第36章

The flocks and herds of the children are the flocks and herds ofthe father, and the possessions of the parent, which he holds ina representative rather than in a proprietary character, areequally divided at his death among his descendants in the firstdegree, the eldest son sometimes receiving a double share underthe name of birthright, but more generally endowed with nohereditary advantage beyond an honorary precedence. A lessobvious inference from the Scriptural accounts is that they seemto plant us on the traces of the breach which is first effectedin the empire of the parent. The families of Jacob and Esauseparate and form two nations; but the families of Jacob'schildren hold together and become a people. This looks like theimmature germ of a state or commonwealth, and of an order ofrights superior to the claims of family relation.

If I were attempting for the more special purposes of thejurist to express compendiously the characteristics of thesituation in which mankind disclose themselves at the dawn oftheir history, I should be satisfied to quote a few verses fromthe Odyssee of Homer :

"They have neither assemblies for consultation nor themistes, butevery one exercises jurisdiction over his wives and his children,and they pay no regard to one another." These lines are appliedto the Cyclops, and it may not perhaps be an altogether fancifulidea when I suggest that the Cyclops is Homer's type of an alienand less advanced civilisation; for the almost physical loathingwhich a primitive community feels for men of widely differentmanners from its own usually expresses itself by describing themas monsters, such as giants, or even (which is almost always thecase in Oriental mythology) as demons. However that may be, theverses condense in themselves the sum of the hints which aregiven us by legal antiquities. Men are first seen distributed inperfectly insulated groups, held together by obedience to theparent. Law is the parent's word, but it is not yet in thecondition of those themistes which were analysed in the firstchapter of this work. When we go forward to the state of societyin which these early legal conceptions show themselves as formed,we find that they still partake of the mystery and spontaneitywhich must have seemed to characterise a despotic father'scommands, but that at the same time, inasmuch as they proceedfrom a sovereign, they presuppose a union of family groups insome wider organisation. The next question is, what is the natureof this union and the degree of intimacy which it involves. It isjust here that archaic law renders us one of the greatest of itsservices and fills up a gap which otherwise could only have beenbridged by conjecture. It is full, in all its provinces, of theclearest indications that society in primitive times was not whatit is assumed to be at present, a collection of individuals. Infact, and in the view of the men who composed it, it was anaggregation of families. The contrast may be most forciblyexpressed by saying that the unit of an ancient society was theFamily, of a modern society the Individual. We must be preparedto find in ancient law all the consequences of this difference.

It is so framed as to be adjusted to a system of smallindependent corporations. It is therefore scanty because it issupplemented by the despotic commands of the heads of households.

It is ceremonious, because the transactions to which it paysregard. resemble international concerns much more than the quickplay of intercourse between individuals. Above all it has apeculiarity of which the full importance cannot be shown atpresent. It takes a view of life whol1y unlike any which appearsin developed jurisprudence. Corporations never die, andaccordingly primitive law considers the entities with which itdeals, i.e. the patriarchal or family groups, as perpetual andinextinguishable. This view is closely allied to the peculiaraspect under which, in very ancient times, moral attributespresent themselves. The moral elevation and moral debasement ofthe individual appear to be confounded with, or postponed to, themerits and offences of the group to which the individual belongs.

If the community sins, its guilt is much more than the sum of theoffences committed by its members; the crime is a corporate act.

and extends in its consequences to many more persons than haveshared in its actual perpetration. If, on the other hand. theindividual is conspicuously guilty, it is his children, hiskinsfolk, his tribesmen, or his fellow-citizens, who suffer withhim, and sometimes for him. It thus happens that the ideas ofmoral responsibility and retribution often seem to be moreclearly realised at very ancient than at more advanced periods,for, as the family group is immortal, and its liability topunishment indefinite, the primitive mind is not perplexed by thequestions which become troublesome as soon as the individual isconceived as altogether separate from the group. One step in thetransition from the ancient and simple view of the matter to thetheological or metaphysical explanations of later days is markedby the early Greek notion of an inherited curse. The bequestreceived by his posterity from the original criminal was not aliability to punishment, but a liability to the commission offresh offences which drew with them a condign retribution; andthus the responsibility of the family was reconciled with thenewer phase of thought which limited the consequences of crime tothe person of the actual delinquent.