 
 Esmarch, in, 359. 
 
 Espinas, in, 268 f. 
 
 Estate, division of, at death, i, 43 
 (Homer) ; among brothers, i, 64 
 (Plutarch). See Succession. 
 
 Ethnogamy, i, 275 (Seris). 
 
 Ethnological jurisprudence, mean- 
 ing, scope, and method, n, 10 f . ; 
 fundamentally inductive, n, 10; 
 method of, distinguished from 
 philology, II, 24; illustrations of 
 method of, n, 25 f . ; has no 
 chronology, n, 23 f., 34; data of , 
 not subject to SBsthetic or ethical 
 criticism, n, 35 f . (Post) ; strati- 
 graphic analysis in, in, 79 f. 
 (Mazzarella) . 
 
 Ethnologic types, feudal and gentilic 
 
 III, 79 (Mazzarella). 
 Etruscans, received laws from god 
 
 Tages, II, 106. 
 Evidence, rules of, i, 470 f . (Manu) ; 
 suit to recover money, i, 473 f. 
 (Manu) ; detectives used to prove 
 deposit, I, 483 (Manu) ; in bound- 
 ary disputes, I, 488 f . (Manu) ; 
 Germanic hostility to inquisitorial 
 and documentary, n, 644 ; 
 methods of proof, n, 691 ; written. 
 
 in Egypt and Babylon, ii, 667. 
 See Procedure. 
 Evolution of law, meaning, scope, 
 and method, n, 3 f . ; a reasonable 
 process, ii, 6 f . ; does not proceed 
 by mathematical rule, n, 9 (Koh- 
 ler) ; fallacies of theory of uni- 
 form, II, 37 f . ; compared to 
 language, n, 52 (Tarde) ; no 
 general principle of, yet dis- 
 covered, II, 58 ; each phase sums 
 up earlier forms, n, 64 ; criticism 
 of evolutionist theories, in, 353 f., 
 434 f . ; struggle and adaptation 
 in. III, 476 ; planetary theory of, 
 III, 531 f. ; formulas of, in, 535 f. ; 
 degeneration in, in, 543 f . ; civil 
 law, III, 571 f . ; the spiral curve 
 of evolution, in, 572 f . ; direction 
 of. III, 575 f . ; oral to written 
 laws. III, 587 f . ; stage of crystal- 
 lization, III, 590 f . ; from law of 
 nature to positive law, in, 592 f. ; 
 from local to general law, in, 595 
 f . ; from simple to complex law, in, 
 598 f . ; from material to imma- 
 terial law. III, 600 f . ; from formal 
 to formless law, in, 602 f . ; from 
 theocratic to secular law, in, 606 ; 
 from criminal to civil law, in, 
 609; from civil to cornmercial 
 law, III, 610 f . ; from political to 
 private law, in, 612 f. ; from col- 
 lective to individual law, in, 
 613 f . ; from esoteric to popular 
 law. III, 617 f . ; from the outward 
 act to the mental act, in, 619 f. ; 
 from rights in rem to rights in per- 
 sonam, III, 620 f . ; from law of 
 nominate to innominate relations, 
 III, 625 f . ; from concrete to ab- 
 stract rights, III, 629 f . ; from 
 immediate to deferred rights, in, 
 632 ; from gratuitous to aleatory 
 transactions, in, 633 f. ; from 
 regulation to liberty of contract, 
 III, 636 f. ; from unilateral to bi- 
 lateral agreements, in, 640 f . ; 
 from family to individual rights, 
 III, 642 f . ; from ethnic to terri- 
 torial law. III, 644 f . ; from exclu- 
 sion to admission of foreigners, 
 III, 647 f . ; from violent to peace- 
 able methods, in, 649 f . ; from 
 oral to written to oral forms, in, 
 654 f . ; from immovable to mov- 
 able property, in, 658 f . ; from 
 reality to fiction, in, 660 f . ; in- 
 tensity of movement, in, 662 f . ; 
 arrestment of, in, 662 ; oscillation 
 in, III, 663 ; resumption of move- 
 ment in. III, 663; acceleration 
 and retardation in, in, 664; the 
 
INDEX 
 
 687 
 
 perpetual, in, 667 f . ; general as- 
 pects of, III, 667 ; external and in- 
 ternal, in, 668 ; schematic repre- 
 sentation of, in, 670 f . ; theory 
 of jural progress, in, 670 f . ; ab- 
 stract and concrete in, in, 673 f . ; 
 epochs in, in, 673 f. ; ordinary 
 path of. III, 675 f. 
 
 Exchange of gifts, i, 7, 30, 52 
 (Homer) ; in marriage, among the 
 Germans, i, 104 (Tacitus) ; guest 
 presents, i, 106 (Tacitus) ; mar- 
 riage a form of, n, 302 (Bab.) ; to 
 seal the bargain of biood-frater- 
 nity, II , 343 ; to cement a protec- 
 tive relationship, n, 424; obliga- 
 tory character of, ii, 440 f- 
 
 Exchange of goods, not primitive, 
 II, 407. 
 
 Exchange of wives, i, 244 (Eskimo). 
 
 Existimationis minutio, n, 356 f. 
 
 Exogamy, i, 213 (Australian) ; clan, 
 I, 274, 278; i, 284 (Wyandot); 
 in clan organization, n, 81, 190; 
 violation of rules of, a public 
 offense, n, 131 ; gentile rule of, 
 n, 213 f. ; as a survival of group 
 marriage, n, 215 f . ; origin of, ii, 
 216 f. ; many varieties of, n, 245 
 f . ; explained, n, 282 (Powell) ; 
 n, 396 ; constant in ambilian mar- 
 riage system, in, 109, 125. 
 
 Expiation, wipes out crime, i, 493 
 (Manu) ; ancient Aryan, ii, 482, 
 486. 
 
 Factor, origin of the, ii, 408 f. 
 (Goldschmidt). 
 
 Factors of legal evolution, in, 163 f. 
 (Picard) ; kinds, in, 164 ; race, 
 III, 164 f. ; causes of variation, in, 
 182 f. (Nardi-Greco) ; political 
 facts, in, 183; economic facts, 
 in, 184, 190; moral facts, in, 
 185 ; causes of law in general, in, 
 193; survey of causes, in, 196; 
 geography, in, 198; chmate, in, 
 203 ; conq^uest and colonization, 
 in, 209; inertia, in, 210; geo- 
 graphic environment, in, 215; 
 economic, in, 234 f. (Loria) ; bio- 
 logic, in, 267 f. ; racial, in, 352 f. ; 
 religious, in, 378 f. ; psychologic, 
 in, 393 f. ; poHtical, in, 417 f . ; 
 the constitutional factor, in, 417 
 f. ; social, in, 440 f. ; physical 
 force, in, 440 f. ; struggle, in, 440 
 f. ; compromise, in, 447 f. ; con- 
 flict, III. 451 f. ; struggle and 
 adaptation, in, 473 f. ; arbitra- 
 ment and guaranty, in, 485 f. 
 
 Faith, oath of, the most solemn, i, 
 77. See Fides. 
 
 Falcidian Portion, in, 254 f. 
 
 Family, evolution of, n, 259; re- 
 ligious basis of, n, 283 f. ; five 
 principal forms, in, 46 (Morgan) ; 
 types. III, 90 f. (Mazzarella) ; re- 
 lation to economic facts, in, 184 ; 
 origin of, in, 194 ; maternal, in, 
 240 ; economic foundations of, in, 
 246 f . (Loria) ; as basis of society, 
 in, 271 f . ; types of, among ani- 
 mals, III, 276 ; Roman and Greek 
 compared, in, 364 f. ; evolution 
 from, to individual rights, in, 
 642 f. See Marriage. 
 
 Fanti Customary Law, i, 326 f. 
 
 Faris, Ellsworth, on the Origin of 
 Punishment, n, 151 f. 
 
 Fas, II, 481 f. 
 
 Fasting, as a method of enforcing 
 payment, i, 381; ii, 605 f., 700; 
 III, 136 ; III, 495. 
 
 Father Right, in the clan system, ii, 
 28 ; compared with mother right, 
 II, 261 f. ; n, 301. 
 
 Feciales, office and function, i, 77. 
 
 Feigned combat, i, 466 (xii Tab.) ; 
 I, 622 (Gaius) ; n, 109 ; in, 487. 
 
 Felag, II, 416. 
 
 Feldgemeinschaft, in, 549. 
 
 Felix, Ludwig, on the Influence of 
 Religion upon Law, in, 378 f. 
 
 Festuca, in, 601 f. See Formalism. 
 
 Feudal, and gentile societies, the 
 only main types, in, 83 f. (Maz- 
 zarella). 
 
 FeudaUsm, n, 379 ; English law based 
 on, in, 424; property in, in, 547. 
 
 Fictions, as agencies of the law's 
 growth, II, 175 f. 
 
 Fides, as basis of contract law, ii, 
 481 f. ; elements of concept, n, 
 483 f . ; relations based on, n, 487 
 f. ; acts of, II, 489 f. 
 
 Fidei commissa, in, 253, 631. 
 
 Fiducia, n, 524 ; in, 623, 629 f . 
 
 Fijis, villages of, described, n, 399 f. 
 
 Filmer, n, 202. 
 
 Findings, false, jurisdiction, i, 148 
 (Iceland). 
 
 Fison and Howitt, in, 556. 
 
 Flamen, n, 580. 
 
 Forms of law, n, 162 f. (Maine); 
 criticism of Maine's generaliza- 
 tion, III, 154 f. 
 
 Foedus, II, 492. 
 
 Folkmot, III, 373. 
 
 Foreigners, relation of, to commerce, 
 in, 407 f., 415, n, 420; market 
 protection of, n, 428 f. ; evolution 
 from exclusion to admission of, 
 in, 647 f. See Aliens. 
 
688 
 
 INDEX 
 
 Folk custom, in, 393 f. (Page). 
 Folkways, iii, 393 f. (Page). 
 Foreign intrusion, as a factor of 
 
 legal evolution, iii, 171 (Picard). 
 Forfeit, element of, in pledge, ii, 
 
 457 f. 
 Forfeiture of goods, for corporal 
 
 injuries, ii, 142 f. 
 Formalism, in early law, ii, 386, 388 ; 
 
 ancient, ii, 638 (Heusler) ; in 
 
 procedure, ii, 703 ; evolution from 
 
 formal to formless law, iii, 602 f. 
 Formulary procedure, ii, 678 f. 
 Foster paternity, ii, 339. 
 Fouillee, classification of societies, 
 
 III, 25. 
 Fratres arvales, ii, 105. 
 Fraud, against monopoly rights, 
 
 against revenues, by statement, i, 
 
 498 (Manu). 
 Frazer, ii, 220 f., 228 f., in, 603. 
 Fungibles, relation of, to credit, ii, 
 
 413. 
 
 G 
 
 Gaius, the sacramental action, i, 
 620 ; II, 109 ; on patria potestas, 
 II, 212 ; II, 291 ; ii, 596. 
 
 Galton, III, 351, 456. 
 
 Gans, III, 255. 
 
 Genealogy, jural, defined, in, 93 
 (Mazzarella) ; laws of jural, in, 
 98; reconstruction of jural, in, 
 97 ; of the Indian loan, in, 143. 
 
 Generalization, scientific method, 
 in, 77 f. (Mazzarella) ; Maine's, 
 on organs of law declaration criti- 
 cized, III, 154 f. 
 
 Gens, definition of, i, 279 ; primitive, 
 the germinal element of civil so- 
 ciety, n, 35 ; based on kinship in 
 male line, n, 74 ; an aggregation 
 of houses, n, 198, 211 ; Roman, 
 compared to village community, 
 II, 382. 
 
 Gentilic and feudal societies, the 
 only main types, in, 83 f. (Maz- 
 zarella). 
 
 Geographic environment, influence 
 of, in, 215 f. 
 
 Geophysical factors, in, 198 f . 
 
 Germanic Customs, i, 93 (Caesar) ; 
 I, 95 (Tacitus) ; description of 
 tribes and rites, i, 109 (Tacitus), 
 ^ee Custom. 
 
 Germanic Law, primitive character 
 of, II, 4. 
 
 Gewere, n, 468, 652. 
 
 Giddings, classification of societies, 
 ni, 33 f. 
 
 Gifts, exchange of, i, 7, 30, 52 
 (Homer) ; of wooing, i, 12, 21, 
 22, 30, 35 (Homer) ; distribution 
 
 of, among chieftains, i, 14 
 (Homer) ; to chieftains, i, 97, 102, 
 103 (Tacitus) ; compulsory, i, 227, 
 233, 236 (Australia) ; of betrothal, 
 I, 284 (Wyandots) ; of and to 
 chieftains, i, 295, 296 (Kaffirs); 
 of friendship, i, 296 (Kaffirs); 
 classification, i, 361 (Pantis) ; 
 avoidability of, as against credi- 
 tors, I, 461 (Gortyn) ; obligatory 
 character of, n, 440 f. 
 
 Giraud-Teulon, in, 556, 
 
 Glotz, Gustave, on the Ordeal and 
 Oath, II, 609 f. 
 
 Gnaeus Flavins, in, 189. 
 
 Gobineau, on race hierarchy, in, 
 166 ; in, 353. 
 
 God, no belief in, among the Aus- 
 tralians, I, 233. 
 
 Goethe, concept of legal evolution 
 as a helix, in, 536 ; in, 574, 671. 
 
 Goldschmidt, Levin, on Origin of 
 Commercial Institutions, n, 407 f . 
 
 Gomme, G. L., on the Village Com- 
 munity, II, 392 f. 
 
