第38章

One circumstance, however, which it is important to recollect, isthat the men who formed the various political groups werecertainly in the habit of meeting together periodically, for thepurpose of acknowledging and consecrating their association bycommon sacrifices. Strangers amalgamated with the brotherhoodwere doubtless admitted to these sacrifices; and when that wasonce done we can believe that it seemed equally easy, or not moredifficult, to conceive them as sharing in the common lineage. Theconclusion then which is suggested by the evidence is, not thatall early societies were formed by descent from the sameancestor, but that all of them which had any permanence andsolidity either were so descended or assumed that they were. Anindefinite number of causes may have shattered the primitivegroups, but wherever their ingredients recombined, it was on themodel or principle of an association of kindred. Whatever werethe fact, all thought, language, and law adjusted themselves tothe assumption. But though all this seems to me to be establishedwith reference to the communities with whose records we areacquainted, the remainder of their history sustains the positionbefore laid down as to the essentially transient and terminableinfluence of the most powerful Legal Fictions. At some point oftime -- probably as soon as they felt themselves strong enough toresist extrinsic pressure -- all these states ceased to recruitthemselves by factitious extensions of consanguinity. Theynecessarily, therefore, became Aristocracies, in all cases wherea fresh population from any cause collected around them whichcould put in no claim to community of origin. Their sternness inmaintaining the central principle of a system under whichpolitical rights were attainable on no terms whatever exceptconnexion in blood, real or artificial, taught their inferiorsanother principle, which proved to be endowed with a far highermeasure of vitality. This was the principle of local contiguitynow recognised everywhere as the condition of community inpolitical functions. A new set of political ideas came at onceinto existence, which, being those of ourselves, ourcontemporaries, and in great measure of our ancestors, ratherobscure our perception of the older theory which they vanquishedand dethroned.

The Family then is the type of an archaic society in all themodifications which it was capable of assuming; but the familyhere spoken of is not exactly the family as understood by amodern. In order to reach the ancient conception we must give toour modern ideas an important extension and an importantlimitation. We must look on the family as constantly enlarged bythe absorption of strangers within its circle, and we must try toregard the fiction of adoption as so closely simulating thereality of kinship that neither law nor opinion makes theslightest difference between a real and an adoptive connexion. Onthe other hand, the persons theoretically amalgamated into afamily by their common descent are practically held together bycommon obedience to their highest living ascendant, the father,grandfather, or great-grandfather. The patriarchal authority of achieftain is as necessary an ingredient in the notion of thefamily group as the fact (or assumed fact) of its having sprungfrom his loins; and hence we must understand that if there be anypersons who, however truly included in the brotherhood by virtueof their blood-relationship, have nevertheless de facto withdrawnthemselves from the empire of its ruler, they are always, in thebeginnings of law, considered as lost to the family. It is thispatriarchal aggregate -- the modern family thus cut down on oneside and extended on the other which meets us on the threshold ofprimitive jurisprudence. Older probably than the State, theTribe, and the House, it left traces of itself on private lawlong after the House and the Tribe had been forgotten, and longafter consanguinity had ceased to be associated with thecomposition of States. It will be found to have stamped itself onall the great departments of jurisprudence, and may be detected,I think, as the true source of many of their most important andmost durable characteristics. At the outset, the peculiarities oflaw in its most ancient state lead us irresistibly to theconclusion that it took precisely the same view of the familygroup which is taken of individual men by the systems of rightsand duties now prevalent throughout Europe. There are societiesopen to our observation at this very moment whose laws and usagescan scarcely be explained unless they are supposed never to haveemerged from this primitive condition; but in communities morefortunately circumstanced the fabric of jurisprudence fellgradually to pieces, and if we carefully observe thedisintegration we shall perceive that it took place principallyin those portions of each system which were most deeply affectedby the primitive conception of the family. In one all-importantinstance, that of the Roman law, the change was effected soslowly, that from epoch to epoch we can observe the line anddirection which it followed, and can even give some idea of theultimate result to which it was tending. And, in pursuing thislast inquiry, we need not suffer ourselves to be stopped by theimaginary barrier which separates the modern from the ancientworld. For one effect of that mixture of refined Roman law withprimitive barbaric usage, which is known to us by the deceptivename of feudalism, was to revive many features of archaicjurisprudence which had died out of the Roman world, so that thedecomposition which had seemed to be over commenced again, and tosome extent is still proceeding.