 Gortyn, laws of, i, 453 f . ; n. 622, 
 625 f., 631. 
 
 Gossipry, disqualification for, i, 192 
 (Iceland) ; in the Catholic Church, 
 I, 236. 
 
 Grazing, regulation of, i, 403 f. 
 (Bab.). 
 
 Gragas, in, 420. 
 
 Greek Law, influence of on Roman 
 law. III, 209. 
 
 Grierson, n, 440, 443. 
 
 Grosse, classification of societies, in, 
 10, 40. 
 
 Grote, II, 166. 
 
 Group marriage, i, 215 f. (Aus- 
 tralia) ; I, 245 (Eskimos) ; n, 
 239 f . ; earliest form, i, 276 ; ii, 
 338. See Marriage. 
 
 Group relationship, i, 214 f. (Aus- 
 tralia) ; II, 181 f. (Powell). 
 
 Grundschuld, in, 627. 
 
 Guest friendship, i, 7 (Homer) ; re- 
 lation of, to commerce, n, 415. 
 
 Guest present, i, 30, 39, 46, 57 
 (Homer) ; among the Germans, 
 I, 106 (Tacitus); n, 496. 
 
 Guilds, institution of, by Numa, i, 78. 
 
 Guyau, in, 268. 
 
 H 
 
 Haagespraak, III, 324. 
 
 Haddon, n, 227 f. 
 
 Haeckel, classification of, in, 18. 
 
 Hahn, classification of societies, in, 
 41 f. 
 
 Hammurabi, code of, i, 387 f . ; 
 analysis of code of, i, 387 f . ; ad- 
 vance of procedure in, n, 654 f. 
 
INDEX 
 
 689 
 
 Hanbalites, ii, 50. 
 
 Hanifites, ii, 50. 
 
 Harmhab, edict of, i, 446 f. 
 
 Hartmann, in, 279 f. 
 
 Haxthausen, ii, 383. 
 
 Hebrews, forms and organs of law 
 among, in, 155. 
 
 Hegel, on geographic environment, 
 III, 170. 
 
 Heger, Paul, in, 560. 
 
 Heirs, liability of, i, 482 (Manu) ; 
 the universal successor, n, 554 f. 
 (Maine). See Succession. 
 
 Henotheism, in, 647. 
 
 Herder, in, 232. 
 
 Hermodorus, in, 364. 
 
 Herodotus, in, 379. 
 
 Hestia- Vesta Cult, ii, 209. 
 
 Heteronyms, in, 94. 
 
 Heusler, Andreas, on Ancient For- 
 malism, II, 638 f. 
 
 Hildebrand, economic classification, 
 in, 9 (n.), 37 f. ; in, 192. 
 
 Hindu Law, religious element in, ii, 
 110 f. (Maine); system of, in, 
 199. See Manu. 
 
 Historical materialism, in, 184, 185. 
 See Economic Factor. 
 
 Historical School, n, 66 f. 
 
 Hobbes, in, 2.35 ; criticized, in, 
 491 f. 
 
 Hobhouse, L. T., on the Develop- 
 ment of Justice, II, 128 f . ; n, 157 ; 
 Women in Primitive Society, n, 
 237 f . ; Women and Marriage 
 under Civilization, n, 301 f. ; De- 
 velopment of the Idea of Property, 
 II, 372. 
 
 Homer, Iliad, i, 3 f . ; Odyssey, i, 
 
 27 f. ; III, 379. 
 Homestead^ in, 639. 
 Homo Alpinus, in, 353. 
 
 Homonyms, in, 94. 
 Hospitality, i, 27, 28, 52, 57 
 (Homer) ; among the Germans, 
 
 I, 94 (Cresar), i, 106 (Tacitus); 
 anaong the Eskimos, i, 239; to 
 neighbors, a duty, i, 497 {Manu) ; 
 
 II , 373 f. ; in the evolution of 
 brokerage, ii, 425 f. 
 
 Hostage, giving of, foundation of 
 suretyship, n, 478. 
 
 Houzeau, in, 279, 558, 568. 
 
 Howard, George E., on the Pa- 
 triarchal Theory, n, 196 f. 
 
 Howel, laws of, i, 519 ?. 
 
 Howitt, n, 218 f., 230 f. 
 
 Huber, in, 599. 
 
 Hullmann, in, 3S5. 
 
 Human nature, essential sameness 
 of, II, 5 (Kohler). 
 
 Human sacrifice, i, 115 (Tacitus); 
 II, 347. 
 
 Huneefa, Abu, in, 423. 
 Hyades, in, 556. 
 
 Hypotheca, n, 455, 473 f. ; in, 617, 
 622, 625 f., 631. 
 
 I 
 
 Iceland, the Njals Saga, i, 122 f. ; 
 criminal law of, n, 127 ; isolation 
 of law of, in, 204. 
 Iliad, the, i, 3. 
 
 Imitation theory, of legal institu- 
 tions, n, 36 f. (Tarde) ; criticism 
 of, II, 55 f. (Girard) ; imitation 
 preceded by invention, n, 46; 
 three forms of imitation, n, 52 f. ; 
 in evolution of procedure, ii, 430 ; 
 considered, in, 172 (Picard). 
 
 Immunity, in primitive markets, ii, 
 430. See Sanctuary. 
 
 Incest, taboo against, i, 316 
 (Kaffirs) ; purchase marriage may 
 arise from, i, 317, ii, 81 ; culture 
 creates a "horror naturalis" of, 
 II, 216 ; horror of, instinctive, ii, 
 248 f. 
 
 Individual ownership, i, 255 (Eski- 
 mos) ; I, 234 (Arunta); i, 286 
 (Wyandots) ; i, 345 (Fanti). 
 
 Inductive method, basis of ethno- 
 logical jurisprudence, n, 10. 
 
 Infamy, n, 357 f. ; use of, as the 
 cause of legal science, in, 417 f., 
 429 f . 
 
 Infanticide, among the Urabunna, 
 I, 228 ; n, 324 (Arabs) ; relation 
 of geographic environment to, in, 
 230. See Abortion. 
 
 Inheritance. See Succession ; 
 Will. 
 
 Initiation Ceremonies, i, 223 f. 
 (Australia). 
 
 Injuries. See Punishment ; Blood 
 Revenge ; Composition. 
 
 Inquest, illegal, i, 145, 192 f. (Ice- 
 land) ; bf nine neighbors, i, 151, 
 153, 178 (Iceland); protest 
 against, i, 163, 191 f. ; finding of, 
 I, 195 f. ; disqualifications, i, 192 
 f. See Procedure. 
 
 Institutions, defined, in, 81 (Maz- 
 zarella) ; method of restoring or 
 projecting incomplete, in, 87 f. ; 
 intensity and diffusion of, in, 88 ; 
 normality of, in, 89 ; poly- 
 morphic, III, 89; sympathy as 
 basis of survival, in, 392 f. ; in, 
 409 ; degeneration in the evolu- 
 tion of, in, 543 f. ; survival of, in, 
 567 f . 
 
 Intention, not distinguished in prim- 
 itive law, n, 129. 140 f. 
 
 Interest, i, 108 (Tacitus); i, 132 
 
690 
 
 INDEX 
 
 (Iceland) ; i, 401, 402, 406 (Bab.) ; 
 I, 480 f . (Manu) ; origin of, ii, 
 412 f . ; survey of evolution of, ii, 
 531 f . ; in Indian loan contract, 
 III, 133 f., 136 f. 
 
 Interpreters, function of, in com- 
 merce, II, 409. 
 
 Interregnum, i, 75. 
 
 Intichiuma Ceremonies, i, 223 f. 
 (Australia). 
 
 Invention, an expression of logic, ii, 
 49 f. 
 
 Involuntary homicide, i, 596 f. 
 (Greek) ; must be atoned, i, 315 
 (Kaffirs) ; ii, 141 f. 
 
 Irrigation, regulation of, i, 403 
 (Bab.). 
 
 Isseus, III, 390; speeches of, com- 
 pared with Cicero, iii, 420. 
 
 Italian Penal Code, iii, 265. 
 
 Izoulet, method of, criticized, iii, 5. 
 
 Jackson, Hughlings, hi, 559. 
 
 Jhering, ii, 642 ; on the influence of 
 jurists. III, 175 ; on the heuristics 
 of law. III, 179 ; nature of law, iii, 
 236 ; III, 249 ; in, 354 ; criticized, 
 III, 426 f . ; on the Struggle for 
 Law, III, 440 f . ; in, 670. 
 
 Johnson, John Hemsley, on Rudi- 
 mentary Society among Boys, in, 
 316 f. 
 
 Joint family, i, 328, 345, 348, 372 
 (Fantis) ; n, 378. 
 
 Jowett, III, 459. 
 
 Judge. See Justice ; Courts. 
 
 Judgment of God. See Ordeal. 
 
 Junod, method of, approved, iii, 157 
 (n.). 
 
 Jural activity, defined, in, 80 (Maz- 
 zarella). 
 
 Jural acts, simple and complex, in, 
 80 (Mazzarella). 
 
 Jural ethnology, defined, in, 78 
 (Mazzarella) ; special (analytic), 
 and general (comparative), in, 
 79 ; morphology, in, 80. 
 
 Jural genealogy, defined, in, 93 
 (Mazzarella) ; laws, in, 96 ; re- 
 construction of process, in, 97 ; 
 comparative, in, 101. 
 
 Jural norm, distinguished from legal 
 precept, in, 82 (Mazzarella). 
 
 Jural organization, bases of, in, 82. 
 
 Jural phenomena, causes for the 
 variation of, in, 182 (Nardi- 
 Greco). 
 
 Jural philosophy, method, in, 98 f. 
 (Mazzarella) ; comparative, in, 
 103 ; example of method of com- 
 parative, III, 106 f. 
 
 Jural practice, defined, iii, 80 (Maz- 
 zarella). 
 
 Jural psychology, method, in, 98 
 (Mazzarella) ; comparative, in, 
 102. 
 
 Jural sense, not biological, n, 21 
 (Post). 
 
 Jural system, defined, in, 81 (Maz- 
 zarella) ; ten orders, in, 91. 
 
 Juristenrecht, n, 579; in, 173 f. 
 (Picard). 
 
 Jurists, as a factor of legal evolution, 
 III, 173 f . (Picard) ; enumerated, 
 ni, 174. 
 
 Jury, Athenian, composed of poorest 
 citizens, i, 82 (Plutarch) ; of com- 
 purgation, I, 524 (Welsh) ; i, 
 590 f. (Athens). See Arbitra- 
 tor ; Inquest. 
 
 Jus gentium, n, 527 f. ; in, 251, 
 363 f., 647. 
 
 Jus honorarium, n, 570. 
 
 Jus sanguinis, in, 644 f. 
 
 Jus soli. III, 644 f. 
 
 Justice, administration of, in Gaul, 
 I, 90 (Caesar) ; among the Ger- 
 mans, I, 93 (Caesar) ; by priests, 
 
 I, 98 (Tacitus) ; action to recover 
 dowry, i, 130 f. (Iceland) ; for 
 man-slaying, i, 143, 185 f. (Ice- 
 land) ; arbitration, i, 165 (Ice- 
 land) ; among the Wyandots, i, 
 287 f. ; Kaffirs, i, 298 f . ; i, 465 
 (XII Tab.) ; i, 469 f. (Manu) ; i, 
 507 f. (Lex Sal.) ; responsibility 
 of judge for wrong decision, i, 522, 
 534 (Welsh) ; suit to recover 
 land, I, 528 f . (Welsh) ; prepara- 
 tion and function of a judge, i, 
 534 (Welsh) ; proceeding to re- 
 cover land, I, 557 f . (Egypt) ; 
 conspiracy case, i, 564 f . (Egypt) ; 
 prosecution for spoliation of 
 tombs, I, 571 f. (Egypt) ; suit 
 concerning slave, i, 583 f. (Bab.) ; 
 oration in prosecution against 
 Aristocrates, i, 587 f . ; gods as 
 judges in court of Areopagus, i, 
 601 ; analogous to function in 
 biotic realm, n, 73; five funda- 
 mental principles of, n, 79 f . ; 
 divination in, ii, 81 ; religious 
 basis of ancient, n, 105 f . ; tribal 
 assembly first germ of, n, 125; 
 development of, n, 128 f . ; in 
 primitive society a private matter, 
 
 II, 133 ; early judge essentially a 
 peacemaker, n, 145 ; evolution 
 of, II, 145 f . ; kingly power in, n, 
 146 ; compurgation in, n, 148 f . ; 
 ordeal in, n, 150 ; property dis- 
 putes among savages, n, 279 f . ; 
 in primitive markets, n, 429 f . ; 
 
INDEX 
 
 691 
 
 origin of ordeal, oath, compurga- 
 tion, torture, and jurisdiction, ii, 
 575 f . ; kinds of ancient courts, ii, 
 579 ; no professional judges in early 
 Israel, ii, 658 ; no attorneys in Ger- 
 manic law, II, 644 ; no attorneys 
 in China, etc., ii, 704; clerks of 
 court, II, 667, 704; development, 
 III, 412 f. See Procedure. 
 Justinian, 118th novel of, in, 201. 
 
 Kabyles, social organization of, iii, 
 32, 33; III, 497 f. 
 
 Kaffir law and custom, i, 292 f. 
 
 Keuren, in, 565. 
 
 Kidnaping, a capital crime, i, 393 
 (Bab.). 
 
 Kina, in, 556. 
 
 Kinbote, n, 124. 
 
 Kingship, cultural importance of, ii, 
 98 (Kohler) ; earliest king was a 
 priest, II, 99 f. (Fustel) ; mitigates 
 the blood feud, n, 146 f . ; fol- 
 lowed by aristocracy, n, 166 f. 
 (Maine) ; in the administration 
 of justice, II, 594. 
 
 Kinship, i, 261 (Seris) ; fixes posi- 
 tion in tribal society, i, 290 
 (Wyandots) ; disownment of, i, 
 326 (Fantis) ; disowning father 
 or mother, i, 386 (Accadia) ; dis- 
 inheritance of son, I, 422 (Bab.) ; 
 in savager5% n, 76 ; promotion 
 in, II, 77 ; in the tribe, n, 181 f. ; 
 in the clan, n, 187 f. ; agnatic, 
 II, 189; agnate and cognate, n, 
 297 f., 354; female, preceded 
 male, ii, 396. 
 
 Kiyas, in, 423. 
 
 Kobong, III, 556 f. 
 
 Koehne, Carl, on Primitive Com- 
 mercial Law, II, 420 f. 
 
 Kohler, Josef, on Comparative Legal 
 History, n, 3 f . ; on the Evolution 
 of the State, n, 88 f . ; Chieftainry 
 and Kingship, n, 96 f . ; on Taboo, 
 II, 120 f. ; n, 204 ; on Exogamy, 
 II, 215 f. ; Forms of Marriage, n, 
 276 f . ; Children and Family Re- 
 lationship, II, 330 f. ; Adoption 
 and Artificial Relationship, n, 341 
 f. ; Historical Importance of 
 Slavery, ii, 347 f. ; on Barter, ii, 
 435 f . ; Forms of Pledge Rights, 
 II, 452 f. ; on Suretyship, ii, 478 
 f. ; on Interest, n, 531 f. ; Survey 
 of Law of Succession, ii, 536 f . ; 
 Survey of Law of Procedure, ii, 
 575 f . 
 
 Koran, n, 48 f., 51 ; in, 370, 380, 
 384, 391, 423, 607. 
 
 Kovalewsky,aii, 180, 553. 
 
 Kuhlenbeck, on Internal and Exter- 
 nal Factors of Legal Develop- 
 ment, in, 352 f. 
 
 Labeo, n, 49; in, 365, 421. 
 
 Lameere, in, 559. 
 
 Land, no individual ownership 
 among the Germans, i, 93 
 (Caesar) ; partition of, among the 
 Germans, i, 108 (Tacitus) ; Cat- 
 tians did not cultivate, i, 112 
 (Tacitus) ; Seris do not cultivate, 
 I, 258 ; communal cultivation and 
 biennial partition among the 
 Wyandots, i, 286; sales not 
 common among the Fantis, i, 
 365; suit to recover, i, 528 f. 
 (Welsh) ; partition deed, i, 684 
 (Bab. Doc.) ; no ownership of, 
 among ancient Germans, Semites, 
 and Slavs, n, 361 ; held in com- 
 mon by primitive men, n, 372; 
 traces in English law of primitive 
 collectivism, in, 614; registra- 
 tion of conveyances of, in, 617 f. 
 See Property. 
 
 Landlord and Tenant, economic 
 basis of relation, in, 258. 
 
 Lang, Andrew, n, 151 ; on Origin of 
 Totemism and Exogamy, n, 216 f. 
 
 Language, as a factor in law, in, 195, 
 201, 207. 
 
 Langue d'oc, in, 201, 207. 
 
 Langue d'oil, in, 201. 
 
 Lassalle, in, 255. 
 
 Laveleye, in, 326, 330. 
 
 Law, among the Cyclops, i, 39, 40 ; 
 in Iceland, i, 140 ; sources and 
 classification of Hindu, i, 469 
 (Manu) ; contract contrary to, 
 must be kept, i, 528 (Welsh); 
 written and common, i, 600 
 (Greece) ; as a sociological pro- 
 cess, II, 5 (Kohler) ; not based on 
 individual psychology, ii, 20 
 (Post) ; imitation as basis of, ii, 
 45 f. ; logic as basis of, ii, 49 f., 
 53 ; compared to language, n, 52 ; 
 is teleological, ii, 53 ; positive, is 
 a natural fact, n, 63 ; formal con- 
 ditions of, II, 04 f. ; basis of 
 classification in savagery and bar- 
 barism, II, 85 f. ; religion as origin 
 of, II, 104 f. (Fustel) ; develop- 
 ment of, n, 128 f. (Hobhouse); 
 forms of, II, 162 f. (Maine) : criti- 
 cism of Austin's and Bentham's 
 theorj' of, n, 165 (Maine) ; aris- 
 tocracies as depositaries of, n, 167 
 (Maine) ; methods of growth of. 
 
692 
 
 INDEX 
 
 II, 173 f . (Maine) ; Roman, has 
 longest history, ii, 174; lags be- 
 hind social necessities, ii, 175 ; is 
 harmonized with society by fic- 
 tions, equity, and legislation, ii, 
 175 f. ; term (nomos) does not 
 appear in Homer, ii, 164 ; of per- 
 sons, II, 181 f. ; definition of, ii, 
 278 (Powell) ; primitive commer- 
 cial, II, 420 f . ; development of 
 priesthood, ii, 575 f . ; ' teleological 
 and logical growth of, ii, 579; 
 divinatory, formal, and intellec- 
 tual stages of, II, 638 f . ; lack of 
 discretion in early, ii, 642 f . ; 
 written, destroys formalism, ii, 
 648 ; formalism of, based on re- 
 ligion, II, 640, 649 ; among the 
 primitive Semites, ii, 655 f . ; rela- 
 tion to geography, iii, 198 ; great 
 systems of, iii, 199; relation of 
 public and private, iii, 202 ; in 
 cont?<;Ct and in isolation, iii, 203; 
 Darwinism and, iii, 204; lan- 
 guage and, III, 207 ; competition 
 of English, with foreign, iii, 207 ; 
 inertia of, iii, 210; infiuence on, 
 of geographic environment, iii, 
 215 f . (Semple) ; economic foun- 
 dations of, III, 234 f . (Loria) ; 
 biologic basis, iii, 267 f . ; racial 
 basis. III, 352 f. ; religious basis, 
 
 III, 378 f . ; psychologic basis, iii, 
 393 f . ; evolution from folk cus- 
 tom, III, 412 f. ; political basis of, 
 III, 417 f . ; systems of Greeks, 
 Egyptians, Assyrians, Icelanders, 
 Irish, III, 420; social basis, iii, 
 440 f. ; struggle for, iii, 440 f . 
 (Jhering) ; stagnation of fixed, iii, 
 456 f. ; arbitrament and guaranty, 
 in the origin of, iii, 485 f . ; govern- 
 ment by, succeeds military com- 
 mands, III, 507; evolution of 
 civil. III, 571 f. ; evolution from 
 oral, to written, iii, 587 f . ; crystal- 
 lized stage of. III, 590 f . ; evolu- 
 tion from, of nature to positive, 
 III, 592 f . ; evolution from local, 
 to general, iii, 595 f . ; evolution 
 from simple, to complex, iii, 598 
 f . ; evolution from material, to 
 immaterial, iii, 600 f . ; evolution 
 from formal, to formless, iii, 602 
 f , ; evolution from theocratic, to 
 secular, iii, 606 f . ; evolution from 
 criminal, to civil, iii, 609 f . ; evolu- 
 tion from civil, to commercial, iii, 
 610 f . ; evolution from political, 
 to private, iii, 612 f . ; evolution 
 from collective, to individual, iii, 
 613 f . ; evolution from esoteric, 
 to popular. III, 617 f. ; evolution 
 
 from the outward act to the mental 
 act, III, 619 f . ; evolution from 
 rights in rem to rights in personam, 
 III, 620 f . ; evolution from, of 
 nominate to innominate relations, 
 III, 625 f . ; evolution from con- 
 crete to abstract rights, iii, 629 f . ; 
 evolution of, from immediate to 
 deferred rights, iii, 632 ; evolu- 
 tion of gratuitous to aleatory trans- 
 actions, III, 633 f. ; evolution of, 
 from regulation to liberty of con- 
 tract, III, 636 f. ; evolution of, 
 from unilateral to bilateral agree- 
 ments, III, 640 f . ; evolution of, 
 from family to individual rights, 
 III, 642 f. ; evolution from ethnic 
 to territorial, iii, 644 f. ; private in- 
 ternational, III, 644 f*; evolution 
 of, from exclusion to admission of 
 
 - foreigners, iii, 647 f . ; evolution 
 of, from violent to peaceable 
 methods, iii, 649 f . ; evolution of, 
 from oral to written to oral forms, 
 III, 654 f . ; ^ evolution of, from im- 
 movable to movable property, iii, 
 658 f . ; evolution of, from reality 
 to fiction. III, 660 f . ; intensity of 
 evolutionary movement of, iii, 
 662 f . ; the perpetual evolution 
 of. III, 667 f . ; general aspects of 
 evolution of, iii, 667 ; external 
 and internal evolution of, iii, 668 
 f . ; fixed and mobile parts of, iii, 
 669 f . ; abstract and concrete in 
 evolution of, iii, 673 ; importance 
 of the historic aspects of, iii, 677 f . 
 
 Law and geography, iii, 198 f. 
 (Randall) ; influence of geo- 
 graphic environment, iii, 215 f. 
 (Semple). 
 
 Laws, dispensing of, committed to 
 the nobility, by Theseus, i, 60 ; of 
 Lycurgus not reduced to writing, 
 
 I, 67; called "rhetras" because 
 of divine revelation, i, 68; of 
 Solon, I, 81 ; of Draco, i, 81 ; 
 making and changing of, in Ice- 
 land, I, 149 ; Accadian, i, 385 f . ; 
 Code of Hammurabi, i, 387 f . ; 
 Hebrew, i, 443 f . ; Edict of Harm- 
 hab, I, 446 f . ; of Gortyn, i, 453 f . ; 
 of Rome (xii Tab.), i, 465 f. ; of 
 Manu, I, 469 f . ; Lex Salica, i, 
 500 f. ; ^thelbirht's Dooms, i, 
 512 f. ; of Howel, i, 519 f . ; con- 
 cerning murder and homicide, i, 
 591 f. (Greece) ; privilegium, i, 
 606; religious origin of ancient, 
 
 II, 104 f . ; ancient, immutable, ii, 
 105 ; contradictory, held in equal 
 
 I respect, ii, 107 ; were sung before 
 I written, ii, 108; formulas of, 
 
INDEX 
 
 693 
 
 secret, ii, 109; codified in bar- 
 barism and civilization, iii, 53 f. 
 See Codes. 
 
 Law Speaker, i, 147, 194, 195; ii, 
 127. 
 
 Lawsuits, cause of, removed in 
 Sparta, i, 73. 
 
 Lawyers, in Iceland, i, 123 (Mord), 
 I, '132 (Njal), I, 143 (Thorod and 
 Skapti), I, 1G2, 180, 192 f. (Thor- 
 hall), I, 180 (Evjolf), i, 181 (Thor- 
 kel) ; origin of, ii, 110 f. (Maine) ; 
 attorneys unknown m Germanic 
 law, II, 644; no attorneys in 
 China, etc., ii, 702, 704 ; arise in 
 half-way ci\alization, in, 54, 58. 
 
 Lease, of land, i, 193 (Iceland) ; ii, 
 351 f. (Fantis) ; i, 400 f. (Bab.) ; 
 I, 681 f. (Bab. Doc.) ; provision 
 against sub-letting, i, 694 (Assyr- 
 ian Tab.). 
 
 Le Bon, on races, in, 167 ; on race 
 and variety, in, 168 ; in, 171 ; 
 on the influence of the past, in, 
 177 ; in, 283, 353. 
 
 Legal institutions, hunger and sex 
 as generating forces of, n, 5 ; per- 
 sistence of, II, 9 (Kohler) ; origin 
 of, II, 36 f. (Tarde) ; imitation 
 theory of, ii, 36 f. ; criticism of 
 imitation theory of, ii, 55 f. 
 (Girard). 
 
 Legis Actio, i, 620 f. ; five forms of, 
 
 I, 621 (Gaius) ; ii, 516 f., 586 f., 
 597, 670 f . ; in, 339. 
 
 Legislation, as an agency of legal 
 growth, II, 175 f. ; limitations of, 
 in, 164; boy, ni, 332 f. 
 
 Legitime, in, 254 f. 
 
 I^ist, B. W., II, 204, 206 f. ; on the 
 Fides Commandment, n, 481 f. ; 
 in, 360 f., 382. 
 
 Leod geld, i, 513. 
 
 Le Play, classification of societies, 
 III, 43. 
 
 Lerov-Beaulieu, in, 289. 
 
 Letourneau, n, 43, 440; in, 268, 
 273. 
 
 Levirate. See Marriage. 
 
 Lex Salica, i, 500 f. ; ii, 4, 124 ; dis- 
 tress in, II, 595. 
 
 Lex talionis, i, 409, 427, 428, 430 f. 
 (Bab.); i, 448 (Egypt); i, 491 
 (Manu) ; in the clan, n, 82 ; the 
 rule in all early societies, n, 122 f. ; 
 earliest and simplest method of 
 retaliation, n, 133, 139 ; in com- 
 mercial law, II, 424 ; ii, 666 ; in, 
 649. 
 
 Libertv, unknown in ancient State, 
 
 II, 92 f. 
 
 Limitations, formalistic basis of, ii, 
 645. 
 
 Linnaeus, classification of, in, 17. 
 
 Lippert, in, 381. 
 
 Liszt, classification of societies, in, 
 36. 
 
 Litis contestatio, ii, 670. 
 
 Litkaufer, n, 426. 
 
 Loan, I, 364 (Fanti) ; of money, i, 
 401 f. (Bab.) ; repayable in grain, 
 I, 402 (Bab.); i, 682, 683, 685, 
 686, 689, 690 (Bab. and Assyr. 
 Tab.) ; i, 698 f. (Kap. Tab.) ; in 
 Roman law, ii, 518 f. (Sohm) ; 
 jural genealogy of, in India, in, 
 133 f. (Mazzarella). 
 
 Locke, II, 202 ; in, 234. 
 
 Logic, as a source of law, n, 49 f., 
 695. 
 
 Lombroso, stigmata of criminality, 
 III, 263. 
 
 Loria, in, 192 ; on Economic Foun- 
 dations of Law, III, 234 f . ; in, 562. 
 
 Lost property, recovery of, i, 391 
 (Bab.) ; punishment for false 
 claim, I, 392 (Bab.) ; false claim 
 compensated, i, 411 (Bab.) ; law 
 of, I, 471 (Manu); i, 541 f. 
 (Welsh). 
 
 Lubbock, Sir John, in, 317, 351. 
 
 Lucumones, Etruscan, were magis- 
 trates, military chiefs, and pon- 
 tiffs, II, 100. 
 
 Lycurgus, division of land, i, 63; 
 abolished gold and silver coin, i, 
 64; established a common table, 
 I, 65; laws of, not. reduced to 
 writing, i, 67 ; religious character 
 of laws of, II, 105; laws of, at- 
 tributed to Apollo, II, 106; as a 
 lawmaker, in, 175 ; in, 414. 
 
 Lyell, on variation in language, in, 
 205. 
 
 Lying, detection of, considered a 
 joke by Eskimos, i, 238; per- 
 mitted in Kafi&r procedure, i, dl4. 
 
 M 
 
 MacDougall, II, 151. 
 
 Mackinder, H. J., founder of Oxford 
 school of Geo^aphy, in, 199. 
 
 McLennan, criticism of patriarchal 
 theory, n, 199 f., n, 398, 587 ; in, 
 213, 283. 
 
 Maffia, III, 239. 
 
 Magic, use of, in Roman law, in, 604. 
 
 Magistracy, i, 92 (Gauls) ; i, 93, 101 
 (Germans) ; ancient, n, 580 f . 
 
 Magna Charta, in, 374. 
 
 Maine, Sir Henry, n, 38 f ., 51 ; 
 on Religious Element in Hindu 
 Law, II, 110 f . ; Forms of Law, 
 n, 162 f. ; Methods. of the Law's 
 Growth, II, 173 f . ; patriarchal 
 
INDEX 
 
 theory, ii, 197 f., 700 f. ; Patria 
 Potestas, II, 291 f . ; Theories of 
 Slavery, ii, 350 f . ; Early History 
 of Property and Village Com- 
 munity, II, 380 f . ; II, 392, 394 ; 
 Early History of Contract, ii, 
 498 f . ; Testamentary Succession, 
 
 II, 553 f . ; Primitive Legal Reme- 
 dies, II, 586 f . ; generaUzations of, 
 criticized, iii, 154 f . ; iii, 209, 213, 
 239 ; reliance on zoology, iii, 283 ; 
 
 III, 321, 339; criticized, in, 353, 
 427, 465, ^92 f . ; criticized, in, 
 532, 539. ^'\. . 
 
 Malekites, ii*,- 50. 
 
 Manavic period, jural genealogy of 
 
 loan in, in, 135 f., 140 (Maz- 
 
 zarella). 
 Mancipatio, ceremony of, n, 109, 
 
 371 ; II, 389, 493, 499, 503, 513, 
 
 518 f., 567 f. ; in, 601, 617, 619, 
 
 623, 631 f. 
 Manfine, triple, i, 165, 208 ; double, 
 
 I, 208 (Iceland). 
 Mansurarii, in, 550. 
 
 Manu, laws of, i, 469 f . ; contra- 
 dictory provisions of, on inherit- 
 ance, II, 107 ; laws of, compared 
 with Leviticus, n, 108; an ideal 
 code, II, 170 f . ; laws of marriage, 
 
 II, 313 f . ; on adoption, n, 344 ; 
 on inheritance, ii, 546 f . ; rescis- 
 sion in. III, 634. 
 
 Manus, n, 330, 500. 
 
 Manus injectio, ii, 589 ; in, 621. 
 
 Manuum consertio, i, 466 (vi, 5) ; 
 
 III, 487. 
 
 Markets, border, i, 594 f . ; history of, 
 II, 409 f . ; peace of, n, 410 ; safety 
 of strangers in African, n, 423 ; 
 evolution of peace of, n, 427 f. 
 
 Marriage, brothers and sisters, i, 40, 
 41 (Homer) ; regulations of Lycur- 
 gus, I, 69 ; by capture, i, 69 (Plu- 
 tarch) ; law of Solon, i, 83 ; in 
 Britain, i, 89 (Caesar) ; sacred 
 among the Germans, i, 104 (Taci- 
 tus) ; by purchase in Iceland, i, 
 124 f . ; ceremony of, in Iceland, i, 
 127 ; arranged by father for son, 
 I, 149 (Iceland) ; regulations in 
 Australia, i, 214 f. ; group, i, 215 
 f., 232, 233 (Australia) ; customs, 
 I, 216 f. (Australia) ; among Eski- 
 mos, I, 241 f. ; among Seris, i, 269 
 f . ; probationary, i, 271 f., 275; 
 arranged for children, i, 241 
 (Eskimos) ; ethnogamic, i, 275 f. ; 
 among Wyandots, i, 284 f . ; 
 Kaffir customs, i, 294, 305 f . ; pur- 
 chase, I, 320 f. (Kaffir) ; Fanti cus- 
 toms, I, 332 f . ; contract necessary 
 to valid, I, 412 (Bab.) ; effect on, 
 
 of absence and desertion, i, 414 
 (Bab.) ; son to be provided with 
 wife, I, 421 (Bab.) ; widow may 
 remarry on condition, i, 424 
 (Bab.) ; laws of Gortyn, i, 459 
 f . ; sale of bride, i, 485 (Manu) ; 
 purchase, i, 515, 518 (Eng.) ; laws, 
 I, 523 f . (Welsh) ; contract of, i, 
 678 f. (Egypt) ; contract tablet, 
 
 I, 687 ; examples of levirate, n, 
 25 f . ; levirate, a feature of clan 
 system, n, 30 f . ; regulation in 
 tribal organization, n, 80 ; pur- 
 chase, may arise from incest, n, 
 81 ; by wager of battle, capture, 
 and choice, n, 81 ; in the clan 
 systern., n, 195 ; beena, n, 201 ; 
 varieties of, in primitive society, 
 
 II, 237 f., 255 f. (Hobhouse) ; sur- 
 vey of forms of, n, 276 f . (Kohler) ; 
 law of tribal, n, 277 f. (Powell) ; 
 in Greece and Rome, n, 285 f. 
 (Fustel) ; in civilization, n, 301 f . ; 
 in Babylon, n, 302 f . ; in Egypt, 
 n, 305 f. ; in India, n, 312 f. ; 
 in China, n, 318 f . ; among the 
 Hebrews, n, 321 f. ; Arabs, n, 
 324 f. ; in Greece, n, 327 f. ; in 
 modern Europe, n, 329 f . ; in 
 Rome, II, 329 ; as a fides act, n, 
 489 f . (Leist) ; in savagery and 
 barbarism, in, 46 (Morgan) ; 
 ambilian, in, 106 f . ; semundian, 
 
 III, 106; child betrothal rare in 
 ambilian marriage, in, 126 ; rela- 
 tion of patriarchal levirate and 
 gentilism, in, 126; polyandry, 
 III, 180, 229; monogamy and 
 polygamy in animal societies, in, 
 276 f. ; criticism of evolutionist 
 theories of, in, 532 ; spiral curve 
 in evolution of, in, 574, 615 f , ; 
 became consensual contract in 
 Roman law, in, 619 ; violent 
 origin, in, 650. 
 
 Marx, III, 192, 353, 564. 
 
 Massart, Jean, on Degenerative 
 Evolution, III, 542 f. 
 
 Masuirs, in, 550. 
 
 Maternal uncle, relation to sister's 
 children, strongest tie among 
 Germans, i, 106 (Tacitus) ; n, 301, 
 337. 
 
 Matriarchy, the Sitones ruled by a 
 woman, i, 120 (Tacitus) ; among 
 Seris, i, 258 f., 265 ; woman head 
 of Wyandot family, i, 279; 
 women councillors, i, 281 f. 
 (Wyandots) ; distinguished from 
 mother right, n, 206, 260; n, 
 337 f . ; in ambilian marriage, in, 
 107 f., 127, 130 ; in evolution, iii> 
 574, 616. 
 
INDEX 
 
 Mazzarella, Scientific Method of 
 Generalizing from Data of Legal 
 Evolution, III, 77 f. ; method of, 
 compared with Post's, m, 78, 83 ; 
 criticism of method of , iii, 153 (n.), 
 157 (n.). 
 
 Merkel, Adolph, on the Compromise 
 Nature of Law, in, 447 f. 
 
 Mes, inscription of, i, 557 f. 
 
 Method, criticfue of, in legal evolu- 
 tion, III, 153 f. (Wigmore). 
 
 Migration, without consent, pro- 
 hibited, I. 506 (Lex Sal.). 
 
 Milk relationship, ii, 341. 
 
 Mill, definition of class, in, 34. 
 
 Minos, laws of, ii, 105; laws of, 
 attributed to Jupiter, ii, 106. 
 
 Mir, III, 320, 324, 326, 546. See 
 Village Community. 
 
 Alishnah, ii, 50. 
 
 Mohammedan, legal system, in, 
 199. See Koran. 
 
 Mommsen, criticized, in, 428. 
 
 Money, used by ancient Germans, i, 
 97 (Tacitus) ; in development of 
 barter, n, 408 ; evolution of, n, 
 437 f . ; substitutes in boy society, 
 III, 345. 
 
 Monogamy. See Marriage. 
 
 Montesc[uieu, on the geographic im- 
 perative of law. III, 170 ; in, 198, 
 203, 232, 352. 
 
 Moral facts, as a cause of law, in, 
 185 f. (Nardi-Greco). 
 
 More, III, 316. 
 
 Morgan, Lewis, ii, 397; classifica- 
 tion of societies, in, 47 ; criticism 
 of, in, 218; in, 283, 564. 
 
 Morphology of legal ideas, in, 80 f. 
 (Mazzarella) ; comparative, in, 
 100 ; universal system, in, 101 ; 
 summary of variations of Indian 
 loan. III, 149. 
 
 Mortgage, i, 362 f. (Fantis) ; to se- 
 cure marriage contract, i, 679 
 (Egypt) ; I, 695 (Bab. Tab.) ; i, 
 701 (Kap. Tab.); English, n, 
 629 f. .SVe Hypotheca. 
 
 Mother Right, in the clan system, 
 II, 28; distinguished from ma- 
 triarchv, n, 206, 260; in Egypt, 
 n, 310 i n, 324. 
 
 Mucins ScsBvola, in, 189, 364. 
 
 Muller, in, 280. 
 
 MuUer. n, 204 ; in, 555. 
 
 Mundium, i, 518; in, 642. 
 
 Mutualism, in, 269. 
 
 N 
 
 Name, right of, recognized by Wyan- 
 
 dots, I, 285. 
 Nams, II, 592, 595. 
 
 Naradian period, jural genealogy of 
 loan in, in, 136 f., 140 (Maz- 
 zarella). 
 
 Nardi-Greco, Carlo, on Causes for 
 Variation of Jural Phenomena, 
 in, 182 f. 
 
 National system, of regimentation, 
 n, 73 ; based on territory, n, 73. 
 
 Natureways, in, 393. 
 
 Negligence, i, 431 f. (Bab.); not 
 distinguished from intention in 
 primitive society, n, 129 f. 
 
 Nexum, n, 499, 501 f., 513, 519 f. ; 
 III, 601, 621. 
 
 Ngia-ngiampe, n, 444. 
 
 Niebuhr, discovery of the manu- 
 script of Gains, ii, 586. 
 
 Niyoga, the, n, 317. 
 
 Njals Saga, i, 122 f . 
 
 Nomos, n, 164. 
 
 Notice of slaying, i, 151 (Iceland). 
 
 Numa Pompilius, i, 74; laws of 
 (ref.), n, 105; laws of, attributed 
 to Egeria, ii, 106. 
 
 O 
 
 Oath, i, 4, 49 (Homer) ; of Faith, 
 the most solemn, i, 77 (Plutarch) ; 
 laws of Solon confirmed by, i, 87 ; 
 in procedure, i, 137 (Iceland) ; 
 pledges to obey, i, 147 ; supported 
 by word of honor, i, 148 f. ; in 
 suit of manslaying, i, 163, 188 f. ; 
 in blood feud, i, 179 ; vouchers of, 
 I, 199 ; of legality of inquest, i, 
 194 ; of lawful defense, i, 197 ; of 
 lawful prosecution, i, 199; not 
 used in Kaffir procedure, i, 314 ; 
 in suretyship, i, 357 (Fantis) ; re- 
 lieves liability in escape of slave, 
 I, 395 (Bab.) ; acquits agent, i, 
 407 (Bab.) ; decision based on, i, 
 453, 454, 460 f., 463 (Gortyn) ; 
 denial under oath, i, 454 f. 
 (Gortyn) ; in doubtful suits, i, 
 478 (Manu) ; in agreements, i, 
 486 TManu) ; in exculpation from 
 slander, i, 524; in exacting the 
 spear penny, i, 536 (Welsh); of 
 compurgation, i, 537, 539 ; of de- 
 fense, I, 540 ; lost property, i, 542 
 (Welsh) ; damage by animals, i, 
 550; form of, i, 576 (Egypt); 
 contract, i, 691 (AssyT. Tab.) ; of 
 compurgation, a substitute for 
 blood feud, n, 148; to prove 
 adultery, n, 325 note (Koran) ; 
 of market peace, n, 431 ; con- 
 sidered by Romans a pact with the 
 gods, II , 486 ; in alliances and con- 
 tracts, n, 492 f. ; outgrowth of 
 the ordeal, n, 578 ; and the ordeal. 
 
INDEX 
 
 II, 609 f. (Glotz); kinds of, ii, 
 621 f. ; the judges', ii, 622 f . ; 
 contract, ii, 632 f . ; false, ii, 633 
 f . ; relation to formalism, ii, 641 ; 
 in Semitic procedure, ii, 660 f. ; ii, 
 692 f. (Tarde). See Procedure. 
 
 Obligations, relation of ambilian 
 marriage to, iii, 113; creation 
 of. III, 601 f. See Contract, 
 
 Odyssey, i, 27 f. 
 
 Ordeal, fire, i, 289 (Wyandots) ; 
 river, i, 389, 413 (Bab.); kinds 
 of, I, 389 ; kinds of, i, 478 (Manu) ; 
 kettle, I, 509 (Lex Sal.) ; Ger- 
 manic formulas, i, 660 f . ; origin of, 
 II, 573 f. ; and the oath, ii, 609 f . 
 (Glotz) ; for aliens, women, and 
 children, ii, 613 ; to decide per- 
 sonal status, II, 615 ; relation of, 
 to religious beliefs, ii, 616 f. ; re- 
 lation or, to formalism, ii, 641 ; 
 in Semitic procedure, ii, 661 f . ; 
 little variation in forms of, ii, 
 691 f. See Procedure. 
 
 Organs, of law declaration, Maine's 
 generalization criticized, iii, 154 f . 
 
 Outlawry, i, 10, 41, 47, 55 (Homer) ; 
 in Iceland : as defense to man- 
 slaughter, I, 144, for taking wrong 
 step in procedure, i, 145, against 
 heathen customs, i, 147, 154, 
 greater and lesser, i, 165, 185 f., 
 198, 202 f . ; i, 262 f., 275 (Seris) ; 
 two grades of, i, 289 (Wyandots) ; 
 I, 540 f . (Welsh) ; for murder in 
 the clan, ii, 82 ; in primitive so- 
 ciety, II, 131 f., 138, 147, 279; 
 among the Semites, ii, 655, 
 
 Owen, III, 280. 
 
 Oxen, as money, i, 6, 7, 32 (Homer) ; 
 I, 60 (Plutarch); i, 295 (KafBrs). 
 
 Page, Edward D,, on Sympathy 
 in Group and Institutional Sur- 
 vival, III, 392 f. 
 
 Palaver, i, 302 f . (Kaffirs) ; ii, 145 f . 
 
 Palladium, cdurt of, i, 602 f. 
 
 Panalua family, iii, 46. 
 
 Panyarring, i, 382 (Fantis). 
 
 Parasitism, iii, 2^9. 
 
 Parent Right, appears after dissolu- 
 tion of clan system, ii, 28. 
 
 Parishes, division of land into, by 
 Numa, I, 78. 
 
 Parricide, not a special crime, i, 62 
 (Plutarch). 
 
 Patres conscripti, i, 61 (Plutarch). 
 
 Patria potestas, i, 79 (Plutarch) ; 
 in Gaul, i, 92 (Caesar) ; i, 253 
 (Eskimo); i, 329, 347 (Fantis); 
 I, 456 (Gortyn) ; origin, ii, 84 ; 
 
 description of, ii, 197 f . (Howard) ; 
 II, 291 f. (Maine) ; in India, ii, 
 312 ; in China, ii, 319 ; in Greece, 
 II, 327; in Rome, ii, 329 f., 354; 
 in law of succession, ii, 560 f . ; in 
 ambilian marriage, iii, 112; iii, 
 247, 396, 406, 594. 
 Patriarchal Regime, i, 8, 31, 40 
 (Homer) ; concm-s with nomad- 
 ism, II, 74 ; theory of, ii, 196 f, 
 (Howard) ; criticism of theory by 
 Spencer and McLennan, ii, 199 
 f . ; starting-point of civilization, 
 
 II, 301; in India, ii, 312; in 
 China, ii, 319 ; iii, 213, 
 
 Patron and client, i, 61 (Plutarch) ; 
 
 I, 327 (Fantis). 
 
 Pays du Droit Coutumier, iii, 201 ; 
 
 III, 207. 
 
 F^ays du Droit fierit, iii, 200, 207, 
 
 580. 
 Peculium, ii, 295. 
 Peddling, ii, 408. 
 Penal Law, retaliation the germ of, 
 
 II, 123. 
 
 Pentateuch, partial synopsis of, i, 
 443 ; parallel references to code 
 of Hammurabi, i, 388 f. 
 
 Personal belongings, of deceased, 
 burned, i, 109 (Tacitus) ; ii, 234 
 f . (Urabunnas) ; i, 286 (Wyan- 
 dots) ; II, 449 ; buried with the 
 dead, iii, 380 f. 
 
 Personahty, plural, i, 668, 673 
 (Egypt. Doc.) ; loss of juristic, ii, 
 353 f . ; disappearing in commer- 
 cial relations, iii, 625 f. 
 
 Persons, rights of, i, 286 (Wyan- 
 dots) ; considered as chieftain's 
 property, i, 296, 300 (Kaffirs); 
 wholly dependent, in ancient 
 State, II, 92 f. ; law of, ii, 181 f . ; 
 classification of, iii, 240; miser- 
 abiles personae, iii, 608; evolu- 
 tion of law of. III, 615 f, 
 
 Petrucci, R., on Natural Origin of 
 Property among Birds, Beasts, 
 and Fishes, iii, 288 f. 
 
 Phear, iii, 320. 
 
 Phratry, definition of, ii, 87 ; Athe- 
 nian, III, 32. 
 
 Phreatto, court of, i, 604. 
 
 Physician, must be provided by one 
 injuring another, i, 429; com- 
 
 f)ensation regulated, i, 431 ; 
 lability of, i, 431 f. (Bab.). 
 Picard, on Factors of Legal Evolu- 
 tion, III, 163 f . ; on the Perpetual 
 Evolution of Law, iii, 667 f. 
 Pignoratio, ii, 595. 
 Pignoris capio, ii, 589, 675 f., 700, 
 Pineles, method of comparative law, 
 
 III, 153 (n.). 
 
INDEX 
 
 697 
 
 Plato, ideal code of, ii, 93 ; on laws, 
 II, 107 ; family as unit of State, 
 II, 19G; III, 316; in, 379. 
 
 Pledge, to keep peace, i, 145, 166; 
 to obev law, i, 147 ; of the hand, 
 
 I, 164,^208, 209 (Iceland) ; of the 
 person, i, 3o8, 362 (Fantis) ; 
 classification, i, 362 f. (Fantis) ; 
 of land, I, 401 f. (Bab.) ; not lost 
 by limitation, i, 480 (Manu) ; of 
 the person in homicide, i, 605; 
 ser\-iee, ii, 348; forms of, ii, 
 452 f. (Kohler) ; idea of, ii, 456 f. 
 (Wigmore) ; to release distress, 
 
 II, 600 f . ; in Indian loan contract, 
 
 III, 134, 136. 
 Pliny, III, 384. 
 
 Plutarch, lives, i, 59 f . ; in, 364. 
 Political facts, as factors of legal 
 
 evolution, in, 183 (Nardi-Greco). 
 Pollock, Sir Frederick, in, 213. 
 Pollock and Maitland, n, 152. 
 Polyandry, in Britain, i, 89 (Caesar) ; 
 
 prohibited, i, 284 (Wyandots) ; 
 
 II, 238 f., 276 ; relation to popu- 
 lation, III, 180; relation of geo- 
 graphic environment to, in, 229; 
 economic foundations, in, 247 ; 
 
 III, 616. 
 
 Polygamy, among Germans, i, 104 
 (Tacitus); i, 243 (Eskimo); i, 
 269 (Seris) ; i, 278 (Omahas) ; i, 
 284 (Wyandots) ; i, 306 (Kaffirs) ; 
 
 I, 337 (Fantis); ii, 238 f., 276; 
 
 II, 303 (Bab.) ; n, 308 (Egypt) ; 
 
 II, 312 (India); n, 322 (He- 
 brews) ; II, 324 (Arabs) ; relation 
 to ambilian marriage, in, 109; 
 relation to population, in, 180; 
 relation of geographic environ- 
 ment to, III, 229 ; in animal socie- 
 ties, III, 278 f. ; III, 616. 
 
 Polygenism, in, 165, 510. 
 
 Polygyny. See Polygamy. 
 
 Pontiiex Maximus, i, 76. 
 
 Pontifices, i, 76; ii, 690; as cus- 
 todians of law. III, 189. 
 
 Population, as a factor of legal evo- 
 lution, III, 180 (Picard). 
 
 Posada, Adolfo, on Animal Societies 
 and Primitive Human Societies, 
 
 III, 267 f. 
 
 Post, A. H., on Ethnological Juris- 
 prudence, II, 10 f . ; II, 63 ; method 
 of, and of Mazzarella compared, 
 III, 78, 83. 
 
 Poste, II, 126. 
 
 Potestas, origin of term, n, 501. 
 
 Pothier, in, 202. 
 
 Powell, J. W., on Forms of Social 
 Organization, ii, 73 f. ; on Kin- 
 ship, II, 181 f. ; on Tribal Mar- 
 riagti Law, ii, 277 f. 
 
 Praetors, religious duties of, n, 582 ; 
 urban, in, 354 ; edicts of, in, 581 
 f. ; III, 594. 
 
 Pre-dharmasutric period, recon- 
 struction of loan evolution in, in, 
 144 f. (jNIazzarella). 
 
 Presbyarchy, in elan system, n, 191. 
 
 Primogeniture, of females, i, 286 
 (Wyandots) ; in dowry^ i, 307 
 (PCaffirs) ; philosophy of, n, 540 ; 
 religious basis, ii, 551 f . ; in, 212 ; 
 in, 252. 
 
 Privilegium fori, in, 608. 
 
 Procedure, blood price arbitration, 
 I, 23 ; wager of battle, i, 130 (Ice- 
 land) ; summons in action to re- 
 cover dower, i, 133 f. ; in blood 
 feud, I, 143 f . ; denial of justice, 
 I, 148 ; suit for slaving, i, 151, 152 
 f., 179 f., 185 f. ; transfer of right 
 of action, i, 162 ; preliminary^ 
 steps enumerated, i, 191, 201 ; 
 plea to jurisdiction, i, 197 ; pro- 
 test against jurisdiction made 
 before priest, i, 197; i, 287 f. 
 (Wyandots) ; failure to observe 
 forms, proof of innocence, i, 288 ; 
 ordeal by fire, i, 289; formality 
 of, I, 291 ; accused persons pre- 
 sumed guilty, I, 302, 314 (Kaffirs) ; 
 description of Kaffir lawsuit, i, 
 302 f., 313 f . ; ii, 608 ; enforcement 
 of debts, I, 381 (Fantis) ; unlawful 
 to alter judgment, i, 390 (Bab.) ; 
 to recover lost property, i, 391 f., 
 411 f. ; river ordeal, i, 389, 413 ; 
 suit against agent, i, 407 ; against 
 a principal, i, 407 ; appointment 
 of judges, I, 450 f. (Egypt) ; local 
 courts, I, 451 ; suit concerning 
 slave, I, 453 ; suit for divorce, i, 
 454 (Gortyn) ; partition, i, 457 ; 
 property of heiress, i, 460 f. ; 
 suretyship, i, 461 ; method of de- 
 cision, I, 463; summons, i, 465 
 (xii Tab.) ; trial and judgment, 
 
 I, 465; feigned combat, i, 466; 
 
 II, 590; king as judge, i, 469 
 (Manu) ; suit to recover money, 
 I, 473 f. ; kinds of ordeal, i, 478 ; 
 summons, i, 500 (Lex Sal.) ; col- 
 lection of debt, I, 507 f . ; credi- 
 bility of witnesses, i, 525 f. 
 (Welsh) ; suit concerning land, i, 
 528 f . ; lost property, i, 542 ; suit 
 of Mes, I, 557 f . (Egypt) ; con- 
 spiracy case, I, 564 f . ; prosecu- 
 tion for spoliation, i, 571 f . ; 
 arrest, i, 581 f. (Bab.) ; suit con- 
 cerning slave, I, 583 f . ; oration 
 against Aristocrates, i, 587 f. 
 (Demos.); sacramental action, i, 
 620 f. (Rome) ; defense of Milo, 
 
698 
 
 INDEX 
 
 I, 623 f . ; slaves as witnesses, i, 
 645; religious character of, ii, 
 105 f . ; tribal assembly first germ 
 of judicial proceeding, ii, 125; 
 
 II, 573 f . ; survey of, ii, 575 f. 
 (Kohler) ; religion in, ii, 575 f . ; 
 the oath in, ii, 578; compurga- 
 tors, II, 578 ; torture, ii, 578 ; no 
 distinction between civil and 
 criminal, ii, 579; ancient courts, 
 
 II, 579; primitive remedies, ii, 
 586 f. (Maine) ; sacramental 
 action, arbitration, distress, ii, 
 586 f . ; voluntary jurisdiction in 
 Brehon law, ii, 603 ; formalism 
 in, II, 643 f . ; party participa- 
 tion, II, 644; Semitic, ii, 654 f . ; 
 divine authority for Semitic deci- 
 sions, II, 660 ; ancient Roman, ii, 
 668 f . (Sohm) ; legis actiones, ii, 
 670 f . ; formulary, ii, 678 f . ; evo- 
 lution of, II, 691 f . (Tarde) ; rela- 
 tion of ambilian marriage to, iii, 
 121 f . ; organ of law declaration, 
 Maine's generalization criticized, 
 
 III, 154 f . ; primitive importance 
 of. III, 239 ; in boy societies, iii, 
 335 f , ; arbitrament and guaranty, 
 III, 485 f . ; development of, under 
 clerical influence, iii, 604; for- 
 mality in modern, iii, 605; the 
 judicial duel, iii, 608; civil and 
 criminal confused, iii, 609 f . ; evo- 
 lution from violent to peaceable 
 methods, iii, 649 f . ; evolution 
 from oral to written to oral forms, 
 III, 655 f. 
 
 Process of legal evolution, iii, 499 f . ; 
 evolution of social structures, iii, 
 501 f. (Ward) ; social integration 
 and differentiation, iii, 514 f. 
 (Spencer) ; planetary theory of 
 the law's evolution, iii, 531 f. 
 (Wigmore) ; degenerative evolu- 
 tion, III, 542 f. (Demoor) ; in civil 
 law. III, 571 f. (De la Grasserie) ; 
 spiral curve of, ii, 572 f . ; the 
 perpetual evolution of law, iii, 
 667 f. (Picard). 
 
 Proculians, ii, 50 ; iii, 250. 
 
 Procuratio, iii, 624 f. 
 
 Progenism, as a factor of legal evo- 
 lution, III, 178 (Picard). 
 
 Progress, geographic checks to, iii, 
 226; geographical theory of, iii, 
 232 ; the mystery of, iii, 451 f . ; 
 causes and conditions of supe- 
 riority, III, 464 f. ; degeneration 
 in, III, 559 f . ; direction of, iii, 
 573 f . ; theory of jural, in, 670 f. 
 
 Promiscuity, i, 27 (Australia) ; i, 
 249 f . (Eskimos) ; i, 317 (Kaffirs) ; 
 II, 242 f . ; III, 246 ; iii, 615. 
 
 Promise, original idea of, same as 
 pledge, or forfeit, ii, 457 f . ; in 
 the "fides" relation, ii, 484 f . ; 
 in Roman law of contract, ii, 
 505 f. 
 
 Promissory note, i, 406 (Bab.) ; i, 
 682, 683, 685, 686 (Bab. Doc). 
 
 Property, division of, at death, i, 43 
 (Homer) ; regulation of use by 
 Solon, I, 86 (Plutarch) ; i, 254 f . 
 (Eskimos) ; i, 261 (Seris) ; i, 286 
 (Wyandots) ; partition of, i, 327 
 (Fantis) ; tenures, i, 348 f . ; 
 alienation, i, 359 f . ; separate, of 
 mother and children, i, 457 f. 
 (Gortyn) ; specificatio, i, 466 
 (xii Tab.) ; of minors protected 
 by king, i, 471 (Manu) ; different 
 tenures in same person, i, 668, 
 670, 676 (Egypt) ; partition deed, 
 
 I, 684 (Bab. Doc.) ; decision con- 
 cerning a wall, I, 684 (Bab. Doc.) ; 
 Assyrian deeds, i, 691 f . ; in the 
 clan, II, 78 ; forfeiture for cor- 
 poral injuries, ii, 142 f . ; com- 
 munal, in savagery, ii, 191, 279; 
 religious basis, ii, 361 f . ; common 
 ownership of crops but not land 
 among Greeks and Italics, ii, 
 361 f . ; inalienable, ii, 370 ; land 
 in common, weapons individual, 
 
 II, 372; development, ii, 372 f. 
 (Hobhouse) ; early history, ii, 380 
 f. (Maine) ; classification, ii, 386 
 f . ; primitive transfer of, ii, 439 f . ; 
 relation of ambilian marriage to, 
 
 III, 112; types of ownership, in, 
 112; economic basis of, in, 241, 
 248 f . ; among birds, beasts, and 
 fishes. III, 288 f . ; a natural fact, 
 in, 288; an instinctive fact, in, 
 289 ; original character of, in, 
 29Q ; among plants, in, 291 ; bio- 
 logical origin, in, 292; earliest 
 forms amor>g men, in, 302 f . ; 
 tools and weapons, in, 303 ; cloth- 
 ing, III, 305 ; food, in, 306 ; hunt- 
 ing land. III, 307; among primi- 
 tive pastoral tribes, in, 308; 
 tenure in boy societies, n, 318 f. ; 
 influence of religion upon, in, 
 378 f . (Felix) ; origin of, in death 
 and sacrifices, in, 380 f . ; folk 
 custom of, in, 395 f. ; private, 
 arises out of chief tainry, in, 506 ; 
 degeneration in evolution of, in, 
 544 f., 614 f. ; traces of collective 
 ownership, in, 614; evolution 
 from immovable to movable, in, 
 658 f. 
 
 Prytane, ii, 580. 
 Prytaneum, court of, i, 604. 
 Puchta, criticized, in, 442 f. 
 
INDEX 
 
 Punishment, by curse, i, 86 (Plu- 
 tarch) ; interdiction from sacri- 
 fices, I, 90 (Caesar), i, 98 (Taci- 
 tus) ; reHgious sanction, i, 98 
 (Tacitus) ; banishment, i, 208 
 (Iceland) ; death for false accu- 
 sation, I, 387 (Bab.); death for 
 sorcery (?), i, 388; death for 
 temple stealing, i, 390; false 
 judgment, i, 390, ii, 664 f. (Bab.) ; 
 multiple fine for theft, i, 391; 
 death for false claim of ownership, 
 I, 392; death for kidnaping, i, 
 393; death for harboring slave, 
 I, 393; death for stealing slave, 
 I, 394 ; death for burglary, i, 395 ; 
 death for highway robbery, i, 
 395 ; death by fire for theft from 
 burning house, i, 396; death for 
 breach of duty of officer, i, 396; 
 drowning for cheating by tavern- 
 keeper, I, 407 ; death for tavern 
 conspiracy, i, 408; burning of 
 votary, i, 408; branding for 
 slander, i, 412; drowning for 
 adultery, i, 412; impaUng for 
 death of husband, i, 418 ; banish- 
 ment for incest, i, 418; mutila- 
 tion, I, 427 f . ; injuries to and by 
 slaves, I, 428 f. ; for corporal in- 
 juries, I, 427 f. ; of slave for deny- 
 ing master, i, 442 ; mutilation for 
 extortion, i, 447 f. (Egypt) ; 
 bribery a capital offense, i, 451 ; 
 sorcery, i, 467 (xii Tab.) ; mis- 
 cellaneous offenses, i, 467 ; false 
 witness, i, 475 f., 478 f. (Manu) ; 
 kinds of, enumerated, i, 479 ; 
 fraud in bailments, i, 484 ; selling 
 blemished maiden, i, 487; defa- 
 mation, I, 490 ; assault, i, 491 ; 
 theft, I, 492 f. ; mutilation for in- 
 jury to higher caste, i, 491 ; mu- 
 tilation for theft, I, 494 f. ; adul- 
 tery, I, 496; magic, i, 504 (Lex 
 Sal.) ; theft, rape, arson, false 
 accusation, murder, i, 502 f. ; 
 theft, murder, and sundry offenses, 
 
 I, 512 (Eng.) ; banishment for 
 murder, i, 526 (Welsh) ; theft, i, 
 541 f. ; arson, i, 545 f. ; mutila- 
 tion for false testimony, i, 561, 
 570 (Egypt) ; curse for violation 
 of contract, i, 585 ; for kilhng 
 murderer, i, 594 f. ; exile for mur- 
 der, I, 659 (Cicero) ; incest, ii, 81 ; 
 murder in clan, ii, 82; death of 
 
 , Roman not atoned by money, ii, 
 125 ; primitive, ii, 130 f . ; * reli- 
 gious offenses, ii, 132 ; of animals, 
 
 II, 143 ; origin, ii, 151 f . ; removal 
 of boundary stone, ii, 373 ; prim- 
 itive property injuries, ii, 374 f. ; 
 
 violations of market peace, ii, 
 428 f . ; ordeal as, ii, 616 ; where 
 ambilian marriage prevails, iii, 
 121 ; causes of, in primitive times, 
 III, 185 f. 
 
 Purchase Marriage. ^See Marriage. 
 
 Purchase of ^'engeance, first stage of 
 criminal law, ii, 123 f. 
 
 Q 
 Querela inofficiosi Testamenti, 
 III, 638. 
 
 R 
 
 Rabbinovicz, III, 420. 
 
 Race, as a factor of legal evolution, 
 III, 164 f. (Picard); iii, 352 f. 
 (Kuhlenbeck) ; iii, 355 f. (Cham- 
 berlain) ; III, 369 (Bryce) ; im- 
 portance of, III, 352, 355. 
 
 Races, natural and historic, iii, 165, 
 168 f . ; hybrid, iii, 166 ; hierarchy 
 of. III, 166. 
 
 Randall, H. J., on Law and Geog- 
 raphy, III, 198 f. 
 
 Ratzel, influence of geographical 
 surroundings, iii, 66; criticism 
 of, III, 367. 
 
 Reception of foreign law, examples, 
 II, 48 (Tarde) ; based on unity of 
 human mind, ii, 67; examples, 
 II, 67 f . (Del, Vecchio) ; of Roman 
 law, II, 641 ; in, 596. 
 
 Recht, meaning of, in, 442. 
 
 Reich, Emil, on the Constitutional 
 Factor of Legal Development, in, 
 417 f. 
 
 Reincarnation, belief in, i, 219 f. 
 (Australia). 
 
 Religion, basis of ancient State, ii, 
 92 f . ; source of all authority, ii, 
 99 f . ; origin of ancient law, ii, 
 104 f . ; ancient, was purely civil, 
 II, 109; in Hindu law, ii, 110 f. ; 
 basis of deodands, ii, 143; basis 
 of property, ii, 361 f. ; basis of 
 inheritance, ii, 542 f. ; in early 
 procedure, ii, 575, f . ; not distinct 
 from law, ii, 613; relation to 
 ordeal, ii, 616 f . ; and legal for- 
 malism, II, 640, 649 f. ; divine 
 authority as basis of judgments, 
 II, 660; as a cause of law, in, 
 188 f. (Nardi-Greco) ; absence of, 
 as cause of excellence of Roman 
 law, II, 421 ; evolution from theo- 
 cratic to secular law, in, 606 f. 
 
 Replevin, n, 591, 596, 602. 
 
 Rescission, of sale, i, 441 (Bab.) ; 
 I, 693 (Assyr. Tab.) ; stipulation 
 against, i, 692 ; power of, the 
 general rule of ancient law, in, 
 634. 
 
700 
 
 INDEX 
 
 Res mancipi, ii, 386 f . ; ii, 529 f . 
 
 Responsa prudentum, iii, 580. 
 
 Responsibility, collective, i, 301, 313, 
 319, 323 f . (Kaffirs) ; slight dis- 
 tinction between willful and acci- 
 dental homicide, i, 315 ; acci- 
 dental injuries to property, i, 320 ; 
 collective, for debts, i, 320 (Fan- 
 tis) ; vicarious, i, 333, 342 ; of an 
 estate, i, 392 (Bab.) ; territorial, 
 for loss in robbery, i, 395 ; joint, 
 of husband and wife, for debt, i, 
 418 ; of physician, i, 431 f . ; of a 
 builder, i, 433 f . ; of bailee, i, 
 
 435 f . ; for injuries to animals, i, 
 
 436 f. ; collective, for theft, i, 
 437 ; for slave, i, 959 (Gortyn) ; 
 for accidental killing, i, 467 (xii 
 Tab.) ; of heirs, i, 482 (Manu) ; 
 for animals, i, 488 ; collective, for 
 offenses of women, i, 525 (Welsh) ; 
 no individual, in primitive so- 
 ciety, II, 129 f . ; collective, ii, 
 138 f . ; collective, persists after 
 rise of public justice, ii, 143 f. ; of 
 father for torts of sons or slaves, 
 II, 296 ; , collective in suretyship, 
 
 II, 478 ; absolute in early law, ii, 
 647 f. 
 
 Retail trade, ii, 409. 
 
 Retaliation, i, 467 (xii Tab.) ; 
 deeply rooted in nature, ii, 122 f . ; 
 in primitive society, ii, 130 f . ; 
 earliest method is lex talionis, ii, 
 133. See Blood Revenge ; Self- 
 Help. 
 
 Revenge, recompense for, i, 13 
 (Homer). >See Blood Feud ; Re- 
 taliation. 
 
 Rex sacrificulus, ii, 176. 
 
 Ribot, III, 559. 
 
 Richard, Gaston, Arbitrament and 
 Guaranty in the Origin of Law, 
 
 III, 485 f . 
 Rita, II, 207, 490. 
 
 Robbery, unknown among Eskimos, 
 I, 238; defined, i, 494 (Manu); 
 
 I, 503 (Lex Sal.). 
 Robespierre, on foreign intrusion of 
 
 law, III, 171. 
 Rokitansky, on subjective forms, 
 
 II, 16 f. 
 
 Romans, forms and organs of law 
 among, iii, 155 ; moral character 
 and analytical power, iii, 358 f. 
 
 Roman Law, ^Twelve Tables, i, 465 
 f . ; retaliation in, ii, 122 ; has 
 the longest history, ii, 174 ; mar- 
 riage in, II, 285 f . ; patria potes- 
 tas, II, 291 f. ; slavery, ii, 350 f. ; 
 capitis deminutiq, ii, 353; exis- 
 timationis minutio, ii, 356 ; law 
 of property, ii, 380 f . ; law of 
 
 contract, ii, 498 f . ; sales and 
 loans, II, 518 f. ; wills, ii, 553 f. ; 
 procedure, ii, 586 f., 668 f. ; ac- 
 ceptance of in Middle Ages, iii, 
 14 ; technic of, iii, 179 ; reaction 
 on English common law, iii, 200 ; 
 compared with Germanic and 
 English, III, 240 f. ; character of, 
 III, 357 f . ; the vera causa of, iii, 
 417 f., 429 f. (Reich); absence 
 of religion in, as cause of excel- 
 lence, III, 421 ; and evolutionist 
 theories, iii, 434 f , ; as a source of 
 French law, in, 580 f . ; in, 590 ; 
 III, 594 ; conquest of, in, 597 ; 
 in, 600 f . ; contracts of, in, 603 ; 
 use of magic in, in, 604; theo- 
 cratic element in, in, 607; con- 
 tained no commercial law, in, 
 610; methods of transfer in, in, 
 617; consensus in contracts of, 
 III, 619 ; method of creation of 
 rights in personam, in, in, 621 ; 
 no assignment of obligations in 
 early, in, 624 ; no partial intes- 
 tacy in, in, 630 ; liberty of tes- 
 tation, in, 637; fictions in, in, 
 660. 
 
 Roman-Dutch law, competition 
 with English law, in, 207. 
 
 Romulus, I, 60 f . ; establishes sanc- 
 tuary for fugitives, i, 60. 
 
 Rossi, Pellegrino, in, 260, 265. 
 
 Rousseau, in, 592. 
 
 Rudorff, III, 429. 
 
 S 
 
 Sabinians, II, 50 ; in, 250. 
 
 Sabinus, n, 49. 
 
 Sacramental action, i, 620; n, 587 
 f., 593, 671, 699; in, 487, 494; 
 ni, 650. 
 
 Saga, of Njal, i, 122 f. ; of Gisli, n, 
 127 f. 
 
 Sale, of- slave, rescission, i, 441 
 (Bab.) ; warranty of title to slave, 
 I, 441 ; third, of son emancipates, 
 I, 466 (xii Tab.) ; in open market 
 gives good title, i, 485 (Manu) ; 
 adulteration and underweighing 
 prohibited, i, 485 ; rescission of, 
 may be made within ten days, i, 
 486; by a married woman in- 
 valid, I, 524 (Welch) ; sale tablet 
 of slave, I, 680, 688, 690; of 
 house, I, 680, 681, 690; Assyrian 
 deeds, i, 691 f . ; religious cere- 
 monies, II, 371 ; in early law not 
 by individuals, n, 385 ; in Roman 
 law, II, 518 f . ; formalism, n, 
 646. 
 
 Sales y Ferr6, in, 284 f. 
 
INDEX 
 
 701 
 
 Sanctuary, for fugitives, i., 60, 65 
 (Plutarch) ; frithstow, i, 198 (Ice- 
 land) ; bv flight to another tribe, 
 I, 293, 325 (Kaffirs); i, 454 
 (Gortyn) ; flight to, does not re- 
 lease surety, i, 526 (Welsh) ; 
 cities of refuge, II, 141 f., 147. 
 
 Sand, George, in, 247. 
 
 Savage, in, 279 f. 
 
 Savagery. See Barbarism; Clas- 
 sification. 
 
 Sav-ignv, in, 240, 243; criticized, 
 in, 442 f. 
 
 Scandinavians, forms and organs of 
 law among, in, 155. 
 
 Schlegel, in, 280. 
 
 Sehmoller, in, 192. 
 
 Schrader, n, 204 f. 
 
 Scots law, tenacity of, in, 208. 
 
 Seal, nail marks as, i, 386 (Accadia), 
 I, 689, 691 (AssjT. Tabs.); in, 
 Roman law of wills, ii, 570. 
 
 Seebohm, n, 392. 
 
 Seignette, ii, 47, 60. 
 
 Self defense, i, 496 (Manu) ; law of 
 nature, i, 634 (Cicero). 
 
 Self help, I, 318 (Kaffirs) ; killing 
 burglar, i, 395 (Bab.) ; against 
 procedural, i, 453 (Gortyn) ; i, 
 483 (Manu) ; arrest of homicide, 
 I, 605 (Greece) ; basis of criminal 
 law, II, 122 f . ; ancient Aryan, ii, 
 482; distress, n, 586 f. See 
 Procedure. 
 
 Semple, Ellen Churchill, on In- 
 fluence of Geographic Environ- 
 ment, III, 215 f. 
 
 Senchus Mor, n, 599 f. 
 
 Seri Indians, i, 257 f. 
 
 Servius Sulpicius, in, 364. 
 
 Shamanism, i, 252, 263; system of 
 in the clan, n, 78 f. 
 
 Shiregemot, ii, 595. 
 
 Sibylline Books, in, 423. 
 
 Silent Trading, n, 421 f., 440, 442 f. 
 
 Slander, laws of Solon, i, 83; 
 punished by branding, i, 412 
 (Bab.) ; insult, i, 504 (Lex Sal.) ; 
 insult of judge, i, 523 (Welsh); 
 exculpation, i, 524. 
 
 Slavery, i, 42, 48, 49, 40, 56 
 rHoiner): i, 79 (Plutarch); for 
 debt, I, 79 ; of women, i, 85 ; in 
 Gaul, I, 9(), 92 (C»sar) ; i, 99 
 (Tacitus) ; as gambling stake, i, 
 107: I, 141, 169 (Iceland); pro- 
 tection of slave, I, 386 (Accadia) ; 
 dealing with slave, i, 390 (Bab.) ; 
 harboring slave a crime, i, 393; 
 for debt, i, 410 (Bab.) ; children 
 of, I, 423; injuries, i, 428; v;ar- 
 ranty in sale, i, 441 ; recovery of 
 slave, I, 441 f. ; mutilation for 
 
 denying master, i, 442 ; in Egj-pt, 
 
 I, 448; suit concerning slave, i, 
 453 (Gortyn); Sudras, i, 499 
 (Manu) ; kinds enumerated, i, 
 499; lawsuit, i, 583 f. (Bab.); 
 slaves as witnesses, i, 645 ; deed 
 of purchase, i, 680 (Bab. Doc.) ; 
 sale tablets, i, 690, 692, 693; in 
 savage ■ society, n, 80 ; houses 
 father responsible for torts of 
 slave, II, 296; historical impor- 
 tance of, II, 347 f. ; female slave 
 as concubine, n, 348 ; theories of, 
 
 II, 350 f. (Maine) ; for debt in 
 Rome, II, 371 f., 520 ; in develop- 
 ment of commerce, ii, 414; in 
 ambilian marriage system, in, 
 115; in Indian loan contract,, 
 in, 136, 137; in, 252, 260; in 
 Roman law, in, 425; as a basis 
 of progress, in, 468 f. 
 
 Smith, Adam, in, 252. 
 
 Smith, Robertson, ii, 202. 
 
 Social life, essentially instinctive, 
 
 II , 18; function of the male in, 
 
 III, 281 f. 
 
 Social organization, forms of, ii, 
 73 f. ; in, 267 f. ; of the stickle- 
 back, in, 290 f. ; evolution of 
 social structures, in, 501 f. ; social 
 integration and differentiation; 
 in, 514 f. 
 
 Societies, progressive, are excep- 
 tional, II, 173 f. ; progressive and 
 stationary, in, 23; feudal and 
 gentilic, in, 83 f . ; land basis of, 
 III, 217 ; nature of, in, 267 f. ; 
 abnormal, in, 269; characteris- 
 tics of, in, 271 ; paternal domes- 
 tic, III, 272; monogamous, in, 
 273 ; mammals, in, 275 ; superior 
 vertebrates, in, 279; rudimen- 
 tary, among boys, in, 316 f. ; 
 origin of, in, 514; degeneration 
 in evolution of, in, 552 f. 
 
 Sociology, relation to law, ii, 52 f., 
 62; its defects and need of 
 method, in, 3 f. (Steinmetz) ; 
 possibility of classification in, in, 
 12 f . ; various svstems of classi- 
 fication, III, 16 I.; artificial and 
 natural classification, in, 17 f. ; 
 purposes of classification, in, 20 f . ; 
 attempts at classification, in, 22 
 f. ; vague, in, 23 ; Coste, in, 24 ; 
 Fouill6e, III, 25 f. ; W^ard, in, 27 
 f. ; Spencer, in, 28 f. ; Durkheim, 
 ni, 31 f. ; Giddings, ni, 33 f . ; 
 Hildebrand, in, 37 f . ; Roscher, 
 III, 38 ; Bucher, in, 38 f. ; Grosse, 
 111, 40 f. ; Hahn, in, 41 f. ; Le 
 Play, III. 43 f. ; Demolins, in, 
 45; Buckle, in, 46; Taine, in, 
 
702 
 
 INDEX 
 
 46; Vignes, iii, 46; Morgan, in, 
 47 f. ; Sutherland, iii, 51 f . ; 
 Comte, III, 58 f . ; Marx, in, 59 ; 
 Vierkandt, in, 61 f . ; Ratzel, in, 
 66 f. ; a plan of classification, in, 
 68 f . (Steinmetz) ; catalogue of 
 all societies, in, 73 f . ; general 
 classification in, must be preceded 
 by special, in, 84 (Mazzarella) ; 
 ethnic classification, in, 104; 
 Spencer, in, 164; Gobineau, in, 
 168; Tylor, in, 166; Le Bon, 
 m, 167, 168, 171, 172, 177 ; Mon- 
 tesquieu, III, 170; Darwin, in, 
 170; Hegel, in, 170; Maine, in, 
 172, 174 ; Carlyle, in, 174 ; Kova- 
 levsky, in, 180; Asturaro, in, 
 184, 192; Marx, in, 192; De 
 Greef, in, 192; SchmoUer, in, 
 192 ; Hildebrand, in, 192 ; Loria, 
 in, 192 ; Novicow, in, 192 ; de- 
 generation in. III, 580 f. 
 
 Sohm, Rudolph, on Capitis De- 
 minutio, n, 353 f. ; on Existima- 
 tionis Minutio, n, 356 f., 596 f. ; 
 Ancient Roman Procedure, n, 
 668 f. 
 
 Solidary action, as a factor of legal 
 evolution, in, 180 (Picard). 
 
 Solon, I, 79 ; law concerning murder, 
 
 I, 592 ; religious character of laws 
 of, II, 104 f . ; little system in laws, 
 
 II, 169 f. ; as a lawmaker, in, 
 175 ; ni, 365 f . ; in, 414. 
 
 Soml6, Felix, on Primitive Transfer 
 of Goods, II, 439 f. 
 
 Soonut, the, in, 423. 
 
 Speaker of the Law, i, 147, 194, 195 
 (Iceland). 
 
 Specificatio, i, 466 (xii Tab.). 
 
 Spencer, Baldwin, n, 228. 
 
 Spencer, Herbert, ii, 151 ; criticism 
 of patriarchal theory, n, 199 f . ; 
 II, 440, 442 ; classification of socie- 
 ties, III, 28 f . ; III, 164 ; 268, 317, 
 493, 561 f. 
 
 Spencer and Gillen, n, 240. 
 
 Sponsio, sacramental character, ii, 
 108 f . ; origin of, n, 512 f . ; wager 
 basis of, II, 590; in, 339; origi- 
 nally an appeal to the gods, in, 
 607. 
 
 Starcke, on the primitive family, ii, 
 200, 203. 
 
 State, the, i, 59 (Theseus); i, 60 
 (Romulus) ; i, 63 (Lycurgus) ; 
 evolution of, ii, 88 f. ; omnipo- 
 tence of ancient, n, 92 f . ; geo- 
 graphic influences on, in, 215 f . ; 
 land basis of, in, 223 ; origin and 
 evolution of, in, 481 ; a spon- 
 taneous genetic product, in, 507. 
 
 Stealing, a virtue in Sparta, i, 72; 
 
 does not exist among Eskimos, i, 
 237 ; from temple punished by 
 death, i, 390, 391 (Bab.); mul- 
 tiple fine, I, 391 ; false claim 
 treated as, i, 391 ; of slave, i, 
 394 ; from burning house, i, 396 ; 
 of water wheel, i, 438 ; distinc- 
 tion between night and day, i, 
 467 (XII Tab.) ; i, 492 f. (Manu) ; 
 taking of necessities not, i, 495; 
 I, 500 f. (Lex Sal.); i, 512 f. 
 (^thel.) ; I, 539 f. (Welsh) ; rare 
 in savagery, ii, 82; treatment 
 of, among primitive tribes, ii, 
 374 f. 
 
 Steinmetz, S. R., Classification of 
 Social Types and Catalogue of 
 Peoples, III, 3 f. 
 
 Stephen, Mr. Justice, ii, 123. 
 
 Stipulation, n, 505 f . ; did not exist 
 in Germanic law, n, 651 ; in, 
 630, 641. 
 
 Stool property, i, 345 (Fantis). 
 
 Strabo, in, 380. 
 
 Stratigraphy, in, 82 f . (Mazzarella) ; 
 distinguished from differentia- 
 tion, III, 83; comparative, in, 
 101 ; of the Indian loan, in, 138 
 f . ; summary of variations of 
 Indian loan, in, 150 f. 
 
 Subjective method, Hmitations of, in 
 science of law, n, 14. 
 
 Succession, i, 43 (Homer) ; to 
 dowry, i, 105 (Tacitus) ; son in- 
 herits, I, 106; rule of, among 
 Tencterians based on valor, i, 
 112; in Norway, i, 125; in Ice- 
 land, I, 131 ; to blood feud, i, 144, 
 152, 172 (Iceland) ; in Australia, 
 I, 234 f. ; Eskimo, i, 246; off- 
 spring of concubines, i, 306 f. 
 (Kaffirs) ; i, 322 f. ; i, 333, 341, 
 368 f. (by will), 372 f. (through 
 females only) : Fantis ; son in- 
 herits, I, 386 (Accadia) ; wife 
 may make will, i, 417 (Bab.) ; 
 to dowry, i, 420 ; sons inherit, i, 
 421 ; where two sets of children, 
 I, 421 f. ; by votary, i, 424 f. ; i, 
 455 f. (Gortyn); i, 466 (xii 
 Tab.) ; i, 511 (Lex Sal.) ; i, 523 
 f. (Welsh); will of Egyptian 
 officer, i, 665 f . ; of Sennacherib, 
 I, 702 ; individual property not 
 inheritable in the clan, n, 78 ; re- 
 ligious basis of, II, 106; contra- 
 dictory provisions of Manu ex- 
 plained, II, 107 ; capacity of 
 slave for, n, 351 ; beginning of 
 rights of, II, 448 f. ; survey of, n, 
 536 f . ; religious origin, n, 542 f . ; 
 relation of ambilian marriage to, 
 III, 117 f . ; economic foundations 
 
INDEX 
 
 703 
 
 of. III, 251 f. (Loria) ; influence 
 of religion upon, iii, 388 f . (Felix) ; 
 no partial intestacy in Roman 
 law, III, 630. 
 
 Suicide, in, 5 f. 
 
 Summons. See Procedure. 
 
 Surety, hostage as, ii, 478 ; ii, 516 ; 
 III, 624. 
 
 Suretyship, i, 356 f. (Fantis) ; i, 
 461 (Gortyn); i, 481 (Manu) ; 
 I, 526 f. (Welsh); ii, 478; origin 
 of, II, 516; in Indian loan con- 
 tract, III, 134, 136, 137. 
 
 Sutherland, classification of socie- 
 ties, III, 52 f . ; III, 405. 
 
 Suttee, II, 312, 319. 
 
 Symbolical acts, breaking sale tab- 
 let, I, 398 (Bab.) ; moistening 
 contract tablet, i, 401 ; in ancient 
 conveyances, ii, 388 ; ii, 649 f . ; 
 in primitive commercial law, ii, 
 421 ; in procedure, ii, 701 ; in 
 evolution of law, in, 600 f. 
 
 Sympathy, in the formation of law, 
 in, 186 (Nardi-Greco) ; in group 
 and institutional survival, in, 
 393 f. (Page). 
 
 Syndiasmic family, in, 46. 
 
 Tabieen, in, 423. 
 
 Taboo, regulative of ma,rriage, i, 217 
 (Australia) ; against incest, i, 316 
 Kaffirs) ; primitive substitute for 
 law, II, 120 f. ; use of in primitive 
 society, n, 131 f. ; in the clan, 
 II, 191; exogamy as, n, 216; to 
 protect property, n, 373. 
 
 Tacitus, the Gerraania, i, 95; in, 
 327. 
 
 Talassie, n, 289. 
 
 Talmud, in, 420. 
 
 Tambookie (Kaffir) Customs, i, 
 313 f. 
 
 Tarde, Gabriel, on Origin of Legal 
 Institutions, ii, 36 f. ; on Evolu- 
 tion of Procedure, ii, 691 f. ; 
 on social logic, in, 181 ; in, 353 ; 
 in, 563 ; on judge-declared law, 
 in, 586. 
 
 Technic, as a factor of legal evolu- 
 tion, in, 178 (Picard). 
 
 Tengoborski, n, 383. 
 
 Terminus, blood sacrifices to, i, 77 ; 
 n, 368. 
 
 Testes, n, 653. 
 
 Theft. See Stealing. 
 
 Themistes, n, 163 f. ; in, 190. 
 
 Theseus, i, 59 f. 
 
 Thing (Iceland), i, 124 f . ; ii, 127; 
 in, 373. 
 
 Things, law of, ii, 359 f. 
 
 Time, an inferior philosophical ele- 
 ment, II, 6 f. 
 
 Topinard, in, 277. 
 
 Torrens System, in, 614, 618, 665. 
 
 Torture, n, 578. 
 
 Totemism, i, 213 f., 218 f. (Aus- 
 traUa) ; i, 258 f. (Seris) ; i, 279 f. 
 (Wyandots) ; each clan has totem 
 name, n, 77 ; basis of primitive 
 State, n, 88 ; in the clan, n, 189 ; 
 and exogamy, n, 215 f. ; origin 
 of, n, 216 (Lang) ; n, 396. 
 
 Toynbee, relation of crime to in- 
 creased wages, in, 262. 
 
 Traditio, ii, 389 f., 529. 
 
 Trials, i, 23 (Homer); i, 302 f. 
 (Kaffir) ; concerning land, i, 528 
 f. (Welsh) ; lawsuit of Mes, i, 
 557 f . ; concerning a slave, i, 
 583 f. (Bab.) ; of Aristocrates, i, 
 587 f . ; of Milo, i, 623 f . ; of GisU 
 the outlaw, n, 127 f. See Pro- 
 cedure. 
 
 Tribe, organization, i, 204 f. (Seris) ; 
 regimentation of, ii, 73 ; based 
 on kinship, n, 73 ; compared with 
 a confederacy, ii, 80 ; definition, 
 II, 187 (Powell) ; relation to clan, 
 II, 277. 
 
 Tribute, payment of, promotes 
 transfer of goods, n, 444 f. 
 
 Tusculum, ancient law of (ref.), n, 
 108. 
 
 Tutela, II, 332. 
 
 Twelve Tables, of Rome, i, 465 f. ; 
 religious character of, n, 104 f. ; 
 n, 162 f., 169 f. ; in, 362, 422, 
 427 f., 490, 534; liberty of tes- 
 tation in, in, 637. 
 
 Tylor, E. B., ii, 264, 373, 396 f. 
 
 U 
 
 Ultinogeniture, III, 212. 
 
 Undue Influence, law of Solon recog- 
 nizes, I, 84. 
 
 Unity of Human Nature, ii, 65 f. 
 
 Universal Comparative Law, ii, 61 f . 
 (Del Vecchio). 
 
 Universitas juris, n, 554 f., 571. 
 
 Unterkaiifer, n, 420. 
 
 Urabunna tribe, i, 213 f. 
 
 Usucapion, n, 571 ; in, 249. 
 
 Usury, I, 108 (Tacitus) ; i, 132 (Ice- 
 land) ; I, 401 (Bab.) ; n, 534 f. 
 
 Usus, marriage by, ii, 330. 
 
 Vacarius, in, 376. 
 Vaccaro, on Struggle and Adapta- 
 tion, in, 473 f. 
 
704 
 
 INDEX 
 
 Vandervelde, fimile, on Degenera- 
 tive Evolution, III, 542 f. 
 
 Van Gennep, ii, 234. 
 
 Vertebrates, superior, societies of 
 III, 279 f. 
 
 Vestal Virgins, power to make wills, 
 
 I, 76. 
 
 Vico, III, 435 ; concept of legal evo- 
 lution as simple circle, iii, 536; 
 III, 573. 
 
 Vierkandt, classification of societies, 
 III, 5, 61 f. 
 
 Vignes, classification of societies, 
 III, 46. 
 
 Vikings, iii, 381. 
 
 Village community, i, 103, 108 (Taci- 
 tus) ; I, 346 f . (Fantis) ; ii, 378 ; 
 
 II, 380 f . (Maine) ; primitive, ii, 
 392 f. (Gomme). See Mm. 
 
 Village pound, ii, 592. 
 
 W 
 
 Wadium, connection with the 
 promise idea, ii, 458 f. note. 
 
 Wager of Battle, i, 130, 135, 138 
 (Iceland) ; a refinement of the 
 blood feud, ii, 148 ; ii, 280, 588 ; 
 not widespread, ii, 691 f. 
 
 Wales, laws of, i, 519 f . ; disap- 
 pearance of law of, III, 207. 
 
 Ward, classification of societies, iii, 
 27 ; on Evolution of Social Struc- 
 tures, III, 501 f. ; interaction of 
 antagonistic forces, iii, 503 ; enu- 
 meration of social structures, iii, 
 509. 
 
 Warranty of Title, i, 688 (Assyr. 
 Tab.) ; not favored in early law, 
 II, 646. 
 
 Wed, origin of, and meaning, ii, 
 473 f. 
 
 Weg-reaf, i, 514. 
 
 Weregeld, i, 511 (Lex Sal.) ; system 
 of compensation, ii, 136 f . ; ii, 
 142, 391 ; for death of a trader, 
 II, 423. 
 
 Westermarck, ii, 157, 203 f. 
 
 Wholesale trade, ii, 409. 
 
 Wife exchange, i, 244 f. (Eskimos). 
 
 Wife lending, to beget children, i, 
 69 (Sparta). 
 
 Wigmore, John H., on the Pledge 
 Idea, II, 456 ; Critique and 
 Method in the Study of the Law's 
 Evolution, III, 153 f. ; on the 
 Planetary Theory of the Law's 
 Evolution, III, 531 f. 
 
 Wilken, ii, 202. 
 
 Will, vestal virgins could make, i, 
 76; law of Solon, i, 83; undue 
 influence invalidates, i, 84; un- 
 known to the Germans, i, 106; 
 
 I, 368 f. (Fantis) ; wife may make, 
 I, 417 (Bab.) ; of votary, i, 424 f. ; 
 
 I, 455 (Gortyn) ; i, 466 (xii Tab.) ; 
 of an Egyptian officer, i, 665 f. 
 (Doc.) ; of Sennacherib, i, 702 
 (Doc.) ; prohibited by religion, 
 
 II, 105 ; philosophy of, ii, 541 ; 
 no early, ii, 549 f. ; history of, ii, 
 553 f . (Maine) ; function of pon- 
 tifices in, iii, 189 ; liberty of 
 making in xii Tab., iii, 637. 
 
 Witchcraft, punished, i, 289 (Wyan- 
 dots) ; disease or infirmity evi- 
 dence of, I, 289 ; I, 295 (Kaffirs) ; 
 I, 388 f. (Bab.); belief in, uni- 
 versal in the clan, ii, 82 ; punish- 
 ment of, in primitive society, ii, 
 131. 
 
 Wite, I, 513. 
 
 Withernam, ii, 592. 
 
 Witness, i, 129 (Iceland); i, 130 
 (action for dower) ; i, 130 (wager 
 of battle) ; i, 136 f . (of summons) ; 
 I, 138 (of handing over suit) ; i, 
 138 (pleading) ; i, 138 (divorce) ; 
 I, 143 (wounds) ; i, 143 (of suit) ; 
 I, 144 (outlawry) ; i, 146 (recog- 
 nition of law) ; I, 151 (death 
 wounds) ; i, 163 (of oath in man- 
 slaying suit); I, 178 f., 185 f., 
 188 f . (of suit) ; i, 189 f . ^ (testi- 
 mony in manslaughter suit) ; i, 
 190 f . (procedure) ; in sm-ety- 
 ship, I, 357 (Fantis) ; i, 367 (sale 
 of land) ; false witness, i, 389 
 (Bab.); bribery, i, 390; neces- 
 sary in sale by slave or a son, i, 
 390; I, 411 (deposit); suit con- 
 cerning slave, I, 453 f . (Gortyn) ; 
 of will, I, 455 (Gortyn) ; in dis- 
 posal of child born after divorce, 
 I, 455 ; partition of estate, i, 457 ; 
 in suretyship, i, 461 ; of summons, 
 
 I, 465 (xii Tab.) ; false, killed, i, 
 467; duties and tests of credi- 
 bility, I, 470 f., 474 f. (Manu); 
 who may be in suit of creditor, i, 
 474 ; who suffers evil within seven 
 days must pay fine, i, 477 ; in 
 boundary dispute, i, 489; cere- 
 mony of affatomie, i, 506 f. (Lex 
 Sal.) ; enforcing debt, i, 507 f. ; 
 woman cannot be, i, 523 (Welsh) ; 
 credibility, i, 525 f. ; nose cut off 
 if testimony false, i, 561 (Egypt) ; 
 slave as, i, 645 (Cicero) ; of deed 
 or contract, i, 680 f. (Bab. Doc.) ; 
 ancient Aryan obligation of truth, 
 
 II, 483 f . ; originally compurga- 
 tors, II, 629 ; Semitic law, ii, 665 
 f . ; proof by, universally used, ii, 
 691; plurality of, ii, 641, 666, 
 695. See Procedure. 
 
INDEX 
 
 705 
 
 Women, laws of Solon, i, 85 ; i, 412 
 f. (Bab.); i, 523 (Welsh); in 
 primitive society, ii, 237 f . ; in 
 civilization, ii, 301 f. See Mar- 
 riage ; Matriarchy ; Polyg- 
 amy. 
 
 Wyandot Indians, i, 279 f. 
 
 Yajnavalkyan Period, jural gen- 
 
 ealogy of loan in, in, 136 f., 140 
 (Mazzarella). 
 Yoosuf, Aboo, III, 423. 
 
 Zadruga, in, 546. 
 Zanetti, iii, 273, 276, 283 f. 
 Zenophon, in, 379. 
 Zimmer, n, 204. 
 Zumpt, III, 430. 
 
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